"Sponsored research" continues to be controversial. The topic will be squarely addressed next spring in a Friday March 20, 2009 session of the Defense Research Institute's annual seminar on toxic tort litigation. The full DRI seminar agenda is here, and the session is as described as follows:
Meddling with Science—Is Scientific Research
Manipulated for Purposes of Litigation or Regulation?
Plaintiffs’ lawyers claim that corporations protect their profits
by suppressing or influencing scientific and medical research and
information. Defense lawyers fight what they call “junk science”
offered by plaintiffs’ experts and environmental activists. Do
scientists who participate as experts in litigation tamper with
or improperly influence scientific investigation to bolster the
prosecution or defense of claims in litigation? Do corporations
underwrite research simply to cast doubt on the claims of
environmental advocates and the plaintiffs’ bar, or are they
interested in legitimate research that may rebut unwarranted
claims? Two scientists at the center of this contentious dialogue
will engage in a lively debate.
Speakers are:
David Michaels, Ph.D., MPH, George Washington University
School of Public Health and Health Services, Washington, D.C.
Dennis J. Paustenbach, Ph.D., CIH, DABT, ChemRisk Inc.,
San Francisco, California
Friday, December 12, 2008
Thursday, December 11, 2008
Future Seminar Session on Science Driving Changes in Tort Law
A continuing topic of this blog is exploration of the ways that advances in science will change tort litigation tactics and may change tort law rules. The topic will be squarely addressed next spring in a Friday March 20, 2009 session of the Defense Research Institute's annual seminar on toxic tort litigation. The speaker is the well-known and always interesting Dennis Paustenbach. The full DRI seminar agenda is here, and the session is as described as follows:
Toxicogenetics and Toxicogenomics—Science
Fiction or the Future of Toxic Torts?
The genetic revolution is here and has the potential to transform
toxic tort law as we know it. From biomarkers
to DNA microarrays to individualized genetic testing, there
are technical and scientific advances being made that have
the potential to alter the way in which toxic tort causation
is established. Dr. Paustenbach will dispel the myths and
explain the realities about genomics and toxic torts.
Dennis J. Paustenbach, Ph.D., CIH, DABT, ChemRisk Inc.,
San Francisco, California
Toxicogenetics and Toxicogenomics—Science
Fiction or the Future of Toxic Torts?
The genetic revolution is here and has the potential to transform
toxic tort law as we know it. From biomarkers
to DNA microarrays to individualized genetic testing, there
are technical and scientific advances being made that have
the potential to alter the way in which toxic tort causation
is established. Dr. Paustenbach will dispel the myths and
explain the realities about genomics and toxic torts.
Dennis J. Paustenbach, Ph.D., CIH, DABT, ChemRisk Inc.,
San Francisco, California
Tuesday, December 2, 2008
Sponsored Research - The Conundrum
What to do with sponsored research - take it at face value, disregard it completely, or use it subject to considering whether to reduce its weight due to the sponsorship (assuming the sponsorship is disclosed). The debate today ranges across a wide spectrum of information sources and decision-makers.
Of note yesterday, an NYT article by Reed Abelson reports that the Cleveland Clinic announced plans to make disclosure of all payments from drug companies and other sources. According to the article:
"It appears to be the first such step by a major medical center to disclose the industry relationships of individual doctors. And it comes as the nation’s doctors and hospitals are under mounting pressure to address potential financial conflicts of interest that can occur when they work closely with companies to develop and research new drugs and devices.
The Cleveland Clinic’s Web postings are the most recent part of a conflict-of-interest effort at the clinic after some of its leading doctors came under fire several years ago when the news media disclosed some of their financial links."
On the topic more generally, one good source for general reading is a cogent New York Times article by Adam Liptak regarding the Exxon Valdez case and its footnote 17 regarding the Court's refusal to rely on research sponsored by Exxon. Titled From One Footnote, a Debate Over the Tangles of Law, Science and Money," the article also details a like ruling by Judge Weinstein in a drug class action.
The sponsored research topic also is being aired through symposia, such as Cornell sponsoring a symposium on Empirical Legal Studies (agenda here). There also is a good blog devoted to Empirical Legal Studies.
Of note yesterday, an NYT article by Reed Abelson reports that the Cleveland Clinic announced plans to make disclosure of all payments from drug companies and other sources. According to the article:
"It appears to be the first such step by a major medical center to disclose the industry relationships of individual doctors. And it comes as the nation’s doctors and hospitals are under mounting pressure to address potential financial conflicts of interest that can occur when they work closely with companies to develop and research new drugs and devices.
The Cleveland Clinic’s Web postings are the most recent part of a conflict-of-interest effort at the clinic after some of its leading doctors came under fire several years ago when the news media disclosed some of their financial links."
On the topic more generally, one good source for general reading is a cogent New York Times article by Adam Liptak regarding the Exxon Valdez case and its footnote 17 regarding the Court's refusal to rely on research sponsored by Exxon. Titled From One Footnote, a Debate Over the Tangles of Law, Science and Money," the article also details a like ruling by Judge Weinstein in a drug class action.
The sponsored research topic also is being aired through symposia, such as Cornell sponsoring a symposium on Empirical Legal Studies (agenda here). There also is a good blog devoted to Empirical Legal Studies.
Monday, December 1, 2008
Tort Law & Insurance - How Much CGL Insurance Still Really Exists for Novel Risks ???
Much of the strict liability theory taught in law school in 1980-1983, and still today, invoked a rationale of risk-spreading, and assumed that manufacturers could and would purchase CGL insurance to spread the risk of loss. Risk-spreading of course makes sense, and most individuals will acknowledge that there it is difficult to articulate a moral and rationale basis for insisting that some limited number of unfortunate individuals should alone bear the physical, financial and emotional harms caused by defective products (at least when there is real harm and a real defect).
That said, tort theory needs to reflect the reality that the actual availability of CGL insurance does not always exist, and seems to continue to shrink. Non-availability of coverage dates back to the so-called "pollution exclusions" inserted in the 1970s and 1980s, and then the "asbestos exclusions" that became common in the mid-1980s.
Two recent articles highlight the further shrinkage of CGL coverage. The first is an article by David Lenckus in the December 1, 2008 issue of Business Insurance. Its gist is that CGL insurance is now being significantly limited by some insurers by using terms that preclude coverage for later-acquired operations, at least when the operations are not exactly the same as the current operations. Terms of this sort may well may life tougher for the M & A world.
The second is a blog article from PorterWright regarding insurers starting to issue exclusions that preclude coverage for harms arising from nano particles. Exclusions are being issued because some studies indicate that the risks associated with nano particles may equal or exceed the risks associated with the various types of asbestos fibers.
Article 1
Curb on CGL coverage creeping into market
By DAVE LENCKUS
Dec. 01, 2008
Restrictive commercial general liability insurance policies that are moving into the admitted market worry some experts that more policyholders with tough risks—particularly construction contractors—could unexpectedly find themselves with limited CGL coverage.
Experts also are concerned about the coverage the policies provide, because some critical coverage terms are linked to an insurance industry database that is modified periodically and is not directly accessible by risk managers.
Unlike traditional CGL policies, which provide broad coverage for claims arising from a policyholder's operations—except for excluded risks—the restrictive policies contain an endorsement with a "classification limitation" of operations that underwriters will cover.
Those endorsements are contained in the declaration pages of policies, which otherwise follow the traditional CGL policy language developed by the Insurance Services Office Inc. of Jersey City, N.J. However, ISO did not develop the classification endorsement, a spokeswoman said.
Under the policies, if a policyholder adds operations without notifying its underwriter, or if the policyholder's current operations do not fit squarely within the classification limitations, then related losses would not be covered, experts said.
Policyholders also could not expect insurers to provide a defense against those claims, noted Joe Underwood, a senior consultant with Albert Risk Management Consultants in Needham, Mass.
Such policies are common in the surplus lines market but have now begun to creep into admitted coverage, potentially leaving some buyers with less coverage than they thought they had, experts say.
Nonadmitted insurers have been writing the restrictive CGL coverage for construction risks for a few years, said Bruce MacDonald, also a senior consultant with Albert Risk Management.
And John DiBiasi, president, excess and surplus lines for XL America Inc. in Exton, Pa., said XL America writes the restrictive coverage for many other tough risks, including real estate ventures.
But policyholder attorney Kevin Connolly, a partner with Anderson Kill & Olick P.C. in New York, said he first saw policies from more than one insurer with the endorsements in the past few months and that the policies have not "carried the stamp of a nonadmitted carrier."
An XL America standard lines market subsidiary, Greenwich Insurance Co. in Stamford, Conn., writes CGL policies with the restrictive coverage, according to documents that Business Insurance obtained. Greenwich is admitted in all 50 states.
An XL America spokeswoman did not know how long Greenwich had been writing the coverage.
But several brokers at major brokerages said they had seen the restrictive coverage only in the surplus lines market.
Major change
The classification endorsement "turns the CGL policy upside down," Mr. Connolly asserted.
A CGL policy "should be covering everything you do, unless there's fraud in the policy application," said John Lubatti, an Atlanta-based senior vp in the casualty practice at Willis HRH, a unit of Willis Group Holdings Ltd.
XL America's Mr. DiBiasi disagreed. The classification limitations include all of the typical operations in which a policyholder would be involved, he said. But the limitations protect an insurer from being drawn into covering operations it never wanted to insure, he said.
Mr. Connolly said the endorsement is so unusual that policyholders were unaware of it until after he had conducted routine policy reviews at the outset of construction projects.
"That's 100% true," Mr. MacDonald said. "That's the principal part of the concern of this type of endorsement." He said he has encountered the endorsement when construction project owners have retained him to review contractors' coverage that would name the owners as additional insureds. Contractors often did not realize their coverage was restricted, he said.
Buyers of surplus lines coverage typically have their "antennae up" for unusual endorsements, but risk managers do not expect such coverage limitations from admitted market insurers, Willis HRH's Mr. Lubatti said.
XL America's Mr. DiBiasi asserted that buyers should either carefully read all of their policies or hold their brokers accountable for explaining their coverage.
Experts say another problem with the restrictive policies is that they do not give policyholders the flexibility to adjust their insurance to cover all operations.
With traditional CGL policies, an insurer typically conducts a premium audit and then requires a policyholder that adds operations during its policy period to pay additional premium to cover those operations, risk experts say.
Under the more restrictive policies, however, a policyholder with operations not covered by its policy is not given that opportunity, Mr. DiBiasi and other experts explained.
Mr. DiBiasi said the premium audit process should not force insurers to cover any risk.
But understanding what operations are and are not covered is somewhat challenging for policyholders, experts said. The policies do not clearly spell out which operations are covered in the "classification limitation," they said.
Instead, the policies refer policyholders to an ISO database for additional information, but that database is not open to policyholders. Policyholders could ask their brokers for that information, because brokers have access to the database, experts noted.
Still, experts raised concerns about insurers linking policyholder coverage to a database in which definitions of covered operations could be modified between a policy's inception date and the time a claim is filed. A modification could leave a policyholder with no coverage for operations that originally were covered, they said.
"We have to trust the insurance company to do the right thing when a claim comes in," said Mr. Connolly, the policyholder attorney.
XL America's Mr. DiBiasi said, "The policy stands as it was issued and will be handled for claims on the basis as it was issued even years after the fact."
He added that "ISO changes apply only to policies going forward and only if a specific company adopts the change."
That said, tort theory needs to reflect the reality that the actual availability of CGL insurance does not always exist, and seems to continue to shrink. Non-availability of coverage dates back to the so-called "pollution exclusions" inserted in the 1970s and 1980s, and then the "asbestos exclusions" that became common in the mid-1980s.
Two recent articles highlight the further shrinkage of CGL coverage. The first is an article by David Lenckus in the December 1, 2008 issue of Business Insurance. Its gist is that CGL insurance is now being significantly limited by some insurers by using terms that preclude coverage for later-acquired operations, at least when the operations are not exactly the same as the current operations. Terms of this sort may well may life tougher for the M & A world.
The second is a blog article from PorterWright regarding insurers starting to issue exclusions that preclude coverage for harms arising from nano particles. Exclusions are being issued because some studies indicate that the risks associated with nano particles may equal or exceed the risks associated with the various types of asbestos fibers.
Article 1
Curb on CGL coverage creeping into market
By DAVE LENCKUS
Dec. 01, 2008
Restrictive commercial general liability insurance policies that are moving into the admitted market worry some experts that more policyholders with tough risks—particularly construction contractors—could unexpectedly find themselves with limited CGL coverage.
Experts also are concerned about the coverage the policies provide, because some critical coverage terms are linked to an insurance industry database that is modified periodically and is not directly accessible by risk managers.
Unlike traditional CGL policies, which provide broad coverage for claims arising from a policyholder's operations—except for excluded risks—the restrictive policies contain an endorsement with a "classification limitation" of operations that underwriters will cover.
Those endorsements are contained in the declaration pages of policies, which otherwise follow the traditional CGL policy language developed by the Insurance Services Office Inc. of Jersey City, N.J. However, ISO did not develop the classification endorsement, a spokeswoman said.
