Sunday, December 26, 2010

OTHERWISE: Jon Stewart’s Advocacy Role in 9/11 Bill Passage - NYTimes.com

OTHERWISE: Jon Stewart’s Advocacy Role in 9/11 Bill Passage - NYTimes.com
Bill Carter and Brian Stelter in the Times ask:

Did the bill pledging federal funds for the health care of 9/11 responders become law in the waning hours of the 111th Congress only because a comedian took it up as a personal cause?And does that make that comedian, Jon Stewart — despite all his protestations that what he does has nothing to do with journalism — the modern-day equivalent of Edward R. Murrow?
Jon Stewart’s Advocacy Role in 9/11 Bill Passage - NYTimes.com

This is no time for modesty.
You heard it HERE first. On February 4, 2010 I wrote:
Jon Stewart is becoming Edward R. Murrow: the most serious independent television journalist of the moment. He is armed with a comic persona, razor sharp wit, and the analytic skills of a top flight political commentator. 


If the PBS News Hour wants to come out of its torpor they should replace Mark Shields with Jon Stewart, and David Brooks with Andrew Sullivan.

Thursday, December 23, 2010

The 9/11 Zadroga bill is fair enough. - By John Culhane - Slate Magazine

Thoughtful observations on the Zadroga 9/11 responders bill by Widener law prof John Culhane:

Even among those harmed or killed on 9/11, the VCF created unfairness. Because recovery was in large part based on lost wages, the government paid families of Cantor, Fitzgerald employees who died much more than families of firefighters, for example. The VCF's administrator, the ubiquitous Kenneth Feinberg (who is now in charge of the BP Oil Spill Fund), once responded to a question about how he would change the fund by saying: "Pay everyone the same."
Does the new $2.5 billion in the Zadroga Act repeat the same error? No. While Coburn is right to take into account distributive justice by bringing up the deficit, the case for compensation is solid here. Remember that government officials (most notoriously then-EPA Chief Christine Whitman) assured these cleanup workers that the air around Ground Zero was safe to breathe. So this is a stronger case than the one made for the first set of VCF beneficiaries. Perhaps it's enough to say that, where government is the negligent actor, it is fair to make it pay like any private citizen who would be found liable.
Or fairer, anyway. The victims of Katrina and of Oklahoma City will surely continue to ask: What about us?

TortsProf Blog: NY: Golfer Not Liable for Failure to Yell "Fore"

TortsProf Blog: NY: Golfer Not Liable for Failure to Yell "Fore"

Some Questions About the NYAG's Lehman-Related Complaint Against E&Y : The D & O Diary

Commentary from Kevin LaCroix of D &O Diary
Some Questions About the NYAG's Lehman-Related Complaint Against E&Y : The D & O Diary

Wednesday, December 22, 2010

Senate Passes 9/11 Health Bill - NYTimes.com

Sen. Charles Schumer (D-NY)
"The Senate on Wednesday approved a bill to cover the cost of medical care for rescue workers and others who became sick from breathing in toxic fumes, dust and smoke after the 2001 attacks on the World Trade Center.
The vote, passed by unanimous consent, came soon after a deal was reached between conservative Republicans and Senators Charles E. Schumer andKirsten Gillibrand. The New York Democrats agreed to changes demanded by the conservative lawmakers, who raised concerns about the measure’s cost and prevented the bill from advancing in the Senate. After drawing criticism in recent days from Democrats and Republicans alike, the Republican senators backed down.
Under the new agreement, the bill provides $4.3 billion over five years for health coverage to the 9/11 workers, instead of the original $7.4 billion over eight years."
Senate Passes 9/11 Health Bill - NYTimes.com

How Did Republicans End Up Against 9/11 Responders Bill? - NYTimes.com

How Did Republicans End Up Against 9/11 Responders Bill? - NYTimes.com

The answer is ideology.

