Mark Lanier and other plaintiffs lawyers are giving a series of interviews where they complain that the Ernst v. Merck decision (discussed yesterday) is “judicial activism that reinterprets the evidence.” (E.g., in Texas Lawyer.) This is nonsense. Ernst follows well-stated precedent. Indeed, I predicted precisely this result and precisely the case the appellate court would use to strike down the decision the week of the jury’s verdict.
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If you’re not keeping up with our sister site, you’re missing out on stories about how expert evidence standards help plaintiffs too (and more); animal rights more voguish at many law schools than those dull old humans; Ohio Supreme Court commended; implications of recent plunge in carpal tunnel cases; 93% enrollment in Vioxx settlement; attorney faces criminal charges after his clients quit their nursing jobs; extensive coverage of Gov. Spitzer’s downfall; more trouble for Florida lawyer accused of bribing defendant’s adjuster to obtain settlement target numbers; ballot measure would abolish employment at will in Colorado; judicial seminars by the securities class action bar; and much more.
- Sheffield-based clown “Barney Baloney” finds it harder to amuse children now that liability insurers have vetoed his bubble machine and supermarkets bar him from using allergenic latex balloons [Daily Mail, Telegraph, AFP/Breibart, Lowering the Bar; video at Breitbart.tv]
- Good opinion column prompted by above: “the fear of legal action is not a fantasy of liberal killjoys … what has really happened is that a small minority of the population have become accident-intolerant and are prepared to enforce their utopia through the courts.” [Mark Lawson, Guardian]
- Furor over official ruling that man who killed London headmaster can’t be deported back to Italy without violating his human rights “as he no longer has strong family ties there” [Telegraph]
- Scandals about groundless expert testimony in infant death prosecutions lead to calls for importation of Daubert rules, maybe even national institute of forensic science [Times Online]
- Labour government will propose bill to halt prosecution of homeowners who defend themselves with “proportional” force against burglars, home invaders [Telegraph] while Tories pledge to end “compensation culture” in school governance [likewise]
- State of UK law blogs, and link to a list of them [Nick Holmes via Kevin O’Keefe]
- Please, please don’t: leading consumer group calls for adoption of U.S.-style class action system in which lawyers can represent everyone who doesn’t affirmatively opt out [Times Online]
- New York Times hoisted by its own petard. [Point of Law]
- Insult to injury: spammer sues spam victim. Earlier: Nov. 8; Jan. 28, 2005; Dec. 8, 2003. [Time; Concurring Opinions]
- Securities class actions down: what does it mean? [Point of Law]
- When should Daubert motions be resolved? [Hutchinson; Nordberg]
- Nardelli’s $210 million severance. [Point of Law; Contrarian’s Edge; Ideoblog; Sloan @ WaPo]
- “We don’t think you should get [school] credit for just being alive.” [New York Sun]
- Gerald Ford and impeachment. [SCOTUSBlog; NRO; Point of Law]
- Therapy animals redux. [New Haven Register (dog); NBS (chicken) (via ATL)]
Over at Point of Law, there’s a new Featured Discussion on medical malpractice: our own Ted Frank expands on his theory that it might be a good idea for doctors to benefit from something akin to the “business judgment rule”, by which courts refrain from second-guessing many decisions of corporate directors and officers in shareholder litigation. Ably representing the opposite point of view is Peter Nordberg, whose Daubert on the Web and Blog 702 cover scientific evidence issues in the courts with unrivaled depth.
Peter Nordberg points us to an unpublished Fourth Circuit opinion upholding an expert’s testimony as to damages. Mary Lafontaine Parmenter’s investment advisor moved her $730,000 account into stock mutual funds in late 1999, increasing its value to $1.1 million at the height of the stock market bubble in 2000 (even as she was withdrawing $6000/month), whereupon it declined in value to $342 thousand. The expert argued that the most serious breach of the investment advisor’s duties came when he failed to consolidate the gains, and that losses should be counted from the peak of the account’s value. I don’t doubt that the investment advisor could have been found to be inappropriately aggressively investing Parmenter’s money; but if he was doing so inappropriately in April 2000, he was doing so inappropriately in 1999, when he made her half a million dollars; there’s something unseemly about the calculation of loss. Hindsight is nice: if the expert, F. John Hermann, could accurately forecast account value peaks, he’d be a billionaire rather than an expert-for-hire.