Under the policies, if a policyholder adds operations without notifying its underwriter, or if the policyholder's current operations do not fit squarely within the classification limitations, then related losses would not be covered, experts said.
Policyholders also could not expect insurers to provide a defense against those claims, noted Joe Underwood, a senior consultant with Albert Risk Management Consultants in Needham, Mass.
Such policies are common in the surplus lines market but have now begun to creep into admitted coverage, potentially leaving some buyers with less coverage than they thought they had, experts say.
Nonadmitted insurers have been writing the restrictive CGL coverage for construction risks for a few years, said Bruce MacDonald, also a senior consultant with Albert Risk Management.
And John DiBiasi, president, excess and surplus lines for XL America Inc. in Exton, Pa., said XL America writes the restrictive coverage for many other tough risks, including real estate ventures.
But policyholder attorney Kevin Connolly, a partner with Anderson Kill & Olick P.C. in New York, said he first saw policies from more than one insurer with the endorsements in the past few months and that the policies have not "carried the stamp of a nonadmitted carrier."
An XL America standard lines market subsidiary, Greenwich Insurance Co. in Stamford, Conn., writes CGL policies with the restrictive coverage, according to documents that Business Insurance obtained. Greenwich is admitted in all 50 states.
An XL America spokeswoman did not know how long Greenwich had been writing the coverage.
But several brokers at major brokerages said they had seen the restrictive coverage only in the surplus lines market.
Major change
The classification endorsement "turns the CGL policy upside down," Mr. Connolly asserted.
A CGL policy "should be covering everything you do, unless there's fraud in the policy application," said John Lubatti, an Atlanta-based senior vp in the casualty practice at Willis HRH, a unit of Willis Group Holdings Ltd.
XL America's Mr. DiBiasi disagreed. The classification limitations include all of the typical operations in which a policyholder would be involved, he said. But the limitations protect an insurer from being drawn into covering operations it never wanted to insure, he said.
Mr. Connolly said the endorsement is so unusual that policyholders were unaware of it until after he had conducted routine policy reviews at the outset of construction projects.
"That's 100% true," Mr. MacDonald said. "That's the principal part of the concern of this type of endorsement." He said he has encountered the endorsement when construction project owners have retained him to review contractors' coverage that would name the owners as additional insureds. Contractors often did not realize their coverage was restricted, he said.
Buyers of surplus lines coverage typically have their "antennae up" for unusual endorsements, but risk managers do not expect such coverage limitations from admitted market insurers, Willis HRH's Mr. Lubatti said.
XL America's Mr. DiBiasi asserted that buyers should either carefully read all of their policies or hold their brokers accountable for explaining their coverage.
Experts say another problem with the restrictive policies is that they do not give policyholders the flexibility to adjust their insurance to cover all operations.
With traditional CGL policies, an insurer typically conducts a premium audit and then requires a policyholder that adds operations during its policy period to pay additional premium to cover those operations, risk experts say.
Under the more restrictive policies, however, a policyholder with operations not covered by its policy is not given that opportunity, Mr. DiBiasi and other experts explained.
Mr. DiBiasi said the premium audit process should not force insurers to cover any risk.
But understanding what operations are and are not covered is somewhat challenging for policyholders, experts said. The policies do not clearly spell out which operations are covered in the "classification limitation," they said.
Instead, the policies refer policyholders to an ISO database for additional information, but that database is not open to policyholders. Policyholders could ask their brokers for that information, because brokers have access to the database, experts noted.
Still, experts raised concerns about insurers linking policyholder coverage to a database in which definitions of covered operations could be modified between a policy's inception date and the time a claim is filed. A modification could leave a policyholder with no coverage for operations that originally were covered, they said.
"We have to trust the insurance company to do the right thing when a claim comes in," said Mr. Connolly, the policyholder attorney.
XL America's Mr. DiBiasi said, "The policy stands as it was issued and will be handled for claims on the basis as it was issued even years after the fact."
He added that "ISO changes apply only to policies going forward and only if a specific company adopts the change."
Tuesday, November 18, 2008
New Asbestos Claims - in Korea
Popular wisdom has it that that the types of tort litigation we have in the US are abhorred by the rest of the world. The reality, however, is that the world is changing, as is evidenced by today's news including an article from the Mainiachi Daily News regarding the filing of two new asbestos claims in Korea. The full text is set out below.
_________________________________________________________________
Bereaved families of 2 South Koreans sue firms over asbestos deaths
SEOUL -- The bereaved families of two South Korean residents who died from mesothelioma after living near a factory producing asbestos have filed a damages suit against three parties including Nichias Corp., it has emerged.
In the suit filed at the Busan district court, plaintiffs demanded companies including Tokyo-based Nichias Corp. pay 200 million won (about 14 million yen) each in compensation.
It is the first time that local residents near an asbestos factory have filed a damages suit in South Korea. Local environmentalist groups and former residents near the factory have also joined hands in seeking relief measures.
The plant -- an asbestos spinning factory -- was run by Jeil Asbestos (present-day Jeil E&S), which was jointly established by Nippon Asbestos (forerunner of Nichias) and a South Korean company near Busan city hall in 1971. The plant continued to operate until 1992.
One of the male victims was living 900 meters away from the factory for seven years in the 1980s and subsequently died in 2006 from mesothelioma at age 44. The other victim was living 2.1 kilometers away from the factory for four years during the 1970s and died in 2002 from mesothelioma at age 62.
On Nov. 13 this year, their bereaved families sued Nippon Asbestos and Jeil E&S, as well as the South Korean government for "failing to take measures to improve the factory."
According to the complaint, the plaintiffs claim that Nichias established the joint venture while knowing the toxicity of asbestos but concealed it from the public.
"Nichias moved (its operations) to Busan after regulations against asbestos particulates were strengthened in Japan and it became difficult to produce asbestos in the country. The company now also operates plants in Indonesia and other Third World countries. We want to prevent the spread of pollution exports through the suit," said a representative of a Busan-based environmental group supporting the plaintiffs.
A representative of Nichias said, "We have not received the complaint and have not confirmed the suit. Those involved in the joint venture have already retired and we do not know the details."
In a related development in December last year, the Daegu district court in South Korea ordered Jeil E&S to pay 158 million won in compensation to a female former employee of its Busan factory who died from mesothelioma. The court case has subsequently prompted a series of damages suits against the company by its former employees.
Click here for the original Japanese story
(Mainichi Japan) November 18, 2008
_________________________________________________________________
Bereaved families of 2 South Koreans sue firms over asbestos deaths
SEOUL -- The bereaved families of two South Korean residents who died from mesothelioma after living near a factory producing asbestos have filed a damages suit against three parties including Nichias Corp., it has emerged.
In the suit filed at the Busan district court, plaintiffs demanded companies including Tokyo-based Nichias Corp. pay 200 million won (about 14 million yen) each in compensation.
It is the first time that local residents near an asbestos factory have filed a damages suit in South Korea. Local environmentalist groups and former residents near the factory have also joined hands in seeking relief measures.
The plant -- an asbestos spinning factory -- was run by Jeil Asbestos (present-day Jeil E&S), which was jointly established by Nippon Asbestos (forerunner of Nichias) and a South Korean company near Busan city hall in 1971. The plant continued to operate until 1992.
One of the male victims was living 900 meters away from the factory for seven years in the 1980s and subsequently died in 2006 from mesothelioma at age 44. The other victim was living 2.1 kilometers away from the factory for four years during the 1970s and died in 2002 from mesothelioma at age 62.
On Nov. 13 this year, their bereaved families sued Nippon Asbestos and Jeil E&S, as well as the South Korean government for "failing to take measures to improve the factory."
According to the complaint, the plaintiffs claim that Nichias established the joint venture while knowing the toxicity of asbestos but concealed it from the public.
"Nichias moved (its operations) to Busan after regulations against asbestos particulates were strengthened in Japan and it became difficult to produce asbestos in the country. The company now also operates plants in Indonesia and other Third World countries. We want to prevent the spread of pollution exports through the suit," said a representative of a Busan-based environmental group supporting the plaintiffs.
A representative of Nichias said, "We have not received the complaint and have not confirmed the suit. Those involved in the joint venture have already retired and we do not know the details."
In a related development in December last year, the Daegu district court in South Korea ordered Jeil E&S to pay 158 million won in compensation to a female former employee of its Busan factory who died from mesothelioma. The court case has subsequently prompted a series of damages suits against the company by its former employees.
Click here for the original Japanese story
(Mainichi Japan) November 18, 2008
Wednesday, November 12, 2008
Asbestos Litigation - Will the UK Reinstate Compensation for Pleural Plaques ?
How should governments and courts decide/define when persons have a condition that should warrant payment of compensation through tort claims or through government agency programs ? The question is relevant in many settings, but the issues I know best relate to asbestos litigation. The question is presently the subject of discussion in a variety of jurisdictions and contexts.
Issues of this sort are under discussion in the UK. There, asbestos-related cancers are increasing significantly, and so are lawsuits seeking damages for the cancers. Paying compensation for cancer is easy to understand in many instances. However, some groups want to go further. Thus, some constituencies are urging the UK government (Britain and Wales, for this purpose) to use legislation to change recent case law so that payments may or will be paid to persons who can be deemed to have a condition known as "pleural plaques." Plaques are marks on a lining outside the lung, and the plaques are markers of past asbestos inhalation, but do not cause any impairment except, perhaps, in unique circumstances.
These issues arise because the House of Lords issued an opinion holding that common law compensation was not payable, concluding in essene that plaques do not constitute an injury. Subsequently, the UK Ministry of Justice issued a 9 July 2008 "Consultation" paper asking for views on whether the UK government should use legislation to allow or facilitate payment of compensation to persons with pleural plaques. The UK Consultation paper is a lengthy document setting out information about the issues, and five possible alternatives for government action, with a cost estimate for each of the five proposals. The government's Consultation paper is available online at: http://www.justice.gov.uk/publications/cp1408.htm.
Many papers were submitted on both sides of the issues, and the collection will be posted here as time permits. For now, I've posted online an image of the paper I submitted in opposition to the two most extreme aspects of the proposals set out in the Consultation paper.
The UK Government is expected to submit a reply to all the papers, and the reply is expected during November 2008.
Issues of this sort are under discussion in the UK. There, asbestos-related cancers are increasing significantly, and so are lawsuits seeking damages for the cancers. Paying compensation for cancer is easy to understand in many instances. However, some groups want to go further. Thus, some constituencies are urging the UK government (Britain and Wales, for this purpose) to use legislation to change recent case law so that payments may or will be paid to persons who can be deemed to have a condition known as "pleural plaques." Plaques are marks on a lining outside the lung, and the plaques are markers of past asbestos inhalation, but do not cause any impairment except, perhaps, in unique circumstances.
These issues arise because the House of Lords issued an opinion holding that common law compensation was not payable, concluding in essene that plaques do not constitute an injury. Subsequently, the UK Ministry of Justice issued a 9 July 2008 "Consultation" paper asking for views on whether the UK government should use legislation to allow or facilitate payment of compensation to persons with pleural plaques. The UK Consultation paper is a lengthy document setting out information about the issues, and five possible alternatives for government action, with a cost estimate for each of the five proposals. The government's Consultation paper is available online at: http://www.justice.gov.uk/publications/cp1408.htm.
Many papers were submitted on both sides of the issues, and the collection will be posted here as time permits. For now, I've posted online an image of the paper I submitted in opposition to the two most extreme aspects of the proposals set out in the Consultation paper.
The UK Government is expected to submit a reply to all the papers, and the reply is expected during November 2008.
Monday, November 3, 2008
Europe's REACH Regulations for Chemicals - Small and Mid-Sized US Companies Should Avoid Missing the December 1, 2008 Deadline for Registration
Lawyer friends from Europe (Hans-Josef Vogel) and the States (Dan Hull) tell me that many small and mid-sized American companies are not paying enough attention to the vast impact of Europe's new REACH regulations that apply to entities that send or import "substances" into the EU. "Substances" mainly means "chemicals" but is much broader in application since it applies to items such as incense or candles that involve chemical reactions produced by fire. So, in an article just published in Corporate Counsel magazine, I touched on the topic to try to help get the word out for those not yet paying attention to REACH and its important December 1 deadline to "register." The benefit of registering now is that it gives registered companies a chance to save potentially a lot of money down the line by avoiding regulatory hoops and instead being allowed to "piggyback" on information submitted by the large chemical companies and other.
For more specifics, go to the link above for "Hanjo's" law firm and search on REACH (yes, they have English versions), or click on the following link for a summary article explaining REACH and the rules regarding registration. Messrs. Gerhold and Roeder of the firm are the resident experts.
http://www.avocado-law.com/index.php?id=199&tx_ttnews[backPid]=119&tx_ttnews[day]=25&tx_ttnews[month]=10&tx_ttnews[tt_news]=705&tx_ttnews[year]=2007&cHash=97edacf350
For more specifics, go to the link above for "Hanjo's" law firm and search on REACH (yes, they have English versions), or click on the following link for a summary article explaining REACH and the rules regarding registration. Messrs. Gerhold and Roeder of the firm are the resident experts.
http://www.avocado-law.com/index.php?id=199&tx_ttnews[backPid]=119&tx_ttnews[day]=25&tx_ttnews[month]=10&tx_ttnews[tt_news]=705&tx_ttnews[year]=2007&cHash=97edacf350
Saturday, November 1, 2008
Go Vote - Extreme Views in Politics and Tort Litigation - We Need "Better"
With election day in the US just 2 days away, this is a plea to all to get out and vote on Tuesday, if it's not already done.
