Mass Tort Litigation Blog

Shapo on Experimenting with the Consumer

Marshall S. Shapo (Northwestern) has posted an overview of his latest book, Experimenting with the Consumer: The Mass Testing of Risky Products on the American Public on SSRN. The book is available for purchase through Greenwood Publishing Group.  Here's the SSRN overview and table of contents:

We almost all become subjects of experimentation on human beings just by living in this society. We usually tend to think of experiments on people as carefully controlled procedures done by doctors in white coats. But every time a company launches on the market a new product that may carry some risk, it is experimenting on us, the general public. Advertisers in various kinds of media trumpet the benefits of new products, but they usually do not tell us about potential risks - or uncertainties about danger - that may be associated with those products. As a rule, innovation makes our lives better, but sometimes experimentation on mass markets requires a trade-off; it entails risk to some who unwittingly are the subjects of those experiments.

The devil is in the details of experiments on mass markets: from drugs and devices to chemicals that are used in workplaces and that leak, or are dumped, into the environment. It is scientifically complicated, and expensive, to find out which products cause significant risks to human beings. Scientists themselves often disagree about the level of acceptable risk. If we understand the nature of mass market experimentation, that understanding is a first step toward protecting ourselves.

SOME MAJOR THEMES:

* There are constant wars over risk and safety among many groups: Scientists against scientists, scientists against doctors, product sellers against other sellers; manufacturers against government agencies; and claimants' lawyers against sellers and agencies.

* There are ongoing competitions between consumers who are averse to taking risks with safety and those who would like to take risks in hopes that they will gain in their fights against disease, or enhance their sex appeal, or acquire a broad range of new consumer products.

* Media are powerful forces in many aspects of mass experimentation. They affect our views not only through direct to consumer advertising of products that formerly were entirely the province of prescribing physicians, but also through news stories that shape the views of consumers about risks that are difficult for lay people to understand.

The book ties together the AIDS patient, the woman who gets multiple breast implants, the man who uses drugs for erectile dysfunction (or maybe only to generate more and better erections), the postmenopausal woman who wants estrogen therapy, and the employee who unknowingly may be confronting the risk of powerful substances used in the workplace. The book projects the histories of these specific topics to embrace all people who are the subjects of human experimentation-in the clinic, in their purchases of mass market products at the pharmacy, at work, and in the environment generally.

TABLE OF CONTENTS:

INTRODUCTION

Chapter One: EXPERIMENTATION: A SURVEY AT TRENCH LEVEL

Chapter Two: HIV/AIDS DRUGS: SPEEDING UP SCIENCE, UNDER POLITICAL PRESSURE

Chapter Three: BREAST IMPLANTS: A PARABLE OF LAW'S RESPONSE TO IMPROVEMENTS ON NATURE

Chapter Four: TREATING THYSELF - FOR MEN ONLY: VIAGRA

Chapter Five: ESTROGENS-A GATHERING OF DATA, A GATHERING STORM

Chapter Six: ESTROGENS - THE STORM BREAKS; A STRUGGLE OF MEDICINE, LAW, AND POLITICS

Chapter Seven: EXPERIMENTS AT THE BILLIONTH LEVEL: NANOTECHNOLOGY

CONCLUSION

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Baker on Liability Insurance at the Tort-Crime Boundary

Tom Baker (Penn) has a new article posted on SSRN titled Liability Insurance at the Tort-Crime Boundary.  While it doesn't directly discuss mass torts, its implications might be of interest to readers.  Here's the abstract:

This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state's accusations. The crime-tort separation in liability insurance cannot be explained by economic incentives, alone. Morality matters, too. The fact that liability insurance sometimes provides coverage for criminal defense costs suggests that liability insurance institutions could cover a broader swath of crime torts than they do, providing further support for the claim that consequentialist reasoning, alone, cannot explain the observed relationship between liability insurance, torts, and crime. The tort-crime separation reflects and reinforces a concept of liability insurance as protection for defendants, rather than as a fund for victims. In turn, this concept of insurance reflects and reinforces an understanding of tort claims as encounters between particular plaintiffs and defendants, rather than as a price setting or loss spreading insurance mechanism.

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TVA-Spill Sludge Has Arsenic, But Water Tests Fine

Article on cnn.com -- Tennessee sludge contains elevated levels of arsenic, by Jim Kavanagh.  Here's an excerpt:

The drinking water in the area of last month's coal-sludge spill in eastern Tennessee is safe, but elevated levels of arsenic have been found in the sludge, authorities said.

A billion gallons of the sludge, made up of water and fly ash from a coal-burning Tennessee Valley Authority steam plant in Kingston, Tennessee, swamped 300 acres of mostly private property when a dike on a retention pond collapsed December 22.

