“Two physicians fed up with medical expert witness testimony gathered lawyers and doctors and founded the Coalition and Center for Ethical Medical Testimony this summer. … Their goal is to expose physicians who falsify credentials or mislead juries about standards of care, and they’re planning to arm physicians with the tools necessary to do the job.” (Tanya Albert, “Group aims to weed out deficient medical expert witnesses”, American Medical News (AMA), Aug. 18). Meanwhile, in a trend that outrages the organized plaintiff’s bar, medical societies are establishing tribunals to review and discipline doctors over expert witness testimony that they present in court. “Doctors whose testimony does not pass muster can be suspended or expelled from the societies.” Critics from the plaintiff’s bar say the medical societies will not conduct objective evaluations because of their members’ interest in retaliating against those of their number who testify against fellow doctors. “The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review,” counters AMA president Donald J. Palmisano. “If someone comes into court and gives junk science, we don’t want fraudulent testimony in court.” Although attorney Robert Peck, who works closely with ATLA, is menacing the associations with charges of antitrust violation and witness intimidation, an opinion by the Seventh Circuit’s influential Judge Posner in 2001 upheld medical testimony peer review as socially valuable self-regulation that “furthers rather than impedes the cause of justice.” (Adam Liptak, “Doctors’ testimony under scrutiny”, New York Times, Jul. 6).
Fishing expeditionists, proceed at your own risk: “Issuing an egregiously overbroad subpoena for stored e-mail qualifies as a computer intrusion in violation of anti-hacking laws, a federal appeals court ruled Thursday, deciding a case in which a litigant in a civil matter subpoenaed every single piece of e-mail his courtroom adversary sent or received.” Judge Alex Kozinski of the Ninth Circuit wrote the opinion in the case, in which commercial litigant Alwyn Farey-Jones via his attorney, Iryna Kwasny, demanded emails from his opponent, a company named Integrated Capital Associates. (Kevin Poulsen, Security Focus, Aug. 29; opinion (PDF) courtesy IP Watchdog). The Federal Rules of Civil Procedure “impose on parties seeking discovery an obligation to ensure that their requests do not impose an ‘undue burden or expense.'” (Jeff Cooper, Aug. 29).
More: At Security Focus, Mark Rasch writes: “This decision, while motivated by a legitimate desire to protect privacy and force lawyers to obey the rules, nevertheless dramatically expands the meaning and intent of the computer crime in a way that could permit hundreds of thousands of people to be prosecuted” for such instances of “unauthorized use” or “trespass” as sending unauthorized emails or putting at-work computers to personal use. “Let’s get real. What the lawyers did was issue an overbroad subpoena. … The defendants in this case did not break into any computers — and saying that they did is bad for those who value liberty and prosecutorial restraint.” (“Forgive Me My Trespasses”, Sept. 8).
New Orleans: “The city’s public transit system should pay $51.4 million to the family of an 11-year-old girl whose arm was crushed beneath the wheels of a streetcar after she fell out of a window five years ago, a jury has decided.” A lawyer for the regional transit authority argued in vain that if the girl’s parents had been supervising her adequately she would not have fallen out of the streetcar window in the first place. (“Girl wins $51.4 million for streetcar accident”, AP/New Orleans Times-Picayune, Aug. 29). Ernest Svenson (Ernie the Attorney) writes to add that the printed edition of the newspaper contains the following passage, absent from the currently online version: “After the verdict was rendered a partylike atmosphere prevailed in the hallways outside Judge C. Hunter King’s courtroom, where jurors posed for photographs with [winning lawyer Johnnie] Cochran and the judge.” And he (Svenson) adds: “Which is nice, because that sort of thing is guaranteed to enhance public perception of our judicial system.” Addendum: the fuller version of the newspaper story is now online. Update Sept. 15: more about Judge King. Further update Oct. 25: Judge King removed from bench.