This also seems an appropriate time to comment that it seems plain that both politics and tort litigation tend to inspire extreme views, generally to the detriment of society.
Our presidential campaign this year has been marked by ads and extremist emails too often filled with either outright lies or distortions of small nuggets of truth. On top of that come blatantly extreme attacks on each contender's personal life and views. I'll add my voice to the many who are asking for "better" from our politician and parties.
Sad to say, the same is too often true for discussion of tort litigation issues. Extreme views in tort litigation are illustrated by articles built around extreme cases instead of in depth looks at the overall facts. Extreme attacks on individuals are illustrated by comments posted beneath a Wall Street Journal blog post that noted the much too young death of Fred Baron, a very successful but sometimes controversial plaintiff's lawyer who spent decades on asbestos litigation, with his early work shaped and informed by his work related to cases arising from an infamously dirty place commonly known as the Tyler Texas pipe plant. In my view, debate about tort litigation issues also needs "better" than extremism.
This also seems an appropriate time to comment that it seems plain that both politics and tort litigation tend to inspire extreme views, generally to the detriment of society.
Our presidential campaign this year has been marked by ads and extremist emails too often filled with either outright lies or distortions of small nuggets of truth. On top of that come blatantly extreme attacks on each contender's personal life and views. I'll add my voice to the many who are asking for "better" from our politician and parties.
Sad to say, the same is too often true for discussion of tort litigation issues. Extreme views in tort litigation are illustrated by articles built around extreme cases instead of in depth looks at the overall facts. Extreme attacks on individuals are illustrated by comments posted beneath a Wall Street Journal blog post that noted the much too young death of Fred Baron, a very successful but sometimes controversial plaintiff's lawyer who spent decades on asbestos litigation, with his early work shaped and informed by his work related to cases arising from an infamously dirty place commonly known as the Tyler Texas pipe plant. In my view, debate about tort litigation issues also needs "better" than extremism.
Update - Canada Adopts A Position of Silence on Chrysotile Asbestos Exports
A prior post here noted that Canadian scientists recently criticized the Canadian government for continuing to support global sales of chrysotile asbestos fibers. The industry historically was very valuable for Canada in terms of jobs, taxes and revenues - the mining itself is graphically shown in a wonderful McCord Museum set of online photos of miners and the mines that show abysmal safety practices.
According to a front page Globe and Mail article on October 31, 2008, Canada took a formal position of silence this past week at proceedings under the Rotterdam convention to decide whether chrysotile asbestos fibers should be added to a list of the world's most dangerous substances and thereby banned to a large degree. In past years, Canada actively spoke against adding chrysotile to the list. The net result was the same because the convention calls for consensus, which was not achieved since nations such as Pakistan and India oppose the ban. Those nations are among many in which asbestos-cement board remains a popular building product despite hazards that may arise if good work practices are not used when the material is cut or destroyed. Cement board is a strong building material used for many roofs and walls in countries that lack trees and/or the infrastrcuture needed for lumber for use for building materials, and is flexible enough that scrpas of it were molded into a giant penguin shown here because of concerns about the asbestos in it.
This outcome is major disappointment to groups such as the International Ban Asbestos Secretariat that has worked for over a decade to obtain a global ban on asbestos fiber sales.
According to a front page Globe and Mail article on October 31, 2008, Canada took a formal position of silence this past week at proceedings under the Rotterdam convention to decide whether chrysotile asbestos fibers should be added to a list of the world's most dangerous substances and thereby banned to a large degree. In past years, Canada actively spoke against adding chrysotile to the list. The net result was the same because the convention calls for consensus, which was not achieved since nations such as Pakistan and India oppose the ban. Those nations are among many in which asbestos-cement board remains a popular building product despite hazards that may arise if good work practices are not used when the material is cut or destroyed. Cement board is a strong building material used for many roofs and walls in countries that lack trees and/or the infrastrcuture needed for lumber for use for building materials, and is flexible enough that scrpas of it were molded into a giant penguin shown here because of concerns about the asbestos in it.
This outcome is major disappointment to groups such as the International Ban Asbestos Secretariat that has worked for over a decade to obtain a global ban on asbestos fiber sales.
Wednesday, October 29, 2008
Global Litigation Complicated by Various Jurisdictions Having Unique Evidence and Discovery Rules - Illinois' "Wacky" Rules on Depositions
As tort litigation becomes increasingly global, there is a need to know at least something about rules around the globe for collecting evidence and testimony. Many rules are more or less the same, but unique rules in particular jurisdictions present both pitfalls and opportunties. A goal is to identity some of the rules as an occasional topic for this blog.
To start, here's a link to a wonderful August 25, 2008 National Law Journal article on Illinois' "wacky rules" for depositions. The basic wackiness is that Illinois law specifies two flavors for depositions - evidence and discovery, with the latter seldom useable at trial. The substantive and humourous article is by Jerry Solovy and Bob Byman, two of Jenner & Block's many excellent trial lawyers. The article is found in full text on Jenner & Block's website.
To start, here's a link to a wonderful August 25, 2008 National Law Journal article on Illinois' "wacky rules" for depositions. The basic wackiness is that Illinois law specifies two flavors for depositions - evidence and discovery, with the latter seldom useable at trial. The substantive and humourous article is by Jerry Solovy and Bob Byman, two of Jenner & Block's many excellent trial lawyers. The article is found in full text on Jenner & Block's website.
Tuesday, October 28, 2008
Federal Judge Bars Corporate Defendant from Using Paid Google Link Related to Online Search for Information on Events Related to Ongoing Trial
The battles to shape public and others opinions related to litiagtion now include battles waged on the Internet using blogs, paid links and other teqchniques described by Richard Levick in his 2008 book on communcations strategies, as mentioned in a prior post of this blog on October 8. 2008. Now, there's a new and concrete example of this battle, including a judicial ruling on a litigant (Chevron) which used a paid Google link to direct information to persons who turn to a Google search as the means to searcg the Internet for information about the Chevron litigation.
The example arises from Chevron's ongoing trial invovling tort claims arising from its actions in Nigeria. The judge who issued the opinion is a well-regarded federal judge who once represented plaintiffs while in private practice, but who also has unhesitatingly ruled for defendants in "mass tort" cases. So, the ruling may carry a bit more than the usual clout for a trial court ruling. The full text of the Law.com article is pasted below.
__________________________________________________________
Judge: Chevron Must Remove Paid Google Link Tied to Search of Plaintiff's NameDan Levine10-28-2008
A widely watched trial over Chevron's Nigerian operations featured a new online frontier Monday in the battle to influence the hearts and minds of potential jurors.
While imposing a general gag order, Northern District of California Judge Susan Illston ordered Chevron to take down a paid Google link sponsored by the company. Plaintiffs objected to the link, which directed Internet surfers to a Chevron-created Web site that provided information about the incident at issue in trial.
The company placed the link to appear when anyone Googled the name of the lead plaintiff, Larry Bowoto, plaintiffs argued. "This new advertising strategy was launched just after the jury pool learned the names of the parties," wrote lead plaintiff attorney Dan Stormer of Hadsell Stormer Keeny Richardson & Renick.
In court Monday, defense attorney Robert Mittelstaedt of Jones Day defended the sponsorship, pointing out that nine of the first 10 Google search results for the lead plaintiff's name produced Web pages friendly to Bowoto.
"Are they sponsored links?" Illston asked.
Mittelstaedt said he didn't think so, and the judge indicated that that's what concerned her.
"To me, that's as sure a thing as giving a statement to the press," Illston said. When Mittelstaedt responded that Chevron was "way behind," the judge cut him off.
"Way behind in fighting the case in the press? We're not going to fight the case in the press," she said, adding that plaintiffs would be forbidden from participating in rallies or protests surrounding the case.
A group of Nigerian plaintiffs assert wrongful death and torture, among other claims, against Chevron for events that took place in May 1998. According to the plaintiffs, a group of villagers took over a Chevron oil platform in order to peacefully protest the company's operations in the country. The oil giant called Nigerian military forces, which shot multiple people.
However, the San Ramon, Calif.-based company argues the protest was actually a violent hostage taking. The company should not be liable for calling in the authorities to deal with an act of lawlessness, its lawyers argue.
The gag order dispute occurred immediately prior to jury selection in the case. Plaintiffs asked for the entire jury pool to be dismissed, but Illston rejected that remedy. In general, corporations have a First Amendment right to participate in public debates, said Robert Varian, an Orrick, Herrington & Sutcliffe partner who is not involved in the case. While some commercial speech -- like product pricing -- is held to a lower First Amendment standard, Varian said broader statements enjoy greater protection. "The interesting question is, when a company like Chevron -- particularly in litigation -- is being criticized, and it responds, how do you deal with that?" he said.
Plaintiffs had criticized Chevron over its broader, image-related marketing practices, including banner ads in the San Francisco Chronicle and billboards. Illston refused to prohibit those practices. She did gag all attorneys and parties from making any statements to the press for the duration of trial.
Stormer questioned jurors about Chevron's ads during voir dire, and he received varying responses. One man said that in his mind, Chevron would start a little bit ahead because of the ads. Another woman stated that the ads merely demonstrated Chevron had a lot of money to buy ads. Neither made it onto the jury.
Opening statements are slated to start today before the seven-man, two-woman panel.
The example arises from Chevron's ongoing trial invovling tort claims arising from its actions in Nigeria. The judge who issued the opinion is a well-regarded federal judge who once represented plaintiffs while in private practice, but who also has unhesitatingly ruled for defendants in "mass tort" cases. So, the ruling may carry a bit more than the usual clout for a trial court ruling. The full text of the Law.com article is pasted below.
__________________________________________________________
Judge: Chevron Must Remove Paid Google Link Tied to Search of Plaintiff's NameDan Levine10-28-2008
A widely watched trial over Chevron's Nigerian operations featured a new online frontier Monday in the battle to influence the hearts and minds of potential jurors.
While imposing a general gag order, Northern District of California Judge Susan Illston ordered Chevron to take down a paid Google link sponsored by the company. Plaintiffs objected to the link, which directed Internet surfers to a Chevron-created Web site that provided information about the incident at issue in trial.
The company placed the link to appear when anyone Googled the name of the lead plaintiff, Larry Bowoto, plaintiffs argued. "This new advertising strategy was launched just after the jury pool learned the names of the parties," wrote lead plaintiff attorney Dan Stormer of Hadsell Stormer Keeny Richardson & Renick.
In court Monday, defense attorney Robert Mittelstaedt of Jones Day defended the sponsorship, pointing out that nine of the first 10 Google search results for the lead plaintiff's name produced Web pages friendly to Bowoto.
"Are they sponsored links?" Illston asked.
Mittelstaedt said he didn't think so, and the judge indicated that that's what concerned her.
"To me, that's as sure a thing as giving a statement to the press," Illston said. When Mittelstaedt responded that Chevron was "way behind," the judge cut him off.
"Way behind in fighting the case in the press? We're not going to fight the case in the press," she said, adding that plaintiffs would be forbidden from participating in rallies or protests surrounding the case.
A group of Nigerian plaintiffs assert wrongful death and torture, among other claims, against Chevron for events that took place in May 1998. According to the plaintiffs, a group of villagers took over a Chevron oil platform in order to peacefully protest the company's operations in the country. The oil giant called Nigerian military forces, which shot multiple people.
However, the San Ramon, Calif.-based company argues the protest was actually a violent hostage taking. The company should not be liable for calling in the authorities to deal with an act of lawlessness, its lawyers argue.
The gag order dispute occurred immediately prior to jury selection in the case. Plaintiffs asked for the entire jury pool to be dismissed, but Illston rejected that remedy. In general, corporations have a First Amendment right to participate in public debates, said Robert Varian, an Orrick, Herrington & Sutcliffe partner who is not involved in the case. While some commercial speech -- like product pricing -- is held to a lower First Amendment standard, Varian said broader statements enjoy greater protection. "The interesting question is, when a company like Chevron -- particularly in litigation -- is being criticized, and it responds, how do you deal with that?" he said.
Plaintiffs had criticized Chevron over its broader, image-related marketing practices, including banner ads in the San Francisco Chronicle and billboards. Illston refused to prohibit those practices. She did gag all attorneys and parties from making any statements to the press for the duration of trial.
Stormer questioned jurors about Chevron's ads during voir dire, and he received varying responses. One man said that in his mind, Chevron would start a little bit ahead because of the ads. Another woman stated that the ads merely demonstrated Chevron had a lot of money to buy ads. Neither made it onto the jury.
Opening statements are slated to start today before the seven-man, two-woman panel.
