- U.S. Chamber’s annual lawsuit climate survey ranks Illinois as nation’s worst this year [Institute for Legal Reform]
- Withholding material helpful to the defense: “Time for a Brady-type disclosure requirement for federal government in False Claims Act litigation” [Stephen A. Wood, Washington Legal Foundation]
- “Both sides need to learn that frequently the best response to immature behavior is to ignore it. Don’t react, don’t sink to the other side’s level, don’t try to fight fire with fire.” Advice from a federal judge to the lawyers in a Florida case [Eugene Volokh; Doscher v. Apologetics Afield, Inc.]
- Expert witness follies: litigation funders are filling the old tort lawyer role of bankrolling dodgy research on which future litigation campaigns can be based [Jim Beck]
- Back in July I linked a grim assessment of Pennsylvania’s Oberdorf v. Amazon decision expanding product liability for retail platforms. Here’s a less grim one that came out around the same time [Gus Hurwitz, Truth on the Market]
- By South Florida standards, those $1 million lawsuit fraud charges against an ADA lawyer the other day aren’t especially big; last year feds shut down an auto-claims ring they said cleared $23 million and involved “chiropractors, attorneys, clinic owners and tow-truck drivers.” [Paula McMahon, South Florida Sun-Sentinel; Insurance Fraud Hall of Shame]
- Everyday orders share same griddle, but alternate cooking method is offered for vegans: “Lawsuit claims Burger King’s Impossible Whoppers are contaminated by meat” [Jonathan Stempel and Richa Naidu, Reuters]
- Court orders Canadian Senate to pay $1,500 to man who complained of language rights violation from English-only push labels on Parliament Hill drinking fountains [Jackie Dunham, CTV]
- Guns N’ Mootness: Supreme Court hears challenge to New York’s Kafkaesque have-gun-can’t-travel law, since repealed [Clark Neily, Daniel Horwitz, Josh Blackman, Newsy video with Ilya Shapiro, earlier and David Kopel/Randy Barnett in SCOTUSBlog symposium; Cato brief, oral argument transcript]
- Some deserved national attention for the killing of Gary Willis last year by Anne Arundel County, Md. police enforcing a “red flag” gun order [Jacob Sullum, earlier]
- Profile of Ken White is first time I recall seeing explanation of Popehat as blog name [Zane Hill, Outlook Newspapers]
- “When the opposition is paying [an expert’s fee in litigation], no incentive at all exists to charge anything but top dollar. That’s where the courts come in.” [Jim Beck]
“He’s incredibly credentialed,” said a defense attorney who had employed the expert witness services of a University of Miami professor hailed as an authority on money laundering and who, according to prosecutors in a new indictment, has been lately engaging in the practice himself. [Kevin Underhill, Lowering the Bar]
- Ill-fated names: Londonderry woman sues over fall at Stumble Inn Bar and Grill [Jason Schreiber, New Hampshire Union Leader]
- After starting out as a “humanistic attorney,” lawyer in time comes to net $700,000/year “by sending San Diego workers’ compensation claimants to dirty medical providers” as part of spinal surgery scam that U.S. Justice Department said “cost insurers $500 million over a 15-year period.” [Jim Sams, Claims Journal]
- Lengthy report on creative litigation by municipalities, often done in close harness with contingent-fee private lawyers, explores ill effects and what might be done to rein the process in [Rob McKenna (former Washington State AG), Elbert Lin (former West Virginia SG), and Drew Ketterer (former Maine AG) for U.S. Chamber Institute for Legal Reform]
- “Trial lawyers are paying millions to a handful of experts necessary to push their talc cases” [Dan Fisher, Legal NewsLine, earlier]
- New York City Council Speaker: “Corey Johnson targets Scaffold Law in plan to fix MTA” [Carl Campanile, New York Post, earlier on New York’s unique, pro-plaintiff Scaffold Law]
- “Law Firms Objecting to Mesh Fees Accuse Leadership of Self-Dealing, Bill-Padding” [Amanda Bronstad, Law.com, earlier]
British neuropathologist Waney Squier spent many years as an expert witness in court assisting in the prosecution of defendants accused of causing Shaken Baby Syndrome. Then a closer engagement with the evidence caused her to change her mind — and the story that follows, which she tells in this TEDx Wandsworth talk, must be heard to be believed. Sue Luttner has more for the USC Annenberg Center for Health Journalism. More on the story: Jon Robins, The Justice Gap; Theodore Dalrymple, Spectator.
More: “Judge orders release of woman who served 11 years behind bars in grandson’s death” [Marisa Gerber, L.A. Times; earlier on shaken baby syndrome] More about Deborah Tuerkheimer’s 2014 book Flawed Convictions, which I haven’t seen, is here.
