Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Mark Lanier’

Feds: we’ve had it with qui tam gamesmanship

“The U.S. Department of Justice is asking federal judges around the country to dismiss lawsuits it says are brought by shell companies that misrepresent their true purposes – filing meritless litigation against health care companies…. The DOJ says these plaintiffs were created for the sole purpose of filing suit under the federal False Claims Act and is complaining that it spent hundreds of hours investigating kickback allegations only to find no merit to them…. Among the law firms representing the plaintiffs in the cases is the firm of prominent personal injury lawyer Mark Lanier of Texas.” [P. David Yates, Legal NewsLine/Forbes]

“Significant to DOJ’s analysis was the fact that the qui tam relators used ‘false pretenses’ to obtain information from witnesses. According to the government, the actions all were filed by a ‘professional relator’ entity that sought to develop contacts and inside information under the guise of conducting a research study of the pharmaceutical industry, and offering to pay individuals for information provided in a purported ‘qualitative research study,’ even though the information was ‘actually being collected for use in qui tam complaints filed by [the professional relator] through its pseudonymous limited liability companies.’…it would be awkward for DOJ to sit idly by and allow qui tam cases to proceed, in the government’s name—which is how the qui tam system works—when those cases are purportedly premised on a scheme one district court already described as involving ethical violations and ‘an elaborate series of falsehoods, misrepresentation, and deceptive conduct.'” [Joe Metro and Andy Bernasconi, Drug and Device Law]

And yet more: “Prominent qui tam lawyers are now questioning the nomination of William Barr as attorney general, citing comments he made nearly 30 years ago questioning the constitutionality of private relators under the FCA. Some of the lawyers who signed a recent letter to U.S. Sen. Chuck Grassley criticizing Barr, including Harvard Law School Professor Nancy Gertner, participated in litigation against Celgene that the government declined to join but nevertheless generated $280 million in settlements and more than $30 million in legal fees.” [Daniel Fisher, Legal NewsLine/Forbes]

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“Science Favors J&J in Talcum Powder Lawsuits”

For years lawyers have been suing Johnson & Johnson claiming that its baby powder has caused ovarian cancer, a theory that has mostly met with failure in court. This summer, however, a St. Louis jury found liability and ordered the company to pay $4.69 billion, on a related theory that asbestos contaminants in the product (as opposed to talc itself) caused the disease. On December 14 Reuters followed with a lengthy piece laying out, and implicitly siding with, the plaintiff lawyers’ accusations; the piece drew wide publicity, and the company’s shares sank by about $50 billion. Some analysts have written that J&J’s lawsuit payouts on the issue could reach $20 billion.

Now a leading business columnist has explained why he doubts that outcome. “Why? Because whether or not the company’s talcum powder contains asbestos, and whether or not it hid that fact from the public, the science remains firmly on J&J’s side.” [Joe Nocera, Bloomberg] How so? “There is no evidence that women who use talcum powder are any more likely to get ovarian cancer than women who don’t. In both California and New Jersey, judges have tossed out cases on exactly this basis.” So while plaintiffs make the most of their dark imputations of a cover-up, what they haven’t shown is that women who used the baby powder are any more likely to contract cancer than those who did not. Nocera: “And this is one mass tort where I’m convinced the science is going to win.”

Meanwhile, Mark Lanier, the Texas-based lawyer who won the St. Louis verdict, freely agrees that his efforts have helped affect J&J’s stock price. “It serves my purposes as a litigator to say, ‘Yes, get their attention; keep driving the stock down.'” [Matthew J. Belvedere, CNBC] And: “New York’s specialized court for asbestos lawsuits could become a pivotal battleground for litigation over talcum powder as plaintiff lawyers seek to establish a record of wins in a court system known for liberal rules and big jury verdicts.” [Daniel Fisher, Forbes]

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Liability roundup

  • “Lawsuit: Licorice Twizzlers caused man’s heart disease” [WDRB; earlier on dismissal of German lawsuit filed by customer who ate nearly a pound a day of the candy]
  • Empirical study of how personal injury claims are pursued in Great Britain [Richard Lewis, SSRN]
  • How attorney Marc Lanier got that $4.7 billion talc/baby powder verdict [Daniel Fisher, Forbes] “Attorney sees lawyers’ role in judge selection process as helping fuel rise in lawsuits in ‘Sue Me State'” [Devin Watkins on Missouri; Angela Underwood, St. Louis Record]
  • “$12.8M suit filed by estate of man killed in WWII tank blast” [AP]
  • “Stan Chesley’s law firm admits ‘unjust enrichment,’ agrees to $23 million settlement” [Kevin Grasha, Cincinnati Enquirer; earlier]
  • “Sweeping new arbitration study: ‘Enterprising’ plaintiffs’ lawyers adapt” [Alison Frankel, Reuters]

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Fifth Circuit overturns $151 million Mark Lanier verdict

Citing “falsehoods,” “deceptions,” and “inflammatory evidence” on the plaintiff side, Judge Jerry Smith, writing for a Fifth Circuit panel, has overturned a $151 million hip implant verdict won by prominent attorney Mark Lanier against Johnson & Johnson. Reports the ABA Journal:

The court said Lanier had presented father-and-son orthopedic surgeons as unpaid experts, emphasizing their compelling pro bono testimony while contrasting the “bought testimony” of the defendants’ experts. Yet Lanier made a $10,000 charitable donation to the father’s favorite charity before trial, and sent checks totaling $65,000 to the surgeons after the trial along with thank-you notes.

