- Artificial intelligence dodges a legal dart: “An Algorithm for Predicting Recidivism Isn’t a Product for Products Liability Purposes” [Eugene Volokh, Jim Beck]
- Powdered caffeine is hazardous stuff. Should Amazon be liable to the survivors of an Ohio 18-year-old who died after ingesting some bought online? [Associated Press/WKBN]
- Overview and critique of public nuisance theories of mass tort, including vaping, opioids, climate change, and other environmental [American Tort Reform Association]
- Knowledgeable review of NYC subway torts [Ross Sandler, CityLand (New York Law School]
- “1 law firm gets lion’s share of $112M in NFL concussion fees” [Associated Press/WKMG]
- Thanks Mark Pulliam for mentioning me in the course of reviewing a book that takes a rosier view of lawsuits than I do [Law and Liberty]
Somehow missed blogging this when it happened last fall: “An Oklahoma judge who ordered Johnson & Johnson to pay $572 million for its role in the state’s opioid epidemic admitted in court on Tuesday that he made a $107 million math error. Judge Thad Balkman of Cleveland County said the portion of the award devoted to a treatment program for addicted babies should have been $107,683, not $107,683,000.” [Debra Cassens Weiss, ABA Journal last October; earlier here and here on Oklahoma opioids public nuisance case] Not unrelated: “A dozen law firms are set to earn nearly $160 million in contingency fees in 15 opioid settlements involving two counties in Ohio and the state of Oklahoma, according to Law.com’s review of the contracts at issue in those settlements and emails provided by government officials.” [Amanda Bronstad, Law.com]
- “Feds Say It’ll Take Up To 90 Days to Approve New Mask-Making Facilities” [Christian Britschgi, Reason] “America Could Import Countless More Face Masks if Federal Regulators Would Get Out of the Way” [Eric Boehm] Reversing course, FDA agrees to permit wider use of a system developed by Battelle for sterilizing specialized masks worn by front-line health workers [Rachel Roubein, Politico] In the face of mounting criticism, federal Centers for Disease Control may reconsider guidance discouraging general public from wearing face masks [Joel Achenbach, Washington Post]
- What would we do without the FDA? “FDA Tells At-Home Diagnostics Companies To Stop Coronavirus Test Roll-Outs; The companies are complying. Customers won’t get their results and are being told to destroy their test kits.” [Ronald Bailey, Reason] Small favors: FDA “is easing up on some regulations so that ventilators can be manufactured and implemented more quickly” to respond to crisis [Scott Shackford]
- And the same continued: “The idea to expand testing of drugs and other medical therapies was strongly opposed by the FDA’s senior scientists this week, the official said, and represented the most notable conflict between the FDA and the White House in recent memory.” [Tyler Cowen] “FDA Shouldn’t Keep Safe Drugs off the Market” [David Henderson]
- Off-label or no, “the FDA granted an emergency authorization request to make chloroquine and hydroxychloroquine available from the Strategic National Stockpile (SNS), the federally operated supply of medical equipment and pharmaceuticals for use in public health emergencies.” [Naomi Lopez and Christina Sandefur, In Defense of Liberty (Goldwater Institute); Ronald Bailey; Jim Beck; earlier on off-label prescribing here, etc.] Switch of beverage alcohol firms to making hand sanitizer was advanced by waivers from FDA and Alcohol and Tobacco Tax and Trade Bureau [Jeffrey Miron and Erin Partin]
- Needless face-to-face consults avoided: “Health Canada Sets A Good Example By Relaxing Opioid Prescribing Rules During COVID-19 Pandemic” [Jeffrey Singer, Cato] Some moves in the right direction in the U.S. too [Singer]
- Even the New Jersey courts aren’t buying the ambitious theory of “fourth-party payor liability,” in which a plaintiff who never “claimed to have used the product, paid for the product, acquired the product, or had any interaction with the product (or its alleged manufacturers) in any way” nonetheless sues them for supposedly driving up health insurance costs [James Beck, Drug & Device Law]
- Heartburn drug: “Trial lawyers start search for next big mass tort, increase Zantac ads by more than 1,000%” [John O’Brien, Chamber-backed Legal Newsline]
“The opioid litigation will have the same dire effects on the rule of law as the tobacco deal.” It will also have cruel consequences for pain sufferers and other legitimate participants in the market. And the other problems: “a well-orchestrated media frenzy that advance the trial lawyer’s narrative over solid science,” and a cozy network of highly lucrative contracts between law firms and city/state governments that, to judge from the parallel tobacco episode, is likely to exert a corrupting influence on both public service and law. An article not to miss from a longtime friend of this blog [Law and Liberty]
- “A federal judge has ordered the nation’s leading pharmacy chains to turn over billions of nationwide prescription records going back 14 years – even as the American Civil Liberties Union and some states attack similar requests by the government as overbroad and an invasion of privacy.” [Daniel Fisher, Legal NewsLine] “Without evidence and unable to make public nuisance argument, Delaware’s opioid claims against Walgreens fail” [same] “Oklahoma Opioid Ruling: Another Instance of Improper Judicial Governance Through Public Nuisance Litigation” [Eric Lasker and Jessica Lu, Washington Legal Foundation, earlier]