Monday, October 20, 2008
Politics, Torts, Policy and Risk - Canadian Medical Association Takes a Stand on the Asbestos Use Exampple
The Canadian Medical Association has come out with an editorial, described here, that calls on Canada to join with other countries to further regulate "asbestsos" exports. The topic is of interest in Canada because its been a major exporter of asbestos for decades, and so the fibers produce jobs, corporate profits and tax revenue. The issue is in part caused by disputes about how safe or unsafe are the various types of asbestos fibers and their various end uses. The topic is relevant here because a recurrent issue in tort litigation no doubt will be whether and how health standards and practices in one country should effect what happens in another country or be applied in different countries.
The same issues also arise for politicans, as illustrated by the article. In the US, the issue has arisen during the US presidential election through Senator Obama has called for further and/or additional enforcement of terms intended to protect workers and "the environment" against processess that are not deemed as safe as practices in the US. Some have called it that a good idea, and others call it "protectionism." Some would say that it is short-sighted if the US and other "developed" economies do not push or "nudge" others to move towards less risky practices. Otherwise, it seems that industry is receiving a subsidy in the form of allowing it to undertake operations known not to be "safe." That said, others argue that the US should "let the free market" work and not "interfere."
Lots of room for debate in this area, and it will be interesting to see what happens.
The same issues also arise for politicans, as illustrated by the article. In the US, the issue has arisen during the US presidential election through Senator Obama has called for further and/or additional enforcement of terms intended to protect workers and "the environment" against processess that are not deemed as safe as practices in the US. Some have called it that a good idea, and others call it "protectionism." Some would say that it is short-sighted if the US and other "developed" economies do not push or "nudge" others to move towards less risky practices. Otherwise, it seems that industry is receiving a subsidy in the form of allowing it to undertake operations known not to be "safe." That said, others argue that the US should "let the free market" work and not "interfere."
Lots of room for debate in this area, and it will be interesting to see what happens.
Saturday, October 18, 2008
Illinois Supreme Court Finally Adopts the Risk Utility Test for Design Defect Product Liability Cases
Finally, it has happened. The following article says it all:
http://www.chicagolawbulletin.com/news/gettoctext.cfm?TOCUID=22758779
By Stephanie Potter Law Bulletin staff writer
The Illinois Supreme Court on Friday set new ground rules for the method of proof in design-defect cases, and in so ruling granted a new trial to two car companies that were hit with a $27 million verdict to the family of a man killed in a high-speed, rear-end collision.
At issue in the case was the relationship between the two tests that can be used by plaintiffs to prove their case in strict-liability design-defect cases: the consumer-expectations test and the risk-utility test.
The consumer-expectations test asks whether the product failed to perform as safely as an ordinary consumer would expect when used in its intended manner. The risk-utility test asks whether the harm could have been avoided by the adoption of a reasonable alternative design and incorporates a number of factors, including the consumer's expectations.
Writing for the court in a 42-page opinion, Justice Rita B. Garman said both tests can be used by plaintiffs in strict-liability design-defect cases in order to prove a product is unreasonably dangerous. However, if the defendant presents evidence under the risk-utility test, that test is determinative because the consumer-expectations test is incorporated into it. In this case, Garman wrote, defendants Ford Motor Co. and Mazda Motor Corp. are entitled to a new trial because they presented evidence of risk-utility and requested a jury instruction on it, but were refused by Cook County Circuit Judge James P. Flannery Jr.
''In sum, we hold that both the consumer-expectation test and risk-utility test continue to have their place in our law of strict product liability based on design defect,'' Garman wrote. ''Each party is entitled to choose its own method of proof, to present relevant evidence, and to request a corresponding jury instruction. If the evidence is sufficient to implicate the risk-utility test, the broader test, which incorporates the factor of consumer expectations, is to be applied by the trier of fact.''
In so ruling, the high court rejected a request by attorneys for the defendants to adopt the risk-utility test as the sole method of proof in strict-liability design-defect cases involving complex products.
Justice Thomas L. Kilbride did not participate in the ruling. Chief Justice Thomas R. Fitzgerald dissented in part, saying he believed the defendants' proposed non-pattern jury instructions were flawed and that Flannery did not abuse his discretion in declining to give them to the jury.
Plaintiff Connie Mikolajczyk sued the car companies after her husband, James, suffered fatal head injuries when his Ford Escort was struck from behind by a drunk-driver. James Mikolajczyk was stopped at a red-light when the driver, William Timberlake, plowed into him at 60 mph, the opinion said. The Mikolajczyks' then 10-year-old daughter also was injured in the February 2000 wreck.
The suit alleged that James Mikolajczyk died because of the driver's side seat collapsed when the car was rear-ended, causing him to be propelled backward and strike his head on the backseat of the car. The seat was designed by Mazda, the opinion said.
At trial, the car companies argued the ''yielding'' seat used in the Escort would be safer than a rigid seat during certain types of accidents. They contend that jurors presented with an instruction on the risk-utility test could have weighed the evidence of risks, benefits and alternative designs and found in favor of the car companies, the opinion said.
However, Garman wrote in summarizing the defense argument, being presented only with the consumer-expectation test in a case involving a fatal accident raised the risk that the jury might have ''done 'rough-justice' based on their sympathy for the tragic death of a young husband and father, without considering, for example, the evidence that 99.6 percent of the cars on the road at that time were equipped with yielding seats.''
Because of its ruling ordering a new trial, it also did not take up a key issue in the 1st District Appellate Court's ruling affirming the verdict finding the defendants liable.
The appeals court had upheld the $2 million award to Connie Mikolajczyk for loss of money, goods and services, but found the $25 million loss of society award was excessive.
Plaintiff attorney Bruce R. Pfaff of Pfaff & Gill Ltd. was disappointed in the ruling and planned to seek rehearing. Pfaff maintains that the ruling wrongly strips plaintiffs of control over their theory of the case. He said Flannery could not have predicted the high court's change in the law when trial was held more than three years ago.
Nevertheless, he said he would try the case again if necessary, and expected to prevail.
''I received the kindest e-mail from my clients expressing their faith in us and our work and telling us to keep on, and naturally we will,'' Pfaff said.
Pfaff tried the case with Michael T. Gill.
Attorneys for the defendants also were confident they would prevail at a new trial.
''We think the improper jury instructions were a substantial contributing factor to the verdict against Ford in the case,'' said Scott P. Glauberman of Winston & Strawn LLP.
Also representing the defendants were Bruce R. Braun and a number of other attorneys from Winston & Strawn LLP, as well as Karen Kies DeGrand and Mark H. Boyle, both of Donohue, Brown, Mathewson & Smyth LLC.
Amici briefs were filed for the defendants by the Products Liability Advisory Council Inc., the Illinois Manufacturers' Association, the National Association of Manufacturers, the Illinois Association of Defense Trial Counsel, and the Alliance of of Automobile Manufacturers, Inc. The Illinois Trial Lawyers Association filed a brief in support of the plaintiff's position.
Connie Mikolajczyk etc. v. Ford Motor Co., et al., No. 104893. In other decisions issued Friday, the Supreme Court:
http://www.chicagolawbulletin.com/news/gettoctext.cfm?TOCUID=22758779
By Stephanie Potter Law Bulletin staff writer
The Illinois Supreme Court on Friday set new ground rules for the method of proof in design-defect cases, and in so ruling granted a new trial to two car companies that were hit with a $27 million verdict to the family of a man killed in a high-speed, rear-end collision.
At issue in the case was the relationship between the two tests that can be used by plaintiffs to prove their case in strict-liability design-defect cases: the consumer-expectations test and the risk-utility test.
The consumer-expectations test asks whether the product failed to perform as safely as an ordinary consumer would expect when used in its intended manner. The risk-utility test asks whether the harm could have been avoided by the adoption of a reasonable alternative design and incorporates a number of factors, including the consumer's expectations.
Writing for the court in a 42-page opinion, Justice Rita B. Garman said both tests can be used by plaintiffs in strict-liability design-defect cases in order to prove a product is unreasonably dangerous. However, if the defendant presents evidence under the risk-utility test, that test is determinative because the consumer-expectations test is incorporated into it. In this case, Garman wrote, defendants Ford Motor Co. and Mazda Motor Corp. are entitled to a new trial because they presented evidence of risk-utility and requested a jury instruction on it, but were refused by Cook County Circuit Judge James P. Flannery Jr.
''In sum, we hold that both the consumer-expectation test and risk-utility test continue to have their place in our law of strict product liability based on design defect,'' Garman wrote. ''Each party is entitled to choose its own method of proof, to present relevant evidence, and to request a corresponding jury instruction. If the evidence is sufficient to implicate the risk-utility test, the broader test, which incorporates the factor of consumer expectations, is to be applied by the trier of fact.''
In so ruling, the high court rejected a request by attorneys for the defendants to adopt the risk-utility test as the sole method of proof in strict-liability design-defect cases involving complex products.
Justice Thomas L. Kilbride did not participate in the ruling. Chief Justice Thomas R. Fitzgerald dissented in part, saying he believed the defendants' proposed non-pattern jury instructions were flawed and that Flannery did not abuse his discretion in declining to give them to the jury.
Plaintiff Connie Mikolajczyk sued the car companies after her husband, James, suffered fatal head injuries when his Ford Escort was struck from behind by a drunk-driver. James Mikolajczyk was stopped at a red-light when the driver, William Timberlake, plowed into him at 60 mph, the opinion said. The Mikolajczyks' then 10-year-old daughter also was injured in the February 2000 wreck.
The suit alleged that James Mikolajczyk died because of the driver's side seat collapsed when the car was rear-ended, causing him to be propelled backward and strike his head on the backseat of the car. The seat was designed by Mazda, the opinion said.
At trial, the car companies argued the ''yielding'' seat used in the Escort would be safer than a rigid seat during certain types of accidents. They contend that jurors presented with an instruction on the risk-utility test could have weighed the evidence of risks, benefits and alternative designs and found in favor of the car companies, the opinion said.
However, Garman wrote in summarizing the defense argument, being presented only with the consumer-expectation test in a case involving a fatal accident raised the risk that the jury might have ''done 'rough-justice' based on their sympathy for the tragic death of a young husband and father, without considering, for example, the evidence that 99.6 percent of the cars on the road at that time were equipped with yielding seats.''
Because of its ruling ordering a new trial, it also did not take up a key issue in the 1st District Appellate Court's ruling affirming the verdict finding the defendants liable.
The appeals court had upheld the $2 million award to Connie Mikolajczyk for loss of money, goods and services, but found the $25 million loss of society award was excessive.
Plaintiff attorney Bruce R. Pfaff of Pfaff & Gill Ltd. was disappointed in the ruling and planned to seek rehearing. Pfaff maintains that the ruling wrongly strips plaintiffs of control over their theory of the case. He said Flannery could not have predicted the high court's change in the law when trial was held more than three years ago.
Nevertheless, he said he would try the case again if necessary, and expected to prevail.
''I received the kindest e-mail from my clients expressing their faith in us and our work and telling us to keep on, and naturally we will,'' Pfaff said.
Pfaff tried the case with Michael T. Gill.
Attorneys for the defendants also were confident they would prevail at a new trial.
''We think the improper jury instructions were a substantial contributing factor to the verdict against Ford in the case,'' said Scott P. Glauberman of Winston & Strawn LLP.
Also representing the defendants were Bruce R. Braun and a number of other attorneys from Winston & Strawn LLP, as well as Karen Kies DeGrand and Mark H. Boyle, both of Donohue, Brown, Mathewson & Smyth LLC.
Amici briefs were filed for the defendants by the Products Liability Advisory Council Inc., the Illinois Manufacturers' Association, the National Association of Manufacturers, the Illinois Association of Defense Trial Counsel, and the Alliance of of Automobile Manufacturers, Inc. The Illinois Trial Lawyers Association filed a brief in support of the plaintiff's position.
Connie Mikolajczyk etc. v. Ford Motor Co., et al., No. 104893. In other decisions issued Friday, the Supreme Court:
Tuesday, October 14, 2008
5th Circuit Weighs in on Rocket Dockets, Venue and Forum Shopping
A new en banc 5th Circuit opinion from a strongly divided court grants the extraordinary remedy of mandamus to overturn perceived forum shopping related to a "rocket docket" in the Eastern District of Texas. Much is being made of this opinion in many contexts, including patent law and product liability cases.
Opinions on venues and "rocket dockets" are taking on even more importance as litigants seek fast outcomes and ROI. That said, the Illinois Supreme Court has been issuing rulings since 1983 trying to stop perceived forum shopping in Illinois with respect to Madison and St. Clair counties (and other venues) but those counties remain extraordinarily active venues.
Opinions on venues and "rocket dockets" are taking on even more importance as litigants seek fast outcomes and ROI. That said, the Illinois Supreme Court has been issuing rulings since 1983 trying to stop perceived forum shopping in Illinois with respect to Madison and St. Clair counties (and other venues) but those counties remain extraordinarily active venues.
Thursday, October 9, 2008
UK Litigation Rising
Litigation is rising in the UK as litigation becomes a truly global industry. An October 8, 2008 online story from Global Reinsurance advises that the current fiscal fiasco of course will spawn lots of litigation, and then states the following specifics regarding increased litigation in the UK :
"UK Government figures for 2007 saw the highest number of actions being commenced in the Queens Bench Division for five years and statistics released by the Ministry of Justice last week also show that the number of defended claims is on the increase with a 16% rise on 2006."