All residents in the area were evacuated, and three homes were deemed uninhabitable, according to the TVA. About a dozen other homes were damaged.

BGS

Guilty Plea Entered in Chinese Tainted Milk Case

The New York Times reports this morning that Tian Wenhua, the former chairwoman of one of China's largest dairy producers, pleaded guilty to selling baby formula tainted with melamine and to knowing about the problem months before reporting it. Here's an excerpt:

Since September, when the scandal became public, investigations have shown how widespread the problem of tainted milk is in China, with watered-down milk being doctored with a chemical used in plastics and fertilizer to falsely raise its protein count. The chemical, melamine, can cause kidney stones and other ailments, and the tainted formula sickened nearly 300,000 children and killed 6.

The government has accused Sanlu and other big Chinese companies of failing to monitor the quality of their powdered baby formula, and in some cases covering up knowledge that their products contained high levels of melamine. The scandal, which follows others in China’s food and drug industries, has devastated the country’s dairy industry, prompted global recalls of suspect food products, and forced the Chinese authorities to try to demonstrate a new seriousness in enforcement.

Ms. Tian’s plea came on the first day of a trial that involves three other Sanlu executives. The court said that consumer complaints about Sanlu’s milk came in as early as December 2007. Ms. Tian said she knew the company was selling contaminated formula by May 2008, but did not report the problem to local government officials until August. Between May and September, when Sanlu stopped production, prosecutors said the company made more than 900 tons of melamine-contaminated powdered formula.

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One Take on the Best Decisions of 2008

at Drug & Device Law blog.

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Class Action Status Rejected for Katrina Generated FEMA Trailer Litigation

Judge Engelhardt denied class certification for litigants claiming that FEMA trailers exposed them to toxic fumes. Plaintiffs sued the federal government and several trailer manufacturers over elevated formaldehyde levels in the trailers housing hurricane victims. Individual issues included different trailer models, individual medical histories, and varying symptoms. The Associated Press story is available here and the Washington Post story is available here.

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TVA Sludge Spill Results in High Levels of Arsenic & Heavy Metals in Two Tennessee Rivers

Article in on cnn.com -- EPA: Rivers high in arsenic, heavy metals after sludge spill.  Here's an excerpt:

The Environmental Protection Agency has found high levels of arsenic and heavy metals in two rivers in central Tennessee that are near the site of a spill that unleashed more than a billion gallons of coal waste.

The agency said it found "several heavy metals" in the water in levels that are slightly above safe drinking-water standards but "below concentrations" known to be harmful to humans.

"The one exception may be arsenic," the agency said in a letter to an affected community. "One sample of river water out of many taken indicated concentrations that are very high and further investigations are in progress."

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Drug Companies and Doctors

The latest New York Review of Books (Jan. 15, 2009 issue) contains an interesting article by Marcia Angell, former Editor-in-Chief of the New England Journal of Medicine and author of "The Truth About the Drug Companies: How They Deceive Us and What to Do About It."    The article reviews three books critical of the pharmaceutical industry and its relationship with doctors and clinicians:  Side Effects by Alison Bass, Our Daily Meds by Melody Petersen and Shyness by Christopher Lane.  The review details the conflicts of interest and baises in medicine that are the result of the relationship between multi-billion dollar drug companies and doctors.  Angell writes on page 12:

It is simply no longer possible to believe much of the clinical research that is published, or to rely on the judgment of trusted physicians or authoritative medical guidelines.  I take no pleasure in this conclusion, which I reached slowly and reluctantly over my two decades as an editor in of The New England Journal of Medicine.

Two trends she points to are particularly disturbing.  One is the increasing prevalence of "off label uses" and the second is the off label use of drugs for children.   She particularly focuses on drugs to treat psychiatric conditions.  Her observations raise questions about how the law should treat these developments. 

ADL

One Take on the Worst Decisions of 2008

at Drug & Device Law blog.

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Lawyer's Conviction Affirmed for Fen-Phen Settlement Fraud

Article in the Clarion Ledger -- Fen-Phen conviction upheld: Vicksburg lawyer bilked company out of $6.7M, by Jerry Mitchell. (H/t to Pharmalot.)  Here's an excerpt:

The 5th U.S. Circuit Court of Appeals on Monday upheld the conviction of Vicksburg lawyer Robert Arledge, convicted of bilking the drug company Wyeth of more than $6.7 million over the diet drug Fen-Phen.

"We find that there was sufficient evidence to support the jury's verdict as to all counts," the court wrote.

U.S. District Judge David Bramlette sentenced Arledge to six years in prison for knowingly allowing clients to make claims of about $250,000 each for health complications although they had no legitimate reason.