- “Merck v. HHS tests the limits of the federal government’s ability to control and compel commercial speech” [Ilya Shapiro and Dennis Garcia on Cato amicus brief in D.C. Circuit raising First Amendment issues]
- Let’s try correcting the New York Times on drug pricing. Where to begin? [Molly Ratty, Popehat]
- “Court Strikes Down NECC Convictions [New England Compounding Center] for Vagueness” [Stephen McConnell, Drug & Device Law]
- Defense perspective: the ten worst and best prescription drug and medical device decisions of 2019 [Jim Beck, Drug & Device Law]
- “If there are people out there with no options and they have terrible diseases, we are going to get those drugs to them as fast as feasible.” FDA approving potential breakthrough drugs more speedily [Michelle Fay Cortez and Cristin Flanagan, Bloomberg/MSN; related, Alex Tabarrok]
Lengthy exposé of abuses and money-chasing in the drug- and alcohol-recovery industry has many angles, some relating to the legal environment in which the abuses arise: “We kept hearing about people with substance-use disorder being exploited by bad actors who take advantage of well-intended federal laws, like the Americans with Disabilities Act and the Affordable Care Act, and that they keep them in an endless pattern of relapse to siphon off their insurance benefits.” [Colton Wooten, The New Yorker]
- Central planning meets the Drug War: Drug Enforcement Administration (DEA) presumes to know and decree “just how many prescription opioids of all classifications and in all situations will be needed in the coming year for a nation of 325 million people.” Paging Dr. Hayek [Jeffrey Singer]
- Mysteries of the “negotiating class”: National Association of Attorneys General questions novel procedural device used by federal judge Dan Polster in Cleveland [Daniel Fisher, Legal Newsline, more; Amanda Bronstad, Law.com (Sixth Circuit review)]
- “All of these are drug-seeking behaviors. But I maintain that none of these patients were addicted.” Scott Alexander talks back to a U.S. Senator, the WSJ, and others [Slate Star Codex] “How Stigma Against Addiction Devastates Pain Patients” [Elizabeth Brico at Filter, a recent launch on drug policy]
- “Why Opioid Pharma Hatred Is Overblown and Harmful” [Alison Knopf, Filter] A Washington Post series on pill distribution fueled a false narrative [Singer, Jacob Sullum, and they’re just getting started]
- “Patients, Privacy, and PDMPs: Exploring the Impact of Prescription Drug Monitoring Programs,” Cato policy forum with David S. Fink, Kate M. Nicholson, Nathan Freed Wessler, and Patience Moyo, moderated by Jeff Singer;
- Oklahoma U. law prof says “improper” opioid nuisance suit by state’s attorney general could “create a monster” [Karen Kidd, Legal Newsline; earlier here, here, etc.] If judge can essentially rewrite public nuisance law, ramifications “are huge” for other industries that might be targeted in future, “such as the environmental, chemical, vaping, firearms manufacturing, and energy industries.” [John Shu, Federalist Society]
The prospect of settlement in the local government opioid cases is likely to result in a massive windfall into the many billions of dollars for private lawyers who signed up government clients; many of these lawyers are munificent political donors as well [Daniel Fisher, Legal Newsline] Earlier, an Ohio federal judge’s scheme for opioid “negotiating class” idea raised eyebrows [Alison Frankel/Reuters, Daniel Fisher/Legal Newsline; Jan Hoffman, New York Times] And at Harvard Petrie-Flom’s “Bill of Health,” Jennifer Oliva interviews Prof. Elizabeth Chamblee Burch on the opioids battle; Burch has been critical of self-dealing and angling for fees by lawyers in mass tort and multi-district litigation.
SC Johnson, maker of Drano, Pledge and other household products, is threatening to sue Oklahoma Attorney General Mike Hunter for citing the company’s slogan in the state’s opioid lawsuit against an unrelated, yet similarly named, Johnson & Johnson.
“I am writing to demand that you retract your statements that have appeared in both national and local media citing the SC Johnson tagline, ‘A Family Company.’ If you do not, we will have no choice but to bring suit,” Johnson CEO Fisk Johnson said in a letter to Hunter released Tuesday.
S.C. Johnson says that even after it wrote the Oklahoma AG to warn him he was quoting the wrong company’s slogan, he went on national television and repeated the talking point.
Not to say anyone should be suing over this, but if AG Hunter didn’t know the difference between New Jersey-based pharma giant Johnson & Johnson, which he was suing for $ billions, and Racine, Wis.-based S.C. Johnson, the family-owned Johnson’s Wax company, it kind of makes my point about the demagogic populism fueling these cases. [earlier] And maybe also my point about how the private trial lawyers on contingency fee, whose expectation for a multi-billion-dollar payday will have to be met if the mass litigation is to settle, are the real brains of the opioid-suit operation.