Andrew Cuomo Sues Ernst & Young Over Lehman Brothers - NYTimes.com

Aiding and Abetting a fraud?
First report of filing
Andrew Cuomo Sues Ernst & Young Over Lehman Brothers - NYTimes.com
The complaint


The Valukas/Jenner & Block  Examiner's Report for the Lehman Brothers Chapter 11 Proceeding


Kevin LaCroix (D & O Diary) comments HERE

Yazoo Citizens' Council Drove Out The Klan Over Strategy, Not Segregation | TPMMuckraker

Yazoo Citizens' Council Drove Out The Klan Over Strategy, Not Segregation | TPMMuckraker

According to John Dittmer in his book Local People: The Struggle For Civil Rights In Mississippi, affluent, powerful white segregationists wanted to keep the Klan down because they thought its violent tactics would hurttheir fight against civil rights.
Dittmer singled out the Yazoo Citizens' Council by name:
The Yazoo City chapter of the Citizens' Council went on record opposing the Klan, adding that "your Citizens' Council was formed to preserve separation of the races, and believes that it can best serve the county where it is the only organization operating in this field."
They followed other prominent Mississippians who were trying to quash a resurgence of the Klan in the wake of the civil rights movement. Sen. John Stennis (D-MS), Dittmer wrote, condemned the Klan thusly:
Senator John Stennis, while not mentioning the Klan by name, condemned the rash of cross burnings, warning that such actions "can only hurt us in our efforts to defeat the [civil rights] bill because it gives our opponents an additional weapon to use against us."

"The Klan was bad for public relations," Todd Moye, an associate professor of history at the University of North Texas and the author of Let the People Decide: Black Freedom and White Resistance Movements in Sunflower County, Mississippi, 1945-1986, tells TPM.
Citizens' Councils "were trying to bring business into the state, and you know the Northerners with capital aren't gonna build factories in the state if they think it's a bunch of yahoos burning crosses," Moye said. "But if these people can maintain the status quo, which was based on Jim Crow segregation -- if they can do that without resorting to those bad publicity stunts -- then that's what they want to do. It's a white supremacist group, there's no question about it."
 

Gov. Barbour’s Dream World - NYTimes.com

The Times editorialized today about Haley Barbour the Mississippi Governor, former leader of the Republican National Committee, wealthy corporate lobbyist, and Presidential aspirant.  Barbour was the subject of a gauzy profile in the Weekly Standard .  He spoke about the civil rights era - it was "not that bad", and lauded the white citizens council as a business men's group in his hometown that kept the Klan at bay (rather than as a central force in resistance to implementation of Brown v. Board of Education."

 “`We were Eastland Democrats,” Haley told me, referring to James O. Eastland, the long-serving U.S. senator, steadfast conservative, committed segregationist'. "  The Standard's reporter - blissfully unaware of the impact of what he had just reported, wrote
What role Yazoo City’s segregationist past might play in Barbour’s presidential campaign is hard to say. It could become an issue, particularly for Washington political reporters who enjoy moralizing about race and public education while sending their own children to progressive schools like Sidwell Friends and St. Albans, where applicants of color are discreetly screened and their numbers carefully regulated.
The Times responded strongly: Barbour's segregationist past will be an issue:

In Gov. Haley Barbour’s hazy, dream-coated South, the civil-rights era was an easy transition for his Mississippi hometown of Yazoo City. As he told the Weekly Standard recently, the Rev. Dr. Martin Luther King Jr. was an unmemorable speaker, and notorious White Citizens Councils protected the world from violent racists.
Perhaps Mr. Barbour, one of the most powerful men in the Republican Party and a potential presidential candidate, suffers from the faulty memory all too common among those who stood on the sidelines during one of the greatest social upheavals in history. It is more likely, though, that his recent remarks on the period fit a well-established pattern of racial insensitivity that raises increasing doubts about his fitness for national office.
Gov. Barbour’s Dream World - NYTimes.com

Saturday, December 18, 2010

Stalled 9/11 Health Bill Wins New Republican Support - NYTimes.com

Kirsten Gillibrand announces that several Republicans have been embarrassed sufficiently to support the Zadroga bill which provides for study, monitoring, and treatment for 9/11 responders who worked on the smoldering ruins and later suffered respiratory system illnesses.