"UK Government figures for 2007 saw the highest number of actions being commenced in the Queens Bench Division for five years and statistics released by the Ministry of Justice last week also show that the number of defended claims is on the increase with a 16% rise on 2006."
Wednesday, October 8, 2008
Courts Are Indeed Making Changes to the Law for Information-Related Tort Claims and New Article on Additional Changes and Impacts
For some time now, I've been writing about potential changes in product liability law due to rapid changes in communication and science. In a February, 2007 article for Corporate Counsel, I addressed various changes, including the widespread availability of scientific information and its impact on information-related tort claims. The article included my prediction that "sophisticated intermediary" types of defenses would change in light of all the available information. I'll pat myself on the back and note that I was right - in a drug case in 2007, the West Virginia Supreme Court cast aside the "learned intermediary defense due to the wide availability of information to consumers. See Johnson and Johnson v. Karl, 220 W.Va. 463, 647 S.E.2d 899 (2007). The Court there said many things, including the following:
"When the learned intermediary doctrine was developed, direct-to-consumer advertising of prescription drugs was utterly unknown . . . Since the 1997 proliferation of drug advertising, only four high courts have adopted the learned intermediary doctrine . . . None of those courts gave thorough consideration to the changes that have occurred in the prescription drug industry with respect to direct-to-consumer advertising. We however, find such changes to be a significant factor in deciding this issue . . "
So, with that as background, I particularly enjoyed reading an excellent new article by Sarah (Sally) Olson of Wildman regarding the Johnson case and other additional specific examples of the Internet's effect on tort claiming. The article is titled: Net's Impact on Strict Product Laibility Law. The effects she describes include increased numbers of public consumer complaints of defects, consumer input into design, whether a company needs to monitor blogs, whether a company run blog or website will produce its own liability if a company is not accurate in what it says publicly, and various other points. Ms. Olson's article is well worth reading in full and considering how it might apply in your context.
After that, think also about reading a 2008 book titled: Stop The Presses: The Crisis and Litigation PR Desk Reference. Written by Richard Levick and Larry Smith of Levick Strategic Communications, the book's chapters 7 and * deal with blog strategies and lots of other "crisis" issues that did not exist 5 years ago in any material way. Then I'd suggest reading their chapter 9 on the impacts of media as related to increased prosecutorial activity. That's a topic I've also covered in a more limited context in a 2006 Corporate Counsel article focused on "toxic torts" and criminal prosecutions.
"When the learned intermediary doctrine was developed, direct-to-consumer advertising of prescription drugs was utterly unknown . . . Since the 1997 proliferation of drug advertising, only four high courts have adopted the learned intermediary doctrine . . . None of those courts gave thorough consideration to the changes that have occurred in the prescription drug industry with respect to direct-to-consumer advertising. We however, find such changes to be a significant factor in deciding this issue . . "
So, with that as background, I particularly enjoyed reading an excellent new article by Sarah (Sally) Olson of Wildman regarding the Johnson case and other additional specific examples of the Internet's effect on tort claiming. The article is titled: Net's Impact on Strict Product Laibility Law. The effects she describes include increased numbers of public consumer complaints of defects, consumer input into design, whether a company needs to monitor blogs, whether a company run blog or website will produce its own liability if a company is not accurate in what it says publicly, and various other points. Ms. Olson's article is well worth reading in full and considering how it might apply in your context.
After that, think also about reading a 2008 book titled: Stop The Presses: The Crisis and Litigation PR Desk Reference. Written by Richard Levick and Larry Smith of Levick Strategic Communications, the book's chapters 7 and * deal with blog strategies and lots of other "crisis" issues that did not exist 5 years ago in any material way. Then I'd suggest reading their chapter 9 on the impacts of media as related to increased prosecutorial activity. That's a topic I've also covered in a more limited context in a 2006 Corporate Counsel article focused on "toxic torts" and criminal prosecutions.
Tuesday, September 16, 2008
Offtopic - Lawyers and Voters' Rights 2008 - Get Involved
The 2008 elections in the US are hard fought and important. Indeed, the President of the American Bar Association has issued a call to lawyers to get involved in 2008 elections to ensure that voting rights are honored. http://www.abanet.org/op/2008elections/%22%3Ehttp://www.abanet.org/op/2008elections/
For those who would like to get involved with voters rights issues, the following describes both nonpartisan and partisan groups focused on voters' rights.
The web pages referred to below are embedded in links, and the link addresses also are spelled out for anyone who wishes to copy and paste the information.
1) The American Bar Association has a website page specific to 2008 voting rights issues. http://www.abanet.org/2008election/
The page includes links to sign up for various different types of activities ranging from state-specific efforts to staffing a national hot line for voters with questions.
2) The National Campaign for Fair Elections is an initiative of the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law, and its website is here. http://nationalcampaignforfairelections.org/pages/about_us
That group and its efforts have been praised by the New York Times, among others, in editorials addressing some of the significant voting problems that marred the last two presidential elections. http://www.nytimes.com/2008/08/09/opinion/09sat1.html
The sign up page is located at: http://www.nationalcampaignforfairelections.org/page/s/volunteer
3) Vote Trust USA is a subgroup for the Verified Voting Foundation, which was founded by a Stanford law professor concerned about preserving an audit trail that enables meaningful recounts in the age of electronic voting. http://www.verifiedvotingfoundation.org/article.php?list=type&type=52
The Vote Trust website is at a different page, and includes substantive information and links to state-specific voting rights news and some groups involved in local voters' rights projects.
http://votetrustusa.org/index.php?option=com_content&task=blogsection&id=8&Itemid=113
4) The Brennan Center for Justice at New York University School of Law is not involved in poll watching per se, but does provides a wide-range of substantive information on voters right issues, and engages in some specific advocacy efforts in particular states.
http://www.brennancenter.org/
5) For partisan efforts, the Obama campaign is actively seeking lawyers and law students for election day poll watching and other voters rights efforts. The voters' rights sign up page is located at: http://my.barackobama.com/page/content/vrachome
6) A ten minute search of the McCain campaign website did not reveal a subgroup aimed at enlisting poll watchers. However, the website did include a September 15, 2008 press release yesterday promoting a voters' rights initiative by the campaign. http://www.johnmccain.com/Informing/News/PressReleases/Read.aspx?guid=90c928f6-38c7-4dc3-86c6-15149dbb8e07.
The press release directs readers to a website that lists various persons involved in the effort and presumably they can be contacted for further information.
http://www.johnmccain.com/honest/
For those who would like to get involved with voters rights issues, the following describes both nonpartisan and partisan groups focused on voters' rights.
The web pages referred to below are embedded in links, and the link addresses also are spelled out for anyone who wishes to copy and paste the information.
1) The American Bar Association has a website page specific to 2008 voting rights issues. http://www.abanet.org/2008election/
The page includes links to sign up for various different types of activities ranging from state-specific efforts to staffing a national hot line for voters with questions.
2) The National Campaign for Fair Elections is an initiative of the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law, and its website is here. http://nationalcampaignforfairelections.org/pages/about_us
That group and its efforts have been praised by the New York Times, among others, in editorials addressing some of the significant voting problems that marred the last two presidential elections. http://www.nytimes.com/2008/08/09/opinion/09sat1.html
The sign up page is located at: http://www.nationalcampaignforfairelections.org/page/s/volunteer
3) Vote Trust USA is a subgroup for the Verified Voting Foundation, which was founded by a Stanford law professor concerned about preserving an audit trail that enables meaningful recounts in the age of electronic voting. http://www.verifiedvotingfoundation.org/article.php?list=type&type=52
The Vote Trust website is at a different page, and includes substantive information and links to state-specific voting rights news and some groups involved in local voters' rights projects.
http://votetrustusa.org/index.php?option=com_content&task=blogsection&id=8&Itemid=113
4) The Brennan Center for Justice at New York University School of Law is not involved in poll watching per se, but does provides a wide-range of substantive information on voters right issues, and engages in some specific advocacy efforts in particular states.
http://www.brennancenter.org/
5) For partisan efforts, the Obama campaign is actively seeking lawyers and law students for election day poll watching and other voters rights efforts. The voters' rights sign up page is located at: http://my.barackobama.com/page/content/vrachome
6) A ten minute search of the McCain campaign website did not reveal a subgroup aimed at enlisting poll watchers. However, the website did include a September 15, 2008 press release yesterday promoting a voters' rights initiative by the campaign. http://www.johnmccain.com/Informing/News/PressReleases/Read.aspx?guid=90c928f6-38c7-4dc3-86c6-15149dbb8e07.
The press release directs readers to a website that lists various persons involved in the effort and presumably they can be contacted for further information.
http://www.johnmccain.com/honest/
Tuesday, September 9, 2008
Update on Entrepreneurial Claiming, Global Tort Litigation and Contingent Fees
There is renewed interest in and attention to the changes being wrought around the globe by entrepreneurial litigation claiming. I say that for many reasons, one of which is that it was a lively topic of discussion at meetings I attended the last few days in Europe with lawyers from around the world who belong to the International Business Law Consortium, commonly known as the IBLC. (Disclaimer/caveat - my law firm belongs to the group. The group's website is http://www.iblc.com/, which is here. )The topic also is currently in the news because of some $ 800 million of attorneys' fees awarded in Enron litigation, as is further described below.
The bottom line, in my view, is that entrepreneurial claiming is clearly growing all around the world and will continue to cause many changes. An interesting summer 2008 article from SJ Berwin LLP (an EU law firm with offices in several cities) explains the latest, claimant friendly ruling on UK "uplift" fees, and notes that Allianz has announced plans to raise a fund to commercial litigation cases. Also educational is a 2002 article by Professor Herbert Kritzer on myths related to contingent fees. In fact, contingent fees are permitted in many countries outside the US (including Luxembourg), as Prof. Kritzer describes in his detailed article, which is online in full text at this link.
Global litigation plainly is being fueled by claim buying, contingent fees and other entrepreneurial activities of trial lawyers. My partner, Karen Borg, and I described some of these developments in a recent article available here. The third and fourth sections include citations to find a German entity which buys antitrust claims, and describes an Illinois law firm which is pursuing tobacco litigation in Nigeria with the Nigerian government.
How well can it pay? This week news is out on attorneys' fees awards for the lawyers who helped to obtain the over $ 7 billion of recoveries from 3 major banks. A Law.com article by Amanda Bronstad states that the awards include "$688 million in attorney fees to San Diego's Coughlin, Stoia, Geller, Rudman & Robbins, lead counsel in the case. "The Court finds that in the face of extraordinary obstacles, the skills, expertise, commitment, and tenacity of Lead Counsel in this litigation cannot be overstated," wrote U.S. District Judge Melinda Harman, for the Southern District of Houston, who, in her ruling on Monday, referred to Coughlin Stoia as "a lion" in the securities bar. "Not to be overlooked are the unparalleled results, $7.2 billion in settlement funds, which demonstrate counsel's clearly superlative litigating and negotiating skills." The award gives Coughlin Stoia, which represents the lead plaintiff, the Regents of the University of California, its requested amount, which is about 9.52% of the net recovery of the settlement, the largest ever in a single class action. The firm stated that its lawyers and co-counsel, 13 firms, had spent nearly 290,000 hours on the litigation at a blended rate of $456 per hour. Coughlin Stoia was responsible for more than 85% of the time expended."This award is hardly unique. A prior post here reviewed some other recent large awards in contingent fee litigation.
Where will it all end? I am sure I do not know, but plainly there is much more to come in this area.
Wednesday, August 20, 2008
Summer Break About Over
I took about 3 weeks off to enjoy the out of doors when not in the office - some golf and a week on a lake with our 11 and 13 year old daughters who love to wakeboard, tube and swim. Now, however, it's almost back to school for them, and I'm getting back into blogging mode. So, new stuff ahead !
Lawsuit Dismissed as Sanction for Breach of Confidentiality Order - Papers Leaked to Wikileaks.org
There's lots of room for debate about whether and how confidentiality orders can and should be used in tort and other litigation. That debate now includes an interesting opinion from the Northern District of Illinois by our well-respected Judge Milton I. Shadur. In the opinion, Judge Shadur dismisses a lawsuit as a sanction for apparently unquestionable leaking to Wikileaks.org of material that was subject to a confidentiality order, with that problem emerging after many deadlines were missed. The posted doceument is a "guarantee services agreement," a contract with Sallie Mae.
The opinion is summarized below in an article from the Chicago Daily Law Bulletin. The text of the article is set out below as a fair use. I've posted the opinion here.
http://www.chicagolawbulletin.com/news/gettoctext.cfm?TOCUID=22701641&SessionID=714319
Judge slams lawyer for leaks, dismisses suit
By Patricia Manson Law Bulletin staff writerCiting the need to protect the integrity of the justice system, a federal judge has thrown out a lawsuit as a sanction for the leak of confidential documents obtained during discovery.
U.S. District Judge Milton I. Shadur on Monday dismissed with prejudice a suit that Rhonda Salmeron filed under the False Claims Act against certain players in the student loan industry.