The pretrial donation check and the post-trial payments “are individually troubling, collectively devastating,” Smith wrote. “Lanier’s failure to disclose the donation, and his repeated insistence that [one of the surgeons] had absolutely no pecuniary interest in testifying, were unequivocally deceptive.”

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Medical roundup

  • Academics have underestimated sensitivity of medical system to liability pressures [Michael Frakes, SSRN via TortsProf]
  • “Nobody has gone out and bought a new home” — Mark Lanier talks down his verdict knocking $9 billion out of Takeda and Lilly after two hours of deliberation by a Lafayette, La. jury [Reuters] Japanese drugmaker says it had won three previous trials [ABA Journal]
  • Nursing home in living-up-to-its-name town of West Babylon sued over hiring male strippers to entertain residents [NYP, more (wife of complainant attended display), ABA Journal]
  • “Reining in FDA regulation of mobile health apps” [Nita Farahany, Volokh/WaPo]
  • Another setback for plaintiffs as Arkansas tosses $1.2 billion Risperdal marketing case against Johnson & Johnson [AP/Scottsbluff Star-Herald, Eric Alexander/Drug and Device Law, earlier here and here]
  • “Spacecraft collision injuring occupant”: docs scratch their heads at new revamp to billing codes [Steven Syre, Boston Globe via Future of Capitalism]
  • FDA preclearance, drug litigation: “Most [patients] never know they were harmed, because we never know what we might have had.” [John Stossel]

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Texas: a ploy fails

“Flush with trial lawyer cash, the PAC’s public face is ‘Texans 4 Justice,’ which portrays itself as a conservative grassroots group.” It didn’t work: Texas GOP primary voters yesterday returned incumbent Supreme Court justices. [Texas Observer, Houston Chronicle, earlier]

Related: Plaintiff’s lawyer Steve Mostyn, “omnipresent” in Austin, and his involvement with “Conservative Voters of Texas” [Chamber-backed Legal NewsLine]

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Politics roundup

  • John Lott Jr. argues in new book that judicial-nominations system is broken; responses from Michael Teter, Clint Bolick, John McGinnis [Cato Unbound]
  • “Weaponized IRS” meets Administration’s political needs at cost of future public trust [Glenn Reynolds, USA Today]
  • “For some time, however, cause lawyers have moved in and out of government, thus complicating the traditional picture of lawyer-state opposition.” [Douglas Nejaime, “Cause Lawyers Inside the State,” SSRN via Legal Ethics Forum]
  • Gun rights: public opinion has changed over the decades in a big way [Bryan Caplan, Steven Greenhut]
  • “Mostyn Law Firm donates $1 million to help Wendy Davis in Texas governor’s race” [Washington Examiner, New Republic] Plaintiff’s bar supporting GOP primary challenges to Texas Supreme Court incumbents Phil Johnson, Jeff Brown, and Chief Justice Nathan Hecht [TLR] More: Legal NewsLine (Mark Lanier Law Firm largely funding challengers)
  • Nassau’s Kathleen Rice: “Anti-Corruption Panel Co-Chair Receives Big Donations From Sheldon Silver’s Law Firm” [Ken Lovett, NYDN]
  • Rule of thumb: a political party leans libertarian in proportion to the number of years since it last held the White House [Orin Kerr]
  • Dept. of Justice indicts a prominent Obama critic on campaign finance charge [Ira Stoll; more above]

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May 12 roundup

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Mark Lanier’s 2010 Christmas party

After appearing on a television program with him a couple of months ago, I received an invitation to Mark Lanier’s Christmas party (special guest Sting):
Mark Lanier Christmas party ferris wheel invitation

The non-transferable invitation consists of a booklet with a password; and, most strikingly, a metal wind-up toy Ferris wheel, about seven inches in diameter. (I have not investigated whether the Ferris wheel is CPSIA-compliant.)

Should I go? I’m charmed by the hospitality, but I don’t have a date, and, moreover, it’s kind of blood Christmas cheer. (On the other hand, in the words of a former CCAF attorney, “Think of it as a modest tort tax refund.”)

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October 5 roundup

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