Arledge was the sole lawyer charged in the joint Internal Revenue Service-FBI investigation of fraudulent claims in a $400 million settlement fund and subsequent settlement funds involving the use of Fen-Phen - a prescription diet drug pulled from the market in 1997 after research revealed it could cause heart problems.

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Mark Lanier Addresses Harvard Torts Class

Mark Lanier, a prominent mass tort plaintiffs' lawyer noted in particular for his Vioxx litigation success, addressed Professor Jon Hanson's Torts class at Harvard.  (H/t to Torts Prof Blog.)  Video is available here.

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Happy Holidays!

to all our Mass Tort Litigation Blog readers, and best wishes for a tort-free New Year!

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Ongoing Discussion on Loser-Pays Lawsuit Financing

An article in the Wall Street Journal -- The Debate Over Who Pays Fees When Litigants Mount Attacks, by Dan Slater -- chronicles the increasing discussion over loser-pays lawsuit financing. (H/t Torts Prof Blog.)  Professor Richard Nagareda (Vanderbilt) is quoted in the article.  In a recent symposium piece in the Widener Law Journal Download stier_crimtorts_class_actions_and_the_emerging_mass_tort_method.pdf , I suggested that rather than class actions, a properly crafted loser-pays system may be preferable for small-value claims.  Here's an excerpt from the article in the Wall Street Journal:

Who should foot the costs of a lawsuit? It's a question that splits the legal world.

Should each side bear its own lawyers' fees and other costs, as they do in the U.S.? Or should the loser pick up the tab for both parties, as they do in Canada, the U.K. and Germany?

The debate simmers across the international divide. In the U.S., the plaintiffs' bar generally cheers the "American rule" status quo, saying it is the only way to ensure that even the poorest litigants can access the courts. Tort-reformers say adopting the "English rule" would cut down on frivolous lawsuits while encouraging defendants to settle meritorious claims.

A recent trade article zeroed in on a long-overlooked component of the loser-pays system: insurance that covers legal fees. That article, penned by Marie Gryphon, an attorney and a fellow with the right-leaning Manhattan Institute's Center for Legal Policy, is reframing the debate.

UPDATE:  More on the loser-pays discussion from the Wall Street Journal Law Blog.

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Mass Tort Litigation & Preemption, Chinese-Style

Basically, it appears you sue the government for negligence in school-building construction that contributed to thousands of nationwide school-children earthquake deaths, and they just tell you to go away -- with the "judge t[elling] parents' representatives that government internal documents made it clear that the court should not be involved." That's according to an article in today's Wall Street Journal that describes a lawsuit by parents of Fuxin No. 2 primary school in Wufu, China.  Indeed, even finding a lawyer is difficult because as one parent noted, "All the lawyers told us the government didn't allow them to receive such cases." 

UPDATE:  More from the Wall Street Journal Law Blog:

Sang [(who is one of the parents suing)], reached on his cellphone, told the WSJ that he’s moving around in an effort to avoid the police, fearing that he will be detained. Sang said that families who lost children have each received an average of about 60,000 yuan, or about $8,800, in payments from government agencies.

 

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Martin Redish on Wholesale Justice

Martin Redish (Northwestern) has a new book on class actions titled Wholesale Justice that will be published in May with the Stanford University Press.  Here's the description:

In recent years, much political and legal debate has centered on the class action lawsuit. Many lawyers and judges have noted the intense pressure to settle caused by the very filing of a suit. Some contend that the procedure amounts to a form of judicial blackmail. Others counter that it is an effective means of policing corporate behavior and assuring injured victims' fair compensation.

This book represents the first scholarly effort to view the modern class action comprehensively through the lenses of American political and constitutional theory. Redish argues that the modern class action undermines foundational constitutional principles, including procedural due process and separation of powers, and has been improperly transformed from its origins as a complex procedural device into a means for altering controlling substantive law in highly undemocratic ways. Redish proposes an alternative vision of the class action lawsuit, one that is designed to enable the device to serve its valuable procedural purposes without simultaneously contravening core precepts of American constitutional democracy.

And the reviews so far:

"Redish offers a novel analysis of the class action lawsuit from the perspective of political and democratic theory. All who write about class actions, whatever their perspective, will need to consider and address this provocative work."
—Erwin Chemerinsky, University of California, Irvine

"Widely regarded as one of the most important federal courts scholars of the past quarter century, Redish is also a leading figure in constitutional law. In this convincing, dramatic work, he has fused his fields of expertise in a unique effort to address the class action in terms of democratic theory. He makes a startlingly strong case that class practice undermines significant notions of democratic accountability and raises serious questions about underlying democratic values." —Richard D. Freer, Emory University

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