Posts Tagged ‘North Dakota’

Oklahoma judge orders J&J to pay state $572 million over opioid sales

“A judge in Oklahoma on Monday ruled that Johnson & Johnson had intentionally played down the dangers and oversold the benefits of opioids, and ordered it to pay the state $572 million.” The state had asked for $17 billion. [Jan Hoffman, New York Times and sidebar on why J&J, the deepest pocket, was the only defendant left standing in the Oklahoma case; opinion; Paul Demko, Politico; Lenny Bernstein, Washington Post] Caleb Brown interviewed me for the Cato Daily Podcast:

For other skeptical views of the case, see Daniel Fisher, Legal NewsLine (“J&J had about 3% market share, sold abuse-resistant drugs, and Oklahoma didn’t present evidence of a single doctor who was misled by its marketing.”) and followup (problems with state’s legal theory), Jeffrey Singer/Cato, and Jacob Sullum, Reason (sweeping definition of public nuisance) and followup (other problems). [More: Jonathan Turley]

Particularly worth noting is Jacob Sullum’s account of the logical path traced by Judge James Hill in North Dakota in recently dismissing a suit against Purdue Pharma:

One of the claims against the company involved a public nuisance statute very similar to Oklahoma’s. Hill noted that “North Dakota courts have not extended the nuisance statute to cases involving the sale of goods.” He cited a 1993 case in which the Tioga Public School District #15 of Williams County, North Dakota, argued that the sale of acoustical plaster containing asbestos qualified as a public nuisance.

The U.S. Court of Appeals for the 8th Circuit, which handled the case because it involved an out-of-state defendant, observed that “North Dakota cases applying the state’s nuisance statute all appear to arise in the classic context of a landowner or other person in control of property conducting an activity on his land in such a manner as to interfere with the property rights of a neighbor.” The 8th Circuit worried about the consequences of venturing beyond that “classic context”:

To interpret the nuisance statute in the manner espoused by Tioga would in effect totally rewrite North Dakota tort law. Under Tioga’s theory, any injury suffered in North Dakota would give rise to a cause of action under section 43-02-01 regardless of the defendant’s degree of culpability or of the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort, a development we cannot imagine the North Dakota legislature intended when it enacted the nuisance statute.

Hill said he “agrees with the reasoning of the Eighth Circuit in Tioga.” As in that case, he said, the state in its lawsuit against Purdue was “clearly seeking to extend the application of the nuisance statute to a situation where one party has sold to another a product that later is alleged to constitute a nuisance.” Hill added:

The reality is that Purdue has no control over its product after it is sold to distributors, then to pharmacies, and then prescribed to consumers, i.e. after it enters the market. Purdue cannot control how doctors prescribe its products and it certainly cannot control how individual patients use and respond to its products, regardless of any warning or instruction Purdue may give.

Judging from the cases cited by Judge Balkman, Oklahoma courts have not read that state’s nuisance law to cover situations like this either—until now.

 

February 13 roundup

  • Michigan’s Oakland County seizes rental property owned by elderly man over $8.41 unpaid tax bill plus $277 in fees and interest, sells property for $24,500, keeps all the surplus cash for itself. Constitutional? [Joe Barnett, Detroit News]
  • Pruning obsolete laws: “Teaneck Council repeals more than a dozen old laws, including ban on cursing” [Megan Burrow, North Jersey Record, quoting Councilman and longtime friend of this site Keith Kaplan]
  • “What does the Constitution have to say about national emergencies, both real and imagined?” [Cato Daily Podcast with Gene Healy and Caleb Brown]
  • Lawyer in drunk-driving case: my client’s chewing on her coat could’ve thrown off breath test [AP/WSBT (Berwick, Pa.)]
  • Baltimore police corruption, tax policies that attract people, densifying MoCo and more in my latest Maryland policy roundup [Free State Notes]
  • Busybodies in Bismarck: “North Dakota’s Excellent Food Freedom Act Is Under Attack Yet Again” [Baylen Linnekin]

18,000 Facebook shares later: a tale of legal misinformation

How efficient is social media in spreading viral-junk misinformation about the law? Well, the following post about Tuesday’s two-page Supreme Court ruling in Brakebill v. Jaeger, a case about voting procedures in North Dakota, has gotten more than 18,000 shares as of this morning:

screen capture of Facebook post
Let’s take a look at its errors, or at least the first four biggies:

1. Brakebill was not Justice Kavanaugh’s first ruling. If you so much as glance at the Court’s opinion, it’s hard to miss its second sentence: “JUSTICE KAVANAUGH took no part in the consideration or decision of this application.”

2. There is no indication that the vote was 5 to 4. Liberal Justices Sonia Sotomayor and Stephen Breyer did not join the dissent.*

3. Justice Ginsburg’s dissent contains no language even remotely like that put within quotation marks here. Her tone is technical rather than indignant, and she does not challenge anyone’s motives as illegitimate.

4. The Court did not issue a decision upholding the laws. It was a denial of an application to vacate a stay, not a ruling on the merits.

