- Sued if you do, sued if you don’t: drugmaker faces lawsuits over failure to provide Fosamax warning that FDA told it not to provide [Jim Copland, James Beck on Merck Sharp & Dohme v. Albrecht, pending at Supreme Court]
- On new APA masculinity guidelines, Sally Satel cuts to the point: will they improve the success of therapy for people seeking help? [Washington Post]
- What does it mean to say the opioid litigation might follow the tobacco model? [Rob McKenna, U.S. Chamber] Citing fate of earlier gun lawsuit filed by city of Bridgeport, state judge dismisses four lawsuits filed by Connecticut cities against opioid industry [Daniel Fisher, Legal NewsLine]
- I do miss the days when leaders of the public health profession focused on communicable diseases like typhus rather than running after Bloomberg grants to promote soda bans [Joel Grover and Amy Corral, NBC Los Angeles]
- Cooking the books on infant mortality: about those Cuban life expectancy stats [David R. Henderson]
- As artificial intelligence begins to make inroads into medical diagnosis, liability issues loom large [Beck, see related linked earlier]
Stepped-up litigation and reputational risks from charges of sexual misbehavior are changing employer policies in predictable ways:
Privately, though, many of the men interviewed acknowledged they’re channeling Pence, saying how uneasy they are about being alone with female colleagues, particularly youthful or attractive ones, fearful of the rumor mill or of, as one put it, the potential liability.
A manager in infrastructure investing said he won’t meet with female employees in rooms without windows anymore; he also keeps his distance in elevators. A late-40-something in private equity said he has a new rule, established on the advice of his wife, an attorney: no business dinner with a woman 35 or younger.
“If men avoid working or traveling with women alone, or stop mentoring women for fear of being accused of sexual harassment,” he said, “those men are going to back out of a sexual harassment complaint and right into a sex discrimination complaint.”
“Back in 2015, two cases were decided within days of each other that allowed claims to go forward suggesting that a pharmacy could be potentially liable for both filling suspect prescriptions (see here) and for not filling suspect prescriptions (see here). Hence ‘damned if you do (question a prescription) and damned if you don’t.'” A key element on one side: pharmacies that refuse to fill prescriptions that they believe show red flags are apt to explain themselves to customers, and those explanations can expose them to defamation actions filed by the doctors who wrote the scripts. [Michelle Yeary, Drug and Device Law]
“The Pennsylvania State Police must reinstate a trooper who is barred from having a gun because a female officer secured a protection from abuse order against him, a state appeals court has ruled.” One judge dissented, “arguing that Acord’s firing was justified since, without a gun, ‘he cannot perform the basic and essential duties for which he was hired as a trooper.'” [Matt Miller, PennLive]
Thanks to reader J.H. for flagging Alcala v. Santa Fe Rubber Products, from the California courts last fall: “A very strange case — Union demands 20 minute lunch breaks (instead of the required 30), which are put into a union contract. Then, in balked renegotiations years later, they threaten to sue for labor violation claiming 20 violates statute, and ultimately get evidence of their demands kept out. Court of Appeals agrees with most of that. And the unions protect exactly who?”
In the past forty years some 8,000 businesses and other entities have been named as defendants in American asbestos litigation. The story has often been told (among other places, in my book The Rule of Lawyers) of how this litigation spread in widening concentric rings to ever more peripheral defendants. The first major targets were companies that had been deeply involved with mining, processing and distributing asbestos; after these companies went bankrupt, the second ring included manufacturers of construction materials, heating and electrical products, and other goods that had included asbestos for the insulation or flameproofing properties for which it was long almost ubiquitous. By the time many of those companies were at length pulled into insolvency, the litigation had spread further to a much wider circle of defendants that had not themselves done any manufacturing involving asbestos, but had used such materials in factories, offices, schools, power plants, and so forth.
