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.
Monday, May 19, 2008
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. "
Attorneys' Fee Awards in Mass Tort Litigation
Some recent attorneys' fees awards illustrate that specialized mass tort litigation is becoming ever more entrepreneurial and rewarding when claims succeed in areas such as product liability litigation. Much of the history of teh financing of contingent fee claims is very well explained by Professor Stephen C. Yeazell of UCLA in his 2001 article, "Re-Financing Civil Litigation," 51 DePaul Law Review 183 (2001). I highly recommend the article to anyone interested in understanding the economics of mass tort litigation. The article was part of a DePaul Law School symposium organized through a $ 1 million gift from Robert Clifford, one of Chicago's most-respected plaintiff's lawyers. One might also consider Prof. Yeazell's related online lecture apparently published as an honor by UCLA for distinguished work by its professors.
The recent examples? "Fen-phen" litigation produced a most recent award of $ 412 million fee award for several plaintiff's firms. The Point of Law authors note that all of the awards work out to about $1,000 per hour based on hours reported to have been billed. The Mass Tort Litigation blog authors also noted the award and provide cites for some of the key rulings in that litigation.
The Florida phase of the tobacco litigation recently produced a $ 218 million fee award for plaintiff's counsel. The award is described as providing a 5x multiplier for the risks undertaken by plaintiff's counsel, Stanley and Susan Rosenblatt. According to the news article, the trial judge who awarded the fees took pains to praise the efforts of plaintiff's counsel, saying:
''I think this is one shining example of an effort that was undertaken with diligence and for an amount of time that would have destroyed most people,'' Miller said, according to a hearing transcript. The Rosenblatts' performance is ``an example of the kind of lawyering that is done here in South Florida.''
The recent examples? "Fen-phen" litigation produced a most recent award of $ 412 million fee award for several plaintiff's firms. The Point of Law authors note that all of the awards work out to about $1,000 per hour based on hours reported to have been billed. The Mass Tort Litigation blog authors also noted the award and provide cites for some of the key rulings in that litigation.
The Florida phase of the tobacco litigation recently produced a $ 218 million fee award for plaintiff's counsel. The award is described as providing a 5x multiplier for the risks undertaken by plaintiff's counsel, Stanley and Susan Rosenblatt. According to the news article, the trial judge who awarded the fees took pains to praise the efforts of plaintiff's counsel, saying:
''I think this is one shining example of an effort that was undertaken with diligence and for an amount of time that would have destroyed most people,'' Miller said, according to a hearing transcript. The Rosenblatts' performance is ``an example of the kind of lawyering that is done here in South Florida.''
Thursday, April 24, 2008
The Dickie Scruggs Saga - a/k/a Crisis Management for State Farm
The Dickie Scruggs saga has been much hyped. Indeed, one could say it is over-hyped because although there are some lawyers who appear to have bent or broken the rules, there are many more who act ethically and do a great job for their clients.
In any event, the best summary I've seen of the Dickie Scruggs saga is by Roger Parloff of Fortune. An upcoming issue of Fortune will have a condensed article, but an extended online version is available here. In addition, Mr. Parloff's blog has further information.
In any event, the best summary I've seen of the Dickie Scruggs saga is by Roger Parloff of Fortune. An upcoming issue of Fortune will have a condensed article, but an extended online version is available here. In addition, Mr. Parloff's blog has further information.
Subscribe to:
Posts (Atom)
Posts
