- Beck & Herrmann skewer Waxman report on drug tort pre-emption [Drug & Device Law h/t Ted; much more at PoL] #
- Good news, Fed Circuit in Bilski case limits business method patents [AP, Patently-O, Parloff] #
- “Silicon Valley Stands United Against Prop. 8” [TechCrunch] # Not too late to donate against the proposition whether or not you live in California [before you forget] #
- Crash-faking ring in Queens targeted Asian drivers [NY Times] #
- Community Reinvestment Act: bogeyman in housing mess, or unrelated red herring? Truth somewhere in between [Husock, City Journal] #
- “Dopeler Effect” = tendency of stupid ideas to seem smarter when they come at you rapidly [@legalblogger] #
- Going to go as Wall Street and terrify everyone: Happy Hallowe’en. #
Posts Tagged ‘preemption’
Mirapex jackpot justice – literally
Gary Charbonneau had a gambling history, including substantial wins, which devolved into compulsive gambling in 2002. He blames this on his Parkinson’s disease medication, Mirapex, which he started taking in 1997. Mirapex changed its warning label to include reports of a correlation while Charbonneau was taking the drug; Charbonneau’s doctor kept prescribing the drug. Nevertheless, Charbonneau was able to persuade a jury that the failure to warn was what was responsible for his $200,000 gambling losses (much of which came from gambling illegally) and resulting marital troubles. The jury verdict even awarded $8 million in punitive damages, giving a whole new meaning to jackpot justice (though one would expect the trial court to reduce this substantially). The only press coverage of this lawsuit, aside from a handful of blogs (Pharmalot; TortsProf; InjuryBoard), is in an op-ed I wrote for today’s Examiner about the case and about how a Supreme Court case and Congressional legislation could affect it. (Theodore H. Frank, “Jackpot justice gets new meaning,” DC Examiner, Aug. 19).
July 6 roundup
- Beck and Herrmann fisk a NEJM anti-preemption editorial. [Beck/Herrmann; NEJM]
- Lessons of the Grasso case. [Hodak]
- You think BigLaw has it bad? Plaintiffs’ attorney who invented the benefit-of-the-bargain theory for pharmaceutical class actions where no one has suffered any cognizable injury, has made his firm tens of millions, but still hasn’t made partner. “Zigler said he never meets most of the people he represents in these high-profile cases.” [St.L. Post-Dispatch; related analysis from Beck/Herrmann]
- Speaking of harmless lawsuits, “an atrocity in Arkansas,” as Arkansas Supreme Court ignores basic principles of due process and civil procedure to certify an extortionate pre-CAFA class action from MIller County. [Hmm, that’s Beck/Herrmann again; General Motors v. Bryant; related from Greve]
- Speedo competitor: unfair competition to say your innovative swimsuit has an advantage just because 38 out of the last 42 world records (as of June 30) were broken in the suit. [Am Law Daily]
- Background on bogus shower curtain scare story (earlier). [NYT; related AEI event]
- EMTALA-orama: don’t discuss payment in the emergency room if you don’t want to get sued. [ER Stories]
Richard Neely’s lack of irony (III)
You may recall a manufactured dispute over the former West Virginia Justice Richard Neely‘s quote in The Product Liability Mess:
As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else’s money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me.
Pre-emption debate in Chicago Tribune
Economists’ amicus brief in Wyeth v. Levine
I’m proud to be part of the amicus brief in Wyeth v. Levine filed by leading economists John E. Calfee, Ernst R. Berndt, Robert Hahn, Tomas Philipson, Paul H. Rubin, and W. Kip Viscusi. It provides an excellent explanation why FDA preemption is good for consumer safety and health policy, and why failure-to-warn litigation by trial lawyers hurts consumer safety. (You may notice that none of the public-policy arguments against preemption you see in the blogosphere fairly address these economic arguments.)
For everything you could possibly want to know about the Wyeth v. Levine case, do see Beck & Herrmann’s roundup of their excellent posts on the subject, and keep an eye out for their discussion of the top-side briefs undoubtedly coming soon.
March 25 roundup
- Speaking of patients who act against medical advice and sue anyway: doctor who advised against home birth is cleared by Ohio jury in $13 million suit [Plain Dealer and earlier via KevinMD]
- UK: “A feud over a 4ft-wide strip of land has seen neighbours rack up £300,000 in lawyers’ bills, and left one family effectively homeless.” [Telegraph]
- Last of the Scruggs judicial bribery defendants without a plea deal, Dickie’s son Zack, takes one [Folo]
- By reader acclaim: securities trader sues over injury from lap dancer’s attentions [AP/NY Sun]
- Amid the talk of FISA and retroactive telecom immunity, it would be nice to hear more about the actual lawsuits [Obbie]
- Australian worker loses suit over firing despite a doctor’s note vouching that stress of worrying about upcoming football game made it medically necessary for him to take day off to go see it [Stumblng Tumblr]
- Megan McArdle and Tyler Cowen toss around the question of federal FDA pre-emption of drug liability suits, as raised by Medtronic;
- Should Coughlin Stoia have bought those stolen Coke documents? For one lawprof, question’s a real head-scratcher [David McGowan (San Diego), Legal Ethics Forum] And WSJ news side is oddly unskeptical of trial lawyers’ line that the affair just proves their power to go on fishing expeditions should never have been curtailed [Jones/Slater]
- Dashboard-cam caught Tennessee cops red-handed planting marijuana on suspect, or so Jonathan Turley suggests — but could it be a little more complicated than that? [WSMV, AP/WATE] (& Greenfield)
- “Heck Baptists don’t even sue you for disagreeing with them,” though no doubt there are exceptions [Instapundit; NYT on Danish cartoons; Ezra Levant with more on those Canadian speech tribunals]
- Bestselling authors who sue their critics [four years ago on Overlawyered]
Martin Luther King Day… and preemption?
If you’re looking for the most strained use of Martin Luther King, Jr., as a metaphor, look no further than a non sequitur at Bizarro-Overlawyered, where Kia Franklin calls on King’s memory as an argument against preemption. The historically minded will note the irony of invoking King’s name in a defense of states’ rights to subvert federal principles of uniform treatment. For more on preemption, see Greve and Epstein, POL March 2006, and POL on last week’s cert grants in preemption cases.
We’ll talk about King, too, but relate it to something he actually said: “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” See posts Jan. 2007 and Dec. 2006, Heriot @ POL, Jan. 2006, and POL on the Akaka bill. As Chief Justice Roberts noted (and was criticized for noting) in the last term, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
(And update: don’t forget October 2006 on school discipline. Or October 2005 on why the great documentary “Eyes on the Prize” still isn’t available on DVD to the general public.)
The Roberts Court and Liability Reform
The latest AEI Liability Outlook explores my take on the tort reform implications of October Term 2006.
“Rollover Economics: Arbitrary and Capricious Product Liability Regimes”
My latest Liability Outlook for AEI is about the Ford Explorer rollover litigation and what it says about products liability litigation in the US in general:
It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million). Products liability verdicts have become so run-of-the-mill that even nine-digit verdicts and their aftermath receive only local or specialty press coverage, with cursory national coverage. But Buell-Wilson demonstrates much that is wrong with the current liability regime, including the fact that the media is so jaded by litigation abuse that a $368 million verdict is barely newsworthy.
I have a related letter to the editor in the Jan. 1 Legal Times. See also POL Dec. 13, OL Dec. 12, OL Jun. 3, 2004.