Friday, December 17, 2010

9/11 First Responders React to the Senate Filibuster - The Daily Show with Jon Stewart - 12/16/10 - Video Clip | Comedy Central

9/11 First Responders React to the Senate Filibuster - The Daily Show with Jon Stewart - 12/16/10 - Video Clip | Comedy Central

ThinkProgress » ‘U.S.’ Chamber Of Commerce Lobbied To Help GOP Kill Bill To Provide Health Care To 9/11 First Responders

ThinkProgress » ‘U.S.’ Chamber Of Commerce Lobbied To Help GOP Kill Bill To Provide Health Care To 9/11 First Responders

ThinkProgress » ‘U.S.’ Chamber Of Commerce Lobbied To Help GOP Kill Bill To Provide Health Care To 9/11 First Responders

ThinkProgress » ‘U.S.’ Chamber Of Commerce Lobbied To Help GOP Kill Bill To Provide Health Care To 9/11 First Responders

U.S. sues BP over Gulf Oil Spill

The U.S. Department of Justice has initiated a civil action against BP for the oil spill. Civil penalties range from $5.4 billion to $21 billion.  Criminal prosecution may follow.
Link to CBS News report HERE
Link to complaint for civil penalties HERE
h/t Mass Tort Blog, Main Justice

Faulty DePuy Artificial Hip Points to Broken Implant System - NYTimes.com

As I am wont to say about drugs - post-approval is Phase IV: the mass, poorly controlled, human experiment stage, so with devices like hip implants which, if they are "substantially equivalent" to devices already on the market, or make only minor changes, are subject to minimal FDA review.  Followed, of course, by maximum marketing.
“You are basically testing these devices in an uncontrolled way on a large number of people,” said Dr. Sidney M. Wolfe, the director of the Public Citizen’s Health Research Group and a longtime F.D.A. critic.
Faulty DePuy Artificial Hip Points to Broken Implant System - NYTimes.com

Thursday, December 16, 2010

Prosser on being a law teacher

Dean William L. Prosser
from Volume 1 of the Journal of Legal Education (1948), a lecture by Dean William Prosser on the art, craft, and frustrations of teaching law.  The lighthouse metaphor particularly appeals to me.

Tuesday, December 7, 2010

Topolog: 67 stents, 28 coronary angiograms, and a crippled healthcare system

Eric Topol, MD

Should one man receive this much treatment? Is our private healthcare system out of control? Leading cardiologist Eric Topol asks.
OTHERWISE: 67 stents, 28 coronary angiograms, and a crippled healthcare system

Monday, December 6, 2010

A record: 30 cardiac stents inserted by one doctor in one day

30 cardiac stents inserted in patients in one day, followed by a pig roast paid for by Abbott Labs, the manufacturer. All paid for by Medicare - the necessary and the unnecessary.

It is the patients and the public that are getting roasted. The problem says Steven Nissen, director of Cardiology at Cleveland Clinic, is widespread.
Dr. Mark Midei Faces Suits Over Cardiac Stents - NYTimes.com


Another "failure of the tort system" - if we think it is a regulatory system, which it is not.  As to compensation: that's a problem because he is doubtless insolvent, so how will the patients and Medicare - be compensated for their losses?  


It's a regulatory failure - not a tort system failure.  Who should have oversight duty?  The hospital?  Medicare itself?  State health departments? 

Friday, December 3, 2010

Workers Comp liens - NY & NJ Differ: NY Attorney Malpractice Blog

"The law and its rules changes as a matter of geography. Across the river, rules are completely different. As an example, in NY a workers' compensation carrier may recovery its payments to plaintiff after plaintiff successfullly sues a third-party. As an aside, there are any number of legal malpractice cases in which the attorney failed to obtain the consent of the WC carrier to a 3d party settlement and cost the client dearly. However, in NY the carrier may not recover from a Legal Malpractice recovery due to the negligent handling of a 3d party action. The same is not true in NJ, as we see in:Cambridge Integrated Servs. Group, Inc. v Faber"
New York Attorney Malpractice Blog: Workers' Compensation Liens and Legal Malpractice

The "Destruction of Affordable Fashion Bill" or IDPPPA gets one step closer to becoming Fashion Law : Fashion Law

I thought the Vessel Hull Design Protection Act (1998, renewed 2008) was a bad idea and I think this one is too. I am generally hostile to anti-competitive measures.  Hull designs already had three levels of protection:  1) design patent protection under the Patent Act, 2) trade dress protection under the Lanham Act, and 3) “original design” protection under the Copyright Act.   Fashion designs have these protections too.