The opinion also reveals that the plaintiff’s attorney successfully tricked the defendant into conceding that an accurate SEC disclosure form that he had filed was inaccurate; the appeals court offered no relief because of lack of evidence that the tactic was intentional.
In the Manhattan Institute’s City Journal, Philip K. Howard, president of Common Good and a longtime friend of this site, contributes an essay on fixing our litigation system. Among his topics: the need for a robust principle of assumption of risk; lessons from the U.K., where a “compensation culture” has spread despite a set of legal procedures that is the dream of reformers on this side of the Atlantic; the role of summary judgment and Daubert review; and the role of predictable law in maintaining the principle of the rule of law (Spring).
On June 1, 1998, Clark Seeley left the house while leaving Pop-Tarts heating in a toaster. Poor decision: there was a fire in the unattended toaster, and his house was damaged. Seeley blames not himself, but the toaster manufacturer. (The press doesn’t mention it, but Seeley’s insurance company initiated the suit before apparently settling.) The story is in the news now because (paging Peter Nordberg) the judge (probably correctly) held Wednesday that an expert’s study that a frosted-sugar pastry could conceivably start a toaster fire was admissible because it was falsifiable. The real question is why a court has let this case get to the stage where parties need to hire lawyers to supervise and submit reports from frosted-sugar pastry experts. (Michael Virtanen, “Judge Allows Expert on Pop-Tarts To Testify in Flaming Pastry Lawsuit”, AP/NY Sun, Dec. 17; Liberty Mutual Ins. v. Hamilton-Beach, 1:99-cv-01162-LEK-DRH (N.D.N.Y.)) The maker of Pop-Tarts was not sued, perhaps because the box warns consumers not to leave pastries unattended in the toaster. (Sean Carter, “Pop-torts”, November 2, 2001). Previous suit: Jul. 30, 2001. Update: New York Lawyer weighs in. (John Caher, “Engineer Ruled Expert Witness in Flaming Pop-Tart Case”, Dec. 21).
By reader acclaim, from Oregon: “A Portland lawyer says suffering by African Americans at the hands of slave owners is to blame in the death of a 2-year-old Beaverton boy. Randall Vogt is offering the untested theory, called post traumatic slave syndrome, in his defense of Isaac Cortez Bynum, who is charged with murder by abuse in the June 30 death of his son, Ryshawn Lamar Bynum. Vogt says he will argue — ‘in a general way’ — that masters beat slaves, so Bynum was justified in beating his son.” However, attorney Vogt may find it a challenge to secure the admissibility of the slavery-trauma theory, which has been accepted by neither the courts nor the psychiatric profession. Washington County Circuit Judge Nancy W. Campbell threw out pretrial testimony by Joy DeGruy-Leary, an assistant professor in the Portland State University Graduate School of Social Work, to the effect that the brutality of slavery, together with continuing racism, oppression and societal inequality, helps explain self-destructive, violent or aggressive behavior in African-Americans. Judge Campbell said she would reconsider allowing the defense in Bynum’s September trial, but only “if his lawyer can show the slave theory is an accepted mental disorder with a valid scientific basis and specifically applies to this case.” (Holly Danks, “Judge rejects slave trauma as defense for killing”, The Oregonian, May 31). According to David Bernstein, writing two years ago, the standards for admission of expert testimony in Oregon are not as tight as might be wished (“Disinterested in Daubert: State Courts Lag Behind In Opposing ‘Junk’ Science”, Washington Legal Foundation (PDF) Legal Opinion Letter, Jun. 21, 2002)(search on “Oregon” or scroll to near end of piece).