Shadur said an attorney for Salmeron, Jorge Sanchez of Depres, Schwartz & Geoghegan in Chicago, admitted that he provided to unauthorized individuals documents produced on a limited-disclosure basis.
Those individuals included Salmeron and a reporter for The Chronicle of Higher Education, Shadur said.
Shadur blamed Sanchez for the appearance of one of the documents — complete with identifying numbers that Shadur said ''unequivocally'' demonstrated its source — on the Web site Wikileaks.org.
That document was a 51-page contract between Sallie Mae Inc. and United States Aid Funds Inc., Shadur said.
He said a link to the Wikileaks article and the documents later was posted on Yahoo's finance message board.
The disclosure of the documents came after Sanchez had engaged in ''a virtually unbroken pattern of dilatory and irresponsible conduct'' during the course of the litigation, Shadur said.
He said the conduct included repeatedly missing deadlines, skipping status conferences and breaking promises to file documents in a more timely manner.
And the lawyer's argument at a hearing last month on defense motions to dismiss ''plainly evidenced his failure to appreciate the seriousness of his actions,'' Shadur said.
Shadur did note that the lead attorney for Salmeron, John Thomas Moran Jr. of Moran Law Group in Chicago, had appeared in court in her case occasionally.
And Shadur said he had not listened to tape recordings of proceedings on the dates set for hearings in the case to determine ''if any of those dates involved Moran's presence and Sanchez' absence.''
But Shadur added, ''[T]here is not the slightest question that virtually all (if not all) of the appearances that involved claimed explanations of and excuses for delayed filings were by Sanchez.''
Shadur conceded that dismissing a suit on the basis of a lawyer's behavior without deciding the merits of the case is an extreme step.
But Shadur said he did not need to decide whether the attorney's ''persistent flouting of court deadlines, coupled with periodic no-shows at scheduled status dates'' warranted throwing out Salmeron's suit.
Instead, Shadur said, Sanchez' release of confidential documents was enough by itself to support dismissal of the action.
''It is truly inexcusable, no real explanation has been offered, and its damaging effect cannot be quantified in the same way that looking at defense counsel's time charges and compelling Salmeron to pay them might provide a remedy for the earlier procedural violations,'' Shadur wrote in a 23-page opinion.
Shadur said the U.S. Supreme Court's ruling in National Hockey League v. Metropolitan Hockey Club Inc., 427 U.S. 639 (1976), left no question that he had the authority ''to order the ultimate sanction of dismissal in the face of such egregious conduct.''
And in Wade v. Soo Line Railroad Corp., 500 F.3d 559 (7th Cir. 2007), the 7th U.S. Circuit Court of Appeals affirmed ''the propriety of visiting a lawyer's sins upon the client,'' Shadur said.
The case is U.S. ex rel. Rhonda Salmeron v. Enterprise Recovery Systems Inc., et al., No. 05 C 4453.
Sanchez and Moran could not be reached for comment.
But in a filing opposing motions to dismiss, attorneys for Salmeron argued that throwing out the suit would be ''disproportionate'' to the alleged wrongdoing.
Salmeron's attorneys also contended that the defendants had not demonstrated that the contract posted on Wikileaks was confidential or would have been covered by a protective order.
And the attorneys argued that the protective order that was in place related only to defendant Enterprise Recovery Systems Inc.
''To dismiss a case for publication of a document that was not under a protective order nor even marked 'confidential' would be unprecedented,'' the attorneys said.
Tuesday, July 22, 2008
Italian Class Action Legislation Delayed
Business Insurance Europe is reporting 6 months of delay in implementing legislation for class actions in Italy. The delay moves the effective date from July 1, 2008 to January 1, 2009. The article presents the delays as needed to accommodate changes needed to satisfy concerns on all sides of the issues, but provides very few, if any specifics.
Monday, July 21, 2008
Defective Drug Manufacturing Claims, Preemption, Heparin and China Connections
For those interested in "mass tort" issues, well worth reading is today's National Law Journal article regarding the recent wave of manufacturing defect product liability claims arising from drugs manufactured in China. The interesting points discussed include whether or how federal preemption principles will apply, and some aspects of claiming against Chinese entities.
Not mentioned in the article are other interesting issues. For example, down the line, these suits could produce some interesting discovery into and facts regarding the manufacturing processes in China, and the efforts of US companies and the FDA to ensure that products are made well. It will be interesting to see how their practices compare to safety practices used in other industries. Consider, for example, McDonald's and its decades of "Happy Meal" toys made in China, but distributed without incident in the US and around the globe. The great success of the McDonald's system includes the system's foresight in many years ago implementing design and manufacturing standards well above minimum standards, and having put trained observers into factories, along with using significant testing of products before they leave the manufacturing plant.
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http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202423109561
Suits roll in over recalled drugs
China may factor in heparin actions.
Amanda Bronstad / Staff reporterJuly 21, 2008
Heparin medication is used to thin blood during surgeries.CMS Photo / Newscom
Baum Hedlund's Roger DrakePlaintiffs' attorneys have filed dozens of lawsuits in recent months involving two recalled drugs, generic blood thinner heparin and prescription medication Digitek, that could signal a clean break from past actions that were far less successful against drugs Vioxx and Paxil.In short, it's a different legal ballgame, attorneys say.In contrast to past pharmaceutical tort litigation, plaintiffs' lawyers aren't alleging that a company's "failure to warn" about possible risks of a drug caused injuries and deaths. In recent years, those arguments have been challenged in court, where several judges have sided with manufacturers in upholding federal pre-emption, or the concept that U.S. Food and Drug Administration (FDA) regulations override state liability claims.Lawyers anticipate that the new defective-product claims could duck the federal pre-emption argument altogether, increasing the chances of success for more plaintiffs.Also, plaintiffs' attorneys may have another edge: The heparin suits are the first to be brought against a pharmaceutical manufacturer with ties to China, which has been linked in other litigation to dangerous products such as toys, pet food and toothpaste."This is going to be the tip of the potential iceberg in terms of Chinese manufacturing and drugs," said William M. Audet of Audet & Partners in San Francisco, a plaintiffs' lawyer who has brought several drug cases and anticipates filing up to 60 lawsuits involving heparin and Digitek.But the recent drug lawsuits aren't all easy to swallow.Theodore Mayer, a partner at New York's Hughes Hubbard & Reed who defends pharmaceutical companies, said that plaintiffs' attorneys are likely to face challenges of causation. "Part of the challenge here is to distinguish between the cases that are actually caused by this contamination and the cases where the patient is just one of many, many patients in hospitals on heparin whose outcome may or may not be good for reasons that have nothing to do with the heparin," he said. Up to 700 casesMore than 40 lawsuits have been filed against the manufacturers of heparin, which is used to thin blood during surgeries. In the past six months, about a dozen manufacturers, primarily Baxter International Inc., as well as their distributors and suppliers, have recalled much of the nation's supply of heparin after a contaminant was discovered in the drug. The contaminant was tied to a supplier in China.In recent weeks, the lawsuits against Baxter, filed on behalf of those who claim that their loved ones died following a rapid drop in blood pressure, or that they suffered allergic reactions to the contaminated drug, have been consolidated in federal court in Ohio. According to the FDA, 124 deaths have been associated with the contaminated heparin.David Zoll, a partner at Toledo, Ohio-based Zoll, Kranz & Borgess, and liaison counsel in the heparin cases, said he expects 300 to 700 claims to eventually be brought involving heparin. "We think there are important ramifications on pre-emption that are raised by this case," he said. "The doctrine of pre-emption holds that we can rely on the FDA to keep us safe from dangerous drugs; the FDA will make sure the manufacturer does its job. This case shows that was not the case."Meanwhile, the U.S. division of generic pharmaceutical manufacturer Actavis Group hf. recently announced a nationwide recall of Digitek, a prescription drug used to treat congestive heart failure and abnormal heart rhythms, after several of the bottles contained more than the dosage as labeled.More than 40 lawsuits have been filed in federal and state court in Alabama, California, Louisiana, New Jersey, Ohio and West Virginia on behalf of patients who were injured or died.Tony O'Dell of Berthold Tiano & O'Dell in Charleston, W.Va., a lead plaintiffs' lawyer in the cases involving Digitek, said Actavis "ran the pill back through the process twice and ended up having twice the amount of active ingredient."He said his firm alone is evaluating about 100 potential lawsuits.The suits have few similarities to other drug cases in which he has been involved, O'Dell said. In those cases, the allegations against the drug were focused on "the way it was being marketed or being used or the fact that they had tested enough and had reactions," he said. Digitek has "been around for a long time. And it's a drug that has very good therapeutic reasons for its use. But it's a drug [for which] this company had very poor quality assurance in place."Matthew Moriarty, a partner at Cleveland-based Tucker Ellis & West, who represents Actavis and the other defendants in the case, declined comment.In the cases involving both drugs, plaintiffs' lawyers argue that a product defect, not a "failure to warn" about possible risks, caused injuries and deaths. Although heparin and Digitek were approved by the FDA, those drugs were never intended to be sold as they were — allegedly with contaminated ingredients or in incorrect dosage amounts.The claims mark a shift in drug liability cases. "Most pharmaceutical litigation is based on a failure to warn," said Roger Drake, an attorney in the Los Angeles office of Baum, Hedlund, Aristei & Goldman who serves on the multidistrict litigation plaintiff's steering committee in the heparin cases. "This is a manufacturing defect, a different type of cause of action not subject to pre-emption problems that some of the failure-to- warn cases have," he said. "Because of that, it's unique in that respect from some of the pharmaceutical litigation out there."Although most lawyers agree that federal pre-emption could be a more difficult argument to prove in manufacturing defect cases, the legal defense remains a potentially major factor in all pharmaceutical products liability cases. Federal pre-emption has been successful in a substantial number of cases against pharmaceutical manufacturers. Even the FDA issued a preamble two years ago supporting federal pre-emption in cases involving the labeling of approved drugs.Earlier this year, the U.S. Supreme Court ruled that products liability claims against a medical device manufacturer were pre-empted by the Medical Device Amendments to the federal Food, Drug and Cosmetic Act. Riegel v. Medtronic, 128 S. Ct. 999 (2008). While the ruling is limited in scope — addressing whether claims challenging the approved design and label of a catheter that burst during surgery were subject to a specific pre-emption clause — some lawyers have interpreted the decision as having broader implications that could influence products liability claims involving drugs.Mark Robinson of Newport Beach, Calif.'s Robinson, Calcagnie & Robinson, and a member of the steering committee in the consolidated heparin cases, said the pre-emption issues in failure-to-warn cases and in cases accusing companies of design defects have little or no relevance in cases involving manufacturing defects, which allege entirely different claims."We're not claiming they designed it that way. This Chinese subsidiary, or Chinese supplier, changed the ingredients from the actual ingredient that makes the blood thin to an ingredient that looks like the same ingredient," he said. "But in reality, it's a lot cheaper version, and it doesn't thin your blood. In effect, that's a manufacturing defect."The suits involving heparin also are the first involving a pharmaceutical drug with ties to China. With the recent prevalence of defective-product cases involving China, plaintiffs' attorneys filing heparin lawsuits could have a stronger case than those concerning other drugs.Jeffrey Killino, a partner at Philadelphia's Woloshin & Killino who filed a heparin suit against Covidien Ltd., a supplier of medical devices and drugs, primarily handles cases involving defective tires and toys made in China. He said he anticipates jurors to be more receptive to the heparin cases than they were to previous pharmaceutical lawsuits. "Juries are outraged about what happened in China," he said."These pharmaceutical lawyers will get in a courtroom on a Chinese product case and be happy campers," Killino said. Zoll, liaison counsel of the heparin suits, said there is a potential for more liability suits against pharmaceutical drug manufacturers with links to China because the growth of companies in that country is "huge.""Will there be another case coming out of China? Absolutely," he said.Mayer, the defense attorney, hesitated to suggest that more suits would be filed outlining a similar set of facts that surround the heparin recalls. But, he said, the heparin suits could attract more pharmaceutical litigation, in general, involving Chinese suppliers."There's a lot of copycat effect in litigation," he said. "Once you see one of these lawsuits where people make an allegation that the Chinese supplier didn't do what it was supposed to, people may look harder at other such situations whether or not there is any basis for it."Baxter's lawyer, Leslie Smith, a partner at Chicago's Kirkland & Ellis, referred calls to a company spokeswoman, Erin Gardiner. In an e-mailed statement, Gardiner said that products liability suits generally involve allegations of a design defect, manufacturing defect or failure to warn. In this case, the heparin contaminant was the result of "deliberate and sophisticated tampering" that evaded internal tests of the drug."Because of the insidious nature of the heparin contamination that surprised heparin manufacturers around the world, we do not think the traditional product liability claims are valid," she said in the statement.Gardiner also said that, unlike other pharmaceuticals that have been on the market for years, the heparin at issue was in use for less than six months. Not all the heparin on the market was contaminated, either.Finally, she said, "we believe that only a very small number of people who received the heparin suffered significant injury caused by the contaminant, while the vast majority suffered no adverse event or only a transient reaction."A call to Michael Moeller, a partner at Kansas City, Mo.-based Shook, Hardy & Bacon, who represents Covidien, was returned by spokesman David Young, who declined to comment on the litigation.