Prof. Susan Scafidi
The Innovative Design and Piracy Protection Act would extend the Vessel Hull Design protection to any article of clothing.  Now it  has passed the Judiciary Committee and is ready for a vote in the Senate.  One can only hope that since they can't get the important things done on Capitol Hill  they will find no time to do the unimportant.  As Fashion Law Blog puts it: The "Destruction of Affordable Fashion Bill" or IDPPPA gets one step closer to becoming Fashion Law : Fashion Law



The bill is celebrated by my genuinely chic colleague (and bill prime mover) Susan Scafidi at Counterfeit Chic.    Despite the adequate protection already provided this act would create a protected class so broadly defined that it would prove either useless or vexatious or both:

A ‘fashion design’--
‘(A) is the appearance as a whole of an article of apparel, including its ornamentation; and
‘(B) includes original elements of the article of apparel or the original arrangement or placement of original or non-original elements as incorporated in the overall appearance of the article of apparel that--
‘(i) are the result of a designer’s own creative endeavor; and
‘(ii) provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.

Madoff Trustee Sues JPMorgan for $6.4 Billion - NYTimes.com

This could get very interesting - except that a confidentiality agreement has been struck that keeps even the complaint under seal.  
Madoff Trustee Sues JPMorgan for $6.4 Billion - NYTimes.com

Thursday, December 2, 2010

Excusing of Three Blacks from Jury in Trial of Bias Suit Held Suspect

from the New Jersey Law Journal:

Defense counsel must explain why black potential jurors were peremptorily dismissed at a black employee's wrongful-termination trial, so the judge can decide whether race was a factor, a state appeals court ruled Wednesday.

As it was, the exercise of three of the defense's four peremptory challenges to excuse black women was enough to establish a prima facie case of discriminatory use, the Appellate Division said in Carter v. Laboratory Corporation of America Holdings, A-3337-08.

The court remanded "to allow defense counsel to state the reasons for each of the disputed peremptory challenges" and determine whether those decisions were based on the "constitutionally impermissible grounds of presumed group bias."

Michael Carter, a former LabCorp employee, claimed in his suit against the diagnostic testing company that he was sexually harassed by a female coworker and terminated based on gender discrimination in violation of the state Law Against Discrimination.

During jury selection, Atlantic County Superior Court Judge Nelson Johnson called a sidebar and questioned defense counsel about how many black potential jurors had been dismissed. A defense attorney briefly responded that race had not been a factor.

The record did not show any other objections by Carter or Johnson about the selection process, the panel said, noting that there was some dispute by LabCorp as to whether defense counsel had dismissed two rather than three female potential jurors who were black.

The jury, ultimately consisting of six white males, one white female and one black female, found for LabCorp.

Carter appealed, claiming that the defense used peremptory challenges to excuse three qualified female black jurors in violation of his constitutional right to a fair and impartial jury. A fourth juror excused by the defense, also female, was white.

Appellate Division Judges Ronald Graves and Edwin Stern reversed and remanded the case for defense counsel to "explain the reasons for excluding the potential jurors."

"In the present matter, defense counsel's use of peremptory challenges prompted the trial court to address the issue sua sponte at a sidebar conference," Graves wrote.

He added that "the judge was sufficiently concerned to ask: 'Am I making myself clear?'" after drawing attention to the number of dismissed black jurors.

"Under these circumstances, there was a sufficient showing to establish a prima facie case that discrimination may have infected the jury selection process," Graves said.

He noted that State v. Osorio , 402 N.J. Super. 93 (App. Div. 2008), requires that a party must present enough evidence for a trial judge's inference that discriminatory use of peremptory challenges occurred.

On remand, Carter will have to show by a preponderance of the evidence that defense counsel used its peremptory challenges in a discriminatory manner, the panel noted.

Madeline Sherry of Gibbons in Philadelphia, LabCorp's attorney, deferred comment to Stephen Anderson, the company's vice president of investor relations, who did not return a call.

No appellate counsel appeared for Carter.

John Keefe Jr. of Keefe Bartels in Red Bank, a certified civil trial lawyer, says that while issues of group bias in jury selection do crop up in civil matters, they are more common in criminal proceedings.

"The big issue here is that the court recognizes that peremptory challenges have their limitations," says Keefe, who chairs the New Jersey State Bar Association's Civil Trial Bar Section.
"It's going to be a little bit difficult to go back and make a record this far after the fact," Keefe says of the Carter case, noting that the trial judge might have been exercising an "abundance of caution" in the jury selection process considering it was an LAD case.

