TORTS TODAY - course materials & news for Torts, Business Torts, Product Liability, and Remedies students of George Conk at Fordham Law School gconk@law.fordham.edu
Tuesday, August 11, 2015
Legal clouds over E~cigarette industry
https://casetext.com/posts/legal-clouds-gather-over-e-cigarette-industry
California Actos case embraces 2.0 relative risk standard
Where there is no identifiable marker for causal relationship between a drug and a harm circumstantial proof - the differential etiology, rule out method is usually relied upon. Here an industry lawyer celebrates a California case which goes against the flow, reversing a large verdict against Takeda in favor of a patient who used its anti-diabetes drug Actos. - GWC
California Actos case: 2.0 Relative Risk Proof Demanded
by Nathan Schactman
A recent decision of the California Court of Appeal, Second District, Division Three, continues the dubious state and federal practice of deciding important issues under cover of unpublished opinions. Cooper v. Takeda Pharms. America, Inc., No. B250163, 2015 Cal. App. Unpub. LEXIS 4965 (Calif. App., 2nd Dist., Div. 3; July 16, 2015). In Cooper, plaintiff claimed that her late husband's bladder cancer was caused by defendant's anti-diabetic medication, Actos (pioglitazone). The defendant moved to strike the expert witness testimony in support of specific causation. The trial judge expressed serious concerns about the admissibility of plaintiff's expert witnesses on specific causation, but permitted the trial to go forward. After a jury returned its verdict in favor of plaintiff, the trial court entered judgment for the defendants, on grounds that the plaintiff lacked admissible expert witness testimony.
Although a recent, large, well-conducted study[1] failed to find any meaningful association between pioglitazone and bladder cancer, there were, at the time of trial, several studies that suggested an association. Plaintiff's expert witnesses, epidemiologist Dr. Alfred Neugut and bladder oncologist Dr. Norm Smith interpreted the evidence to claim a causal association, but both conceded that there were no biomarkers that allowed them to attribute Cooper's cancer to pioglitazone. The plaintiff also properly conceded that identifying a cause of the bladder cancer was irrelevant to treating the disease. Cooper, 2015 Cal. App. Unpub. LEXIS 4965, at *13. Specific causation was thus determined by the so-called process of differential etiology, with the ex ante existence of risk substituting for cause, and using risk exposure in the differential analysis.
California Actos case: 2.0 Relative Risk Proof Demanded
by Nathan Schactman
A recent decision of the California Court of Appeal, Second District, Division Three, continues the dubious state and federal practice of deciding important issues under cover of unpublished opinions. Cooper v. Takeda Pharms. America, Inc., No. B250163, 2015 Cal. App. Unpub. LEXIS 4965 (Calif. App., 2nd Dist., Div. 3; July 16, 2015). In Cooper, plaintiff claimed that her late husband's bladder cancer was caused by defendant's anti-diabetic medication, Actos (pioglitazone). The defendant moved to strike the expert witness testimony in support of specific causation. The trial judge expressed serious concerns about the admissibility of plaintiff's expert witnesses on specific causation, but permitted the trial to go forward. After a jury returned its verdict in favor of plaintiff, the trial court entered judgment for the defendants, on grounds that the plaintiff lacked admissible expert witness testimony.
Although a recent, large, well-conducted study[1] failed to find any meaningful association between pioglitazone and bladder cancer, there were, at the time of trial, several studies that suggested an association. Plaintiff's expert witnesses, epidemiologist Dr. Alfred Neugut and bladder oncologist Dr. Norm Smith interpreted the evidence to claim a causal association, but both conceded that there were no biomarkers that allowed them to attribute Cooper's cancer to pioglitazone. The plaintiff also properly conceded that identifying a cause of the bladder cancer was irrelevant to treating the disease. Cooper, 2015 Cal. App. Unpub. LEXIS 4965, at *13. Specific causation was thus determined by the so-called process of differential etiology, with the ex ante existence of risk substituting for cause, and using risk exposure in the differential analysis.
