Vigorous discussion of this topic (see Jan. 31, Jan. 26, Jan. 20) continues at several weblogs, with Franco Castalone (posts I and II, both on Feb. 1) pursuing perhaps the most sustained critique of our commentaries.
Author Archive
Risks of defensive radiology
Use of radiation-based diagnostic methods continues on a rapid rise, even though experts on carcinogenesis warn that a small but non-trivial share of cancer is attributable to radiation from the use of medical X-rays, much of it from CT scans. MedPundit Sydney Smith (Jan. 29) says she sees a high volume of CT scans of the chest and abdomen. “I have a couple of patients who are on their third or fourth follow-up CT for uncertain findings that, truth be told, are done more for our own protection than theirs. Yet another way our litigation culture is influencing healthcare — and health.”
Lockyer to sue grocery chains
Calif. Attorney General Bill Lockyer says he’s filing an antitrust suit against Southern California grocery chains alleging that their mutual-aid strike agreement violates the federal Sherman Act. His spokesmen deny (cue laughter) that he’s trying to lend a hand to the sagging fortunes of the United Food & Commercial Workers in its 3 1/2 month old labor dispute with the chains. (“State to file antitrust suit in grocery strike”, San Francisco Chronicle, Jan. 31). “It appears the attorney general’s office is seeking a legal precedent that would scotch strike-assistance agreements in general.” Meanwhile, the Los Angeles city council is expected to vote this month on a bill which would prevent Wal-Mart from opening its SuperCenters within city limits, thus excluding the main source of competition pressing grocery prices lower. We’re sure that isn’t meant as a favor to the UFCW, either. (Shirley Svorny, “Banning Wal-Mart May Prove Costly” (commentary), Los Angeles Times, Jan. 30)
“In Trial Work, Edwards Left a Trademark”
Good New York Times page-one article investigating the Senator’s legal work, and in particular his big-ticket lawsuits over cerebral palsy. (Adam Liptak and Michael Moss, Jan. 31). See our earlier coverage Jan. 20 and Jan. 26. Alex Tabarrok, Sydney Smith, Charlotte Hays and Wayne Eastman comment.
Meanwhile, a theme has developed among several lawyer and law-professor bloggers that Edwards should not be held up to reproach even if it turns out that he employed dubious expert testimony to extract fortunes from innocent obstetricians, on the grounds that a trial lawyer is just doing his job when he seeks to introduce all admissible evidence on behalf of his client; in fact, he may even be obliged to do so as an ethical matter of “zealous advocacy”. (It should be stressed that Edwards strongly disputes the idea that his cases were in any way scientifically dubious.) We ourselves aren’t buying this line of reasoning, but it has some articulate advocates, including Peter Nordberg (who also defends Edwards here, while acknowledging that some details in the new Times piece “may supply grist for Edwards’ critics”), Franco Castalone, and David Bernstein. For our views of what constitutes proper “zeal” on lawyers’ part, see Jul. 17.
Funny business at the margin
Court reporters get paid by the page — $5 per page, in south Florida — and according to allegations in a class action that one lawyer has filed, they’ve been padding their incomes by inserting extra white space into some of those depositions and hearing transcripts. A Broward County administrator “says the tricks are old and common” and a Dade County administrator says that county, a major purchaser of court reporting services, “audits more than 2,000 transcripts a month and finds problems with about one in 10.” Less-savvy participants in courtroom processes may never notice, say, the use of a margin wider than that prescribed by state law. (Noah Bierman, “Lawyer claims court reporting agency fudging margins and bottom line”, Miami Herald, Jan. 13).
“Would it be too cynical to speculate…?”