Citing “falsehoods,” “deceptions,” and “inflammatory evidence” on the plaintiff side, Judge Jerry Smith, writing for a Fifth Circuit panel, has overturned a $151 million hip implant verdict won by prominent attorney Mark Lanier against Johnson & Johnson. Reports the ABA Journal:
The court said Lanier had presented father-and-son orthopedic surgeons as unpaid experts, emphasizing their compelling pro bono testimony while contrasting the “bought testimony” of the defendants’ experts. Yet Lanier made a $10,000 charitable donation to the father’s favorite charity before trial, and sent checks totaling $65,000 to the surgeons after the trial along with thank-you notes.
The pretrial donation check and the post-trial payments “are individually troubling, collectively devastating,” Smith wrote. “Lanier’s failure to disclose the donation, and his repeated insistence that [one of the surgeons] had absolutely no pecuniary interest in testifying, were unequivocally deceptive.”
Does the naturally occurring mineral talc, found in Johnson & Johnson’s baby powder, cause ovarian cancer? According to the National Cancer Institute last month:
The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.
According to the American Cancer Society:
It has been suggested that talcum powder might cause cancer in the ovaries if the powder particles (applied to the genital area or on sanitary napkins, diaphragms, or condoms) were to travel through the vagina, uterus, and fallopian tubes to the ovary.
Many studies in women have looked at the possible link between talcum powder and cancer of the ovary. Findings have been mixed, with some studies reporting a slightly increased risk and some reporting no increase. Many case-control studies have found a small increase in risk. But these types of studies can be biased because they often rely on a person’s memory of talc use many years earlier. Two prospective cohort studies, which would not have the same type of potential bias, have not found an increased risk.
For any individual woman, if there is an increased risk, the overall increase is likely to very be small. Still, talc is widely used in many products, so it is important to determine if the increased risk is real. Research in this area continues.
On the other hand, some experts believe the risks are higher. Our contemporary American legal way of handling this disagreement is to submit the question in a series of high-stakes trials in venues selected by plaintiff’s lawyers, in which juries will listen to a battle of hired experts. On Aug. 21 a Los Angeles jury told Johnson and Johnson to pay $417,000,000 to Eva Echeverria, a 63-year-old California woman who was diagnosed with ovarian cancer in 2007. [ Margaret Cronin Fisk and Edvard Pettersson/Bloomberg, ABA Journal, Amanda Bronstad/NLJ, Alison Kodjak/NPR, Eric Lieberman/Daily Caller]
“In my first 20 years as a consultant I wrote many reports which were economical with the truth – the truth being that there was very little wrong with the vast majority of compensation claimants that I saw. I was moving with the herd.” While lawyers, insurers, and others are all complicit, writes Dr. Charlie Marks, the onus is on the medical profession to speak up against medico-legal misdiagnosis [Irish Times via Patrick Collinson, The Guardian (“Whiplash: the myth that funds a £20bn gravy train”)]
“Medical experts testifying in Erbie Bowser’s capital murder trial Tuesday blamed his deadly rampage on a ‘perfect storm’ in his brain, ultimately triggered by low sodium levels in his body. Bowser, 48, is on trial in the killings of four women — including his girlfriend and his estranged wife — and the injuring of four children in two attacks at homes in Dallas and DeSoto on Aug. 7, 2013.” [Tasha Tsiaperas, Dallas News via Jackie Salo, New York Post]
- House passes Stop Settlement Slush Funds Act of 2016 [James DeLong, Rep. Bob Goodlatte, Republican Policy Committee, earlier]
- “Enough is enough”: judge in surgical-mesh case decries tactical angling in multidistrict litigation (MDL) process, reminds lawyers of sanctions authority [Glenn Lammi, Washington Legal Foundation] Related: “Repeat Players in Multidistrict Litigation” [Elizabeth Chamblee Burch, Mass Tort Prof]
- E-mail scanning: “So-called ‘privacy lawsuits’ that essentially enrich a cottage industry of plaintiffs’ lawyers…” [David Kravets, ArsTechnica]
- GM, 3-for-3 at winning ignition-switch trials, settles a couple of bellwether cases [Margaret Cronin Fisk and Laurel Brubaker Calkins, AP/Walla Walla, Wash. Union-Bulletin, CarScoops]
- New Jersey judge disallows plaintiff’s experts’ “made for litigation” methods in talcum powder case [Michele Barnes and Clifton Hutchinson, K&L Gates]
- “Lawyers Suing Lawyers: Texas mass tort attorney sues other mass tort attorney over robocall recruitment tactic” [U.S. Chamber Institute for Legal Reform]