To no one’s surprise, plaintiff’s lawyers Stanley and Susan Rosenblatt are seeking en banc review by an 11-member Florida appeals court of the demise of their $145 billion verdict against the tobacco industry in Engle v. R.J. Reynolds. (“Florida smokers to appeal $145 billion lawsuit”, Reuters/Forbes.com, Jul. 16). Perhaps hinting at desperation, their banner argument is that the appeals panel engaged in “judicial plagiarism” because it adopted wholesale in its opinion vast tracts of language from defense briefs — even though this particular form of supposed plagiarism is entirely routine in court opinions when judges consider one side’s briefs convincing and do not expect that they will be able to improve on the style of the briefs’ presentation (Siobhan Morrissey, “A Case of Judicial Plagiarism?”, ABA Journal E-Report, Aug. 1). More: Gary Young, “Plagiarism Charges Plague Tobacco Decision”, National Law Journal, Aug. 21. Update May 15, 2004: Fla. Supreme Court agrees to hear case.
“The federal courts are running out of money to pay jurors…. With a growing caseload and longer trials draining the judiciary’s budget, the agency that runs the courts urged judges early this week to defer ‘noncritical civil trials’ until October, when its new fiscal year begins.” The suggestion was not welcomed in some quarters. “I don’t think there is such a thing as a noncritical jury trial,” said Judge John L. Kane of the Federal District Court in Denver. “If someone has a right to a civil trial, the Seventh Amendment guarantees them a right to a jury.” The Judicial Conference of the United States “later backtracked,” cancelling its request to defer trials in hopes that Congress would allocate additional money or OK the payment of jury fees from a $10 million emergency fund. (Adam Liptak, “Federal Judges Find Courts Short of Money to Pay Jurors,” N.Y. Times, Aug. 1).
The law school meme of the moment is this order by a magistrate judge (link via Volokh.com, but trust me, it’s going around). Read the whole page and a half when you get a second. It’s a .pdf file, but Eugene Volokh has it as plain text on their site. And remember, the judge has a sense of humor, but it’s not necessarily a good one. You have to turn that in when you take the LSAT.
Who says academics are skittish about pursuing potentially explosive research topics? In “Race, Poverty, and American Tort Awards: Evidence from Three Data Sets,” in the Journal of Legal Studies, Eric Helland of Claremont McKenna and Alexander Tabarrok of George Mason University analyze data on jury awards by county. Their conclusion: “An increase in the black county poverty rate of 1 percentage point tends to raise the average personal injury tort award by 3 to 10 percent. An increase in the Hispanic county-poverty rate of 1 percentage point tends to raise awards by as much as 7 percent although this effect is less well estimated. These effects imply that forum shopping for high-poverty minority counties could raise awards by hundreds of thousands of dollars. Average awards fall with increases in white (non-black, non-Hispanic) poverty rates in two of our datasets, thus making these findings even more surprising.” (JLS table of contents; Tyler Cowen at the Volokh Conspiracy got there first).
Peter Nordberg and David Bernstein debate the study on Daubert discussed in this post. If I can take up Mr. Nordberg’s challenge to identify problems with the SKAPP report, I’ll just identify a handful that immediately came to mind as I read it. (This is long, so I’ve moved it off the main page. Click the link below.)
A jury found that a plaintiff was not damaged by false promises a former Texaco salesman made (against corporate policy) in selling franchises, but decided that the fact of the promise entitled the plaintiff to $33.8 million in punitive damages. (Why $33.8 million? Because it was a percentage of the size of the defendant’s net value. Strikes me as a punishment for being a successful business, rather than for wrongdoing. If Texaco had taken half of its net value and invested it in a failed fiber optics business, should punitive damages be half as much?) The coverage doesn’t indicate if the promise was written or part of an oral sales pitch, but it does note that the plaintiff did not sue the salesman, who was fired after it was discovered he made such promises. (Matthew Haggman, “ChevronTexaco Subsidiary Hit With $33.8M Punitive Damages Verdict,” Miami Daily Business Review, July 3). Update Dec. 2: award thrown out.