Archive for June, 2004

Scruggs watch

Last week lawyers associated with uber-tobacco lawyer Richard Scruggs fanned out across the country to file a dozen lawsuits against thirteen large non-profit hospitals in eight states. According to one press account, the lawsuits allege that “the institutions are not living up to their charitable missions, are overcharging uninsured patients and are using overly aggressive collection tactics.” (Rob Kaiser, “Class actions filed against non-profit hospitals,” Chicago Tribune, June 18) Scruggs characterizes the litigation as his attempt “to stop profiteering by nonprofit hospitals.” (Bill Lewis, “St. Thomas among hospitals accused of ‘profiteering,'” Nashville Tennessean, June 18)

The Tennessean article further explains:

“The lawsuit said Saint Thomas unfairly benefits from its long-held tax-exempt status, and the suit alleges a breach of contract, consumer fraud and deceptive business practices because Saint Thomas and the other nonprofits allegedly haven’t provided enough charity care in return for their tax exemptions….

“He criticized the hospitals named in the lawsuits for charging what he said were their highest rates to patients who do not have insurance, while giving discounts to big insurance companies. If the poor or uninsured patients cannot pay their bills, the hospitals garnishee wages and bank accounts, seize houses and force people into bankruptcy, he said.”

University of Chicago law professor Richard Epstein, quoted in the Tribune article, had this reaction: “Dicky Scruggs has got a lot of money, and he’s looking for a lot of trouble,” Epstein said. “The question is, what’s the law that’s being violated?”

Brookings study of state regulation

I became aware only this week of the publication earlier this year of Paul Teske’s book, Regulation in the States, by the Brookings Institution Press. I have not yet read it, and so cannot recommend it to you from that vantage point. However, the abstract looks interesting, I think it might interest a substantial set of Overlawyered readers, and the time of a guest blogger is short. So, here’s a clip from the book’s abstract:

“Regulation in the States provides original quantitative analyses of state-level regulation across all the states in ten important sectors such as telecommunications, electricity, and professional licensing. Each section uses the same template for research and discussion, enabling cross-comparison among industries. Teske finds that commonly held fears of regulatory capture by industry are overblown, as are worries about an inevitable ‘race to the bottom.’ Legislatures and agencies still tend to base their policy decisions on their own ideologies and analysis. Teske also examines important exceptions, however, such as the case of occupational regulation.”

For a short, mostly favorable review by a political scientist, click here.

“Can these settlements be redeemed?”

A 2002 class-action settlement against cable purveyor MediaOne (now Comcast) over alleged overcharges resulted in a payout to consumers ballyhooed at $17 million, with $3 million going to fees for class counsel. Boston Globe columnist Alex Beam tries to find out how much of that $17 million was actually paid to consumers, and — imagine! — gets blown off by both the company and the lawyers. He also tries to check out how much consumers actually received from a settlement against the Poland Spring water company (see Feb. 2, Sept. 10) that was billed as being worth $8 million, with $1.35 million to the lawyers. The lawyer he reaches tells Beam he has no idea, and the company never gets back to him. All’s well with the system (Jun. 17).

Worker’s comp: trauma over visitor’s remark

New Jersey: “County freeholders Tuesday paid nearly $26,000 to a Crest Haven Nursing Home employee who claimed she suffered a psychiatric disorder in 2001 after a nursing home visitor made an inappropriate remark to her.” Nursing assistant Cynthia Allen, a longtime employee whose lawyer said she had a good work record, “alleged that she was feeding another patient in late December 2000 when a nursing home visitor said ‘I bet you have some fresh stuff.'” Although the visitor later denied saying anything and no one else heard the comment, Allen said it had been made in a sexually offensive way and that she had felt intimidated when seeing the visitor on two subsequent occasions. Medical experts agreed that she had suffered psychological trauma over the incident. A freeholder who voted for the payment nonetheless termed it “bizarre” and said “This is what’s wrong with our legal system.” (W. F. Keough, “Visitor?s remark to worker at Crest Haven costs county $26,000 in compensation claim”, Press of Atlantic City, Jun. 23 (reg)).

State AGs on drugs

Those who follow the activities of state attorneys general know of their interest in the pharmaceutical industry. Last week, Vermont AG William Sorrell was named president of the National Association of Attorneys General (NAAG) for 2004-05. In his presidential address, Sorell announced that “the issue of drug pricing” would be NAAG’s “particular focus” during his tenure. Sorrell raised the following questions:

“What drives our high drug prices? Is it true that the pharmaceutical industry is the most profitable industry in this country? Is it true that our national spending on prescription drugs more than tripled from 1990 to 2001? Do research and development costs explain the prices we pay? What are the effects of advertising and other forms of marketing on demand for prescription drugs and the amounts we pay for them? If it is true that industry direct-to-consumer advertising expenditures increased seven times between 1995 and 2001, why has this been so and how are prices affected by these increases?