Friday, July 18, 2008
Asian Nations Experimenting with Jury Trials in Criminal Cases
Perspective matters. In the US, we hear a fairly steady stream of criticism of civil and criminal juries. It's interesting, then, that in some Asian nations, they are experimenting with implementing jury trials as perhaps desirable legal system changes. In general, the proponents argue that juries serve as a bulwark against the government and allow expression of the views of the "common man." The critics generally complain that juries are too unpredictable and do not understand complex issues.
For specifics, the NYT has a July 18, 2008 article about recent high-speed jury trials in criminal cases in South Korea. The International Herald Tribune also has published an article about the jury trial experiments in Korea, Japan and elsewhere. Likewise, a recent article on Law.com described US lawyers traveling to Japan to consult with Japanese lawyers in light of Japan's experimentation with jury trials for serious criminal cases. The experiment in Korea with juries for criminal cases also is the subject of Korean law blog commentary.
For specifics, the NYT has a July 18, 2008 article about recent high-speed jury trials in criminal cases in South Korea. The International Herald Tribune also has published an article about the jury trial experiments in Korea, Japan and elsewhere. Likewise, a recent article on Law.com described US lawyers traveling to Japan to consult with Japanese lawyers in light of Japan's experimentation with jury trials for serious criminal cases. The experiment in Korea with juries for criminal cases also is the subject of Korean law blog commentary.
Tuesday, July 15, 2008
Interesting Opinions
2009 Wisconson Supreme Court opinion holding that manufacturers of white lead pigment could not be held laibile for design defect since the abensce of lead would change the product. The court resolved only the one limited issue and declined to adopt the Restatement (Third) of Torts.
Monday, July 14, 2008
More Asbestos Claiming ? British Government Asks for Views on Pleural Plaques Compensation Issues
Global tort litigation issues continue to evolve. Last fall, the UK's highest court decided that it would not permit recovery of money as compensation for persons found to have "pleural plaques." Pleural plaques are generally deemed benign markers of past inhalation of asbestos fibers. Now, on July 9, the British government issued a request for comments on whether to use legislation to overturn the decision precluding damages.
Specifically, the "consultation" process calls for interested persons to submit views on whether persons with "pleural plaques" should be allowed a chance to recover damages for the physical change in the lungs or anxiety. The consultation paper, number 14/08, is viewable here.
Specifically, the "consultation" process calls for interested persons to submit views on whether persons with "pleural plaques" should be allowed a chance to recover damages for the physical change in the lungs or anxiety. The consultation paper, number 14/08, is viewable here.
So, what's at stake? In dollars, it's some number of billions; current estimates probably will prove to be too low, just like most other estimates of asbestos costs. In lives, the issue may or may not have significance. Pleural plaques generally are thought not to impair life function in any way, but they generally are considered a marker for past asbestos inhalation. Some may argue that finding those people now will help them later avoid premature deaths by leading them to annual health screenings with a focus on their particular risks.
Back to dollars. The consultation likely will become a fight between insurers and insureds as to which entities pay how much. Insurers and reinsurers will have issues between them. The process also will include battles between solvent entities and entities that claim to be insolvent or are pursuing "schemes of arrangement." Schemes of arrangement? They are end of corporate life financial engineering tools. Insurers like to say that the schemes free up capital to return to the marketplace and stimulate business. Insureds like to say that schemes improperly allow insurers to avoid IBNR claims, which are claims that are foreseeble based on past events, but that have not yet been filed because, for example, the future claimant does not yet know that a mesothelioma tumor already has formed and is growing, at a microscopic level.
Note also that government agencies will have a financial stake. Legislation may help them avoid paying the massive health care costs that may accrue when a mesothelioma is found "early."
The issues also may be described more broadly. This could be a chance to find a fair compensation and medical treatment plan that avoids the many flaws in the current American systems, and to think carefully about how one defines who is "sick" or when they are "injured." This could be a chance to limit attorneys' fees to modest amounts. This could be a chance to take a long term view. This could be a chance to look for new answers.
Sunday, July 6, 2008
Update - Japanese Asbestos Litigation Ramps Up - Suit by 178 Plaintiffs Names 46 Companies and Government as Defendants
In a prior article of May 18, we noted an asbestos lawsuit in Japan. Since then, the lawsuit has not received much press, nor has there been a public annoucment of the filing of the second lawsuit that was indicated when the existing lawsuit was filed. My efforts to obtain the complaint from the plaintiff's firm were turned down by that firm, citing ethical issues since I represent defendants. One wonders what issues are involved in providing a copy of a public document. In any event, it appears that the plaintiff's firm also is not sharing the complaint with Laurie Kazan Allen or others on the plaintiff's side since her website now refers to the lawsuit, but only to the original press release/article in Wikipedia. http://ibasecretariat.org/lka_jap_cause_effect.php. The complaint also has not appeared in Mealeys, HarrisMartin or other publications that follow asbestos litigation.
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Asbestos litigation is ramping up in Japan. The English language version of a Japanese newspaper article reports that a lawsuit was filed in Japan late last week on behalf of 178 contruction workers (or their heirs) against 46 building products companies and agencies of the Japanese government. The article does not identify the defendants, or the lawyers. The articel also says that "About 40 construction workers from Kanagawa Prefecture will also file a similar suit at the Yokohama District Court in June."
A parallel article on Wikinews adds some quotes from workers, but not much more.
Surprisingly, the website of the International Ban Asbestos Secretariat does not yet include an article on the topic. That may well change.
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Asbestos litigation is ramping up in Japan. The English language version of a Japanese newspaper article reports that a lawsuit was filed in Japan late last week on behalf of 178 contruction workers (or their heirs) against 46 building products companies and agencies of the Japanese government. The article does not identify the defendants, or the lawyers. The articel also says that "About 40 construction workers from Kanagawa Prefecture will also file a similar suit at the Yokohama District Court in June."
A parallel article on Wikinews adds some quotes from workers, but not much more.
Surprisingly, the website of the International Ban Asbestos Secretariat does not yet include an article on the topic. That may well change.
Friday, May 30, 2008
The Increasing Intersection of Criminal Law and Tort Law
A significant topic for at least the next decade will be the interesection of criminal law, tort law and civil law (including the law on punitive damages). The issue is growing in prominence for many reasons, including new UK legislation on corporate manslaugher and U.S. Senate hearings held a couple of years ago on possible new criminal law legislation in the US for product liability claims. The topic will be covered here in more detail in future articles.
For now, however, a recent news article makes the general point as it describes the manslaughter indictment of a Connecticut area swimming pool contractor (that is, a seller of a service and a seller of component products) for a child's drowning death said to arise from failure to install a mandatory drain cover.
Is the indictment fair or "right?" Various people can and will argue a range of positions on that topic. One interesting and arguably well-informed view is set out in the the May 1, 2008 American Lawyer interview of Robert Bennett. Mr. Bennett, of Skadden Arps, was interviewed in connection with his autobiographical new book about his work as a white-collar defense lawyer, which included working for the Seante Ethics Commitee in prosecuting the Keating 5 and defending numerous cases for corporate America. Bennett expressed the view that indeed criminal law sanctions can and do change corporate behavior. He is quoted as having said:
R: You write that you are shocked by the rise in white-collar prosecutions. Why do you think it's happening? Are corporations more corrupt? Have prosecutors gotten bolder?B: I don't think that companies have gotten more corrupt. I think it's more the approach taken by law enforcement. Years ago, when I was a federal prosecutor, a lot of these corporate issues were handled by regulatory agencies. Now, law enforcement is trying to reform how business is done. There is probably less corruption today because of the government's aggressive approach. [Corporate executives] know it's not just a matter of paying fines anymore.
Friday, May 23, 2008
Reduced Ability to File in Eastern District of TX?
Apparently Volskwagen has challenged the ability of judges in Marshall TX to refuse to transfer a case out of that jurisdiction. Though the case is not asbestos-related (it's a product liability case for allegedly faulty car seats) it may have a broader impact on cases in what has been referred to as Texas's "Rocket Docket."
See WSJ Law Blog
See WSJ Law Blog
Wednesday, May 21, 2008
Nanotube technology causes asbestos-like lung diseases?
The NY Times has a great opening paragraph on this:
"Nanotubes, one of the wonder materials of the new age of nanotechnology, may carry a health risk similar to that of asbestos, a wonder material of an earlier age that turned into a scourge after decades of use when its fibers were found to cause lung disease ..."
Full article:
NY Times - Health Risks from Nanotubes
"Nanotubes, one of the wonder materials of the new age of nanotechnology, may carry a health risk similar to that of asbestos, a wonder material of an earlier age that turned into a scourge after decades of use when its fibers were found to cause lung disease ..."
Full article:
NY Times - Health Risks from Nanotubes
Monday, May 19, 2008
Medical Malpractice Crisis - Yes or No ?
The "medical malpractice" crisis has received much press. Over the last few years, more data has started to emerge that allows some testing of the arguments.
Two recent articles are interesting and suggest that some of the draconion "tort reform" efforts may be too much. One is a a Suffolk University article on May 13, 2008 that reports a study on malpractice cases in Massachusetts. It suggest that the "medical malpractice crisis" is overblown. Another is a May 18, 2008 New York Times article by Kevin Sack that reports favorable results for hospitals and doctors who disclose errors and offer to settle, at reasonable numbers.
Two recent articles are interesting and suggest that some of the draconion "tort reform" efforts may be too much. One is a a Suffolk University article on May 13, 2008 that reports a study on malpractice cases in Massachusetts. It suggest that the "medical malpractice crisis" is overblown. Another is a May 18, 2008 New York Times article by Kevin Sack that reports favorable results for hospitals and doctors who disclose errors and offer to settle, at reasonable numbers.
Sunday, May 18, 2008
Japanese Asbestos Litigation Ramps Up - Suit by 178 Plaintiffs Names 46 Companies and Government as Defendants
Asbestos litigation is ramping up in Japan. The English language version of a Japanese newspaper article reports that a lawsuit was filed in Japan late last week on behalf of 178 contruction workers (or their heirs) against 46 building products companies and agencies of the Japanese government. The article does not identify the defendants, or the lawyers. The articel also says that "About 40 construction workers from Kanagawa Prefecture will also file a similar suit at the Yokohama District Court in June."A parallel article on Wikinews adds some quotes from workers, but not much more.Surprisingly, the website of the International Ban Asbestos Secretariat does not yet include an article on the topic. That may well change.
Thursday, May 15, 2008
The Next "Asbestos" - Dust from Mammoth Tusks !
In Yakutsk, Russia, "the next asbestos" has been identified - it's dust generated from artisans carving up the mammoth tusks that are estimated to more or less litter the tundra at a rate of 600 skeletons per kilometer. Really ! See the May 13, 2008 Chicago Tribune article by Alex Rodriguez.
So, how is this "the next asbestos"? It turns out that tusk carvers use mechanical grinding tools and generate lots of dust, but do not want to wear masks. According to the article:
"At his workshop, the whir of grinding tools fills a second-floor room where 16 Yakut artisans painstakingly carve chunks of tusk into everything from figurines of bears and tigers to hilts for decorative daggers and swords. Mammoth tusk dust hangs heavy in the air, an occupational hazard that Petrov says he compensates for with a $130 bonus tacked onto the workers' $520 monthly salaries."
Now you see the linkage - a developing industry with workers anxious for jobs, and extra pay offered to work with a hazardous substance. And, the corporate CEO is aware of "the hazard" but thinks he is doing the right thing by paying a 25% bonus for "assuming the risk." But of course no one really knows the full extent of the risk. So, what happens in x years when some but not all of the artisans contract mammothosis or, worse yet, a malignant tumor linked mainly to working with mammoth dust, with cigarette smokers suffering the tumors at a 10X higher rate.
Mammoth dust, of course, is not really going to be the "next asbestos." The facts from the article, however, sound very much like the testimony one can hear from factory employees who worked in dusty factories, including people who worked even after OSHA took effect in 1971. The issues also take on new vitality because asbestos uses is spiraling upward in Asia and the former Russia, and the media has finally caught up to the fact that carbon nanoparticles appear to raise tumor risks akin to amphibole asbestos fibers.
The policy question it seems is: what can/should/might societies do to try to avoid future deaths, economic losses, societal losses, and litigation from hazardous materials ? Is an OSHA "top down command and control" regulation the only/best answer, along with less than extravagant workers compensation payments? Or, should the payments be raised to higher levels that are more actually likely to satisfy the injured and their families? Should the owner be offered some kind of creative new economic "Nudge" to keep the employees safe, as might argued by Messrs. Sunstein and Thaler in their wonderful book: Nudge, Improving Decisions About Health, Wealth, and Happiness. Or, should a present economic "Nudge" go directly to the employees? Or do we wait for and allow repetitive lawsuits against tusk finders/sellers who "knew or should have known of the "dangers of mammoth dust," and then fault the lawyers who bring the lawsuits for imposing a "tort tax" on society.