Nocera~NFL's Bogus Settlement for Brain Damaged Veteran Players
N.F.L.’s Bogus Settlement for Brain-Damaged Former Players http://nyti.ms/1gvqvtr
Monday, August 10, 2015
Participation and Procedure - Alexandra Lahav
The elementary model of the attorney client relationship is principal-agent. But the tort system serves a larger function - it provides recourse for wrongs. And particularly in personal injury cases the wrong is very personal. Yet aggregation of cases - a practical necessity - changes the negotiating lawyer into a broker for many, diluting the attorney-client bond. The lawyer becomes a principal, the client a commodity. Alexandra Lahav explores the issues. - gwc
Participation and Procedure by Alexandra D. Lahav :: SSRN
Abstract
How much participation should a procedurally just court system offer litigants? This question has always been especially difficult to answer in complex litigation such as class actions and mass torts because these cases involve so many litigants that it would be impossible for each of them to be afforded the kind of individualized hearing that we associate with the day in court ideal. To address the problem, we need to go back to first principles and ask what purposes participation in litigation is meant to serve. Participation serves two purposes: as a predicate to litigant consent and to engage public reason. This Article, written for the Clifford Symposium honoring Judge Jack Weinstein, argues that the public reason rationale offers the best normative underpinning for participation in large-scale litigation and demonstrates how public reason can be realized through procedural innovations such as those Judge Weinstein has pioneered.
Participation and Procedure by Alexandra D. Lahav :: SSRN
Abstract
How much participation should a procedurally just court system offer litigants? This question has always been especially difficult to answer in complex litigation such as class actions and mass torts because these cases involve so many litigants that it would be impossible for each of them to be afforded the kind of individualized hearing that we associate with the day in court ideal. To address the problem, we need to go back to first principles and ask what purposes participation in litigation is meant to serve. Participation serves two purposes: as a predicate to litigant consent and to engage public reason. This Article, written for the Clifford Symposium honoring Judge Jack Weinstein, argues that the public reason rationale offers the best normative underpinning for participation in large-scale litigation and demonstrates how public reason can be realized through procedural innovations such as those Judge Weinstein has pioneered.
Sunday, August 9, 2015
A new civil rights movement?
'Things will never be the same': the oral history of a new civil rights movement
http://gu.com/p/4bc2z?CMP=Share_AndroidApp_Blogger
Graphic ~minorities stuck in poor neighborhoods
Many Minority Families Stuck in Poor Neighborhoods Despite Housing Voucher Program http://nyti.ms/1MTXiGg
Housing segregation in st. Louis a year after Ferguson
A Year After Ferguson, Housing Segregation Defies Tools to Erase It http://nyti.ms/1T9Xnd5
Wednesday, August 5, 2015
Victory for Texas Voters: 5th Circuit Appeals Upholds Ruling Blocking Texas Photo ID Law | Brennan Center for Justice
Victory for Texas Voters: Appeals Court Upholds Ruling Blocking Photo ID Law | Brennan Center for Justice
Texas voters scored a major victory today when the Fifth Circuit Court of Appeals found the state’s restrictive photo ID requirement violated Section 2 of the Voting Rights Act. The ruling means Texas’s ID law, the strictest in the country, was found invalid by a third federal court. The Court also sent the case back down to the district court for further consideration of the claim that the law intentionally discriminates against minority voters.
In October 2014, following a lengthy trial, U.S. District Judge Nelva Gonzales Ramos struck down Texas’s strict photo ID law on the grounds that the Texas legislature enacted the law with the purpose of discriminating against minority voters. According to Judge Ramos’s ruling, the ID requirement denied African Americans and Latinos the same opportunity as white voters to cast a ballot, in violation of Section 2 of the Voting Rights Act, and imposed unconstitutional burdens on the right to vote. She also found approximately 608,470 registered voters do not have the kind of photo ID required under Texas’s law. Texas appealed the ruling, and the law was allowed to stand and disenfranchise voters during the November 2014 election while the appeal was pending. But today, the Fifth Circuit Court of Appeals upheld Judge Ramos’s decision that the law violated Section 2 of the Voting Rights Act.
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