“What about conduct by companies that have violated state and federal antitrust, consumer protection and other laws? Is this another cost driver? And how transparent is the prescription drug marketing and distribution system? Why are cheaper generic equivalents neither prescribed by more doctors nor desired by more patients?”

There is a NAAG meeting scheduled for Chicago in January on this subject.

For more on this subject, go to this post on Point of Law.

Latest newsletter

The latest installment of our free periodic newsletter went out this afternoon to its c. 2300 subscribers, covering the last few weeks’ worth of postings in telegraphic, even punchy style. It’s a great way to keep up with items you may have missed; you can even forward the email to friends to let them know about the site. Sign up today, right here.

On the importance of secure property rights

“Everyone knows” the institution of private proprety is important to a society, but proving just how important has, somewhat surprisingly, been tricky. A new paper by Daron Acemoglu (MIT), Simon Johnson (MIT), and James Robinson (Berkeley), makes the case that “differences in economic institutions appear to be the robust causal factor underlying the differences in income per capita across countries.” (Emphasis added.) The authors define good “economic institutions” as including “enforcement of property rights for a broad cross-section of society so that all individuals have an incentive to invest, innovate and take part in economic activity.” Additionally, there must be “some degree of equality of opportunity in society, including such things as equality before the law, so that those with good investment opportunities can take advantage of them.” In an earlier paper, the authors coined the term “institutions of private property” to cover this idea, and the term “extractive institutions” to cover situations where “the rule of law and property rights are absent for large majorities of the population.”

The paper, Institutions as the Fundamental Cause of Long-Run Growth, makes fascinating reading, even for a non-economist. It is available for purchase from the National Bureau of Economic Research (NBER subscribers can download it for free). A less-than-final draft, dated April 29, is also available on Professor Acemoglu’s webpage.

Hyundai wins one in Alabama

Lowndes County, Alabama, has a reputation for being a rather plaintiff-friendly jurisdiction. On Tuesday, however, a jury there returned a verdict in favor of Hyundai Motor Co. in a wrongful death suit. In 1999, Christine Graham was killed “when her 2,300-pound Hyundai Excel was struck by a 79,000-pound Freightliner 18-wheeler going more than 60 miles per hour. Attorneys for the Graham family argued that a faulty seat belt and door latch design contributed to her death in the accident. Hyundai attorneys said the seat belt and door latch met all safety standards and the sheer force of the accident caused the woman’s death.” The case had been tried once before, in July 2002, ending in a hung jury that voted 10-2 in Hyundai’s favor. (Michael Tomberlin, “Hyundai prevails in crash lawsuit,” Birmingham News, June 24).

It’s interesting to note that Hyundai is building its first US assembly plant in adjacent Montgomery Country. When opened in 2005, the $1 billion facility will employ 2,000 people. I’ll leave it to others to divine whether this had any effect on the outcome of Hyundai’s case.

PointOfLaw.com now open

Point Of Law, the new site that the Manhattan Institute is launching with my assistance, has now opened its doors. There’s a lot to explore including a series of top-drawer reprints of great law review articles of the past. The center attraction, however, is a new weblog on which both Ted Frank and I will be posting, along with Jim Copland of the Manhattan Institute and some players to be named later. We’ve been putting up experimental posts for a couple of weeks now so there are dozens of them there now which have never appeared on this site; recent topics of discussion include the controversy over Judge Calabresi’s remarks at the American Constitution Society (posts by Jim Copland one, two); a report on the introduction of trial by jury into Japan; and tag-team coverage of New York Timesman Bob Herbert’s ineffably lame recent diatribes on medical malpractice (Frank, Copland, Olson).

Beyond that, we’ve enriched the site with selected highlights from the Overlawyered archives, including Ted’s must-save discussion of the Stella Liebeck versus McDonald’s hot coffee case. Many more features to come, and Prof. Bainbridge has already given the site a nice welcome, as have Prof. Grace, Prof. DeBow and “How Appealing”‘s Howard Bashman. Why don’t you give it a look/link now too?

P.S. In response to reader inquiries: no, I have no plans to scale back (let alone discontinue!) Overlawyered. PointOfLaw is separate and additional. (expanded and bumped 6/24).