Issues of this sort abound,and in my view, receive too little attention in the "tort reform" fights. Other issues arise because insurance is not what it used to be, which is a problem since one of the rationales for some product liability rules is that risk can be spread through insurance. In reality, however, insurers seek to exclude long-tail risks. Thus, asbestos exclusions and pollution exclusions were added to CGL policies in the 1970s and 1980s. Mold became an issue later and also is subject to exclusions. Business Insurance commented recently that such exclusions may encourage "little guys" to try to hide problems instead of fixing them, but ultimately some lawyers will come along and take everything when some people actually do become really ill.
So, how is this "the next asbestos"? It turns out that tusk carvers use mechanical grinding tools and generate lots of dust, but do not want to wear masks. According to the article:
"At his workshop, the whir of grinding tools fills a second-floor room where 16 Yakut artisans painstakingly carve chunks of tusk into everything from figurines of bears and tigers to hilts for decorative daggers and swords. Mammoth tusk dust hangs heavy in the air, an occupational hazard that Petrov says he compensates for with a $130 bonus tacked onto the workers' $520 monthly salaries."
Now you see the linkage - a developing industry with workers anxious for jobs, and extra pay offered to work with a hazardous substance. And, the corporate CEO is aware of "the hazard" but thinks he is doing the right thing by paying a 25% bonus for "assuming the risk." But of course no one really knows the full extent of the risk. So, what happens in x years when some but not all of the artisans contract mammothosis or, worse yet, a malignant tumor linked mainly to working with mammoth dust, with cigarette smokers suffering the tumors at a 10X higher rate.
Mammoth dust, of course, is not really going to be the "next asbestos." The facts from the article, however, sound very much like the testimony one can hear from factory employees who worked in dusty factories, including people who worked even after OSHA took effect in 1971. The issues also take on new vitality because asbestos uses is spiraling upward in Asia and the former Russia, and the media has finally caught up to the fact that carbon nanoparticles appear to raise tumor risks akin to amphibole asbestos fibers.
The policy question it seems is: what can/should/might societies do to try to avoid future deaths, economic losses, societal losses, and litigation from hazardous materials ? Is an OSHA "top down command and control" regulation the only/best answer, along with less than extravagant workers compensation payments? Or, should the payments be raised to higher levels that are more actually likely to satisfy the injured and their families? Should the owner be offered some kind of creative new economic "Nudge" to keep the employees safe, as might argued by Messrs. Sunstein and Thaler in their wonderful book: Nudge, Improving Decisions About Health, Wealth, and Happiness. Or, should a present economic "Nudge" go directly to the employees? Or do we wait for and allow repetitive lawsuits against tusk finders/sellers who "knew or should have known of the "dangers of mammoth dust," and then fault the lawyers who bring the lawsuits for imposing a "tort tax" on society.
Issues of this sort abound,and in my view, receive too little attention in the "tort reform" fights. Other issues arise because insurance is not what it used to be, which is a problem since one of the rationales for some product liability rules is that risk can be spread through insurance. In reality, however, insurers seek to exclude long-tail risks. Thus, asbestos exclusions and pollution exclusions were added to CGL policies in the 1970s and 1980s. Mold became an issue later and also is subject to exclusions. Business Insurance commented recently that such exclusions may encourage "little guys" to try to hide problems instead of fixing them, but ultimately some lawyers will come along and take everything when some people actually do become really ill.
Friday, May 2, 2008
Asbestos Pictures - Great McCord Museum Collection of Photos and Text on Canadian Asbestos Mining Circa 1890s -1930s
It's a long story as to why, but I stumbled across some online and historic pictures of asbestos-mining and processing. The collection is presented by the McCord Museum of Montreal, which looks to be quite an interesting place. Its online presentations include a great collection of photographs and text showing asbestos mining in Canada starting in the late 1800s and moving up through the 193os or so. The photos of the steps in processing the ore are especially interesting as they show clouds of fibers, and lots of work being done by women and children. The website has several very nice tools to view the photos as a film or individually, including a zoom feature. The presentation is well worth viewing simply as a history lesson even if you are not involved in asbestos litigation.
Friday, April 25, 2008
Elected State Court Judges in the United States
The April 10 Economist included a brief article noting the issues regarding elected state court judges, and its text is set out below as a fair use. According to the article, some or all of the judges are elected in 39 of the United States.This topic has been debated for years, but little has changed except that more and more money is being spent on judicial elections. The article has specifics on the latter.
I would add three observations to the debate; the first one comes from the judge I clerked for, Howard C. Ryan, who was an elected state court judge. His point was a pragmatic one, which is that reformers need to be flexible in their proposed solutions and cannot expect to hit a "home run" on the first try. For example, the "reform" solution that works for the hundreds or thousands of judges in Cook County, Illinois probably will not work for a "downstate" Illinois county with only a handful of judges and perhaps only dozens of lawyers. Why? Because some reform proposals aimed at Cook County called for panels of X lawyers, with X being a small number in Cook County but an unattainable number in some farming counties with modest numbers of lawyers and judges. (During my clerkship way back in 1983, the issue was somewhat "hot" in Illinois and so Judge Ryan, as a "downstate" judge, explained to us some of the very real differences between Cook County courts and the courts in the rest of the state. In my opinion, he's absolutely correct that one size does not fit all. The Judge, by the way, also was open-minded. Indeed, to further the analysis, he asked me to research and present him with a memo summarizing how various nations around the world create their judiciary.)
Second, there is in my view much merit to ensuring that many of our appellate judges have spent meaningful time as trial judges. Trial courts are dynamic places with things said and unsaid because of the exigencies of the moment and many other factors. When an appellate court gathers to decide cases, it is I think important that there are some judges in the room who have a feel for the what is really "harmless error," and the pressures of long trial days. This is not to suggest creating a black letter rule requiring trial court experience - I join with those who say that it would be a grave mistake to exclude all academics, nor do we want to exclude the lawyers who never worked as judges but spent years trying cases, and so know the nature of trials.
Third, there is the question of why the topic has produced so little substantive debate (as opposed to sound bites and posturing), and so little meaningful change. On this topic, I commend to all Robert Reich's newest book: Supercapitalism. It's an insightful look at where we as a nation are today in terms of the political process. It's also refreshing to read a book with lots of facts, footnotes to the sources, and an absence of spin.
_____________________________________________________________
Michael Gableman defeated Louis Butler, an incumbent on Wisconsin's Supreme Court, on April 1st, and the cacophony has not yet subsided. The scuffle has revealed two worrying traits of America's judicial elections.
First, they have become bitter contests. In 2006 91% of Supreme Court elections featured television advertisements, up from 22% in 2000, according to New York University's Brennan Centre. Second, the war over tort, or liability, reform has turned judicial elections into a nasty battlefield—especially in those states where state Supreme Court justices are directly elected. Karl Rove, once George Bush's Svengali, ascended in part by helping Texas businessmen fight trial lawyers for control of that state's highest court. The most expensive judicial race in America's history, a $9.3m fight in 2004, saw tort interests pour money into rival campaigns for a seat on the Illinois Supreme Court.
In Wisconsin the signs are troubling. The state's new era of judicial elections began last year. A series of rulings had galvanised corporate leaders, explains James Buchen of Wisconsin Manufacturers and Commerce (WMC), the state's business lobby. In one ruling in 2005, the Supreme Court overturned the state's caps on medical-malpractice cases. In another, the court ruled that a plaintiff could sue several manufacturers when he did not know which (if any) had caused him injury.
In 2007 groups from all sides poured cash into a state Supreme Court race, spending $5.8m. In this month's election one estimate is that the candidates together raised about $1m (Mr Butler outspent Mr Gableman), while outside groups such as WMC and the teachers' union spent more than $4.5m.
This year's flood of money might have drawn less censure if it had spurred a proper debate on judicial philosophy. It didn't. Mr Gableman's campaign produced an advertisement suggesting that Mr Butler, a black man, had helped free a black rapist. An advertisement supporting Mr Butler claimed that Mr Gableman was soft on paedophiles. Even WMC's advertisements were about crime. Regardless of the tenor of the campaign, money may be undermining faith in the court. A recent poll conducted for Justice at Stake, a group devoted to judicial independence, found that 78% of respondents in Wisconsin believe campaign contributions influence judges' rulings.
The question is whether to change the new dispensation and, if so, how? Comprehensive legal reform might help keep the tort war from seeping into judicial elections. But the elections themselves are unlikely to be scrapped. More feasible would be to pass reforms, such as public financing for campaigns or stricter rules to prevent conflicts of interest. In Wisconsin politicians and Supreme Court judges all work beneath the state capitol's giant dome. It is getting hard to tell the difference between them. "
I would add three observations to the debate; the first one comes from the judge I clerked for, Howard C. Ryan, who was an elected state court judge. His point was a pragmatic one, which is that reformers need to be flexible in their proposed solutions and cannot expect to hit a "home run" on the first try. For example, the "reform" solution that works for the hundreds or thousands of judges in Cook County, Illinois probably will not work for a "downstate" Illinois county with only a handful of judges and perhaps only dozens of lawyers. Why? Because some reform proposals aimed at Cook County called for panels of X lawyers, with X being a small number in Cook County but an unattainable number in some farming counties with modest numbers of lawyers and judges. (During my clerkship way back in 1983, the issue was somewhat "hot" in Illinois and so Judge Ryan, as a "downstate" judge, explained to us some of the very real differences between Cook County courts and the courts in the rest of the state. In my opinion, he's absolutely correct that one size does not fit all. The Judge, by the way, also was open-minded. Indeed, to further the analysis, he asked me to research and present him with a memo summarizing how various nations around the world create their judiciary.)
Second, there is in my view much merit to ensuring that many of our appellate judges have spent meaningful time as trial judges. Trial courts are dynamic places with things said and unsaid because of the exigencies of the moment and many other factors. When an appellate court gathers to decide cases, it is I think important that there are some judges in the room who have a feel for the what is really "harmless error," and the pressures of long trial days. This is not to suggest creating a black letter rule requiring trial court experience - I join with those who say that it would be a grave mistake to exclude all academics, nor do we want to exclude the lawyers who never worked as judges but spent years trying cases, and so know the nature of trials.
Third, there is the question of why the topic has produced so little substantive debate (as opposed to sound bites and posturing), and so little meaningful change. On this topic, I commend to all Robert Reich's newest book: Supercapitalism. It's an insightful look at where we as a nation are today in terms of the political process. It's also refreshing to read a book with lots of facts, footnotes to the sources, and an absence of spin.
_____________________________________________________________
Torts and courts
Apr 10th 2008 MADISON, WISCONSIN
From The Economist print edition
Life, liberty and the pursuit of a fair judiciary
Life, liberty and the pursuit of a fair judiciary
JUSTICE is meant to be impartial. To this end, Britain's judges are appointed for life. In America federal judges are as well. But in 39 states some or all judges must face election and re-election, often with unbecoming hoopla. An election to the Supreme Court of the state of Wisconsin has just involved about $5.5m and more than 12,000 aired advertisements. Habeas circus, one might say.
Michael Gableman defeated Louis Butler, an incumbent on Wisconsin's Supreme Court, on April 1st, and the cacophony has not yet subsided. The scuffle has revealed two worrying traits of America's judicial elections.
First, they have become bitter contests. In 2006 91% of Supreme Court elections featured television advertisements, up from 22% in 2000, according to New York University's Brennan Centre. Second, the war over tort, or liability, reform has turned judicial elections into a nasty battlefield—especially in those states where state Supreme Court justices are directly elected. Karl Rove, once George Bush's Svengali, ascended in part by helping Texas businessmen fight trial lawyers for control of that state's highest court. The most expensive judicial race in America's history, a $9.3m fight in 2004, saw tort interests pour money into rival campaigns for a seat on the Illinois Supreme Court.
In Wisconsin the signs are troubling. The state's new era of judicial elections began last year. A series of rulings had galvanised corporate leaders, explains James Buchen of Wisconsin Manufacturers and Commerce (WMC), the state's business lobby. In one ruling in 2005, the Supreme Court overturned the state's caps on medical-malpractice cases. In another, the court ruled that a plaintiff could sue several manufacturers when he did not know which (if any) had caused him injury.
In 2007 groups from all sides poured cash into a state Supreme Court race, spending $5.8m. In this month's election one estimate is that the candidates together raised about $1m (Mr Butler outspent Mr Gableman), while outside groups such as WMC and the teachers' union spent more than $4.5m.
This year's flood of money might have drawn less censure if it had spurred a proper debate on judicial philosophy. It didn't. Mr Gableman's campaign produced an advertisement suggesting that Mr Butler, a black man, had helped free a black rapist. An advertisement supporting Mr Butler claimed that Mr Gableman was soft on paedophiles. Even WMC's advertisements were about crime. Regardless of the tenor of the campaign, money may be undermining faith in the court. A recent poll conducted for Justice at Stake, a group devoted to judicial independence, found that 78% of respondents in Wisconsin believe campaign contributions influence judges' rulings.
The question is whether to change the new dispensation and, if so, how? Comprehensive legal reform might help keep the tort war from seeping into judicial elections. But the elections themselves are unlikely to be scrapped. More feasible would be to pass reforms, such as public financing for campaigns or stricter rules to prevent conflicts of interest. In Wisconsin politicians and Supreme Court judges all work beneath the state capitol's giant dome. It is getting hard to tell the difference between them. "
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