Joseph Manzo, a Rockaway solo who regularly tries criminal jury cases, says the appeals decision "makes sense."

"To catch the judge's eye, it seems like there must have been something here" to indicate a questionable use of the challenges, he says.

Manzo adds that it's good practice for trial attorneys, civil or criminal, to make a short note for each potential juror dismissed by peremptory challenge, in case those dismissals are challenged.

Wednesday, December 1, 2010

TortsProf Blog: Guest Blogger Mary Davis: Preemption and Modern Tort Litigation

TortsProf Blog: Guest Blogger Mary Davis: Preemption and Modern Tort Litigation

Final Exam Instructions - Torts - fall 2010



Fordham Law School


Torts (Section 1)
Final Examination Monday December 20, 2010  - Time 9:30 AM - 12:30 PM   Rm 203
Prof. George W. Conk


Instructions


You have three hours to complete this exam.   You must answer all three questions.  I have assigned points - as a rough guide to how much time I think should be spent on each.   I will grade each question but the final grade is an overall assessment of your exam paper, as compared to others in the class.


I suggest that you first read through the complete exam.  (Take a deep breath to shake off the sticker shock, then get back to work.)  While you are answering one question thoughts on the others will simmer on the back burner.  Before you start writing I suggest you make an outline - or sketch out the issues you want to touch.


Each question gives you an opportunity to discuss and apply key concepts in the law of torts and to analyze facts and apply the law to them.  These are essay questions. Therefore good sentence structure, sensible paragraphs, and  readability are important.


Be sure to answer each element of the question asked.


None of the questions specifies a jurisdiction. You can use all available authority to support the result you think that law and justice demand.   Concrete reference to the cases, Restatements, statutes, and other authorities is valuable to clarity of thought and explanation.  But a reference to a rule number or a case by itself is not explanatory.  The key is to state the principle and explain the logic of the position you urge.  The number of the rule or name of the case just shows where you found the idea, or how you know it expresses the law.  The essay should be understandable even without the numbers or case names.


Limited Open Book


The exam is limited open book. You should bring the Franklin, Rabin, Green casebook. You should also bring the outline form slides I have distributed.  (I would tab each chapter).  It will enable a quick search for authorities.   


The cases  and notes following may be of important assistance in forming and structuring your essays. And you should also have available the text of cases assigned by me. 

You may bring your own notes or outlines.


You may not bring any commercial outlines or other texts or treatises.


Use of Authorities


Do Not cite any authorities other than what has been assigned, recommended, cited in class, or posted on the Lexis Blackboard by me. Brief identifying citations are all that is needed, e.g. Rest. § 402A, Greenman v. Yuba Power, Palsgraf, etc. are acceptable forms of citation.  But the Rule number and the case name are not a substitute for stating the proposition you are asserting.  E.G. `There is a product liability claim under 402A.' is opaque.  But “§ 402A has been interpreted to encompass manufacturing, design, and inadequate instruction or warning claims.  Only a design defect claim appears here.” is instructive and is helpful to the reader.


Rhetoric - the Art of Persuasion


Your object is to reason to a conclusion. State your opinions and defend them. A well organized argument, buttressed by reference to authority, which discusses the issues in an informed, critical way, is your goal. 


Be careful to draw only reasonable inferences from the facts presented. If answering a question requires assuming or even adding facts to those provided, be sure to state your additional assumptions. I am looking for an essay characterized by persuasive legal argument (with appropriate authorities noted), for accurate statement of the facts, avoidance of rhetorical hyperbole, and for succinct explanations and use of the logic of the law.


Please place your self in the position contemplated by the question and address the intended recipient (e.g. judge, senior partner, insurance claims manager).  


Think of the reader.  That is who you seek to persuade.  Sentences must end - preferably sooner rather than later.  Paragraphs should be short.   Dense blocks of type are unwelcome.  Verbs should have objects - mostly.  


Good luck.  Have a great holiday.  I hope to see each of you in my classroom again before you graduate from Fordham.


