- 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]
“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]
- 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]
- I was part of an informative panel discussion of “Climate Change Litigation and Public Nuisance Lawsuits” organized by the Rule of Law Defense Fund [watch here] Podcast and transcript of an October update on state and municipal climate litigation with Boyden Gray [Federalist Society] And because it’s still relevant, my 2007 WSJ piece (paywalled) on how contingency fees for representing public-sector plaintiffs are an ethical travesty;
- New York securities case against ExxonMobil goes to trial [Daniel Fisher, Legal Newsline; earlier] At last minute, NY Attorney General Letitia James, successor to Eric Schneiderman, drops the two counts requiring proof of intent, which the state had earlier deployed to accuse Exxon of deliberate misrepresentation. Still in play is the state’s unique Martin Act, which allows finding fraud without proof of intent [Nicholas Kusnetz, Inside Climate News]
- Ninth Circuit panel hears “children’s” climate case, Juliana v. U.S. [Federalist Society podcast with James May, Damien Schiff, and Jonathan Adler; related commentary, James Coleman]
- Bernie Sanders doesn’t really need legal arguments for retroactive criminal prosecutions if he’s got Jacobin on his side, right?
- “Lawyers are unleashing a flurry of lawsuits to step up the fight against climate change” [Darlene Ricker, ABA Journal]
- Who’s backing Extinction Rebellion, the lawbreaking group that blocked intersections in Washington, D.C. and elsewhere this fall? “The answer, in part, is the scions of some of America’s most famous families, including the Kennedys and the Gettys.” [John Schwartz, New York Times]
Can the lawful sale of products be retrospectively declared a “public nuisance” and tagged with enormous damages, based on theories that the products caused harm after being used by third parties not in court? Before such theories succeeded in an Oklahoma courtroom against Johnson & Johnson over its promotion of opioid painkillers, they had been unsuccessfully deployed against the makers of guns used in crime, while another set of recent lawsuits attempts to deploy them in hopes of making the sellers of fossil fuels pay for the harms of climate change. Scott Keller, Houston Chronicle/Texans for Lawsuit Reform:
Public nuisance claims traditionally have been limited to conduct interfering with truly public rights. For example, courts for decades have recognized public nuisance claims brought by governments to remove impediments from their public highways or waterways. Even then, courts generally did not recognize such claims where a legislature or administrative agency had already regulated an industry. After all, if the political branches of government regulated an industry, then they were telling courts what did and did not qualify as an unlawful “nuisance.”
But a series of recent lawsuits wants courts to ignore these limits on public nuisance claims and obliterate entire industries. These lawsuits seek to massively expand what counts as a public right, and they want courts to destroy companies that are already complying with existing regulations.
Similarly: “’A loss on the public nuisance theory in the Oklahoma opioid public nuisance theory would have been a potentially devastating state court precedent for the climate change public nuisance cases now pending in state courts,’ said Richard Lazarus, a professor of environmental law at Harvard.” [Dino Grandoni, Washington Post]
Which raises a question: when trial lawyers were pitching Oklahoma politicos on the large sums to be gained by pursuing strained public nuisance theories against opioid makers, do you think they mentioned that the theories if embraced might work to shut down the locally popular oil and gas business?
“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.
- “TriMet faulted Laing for failing to heed warning signs … and earbuds playing loud music. Laing’s attorneys argued it couldn’t be determined what volume the music was playing at at the time of impact.” [Aimee Green, Oregonian; $15 million jury verdict for woman who dashed in front of train reduced to $682,800]
- “When Are Athletes Liable for Injuries They Cause?” [Eugene Volokh on Nixon v. Clay, Utah Supreme Court]
- Former Alabama Sen. Luther Strange has written a law review article on local government abuse of public nuisance law in industrywide litigation [Stephen McConnell, Drug and Device Law] “California’s disturbing lead paint ruling is going interstate. Magistrate cites it in opioid MDL to support tribal nuisance claims under Montana law” [Daniel D. Fisher on Blackfeet Tribe v. Amerisource] Federal judge should have said no to Rhode Island climate change/public nuisance suit [Michael Krauss, Forbes]
- “Will New York law change veterinary malpractice?” [Christopher J. Allen, Veterinary News]
- Supreme Court’s 5-4 ruling on class action counterclaim removal in Home Depot U.S.A. v. Jackson leaves Congress to fix what Judge Paul Niemeyer called a loophole in the Class Action Fairness Act [Diane Flannery, Trent Taylor & Drew Gann, McGuireWoods, Federalist Society teleforum with Ted Frank]
- In Missouri, logjam for liability reform breaks at last as Gov. Mike Parson signs four pieces of legislation into law [Daily Star Journal (Warrensburg, Mo.); Beck on forum-shopping measure]
- The high cost of feel-good laws: why bans on disposable plastic grocery bags are bad for the environment [Greg Rosalsky, NPR “Planet Money”] Not a good move for public health either [Hans Bader on New York’s second-in-the-nation statewide ban, following California] Enjoy your tepid pad thai: Maryland lawmakers move to ban polystyrene (Styrofoam) cups and containers for ready-to-go food [Michelle Santiago Cortés, Refinery 21]
- A future President who declared a national emergency over climate change might unlock some far-reaching powers [Jackie Flynn Mogenson, Mother Jones]
- “Waking the Litigation Monster: The Misuse of Public Nuisance,” 48-page report on attempts to legislate by means of novel public nuisance suits [Joshua Payne and Jess Nix, U.S. Chamber Institute for Legal Reform]
- Dim and dimmer: the Washington Post “argues that the policy of imposing energy efficiency standards on lightbulbs ‘has no downside.'” [Peter Van Doren, Cato; earlier] “Appliance Standards Are Expensive, And Regressive Too” [Susan Dudley, Forbes, earlier here, here, etc.]
- Supreme Court “should clarify that courts should consider a property’s prospective economic value when evaluating the just compensation due from regulatory takings” [Ilya Shapiro and Nathan Harvey on Cato amicus in Love Field terminal gate case]
- The “most expensive and least effective environmental law” of all: ideas for fixing NEPA, the National Environmental Policy Act of 1970, which mandates environmental impact statements [Mark Rutzick, Federalist Society]