And we haven’t even gotten to the merits! Three and a half days after posting, its author has not seen fit to correct any of his errors.

Here’s a rule of thumb about social media: the more anger, the less accuracy. More on viral junk and thinking before you share here.

* A reader on Twitter points out that in the absence of a signed majority opinion, we can’t know for sure that the vote against vacating the stay necessarily came out 6-2; we know only that if there were other Justices who wanted to vacate the stay, they declined to join the Ginsburg-Kagan dissent. I’ve corrected the text above accordingly.

N.D.: no heightened duty of care for designated driver

Via Eugene Volokh, the Eighth Circuit has ruled [Hiltner v. Owners Insurance Co.] that a North Dakota trial court improperly assigned a heightened duty of care to a driver following an accident on the grounds that she had been a designated driver at a social outing. Noting contrary rulings in several jurisdictions, it ruled that North Dakota law would not impose such a heightened duty: as a Tennessee court observed in 2008, “[t]o hold a driver liable for the irresponsible actions of an intoxicated passenger would cut against this important social policy of encouraging the use of designated drivers.” More: T. Thomas Metier, Northland Injury Law.

Environment roundup

  • Major new Proposition 65 regs spell plenty of new compliance and litigation issues for those doing business in California [Cal Biz Lit, first post in series]
  • For-the-kids federal climate lawsuit on “public trust” theory represents, among other things, giving up on democratic persuasion [Ian Adams, R Street, to which might be added that lawsuits pretending to represent the future interests of children in general act as power transfers to lawyers and the judiciary] A different view: David Bailey and David Bookbinder, Niskanen Center;
  • “Why Don’t We Allow Markets to Dictate Parking Policy?” [Ike Brannon, Cato]
  • “Once, protesters threatened to burn Bryson and his family in their home.” [Billings Gazette on Standing Rock standoff; Radley Balko on a prosecutor who might be blurring sympathetic coverage of protests with legal responsibility for them; Shawn McCoy/Inside Sources pushes back against popular narratives on Dakota Access Pipeline]
  • Think our law-based eminent domain system has problems? In Brazil, where poor favelas often lack formal land titling, compulsory public acquisition of land can play out as a matter of discretion [Gregory Dolin and Irina Manta, SSRN]
  • Obama administration plans for drastically more severe fuel efficiency standards are prime target for early rollback [Ronald Bailey]

“Weapons Policy Bans Fencing Group From Practicing On Campus”

“The fencing club at North Dakota State University cannot hold practices on campus as a result of the school’s weapons policy, Campus Reform reported.” [University Herald; Valley News Live (Fargo/Grand Forks)]

Also, note the ambiguity of the next line, “Members of the newly formed club said that despite having no pointed tips or sharp blades, the school classifies the club’s equipment as weapons.” It sounds as if the school administration itself is being described as “having no pointed tips or sharp blades,” which might be a version of “not the sharpest knife in the drawer.”

More: Scott Greenfield, who has a family connection with the sport of fencing.

Banking and finance roundup

  • “Dodd-Frank and The Regulatory Burden on Smaller Banks” [Todd Zywicki]
  • Side-stepping Morrison: way found for foreign-cubed claims to get into federal court? [D&O Diary]
  • “Alice in Wonderland Has Nothing on Section 518 of the New York General Business Law” [Eugene Volokh, swipe fees]
  • “Financial Reform in 12 Minutes” [John Cochrane]
  • Why the state-owned Bank of North Dakota isn’t a model for much of anything [Mark Calabria, New York Times “Room for Debate”]
  • Regulated lenders have many reasons to watch SCOTUS’s upcoming Mount Holly case on housing disparate impact [Kevin Funnell]
  • Cert petition: “Time to undo fraud-on-the-market presumption in securities class actions?” [Alison Frankel]

February 24 roundup

  • Melissa Kite, columnist with Britain’s Spectator, writes about her low-speed car crash and its aftermath [first, second, third, fourth]
  • NYT’s Nocera lauds Keystone pipeline, gets called “global warming denier” [NYTimes] More about foundations’ campaign to throttle Alberta tar sands [Coyote] Regulations mandating insurance “disclosures” provide another way for climate change activists to stir the pot [Insurance and Technology]
  • “Cop spends weeks to trick an 18-year-old into possession and sale of a gram of pot” [Frauenfelder, BB]
  • Federal Circuit model order, pilot program could show way to rein in patent e-discovery [Inside Counsel, Corporate Counsel] December Congressional hearing on discovery costs [Lawyers for Civil Justice]
  • Trial lawyer group working with Senate campaigns in North Dakota, Nevada, Wisconsin, Hawaii [Rob Port via LNL] President of Houston Trial Lawyers Association makes U.S. Senate bid [Chron]
  • Panel selection: “Jury strikes matter” [Ron Miller, Maryland Injury]
  • Law-world summaries/Seventeen syllables long/@legal_haiku (& for a similar treatment of high court cases, check out @SupremeHaiku)