- GWC

Perry v. Schwarzenegger - a 1983 action

Plaintiffs challenge a November 2008 voter-enacted amendment to the California Constitution .  Cal Const Art I, § 7.5.  In its entirety, Proposition 8 provides: “Only marriage between a man and a woman is valid or recognized in California.”  Plaintiffs allege that Proposition 8 deprives them of due process and of equal protection of the laws contrary to the Fourteenth Amendment and that its enforcement by state officials violates 42 USC § 1983.
Perry v. Schwarzenegger704 F. Supp. 2d 921  (N.D. Cal. 2010)

Wednesday, November 24, 2010

Patient Safety Is Not Improving in Hospitals, Study Finds - NYTimes.com

This 1999 study by the Institute of Medicine broke the taboo on  systematic study of medical error

"Efforts to make hospitals safer for patients are falling short, researchers report in the first large study in a decade to analyze harm from medical care and to track it over time.
The study, conducted from 2002 to 2007 in 10 North Carolina hospitals, found that harm to patients was common and that number of incidents did not decrease over time. The most common problems were complications from procedures or drugs and hospital-acquired infections."
Patient Safety Is Not Improving in Hospitals, Study Finds - NYTimes.com

The report of the study published in the New England Journal of Medicine is HERE


In BP Oil Spill, Final Settlement Phase Begins - NYTimes.com

In BP Oil Spill, Final Settlement Phase Begins - NYTimes.com

Friday, November 19, 2010

Ground Zero Workers Agree to Settle Health Lawsuits - NYTimes.com

Ground Zero Workers Agree to Settle Health Lawsuits - NYTimes.com



The  buzz is about the big settlement and how the plaintiffs' lawyers' fees were cut, and how the lawyers had to eat the cost of borrowing the money (contrary to their contracts with their clients).  


Nobody thinks it was illegal to borrow the money and charge the costs against the recovery - Judge Hellerstein just felt he had the authority to exercise unprecedented control.  And did.  I am sympathetic to the "quasi class action" rationale that Judge Weinstein developed in the Zyprexa cases. 467 F. Supp. 2d 256 (December 5, 2006) which Judge Hellerstein adopted to force concessions - mainly by plaintiffs lawyers.


But little ink is spilled by that huge driver of litigation costs: the all-out defense which included 1,200 depositions, and a quarter of the $1 billion fund the U.S. put up.   See my Will the Post 9/11 World be a Post-Tort World?, Penn State Law Review (2007)



Another story that is missed is how low these cases settled.   As the New York Post! pointed out:

At stake is a $1 billion taxpayer fund and as much as $3 billion in liability-insurance coverage, which includes the Port Authority's $600 million and policies held by WTC contractors.
The WTC Captive Insurance Co., a nonprofit governed by Mayor Bloomberg, has managed a $1 billion fund. The money was awarded by Congress to pay claims stemming from the Ground Zero cleanup.
The fund spent $275 million between 2004 and Dec. 31, 2009, on defense lawyers and administrative costs, records obtained by The Post show.
 So contrary to the tale so many tell - the defense lawyers drove up costs - and took no cut.  the plaintiffs' lawyers took risk - and got cut.  And if it was a billion dollar fund and the plaintiffs split $615 million, the defense took $275 million - where is the other $110 million?  Did it go to Medicare and Medicaid liens?  That I need to investigate.

Wednesday, November 10, 2010

Fosamax Lawsuits Question Wide Use of Osteoporosis Drugs - NYTimes.com

Fosamax Lawsuits Question Wide Use of Osteoporosis Drugs - NYTimes.com

Graphic warnings: the FDA's proposed new labels on cigarette packs

HERE are the new graphic warnings.  Ey-catching.  But are they effective?  Adequate?  Compared ot other countries?  Look HERE.
Until 2009 when President Obama signed the Family Smoking Prevention and Tobacco Control Act of 2009 that enabled some FDA regulation the only permitted warnings on cigarettes and in cigarette advertising were those prescribed by statute.  The original warning  was set in the Public Health Cigarette Smoking Act of 1969,  15 U. S. C. §§ 1331-134 which provided: 

WARNING: THE SURGEON GENERAL HAS DETERMINED THAT CIGARETTE SMOKING IS DANGEROUS TO YOUR HEALTH

The 1969 Act of Congress also provided
"No requirement or prohibition based on smoking and health shall be imposed under State law with respect  to the advertising or promotion of any cigarettes the packages of which are [lawfully] labeled."