I’ve also discussed (in this 2007 Reason piece) some of the ways in which government itself promoted the injurious use of asbestos in industrial settings, above all wartime shipbuilding. But I didn’t get into another dimension of the issue, which Rachel Maines (visiting scientist at the Cornell School of Electrical and Computer Engineering) develops in a compelling article on “The Asbestos Litigation Master Narrative: Building Codes, Engineering Standards, and ‘Retroactive Inculpation.'” [via TortsProf, 2012, and very belatedly being linked here]. Maines:
As Cardozo Law School professor Lester Brickman correctly observes, most asbestos claims “were the result of defendant’s retroactive inculpation for acts committed decades earlier that were not wrongful at the time.” I concur with Brickman in this but go beyond him in arguing here that the vast majority of current asbestos claims result, in fact, from past efforts to enable compliance by property owners and building contractors with building codes and engineering standards at the Federal, state, and local levels that specified and approved asbestos in code-compliant assemblies. In many cases, the use of asbestos was required by law; no asbestos-free assemblies were approved in, for example, cathodic wrap for underground steel gas pipe, hot-air register insulating paper, and electrical insulation for conductors in switchboards. There is still no equivalent-performance substitute for asbestos in high-temperature gaskets and some types of high-performance motor vehicle brakes….
In effect, the tort law system that has supported asbestos litigation since 1973 drove much older and well-established building law, and the engineering standards incorporated into it, into a legal shadow from which it has yet to emerge, penalizing the makers and owners of products manufactured in compliance with construction regulations as negligent and characterizing all products that contained asbestos as “defective” and “unreasonably dangerous.” Historians will recognize this as an economically consequential case of the fallacy of presentism: the imposition of modern values on the past. In 1987, Federal judge Christine Cook Nettesheim accurately characterized the initial 1973 asbestos case, Borel v. Fibreboard, as “an icon of hindsight analysis.”
Read the whole thing, which has much other interesting material about the triumph of the “master narrative” of asbestos litigation promoted by plaintiff’s lawyers and their allies.
Trying, they said, to be responsible employers, a group of Los Angeles restaurants banded together and adopted a 3 percent surcharge on bills to help secure healthcare coverage for their employees. Now San Francisco attorney Daniel Sterrett — who does not deny that the surcharge is going toward the announced purpose of employee healthcare — has filed an intended class-action lawsuit saying the owners have violated California law against price-fixing. [CBS Los Angeles, ABA Journal]
Discrimination in public accommodations claim: California plaintiff Sam Mojabi alleges in a lawsuit that Petco has a “systematic” practice of suspending sales of goldfish around the time of the spring equinox. Following the circulation of reports that some families celebrate the Middle Eastern spring-equinox new year’s holiday Nowruz, influenced by Zoroastrian traditions, with a display of live goldfish, some store personnel sought to prevent the sale of the fish to Persian/Iranian buyers for fear the animals would not be cared for well after the holiday. [ABA Journal] Ten years ago Britain’s then-Labour government backed off a proposed ban on the awarding of goldfish in a plastic bag as a fairground prize, and more recently an elderly shopkeeper was “given an electronic tag and curfew for selling a goldfish to a 14 year-old” in a sting operation despite a law limiting sales to over-16s.
I’ve got a new post up at Cato about the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores Inc. The Court’s 8-1 ruling on fairly narrow grounds in favor of the headscarf-wearing claimant isn’t very surprising, for reasons I explain in the piece. The ruling could expose employers to more liability, particularly of the sued-if-you-do, sued-in-you-don’t variety, since it encourages employers to pry into employees’ religious views or adopt stereotyped views about what their religious scruples should be presumed to be. Still, eight Justices were content to resolve the dispute on relatively dry statutory interpretation grounds, with only Justice Clarence Thomas interested in interrogating the law at a more fundamental level. (Why, he wonders, is equal treatment based on non-religious considerations now considered “intentional discrimination” based on religion?)
P.S. More coverage: Daniel Fisher, Daniel Schwartz, Philip Miles. (More: Marci Hamilton.) And when might a National Review author favor limiting private employers’ liberty? When it’s a religious discrimination case.