The infamous McDonald’s obesity case (Sep. 4, 2003) was reinstated yesterday on the highly technical grounds that the lower court applied the Federal Rule 9(b) “heightened pleading” standard to the New York consumer fraud statutes instead of the more lenient Rule 8. The court cites no relevant precedent for this assertion, which contradicts the language of the rule. As Jim Copland notes on our sister site, the Second Circuit effectively ruled that it was interpreting the Federal Rules so that it would be nearly impossible to dismiss a New York consumer fraud case before giving the plaintiffs an opportunity to conduct discovery. The decision seems wrong (compare, e.g., Tuttle v. Lorillard Tobacco Company, 118 F. Supp. 2d 954 (D. Minn. 2000)), and its main effect will be to raise the cost of defending against meritless claims–which will encourage nuisance settlements, which in turn will encourage more meritless claims in the hopes of extorting such nuisance settlements. (Pelman v. McDonald’s (2d Cir. 2005).).
Posts Tagged ‘tobacco’
Holiday-dinner-table obesity roundup
The Centers for Disease Control admitted last week that a much-touted estimate of enormous mortality rates resulting from increasing obesity in America was wrong and arose from incorrect methodology; it promises a revised and lower estimate (Gina Kolata, “Data on Deaths From Obesity Is Inflated, U.S. Agency Says”, New York Times, Nov. 24; Radley Balko, Nov. 24; Jacob Sullum, Reason “Hit and Run”, Nov. 24; Jim Copland, PointOfLaw, Nov. 24 and Nov. 30). The National Institutes of Health’s body mass index is also falling into disrepute for overrating the incidence of obesity (Gina Kolata, “Tell the Truth: Does This Index Make Me Look Fat?”, New York Times, Nov. 28)(see Apr. 29-30, 2002).
As for lawsuits, the scary Public Health Advocacy Institute, where trial lawyers meet dietitians, held its second annual conference in September, with opening remarks by Sen. Tom Harkin (D-Iowa) (Marguerite Higgins, “Anti-obesity group mulls swell in suits”, Washington Times, Sept. 19; “Lawyers see obese U.S. ripe for fat lawsuits”, Sept. 20; Center for Consumer Freedom, “Looking For Lawsuits In All The Wrong Places”, Sept. 24). The food-industry-defense Center for Consumer Freedom (“Don’t Sue the Hand That Feeds You”) has prepared a “Thanksgiving Guest Liability and Indemnification Agreement” (PDF) (via LawfulGal, Nov. 25) and has also (Sept. 27) compiled a list of the “Ten Dumbest Food Cop Ideas” of the year. These include law prof John Banzhaf’s proposals for suing parents of obese children and doctors who fail to warn their obese patients against overeating; Texas officials’ edict against schoolkids’ sharing of snacks; and a proposal by the New Zealand health minister to apply age restrictions, in the manner of carding for alcohol and tobacco purchases, to keep kids from buying hamburgers, pie and candy. A Deloitte consumer opinion survey (“The Weight Debate”, last updated Jul. 14) finds the public overwhelmingly opposed to lawsuits against restaurants.
“Get your million dollars from Vioxx lawsuit”
That’s the banner headline of a website promoting litigation over the now-withdrawn arthritis drug. (William F. Hammond, Jr., “Merck Faces Flood of Vioxx Lawsuits After Drug Recall”, New York Sun, Oct. 27)($)(reprinted here, PDF)(I’m cited in article too). Here are some more highlights from the website in question:
…Experts estimate the class action lawsuit will award $5 billion, 50% of which will go to the top 1000 sufferers, or $2.5 million per person. Get your share. It is the easiest way to become a millionaire. (In 1997, the recall of a couple of diet therapies by Wyeth resulted in $16 billion so far paid out in claims) If you have heard of Million Dollar Awards from Tobacco Lawsuits, Vioxx cases are easier to win….
Lacking in symptoms? Don’t despair:
The chance of winning is much greater, if you had any heart attack in your medical record. Small heart attacks are untraceable. Many have this record without ever detected by doctors.
Lacking in any evidence that you ever took the drug? Hope is on the way:
We will show you how to prove you had taken Vioxx, to prove that you had related side effects, and to find a good lawyer to win your case. There are still places selling Vioxx after the recall, you can find them online. Merck is still 100% fully responsible for any side effect. If you purchase Vioxx now, not only you can sue Merck, you can also sue the pharmacy store for selling recalled products. The purchase is risk free, as Merck will pay you every penny you spend on Vioxx including tax and shipping fees.