In 1992 in Cippollone v. Liggett The Supreme Court held that  state product liability could not permit a jury to find that warning inadequate because such a verdict would be a  "requirement" beyond what Congress specified.  Thus all tobacco claims - except for those based on fraud - were preempted by federal law.  No "failure to warn" claims were permitted.

If state tort suits had been permitted for "failure to warn" what obstacles would plaintiffs have faced?

Tuesday, November 2, 2010

"Tort Law and the New Economics of Insurance" by Jay Feinman

Jay Feinman, a Rutgers-Camden law professor is one of the clearest thinkers on the law of torts.  Here he opines on the changes in the insurance business that threaten its role in providing economic security.                                                                                                                    "The economics of insurance creates this potential for opportunism. Every dollar a company does not pay out in claims is a dollar it keeps in profit. Outright denials, reduction of the amounts paid, and using litigation to diminish and deter claims potentially provides a greater benefit to a company than it loses in disappointed customers and a negative reputational effect....
TortsProf Blog: Guest Blogger Jay Feinman: "Tort Law and the New Economics of Insurance"

Thursday, October 28, 2010

Firms Knew of Cement Flaws Before Spill, Panel Says - NYTimes.com

The National Commission on the BP DEEPWATER HORIZON OIL SPILL
AND OFFSHORE DRILLING has issued its first report.  The Times ahs the story:


WASHINGTON — Halliburton knew weeks before the fatal explosion of the Macondo well in the Gulf of Mexico that the cement mixture they planned to use to seal the bottom of the well was unstable but still went ahead with the job, the presidential commission investigating the accident said on Thursday....
Firms Knew of Cement Flaws Before Spill, Panel Says - NYTimes.com

UPDATE: and Halliburton's reply

Wednesday, October 20, 2010

District Judge Denies DADT Stay Sought by U.S.

Jurist reports that Judge Virginia Philips denied the government's motion for a stay of her injunciton forbidding enforcement of the Don't Ask Don't Tell policy enacted by Congress, according to this report on Jurist.


Reports later today are that the 9th Circuit stayed the injunction while it considers the merits:
This court has received appellant's emergency motion to stay the district court's October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented. Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.
It is hard to see how the Circuit could do otherwise.  Compliance with the order would create a complicated situation in which some open homosexuals have been admitted to the military - at risk that the policy will survive, despite the hopes of plaintiffs, Judge Philips, and the Obama administration.  


The Department of Justice filed the appeal and sought a stay saying that though it opposes the DADT policy and seeks its repeal longstanding policy is that the government defends any statute which is susceptible of reasonable defense.  A decision voiding a statute which plainly expresses a plicy declared by Congress is such a law. (See DOJ brief on DADT page)

Tuesday, October 19, 2010

Editorial - The Court’s Pre-emption Test - NYTimes.com



In the Supreme Court last week, oral arguments in a case called Bruesewitz v. Wyeth turned on the meaning of the word “unavoidable,” but the real issue was something much bigger. The case is about whether the family of a girl, who they said was badly injured by a vaccine, can sue the manufacturer in a state court. Or are they barred by a 24-year-old federal law that blocks this sort of lawsuit if “the injury or death resulted from side effects that were unavoidable?” 

That prohibition is called pre-emption, a hot issue in constitutional law because it is at the heart of the balance of power between states and the federal government — the meaning of federalism. At stake is the ability of states to protect their citizens, by regulating health, safety, the environment, and other primary interests and by giving victims of wrongdoing redress in court, as long as a state law doesn’t conflict with a federal law....

Sunday, October 17, 2010

When Drugs Cause Problems They Are Supposed to Prevent - NYTimes.com



When new drugs are approved by the FDA they are compared to placebo: i.e. do they do any good? and does the good they appear to do outweigh the toxic side effects? These approvals are all based on quite small samples, and short time frames. Phase IV follows approval. I call it mass marketing: the poorly controlled mass human experiment stage. That may be too kind. Most of the time there is no systematic study of the actual conditions of use, as I discuss in my 2007 article Punctuated Equilibrium, in which I call for recognition of a duty of product stewardship. 


