Lawsuit Abuse Fortnightly #2-8

Published July 15, 2003

Happy Birthday, Daubert!

This year marks the tenth anniversary of the U.S. Supreme Court’s decision in Daubert v. Merrell-Dow requiring federal judges to act as gatekeepers to prevent junk science from being introduced in the courtroom. Daubert has helped reduce the number of frivolous lawsuits at the federal and many state levels. Daubert is generally interpreted to mean that scientific studies that fail to find at least a two-fold increase in risk from a particular chemical or substance must be considered invalid. Were this standard to be applied in all state as well as federal courts, the vast majority of low-level asbestos cases and all cases involving so-called second-hand cigarette smoke would be thrown out. From various sources

Putting Blame Where It Belongs

Late last month a New York appeals court affirmed a lower court’s dismissal of the state’s lawsuit claiming gun manufacturers created a “public nuisance” by knowingly distributing firearms in a way that put many of them in the hands of criminals. The lower court found it “obvious that the parties most directly responsible for the unlawful use of handguns are the individuals who unlawfully use them.” The appeals court agreed and added that the defendants were engaged in the “lawful manufacture, marketing and sale of a defect-free product … far removed from the downstream, unlawful use” of that product. The same legal logic should apply in the case of former lead paint manufacturers, who are being sued in various municipalities for creating a “public nuisance” because negligent landlords have allowed decades-old lead paint to deteriorate and potentially harm children. From AP and The New York Sun

Food Fight–Round Two

If you thought a New York judge’s dismissal earlier this year of a lawsuit blaming obesity on fast-food restaurants marked the end of that nonsense, think again. In late June, more than 100 plaintiffs’ lawyers and consumer advocates gathered in Boston under the auspices of something called The Public Health Advocacy Institute to plot a grand strategy for suing the food industry over obesity. While most suits will be against companies that advertise and sell food contributing to obesity without disclosing nutrition information to consumers, targets will even include school boards that sell high-calorie soft drinks to kids during lunch hour. From The Washington Times, the Website of the American Tort Reform Association, and the Website of The Public Health Advocacy Institute

Schizophrenia Drug Gets a Bad Rap

In a recent column nationally syndicated by Scripps Howard, noted “junk science” debunker Mike Fumento took on the issue of lawsuits against Eli Lilly over claims its anti-schizophrenia drug Zyprexa causes type-2 diabetes. The claims, being trumpeted on plaintiff attorney Websites and in advertisements, are based on a single eight-year compilation of data from FDA’s surveillance system and medical journals that found type-2 diabetes in some 300 people who were also taking the drug. According to Fumento’s calculations, by chance alone a quarter-million Zyprexa users would have developed type-2 diabetes over that eight-year span, so the drug may actually protect against, not cause, diabetes.

Poll: Americans Want End to Asbestos Nightmare

While debate continues to rage in Congress over a federally administrated asbestos compensation fund that would bring our current asbestos litigation national nightmare finally to an end, a new U.S. Chamber of Commerce public opinion poll found Americans favor such a fund by wide margins. The Harris Interactive survey found 70 percent of union members and 71 percent of the general public support the concept. More importantly, 83 percent of both union and non-union Americans believe the fund should compensate only those who have been actually impaired by asbestos exposure, not those who are merely afraid they will get sick in the future. From a U.S. Chamber of Commerce press release

Nationwide Class-Action Venue Shopping Derailed

Opponents of lawsuit abuse are cheering a ruling by the 7th U.S. Circuit Court of Appeals in Chicago that state courts are prohibited from certifying nationwide class actions if a federal court has declined to do so. The ruling by Judge Frank H. Easterbrook involved claims that Ford Explorer SUVs and their Firestone tires are unsafe. It followed his ruling in 2002 that denied nationwide federal class-action certification to the owners of some 60 million tires and three million vehicles. Unfortunately, the plaintiffs’ bar is still free to file individual class action suits in all 50 states, which it will undoubtedly do. From The National Law Journal

Trial Lawyers Get $36 Million Slap on Wrist

Ness, Motley–the plaintiffs’ law firm infamous for lawsuit abuse–was ordered by a federal jury in Chicago to pay $36 million to a former client for unethical conduct in a class-action suit. The jury found that Ness, Motley–which has since broken up in a squabble over money–settled a class-action suit in Illinois against a Canadian businessman without its client’s authorization and on unacceptable terms. Ness, Motley was supposed to earn $2 million for its efforts, but the judge in the case has indicated he may not approve the settlement. Not to worry, Ness, Motley reportedly made billions on the national tobacco settlement, so a few tens of millions is merely “walking around money” to these guys. From The New York Times

I’ll Have to Call You Later, I’m Being Sued

Increasingly, people seriously injured by drivers who were distracted because they were chatting on a cell phone are winning big awards against the drivers’ employers. In a recent Florida case, a lumber wholesaler paid $16 million to a woman who suffered multiple injuries when a distracted employee rammed his car into hers while on a business cell phone call. Even firms with policies against cell phone use while driving on company time are not out of the woods if there is no documented history of enforcement of the policy. From Corporate Legal Times

Doctors Fight Back Against Junk Science

A growing number of medical societies are creating tribunals to review the testimony of doctors who act as expert witnesses in malpractice cases. The American Association of Neurological Surgeons started the trend, and societies of obstetricians, gynecologists, and spine doctors followed their lead; and 10 more societies are thought to be studying the option. “We don’t want fraudulent testimony in court,” says AMA president-elect Dr. Donald J. Palmisano. “The giving of expert testimony should be considered the practice of medicine, and it should be the subject of peer review.” From the San Francisco Chronicle

Lawsuit Abuse Fortnightly

Published by The Heartland Institute (312/377-4000), a nonprofit 501(c)3 organization founded in 1984. The full text of this newsletter is also available in Adobe Acrobat’s PDF format; click here.
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Publisher: Joseph L. Bast
Editors: Diane Carol Bast, Paul Fisher, Dan Hales

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