April 20th, 2007

Texas Judge Dismisses Vioxx Claims

Last week I wrote that a Texas judge anticipated dismissing 1,000 Vioxx claims. The dismissal was not on the merits, but based on an FDA regulation that asserts it can preempt state law, and grant immunity to companies whose drugs have been FDA approved. This is claimed despite the fact that Congress has passed no such law.

As per a report today (Harris Martin Publishing), the judge has now signed an order to that effect. My own check of the court’s website, however, does not show it to be online at this point.

This time of regulatory tort “reform” is a far more subtle and insidious way of protecting big business than those that advocate caps for those with catastrophic injuries.

Addendum: 4/22/07 — A copy of the decision is now available here.
You can find stories at Drug and Device Law (the most detailed coverage), WSJ Law Blog, and Point of Law.

April 1st, 2007

Debunking the Considerable Exaggerations of "Jackpot Justice"

Let the debunking continue.

Last week, a “study” was released by Pacific Research called “Jackpot Justice” that claimed the “real costs” of the tort system was $865B.

The Becker-Posner Blog has now weighed in with Judge Richard Posner sorting through some of the fictitious claims and double-dipping that was used to trump the numbers up as high as possible. Professor Gary Becker agrees with Posner that “the authors of the study considerably exaggerate the cost of the tort system” while he goes on to recommend some of his own ideas to help an imperfect system. (Hat tip to TortsProf)

This debunking can be added to the one from The Blawgletter (Does Tort Litigation Kill People?) the other day.

Ted Frank at Overlawyered loved it, sight unseen.

March 29th, 2007

Plaintiffs’ Personal Injury Attorneys Get Analyzed

The New York Law School Law Review’s latest edition is all about the plaintiff’s bar. The opening to this article should whet the appetite for a full read, and should be interesting to those who think we have too many lawsuits. The article is (for those non-lawyers peeking in today) deeply foot-noted to supporting research:

In any given year, as many as 98,000 people may die from preventable medical errors. This is more than the number of people who die from highway auto accidents, workplace accidents, and breast cancer combined. Yet according to the Bureau of Justice Statistics, only 1156 medical malpractice cases were litigated in the seventy-five most populous counties in 2001. Of those, only one-third involved a wrongful death claim. Why is there such a discrepancy between the number of wrongful deaths and the number of cases litigated?

One possible answer is that lawyers simply decline to file a large number of potential cases. Plaintiffs personal injury lawyers are commonly portrayed as greedy “ambulance chasers” who will take any case regardless of merit. However, a number of studies have shown that personal injury lawyers are highly selective about the cases they choose to accept. Although negligence victims do sometimes successfully pursue their cases without a lawyer, it is generally accepted as a truism that lawyers are a necessary, but not sufficient, condition for obtaining compensation through the civil justice system. Thus, like other professionals who control people’s access to socially valued resources, plaintiffs’ lawyers act as “gate-keepers” to justice. Yet despite this important implication for social justice, only a small handful of studies have sought to uncover the process by which lawyers decide which cases to accept and which to decline. In this article, I seek to replicate questions examined in these earlier studies with a specific focus on how the more elite stratum of plaintiffs’ personal injury lawyers go about the task of case selection.

These are the articles:

How Social Hierarchies Within the Personal Injury Bar Affect Case Screening Decisions, by Mary Nell Trautner (intro is above);

How the Spider Catches the Fly: Referral Networks in the Plaintiffs’ Personal Injury Bar, by Sara Parikh;

Texas Plaintiffs’ Practice in the Age of Tort Reform: Survival of the Fittest – It’s Even More True Now, by Stephan Daniels and Joanne Martin;

Blame it on the Bee Gees: The Attack on Trial Lawyers and Civil Justice, by Robert S. Peck and John Vail;

How the Plaintiffs’ Bar Bars Plaintiffs, by Richard L. Abel

(hat tip to the Tortellini)

March 5th, 2007

New York Car Accidents Kill Most Pedestrians At Only 10% of Streets

According to a story in today’s Daily News (Too many pedestrians dying on city’s meanest streets):

More than half of all pedestrian fatalities and injuries occur at 10% of city intersections, according to new data released by the advocacy group Transportation Alternatives.

A copy of the press release from the 4,000 member organization can be found here: Hundreds Rally to Demand Pedestrian Safety.

The story of so much death and injury coming from so few trouble spots reminds me of the medical malpractice problem we have, where 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments.

The tort “reformers” like to blame lawyers for the “litigation explosion.” Perhaps they should look to the source of the problems. The best way to decrease litigation is to repair or remove the instruments of injury and death.

February 21st, 2007

Doctor with 110 Medical Malpractice Suits Against Him

I’m not sure if this is a record, but if not it would seem to be awfully close. As per this article in the Charleston Gazette, the surgeon not only has 110 pending suits against him, but just lost his 3rd legal malpractice case against his lawyers.

It reminds me that in a recent study, 5.9 percent of U.S. doctors were found responsible for 57.8 percent of the number of medical malpractice payments.

(Thanks to Andrew Bluestone at the New York Attorney Malpractice Blog for the story. )