The website’s sponsorship is not immediately apparent; though it is chock-full of Google ads for law firms, we saw no indication that it was itself posted by a member of the legal profession, though we may have overlooked something. A second page proposes that readers pay $100 to purchase a document if you “want to know something that no Vioxx Class Action Lawsuit Lawyers will ever tell you, want to get a bigger share of the award”. Remember, “Vioxx Lawsuit is the easiest way to make you a millionaire.” More: Nov. 18, Dec. 22.
Last chance for Engle
One more try to keep the circus going, from Miami lawyers Stanley and Susan Rosenblatt and friends. If the Florida Supreme Court doesn’t agree with them, it’s all over. (Paul Curcio, “Fla. Justices Asked to Reinstate $145 Billion Award in Tobacco Suit”, Miami Daily Business Review, Nov. 4). See May 15 and links from there.
Also at Point of Law
All sorts of other stuff is going on at our sister website:
* An all-new featured discussion on medical liability has just begun, proceeding from the publication of an important new empirical study by Stanford prof Daniel Kessler;
* Legal ethicist and law prof Lester Brickman has a commentary on a Manhattan judge’s questioning of legal fees in 9/11 cases;
* The Manhattan Institute is seeking applications for a research fellowship on legal issues;
* Law prof Michael DeBow, familiar to many readers for his guest postings here, is joining the Point of Law blog as a regular contributor, with comments already on flu vaccine, the dismissal of a charity hospital suit, FDA jurisdiction over tobacco, and a new antitrust blog;
* Ted Frank contributes items on malpractice by expert witnesses and on a new study suggesting that experts suffer from some of the same biases as lay observers in high-damage cases, on whether much “pro bono” litigation really helps the public, and on “Robin Hood” school-finance suits;
* Jim Copland welcomes a new and improved website, LegalReformNow;
* I’ve got posts on sanctions for wrongful litigation (did you know federal judges liked the sanctions in their old, stronger form?), collective business guilt, ski slope disclaimers, Sarbanes-Oxley, Judge Posner’s view that both Sherlock Holmes and law reviews are much overrated, liability’s burden on small businesses, and insurance broker scandals (posts in progress). Much more, too; bookmark the site today.
Update: N.Y. high court derails Blue Cross anti-tobacco suit
Several years ago, in a controversial ruling, activist federal judge Jack Weinstein ruled that health insurance plans in New York could sue tobacco companies for cost recoupment under state consumer protection law. The result, in 2000, was a jury verdict of $17 million to which Weinstein added an award of $32 million in attorney’s fees (see Mar. 6-7, 2002). However, the state’s highest court, the Court of Appeals, has now declared that the basis of the case is invalid: the Blues can’t invoke the consumer protection act. That will probably mean the suit’s dismissal. Health insurers do have a separate right to sue under older principles of “subrogation”, but the tobacco companies have robust defenses against that variety of action. (John Caher, “Insurer Loses Bid for Direct Recovery in Test Case Against Cigarette Makers”, New York Law Journal, Oct. 20). Two other Blue Cross actions in other states have also been dismissed. On dismissal of union health plans’ suits against tobacco companies, see Jan. 11, 2000.
And what about similar actions on behalf of government health insurers, as in the state-Medicaid legislation? Well, the handwriting would seem to be on the wall that those cases are not exactly founded on a good legal theory of recovery either — the trouble being that in the mean time the muscle of the state AGs and their lawyers nonetheless managed to extract hundreds of billions in tobacco lucre.
Tobacco class action update
Plaintiffs defending the insane $10.1 billion class action judgment (Feb. 8; Mar. 24, 2003) have retained as co-counsel a law firm associated with a Republican Illinois Supreme Court justice in an effort to have him disqualified from the case. (Paul Hampel, St. Louis Post-Dispatch, “Smaller court may hear tobacco case in Madison County”, Oct. 3; Ameet Sachdev, “Philip Morris seeks removal of law firm”, Chicago Tribune, Sep. 1 (no longer online)). The Edwardsville Intelligencer (in a strange story whose math seems to be wrong in other particulars) reports that Madison County has received a $1.7 million windfall in interest from Philip Morris from the bond (Apr. 4, 2003) it posted to appeal that judgment. (Steve Horrell, “County is cashing in”, Oct. 8).