For new drugs - and for old drugs that have been little monitored - that means recognizing their  experimental nature - even after FDA has approved it as "safe and effective".  Their experimental nature  should lead courts to recognize a corresponding duty of product stewardship - a duty of ongoing active study and product development; a duty of the manufacturer to conduct systematic  active post-approval surveillance of the actual use of the product.


The need for such surveillance is highlighted by our experience with drugs like the diabetes drug Avandia - now virtually banned because it increases the risk of heart attack - the principal killer of diabetics.   FDA now permits its use only if every other drug has failed.  The drug's deleterious effects became known not through company study, nor through FDA surveillance, but rather because a prominent cardiologist Steven Nissen in 2007 raised the hue and cry in the pages of the New England Journal of Medicine.

Similar was the Vioxx experience - an anti-arthritic drug competitive with Aleve that caused heart attacks and lasted only 5 years before it was withdrawn.  The lessons of that experience and the additional powers given the FDA in 2007 are explored here by Margaraet Gilhooley, a former Associate General Counsel at the FDA. 


Since 2007 the FDA has had the power to require post-approval studies - but it still has been  employed only rarely.  The problem of drug safety is particularly acute when drugs  - like Avandia - have been mass marketed and the problems which they cause or exacerbate are the very conditions they are meant to treat, or those from which their intended target is particularly likely to suffer - even without the drug. 


As the article by Gina Kolata in today's  New York Times points out drugs which are used long-term for chronic conditions present particularly difficult problems because the mass use of the drug makes active surveillance an expensive proposition. And only recently approved drugs are even subject to the review power that the FDA gained in 2007.

News Analysis - When Avandia and Other Drugs Cause Problems They Are Supposed to Prevent - NYTimes.com

Friday, October 15, 2010

Medtronic to Settle Sprint Fidelis Defibrillator Suits - NYTimes.com

8,100 claims settled for $268 million - about $33,000 each - in the tort litigation against Medtronic, manufacturer of the defective Fidelis model electrical leads in their ICD's (Implanted cardiac defibrillators).  13 died, others have had their leads removed after failure - in a precarious operation as the leads are embedded in the arteries serving the heart.  Others have leads that may soon fail.


The settlement is at nuisance value because, following the United States Supreme Court's decision in Riegel v. Medtornic courts have concluded that all claims arising form the defective devices are preempted - and barred by federal law.  The FDA in reviewing new devices does not analyse whether an alternative safer design was practical and feasible.  Yet the the Supreme Court ruled 7-2 that the language of 21 USC 360k barred suits because it forbids states to impose requirements that are "different from or in addition to" those imposed by the FDA.  The only state suits that appear to survive Riegel are "parallel" to, not "in addition" to FDA "requirements".


The latest decision - by the 8th circuit in Bryant v. Medtronic dismissed all claims - even the manufacturing defect claims that seemed to have been spared in Riegel.  The 8th Circuit ruling was celebrated by the drug and medical device industry cheerleaders at Dechert's Drug & Device Law blog, where they have long practiced licking the hand that feeds them.


Fortunately for the plaintiffs they were able to salvage some value because Circuit Judge Melloy dissented.  the plaintiffs should have been given the opportunity - after a partial summary judgment grant - to amend their complaint to more specifically allege that there was a manufacturing defect - a departure from the Premarketing Approval requirements of the FDA.  The complaint lacked specificity about the defect the Circuit court held.  But specification was possible only if the plaintiffs obtained through discovery the FDA's otherwise unavailable manufacturing requirements.  The procedural specificity requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) thus provided another obstacle in the already rocky road faced by plaintiffs.


Judge Melloy explained, in dissent:

[T]he parallel state claim that may escape preclusion under § 360k requires the plaintiffs to prove Medtronic failed to manufacture the Sprint Fidelis Leads in compliance with the requirements set forth in the confidential PMA and supplemental PMAs. To apply Twombly rigidly without permitting discovery as to these documents effectively creates an impossible-to-achieve specificity requirement.The combination of the rigid application of Twombly and the now-articulated parallel claim exception to § 360k preemption have, in these cases, led to the dismissal of over two hundred potentially meritorious lawsuits on a technicality.
The real villain is the Congress - and particularly the Republican minority thanks to the 60 vote cloture requirement.  They have blocked H.R. 1346, which would reverse Riegel.