“Would it be too cynical to speculate that what may be going on here is that class counsel wanted a settlement that would give them a generous fee and Fleet wanted a settlement that would extinguish 1.4 million claims against it at no cost to itself?” — Judge Richard Posner, writing for a unanimous Seventh Circuit panel in the class action case of Mirfasihi v. Fleet Mortgage Corp., Jan. 29 (PDF). Answering his own question, Posner continues: “The settlement that the district judge approved sold these 1.4 million claimants down the river.” (via How Appealing, whose author Howard Bashman has just announced that he’s striking out to launch his own appellate practice). More: David Giacalone is on the case.
Reparations suit dismissal, cont’d
The pseudonymous “Mindles H. Dreck” at Asymmetrical Information has some comments (Jan. 28) on Judge Norgle’s dismissal of the slavery reparations lawsuit (see Jan. 26)(documents at site of defendant Aetna). What criteria, he wonders, dictated the selection of banks, railroads, tobacco and insurance companies to be sued in the case? “1. A continuous history — who ever thought avoiding the M&A craze would be a liability? 2. Availability of records — one Historical Society officer noted to me that corporations have reconsidered or requested the return of donated archives since the suit.” Deep pockets, of course. And finally: “Defendants have to be vulnerable to PR damage.” This last point suggests why reparations advocates may not unreasonably imagine there is potential money to be made in pursuing more rounds of suits even if courts never rule in their favor.
Lunch at NYU Saturday
I’ll be the luncheon speaker this Saturday at 12 noon at the Federalist Society’s conference at New York University on “Enforcing Corporate Responsibility Through Criminal Law“. (Yes, this is rather short notice to NYC-area readers; I was tapped to fill in for a luncheon speaker who couldn’t make it.) Earlier, between 10:00 a.m. and noon, a distinguished panel will discuss corporate misconduct and the role of prosecutors, including: Prof. John Baker, Louisiana State Univ. Law Center; the Hon. Mary Beth Buchanan, U.S. Attorney for the Western District of Pa.; the Hon. Eileen O’Connor, Assistant Attorney General, Tax Division, U.S. Department of Justice; and the Hon. George Terwilliger III, White and Case, LLP.
Submarine patents run aground
Big news from federal court in Nevada: U.S. District Judge Philip Pro ruled that the estate of deceased inventor Jerome Lemelson “can’t enforce 14 patents relating to machine vision and bar-code technologies because the prolific inventor and his estate waited too long to pursue the alleged infringers. The so-called ‘submarine patents’ are invalid, Pro ruled, and are not infringed by products made by Symbol Technologies Inc. and Cognex Corp.” (Brenda Sandburg, “Judge Torpedoes Dead Inventor’s Patent Claims”, The Recorder, Jan. 27; Cognex press release, Jan. 26). Jesse Jenner, a Fish & Neave attorney who represents Symbol and Cognex, told The Reporter that defendant companies have paid Lemelson interests an estimated $1.5 billion in the face of threatened or actual litigation. “This is probably the most substantial licensing program of any individual patentee in history,” Jenner said. “It’s now essentially terminated.” For more on the fabulous Lemelson patent litigation machine, see May 10, 2001 and links from there; Feb. 11-12, 2002.
Update: killer nurse lawsuits
Plenty of families have already sued or are planning to sue hospitals that employed alleged killer nurse Charles Cullen. However, a common thread in many suits “seems to be that the lawyers pursuing them have gathered little evidence that Cullen was responsible for patients who died or fell ill.” (“Killer Nurse Case Sparks Medical Lawsuits”, AP/FoxNews.com, Jan. 15). And columnist Paul Carpenter of the Allentown (Pa.) Morning Call finds an irony in the circumstance (see Dec. 18) that Cullen bounced from hospital to hospital while each new employer was kept in the dark about his past, fear of litigation having choked off frank reference-giving: “it was the legal establishment that prevented employers from learning about a prospective worker’s background, allowing Nurse Cullen to run amok, and now it is the legal establishment that is eagerly seeking to reap enormous profits by blaming the medical institutions that employed him.” (“Who, the man asks, created the problem?”, Dec. 23)