The Seattle Times has a retrospective look back at the comprehensive tobacco settlement (Feb. 28 and links therein) negotiated in large part by Washington state Attorney General Christine Gregoire, and notes the irony that it forced the state to ally itself with Philip Morris to protest the amount of the bond (see also Apr. 30, 2003). (Andrew Garber, “Tobacco settlement Gregoire negotiated not popular with all”, Oct. 4). But the bad news for Altria shareholders, states hoping to continue receiving tobacco funds, and the ability of Americans to conduct business is that plaintiffs continue to pile on with similarly meritless class action lawsuits, waiting to find the combination of judges who dislike tobacco companies enough to expand class action law rather than rule in their favor. Plaintiffs’ lawyers will bring dozens of these lawsuits, and need win only one multi-billion dollar judgment to become the new owners of the enterprise. The Massachusetts Supreme Court recently signed off on a class action against Philip Morris, and lower courts in Missouri and Ohio have followed suit. (AP, Sep. 17; Theo Emery, AP, Aug. 16).
Update: Boeken award chopped
Following guidance from the U.S. Supreme Court’s decision in State Farm v. Campbell, a California appeals court has ruled that the original $3 billion punitive award against Philip Morris, voted by a jury in 2001 in Richard Boeken’s lawsuit, cannot properly exceed $50 million. Plaintiff’s lawyer Michael Piuze expressed discontent at having to settle for such a measly sum. (Mike McKee, “Court Chops More off $3 Billion Award in Philip Morris Case”, The Recorder, Sept. 22; see Jun. 8-10, Jun. 11 and Jun. 19, 2001). Jim Copland has more at Point of Law (Sept. 22).
New at Point of Law
If you’re not reading our sister site PointOfLaw.com, you’re missing out on a lot. I’ve been doing about half my blog writing over there, on topics that include: a powerful new St. Louis Post-Dispatch investigation of asbestos litigation in Madison County, Ill. (here, here and here, with more to come, and note this too); the busy borrowings of Harvard’s Larry Tribe; when “not-for-profits” organize employment suits; Erin Brockovich’s respectability; crime without intent; experts and the CBS scandal; stay open through a hurricane, go to jail; suits over failure to put warnings on sand (yes, sand); West Virginia legal reform; Merrill Lynch/Enron trial; Hayek and the common law, reconsidered; getting creative about tapping homeowners’ policies; AdBusters sues to have its ads run; plaintiff’s lawyers represent criminal defendants to put drugmakers behind the eight ball; update on the law firm that competes on price; Spitzer and investors; Ohio med-mal crisis (and more); a welcome Schwarzenegger veto; dangers of firing your lawyer; ephedra retailer litigation; churchruptcies (if banks can do it…); and hardball in nonprofit hospital litigation.
Plus Ted Frank on tort reform in Mississippi and Jim Copland on California’s Proposition 64 (which would reform the notorious s. 17200 statute); the federal tobacco trial and Boeken; gender bias at work; and Rule 11 revival.
Better bookmark PointOfLaw.com now, before you forget.
Update: blame it on Riyadh
Even though the 9/11 commission (debunking certain widely circulated stories to the contrary) concluded that the government of Saudi Arabia did not fund al-Qaeda, several institutional victims of the terrorist attacks, including Cantor Fitzgerald Securities and the Port Authority of New York and New Jersey, recently filed suit against a long list of foreign entities including the Saudi government and various financial institutions for their alleged role in the attacks (Larry Neumeister, “Port Authority to Join Suit Against Saudi Arabia Over 9/11 Attack”, AP/Law.com, Sept. 13). The U.S. government has been highly critical of the freelance use of private litigation to second-guess the state of U.S.-Saudi relations, which has in no way deterred colorful asbestos-tobacco zillionaire Ron Motley from setting up his own mini-CIA-cum-State-Department-for-profit toward that end (Jennifer Senior, “Intruders in the House of Saud, Part II: A Nation Unto Himself”, New York Times Magazine, Mar. 14)(see Jul. 11, 2003). And in the New York Observer, Nina Burleigh in February profiled attorney Brian Alexander of the prominent plaintiff’s air-crash firm of Kreindler & Kreindler, who had “already filed a suit — on behalf of the families of more than 1,000 9/11 families?against a list of foreign entities hundreds of pages long.” (“Air Disasters, Legal Fees And Justice for the Victims”, New York Observer, Feb. 23).