The Bright Line Business Law Blog

Bendectin may be back

The March of Dimes announced recently that Bendectin was making a comeback.

You may remember Bendectin, a morning sickness drug widely administered to pregnant women from 1956 to 1983.

Bendectin treats the most common unpleasant pregnancy complication, nausea, affecting up to 80% of pregnant women. By 1980, between 10 and 25% of pregnant women were taking Bendectin.  In 1983, Merrill Dow Pharmaceuticals withdrew the drug from the market due to an overwhelming number of lawsuits claiming Bendectin caused birth defects. The most famous of these is unquestionably Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469.  In Daubert, plaintiffs alleged Bendectin caused birth defects. Merrell Dow moved for summary judgment, submitting an affidavit from an expert epidemiologist, Dr. Lamm, who stated that none of the 30 pertinent published studies had ever found Bendectin capable of causing malformations in fetuses. Rather than directly contest Dr. Lamm's factual statements, plaintiffs responded with their own experts' declarations to the effect that their unpublished studies, and reanalyses of published studies, indicated a link between Bendectin and fetal malformation.

Plaintiffs, in short, practiced Junk Science.

The motion was granted, and on appeal, the Ninth Circuit Court of Appeals ruled that expert opinion based on methodology diverging "significantly from the procedures accepted by recognized authorities in the field ... cannot be shown to be 'generally accepted as a reliable technique,' ..." (Id. at p. 1130.) The Court of Appeals rejected plaintiffs' reanalyses as "unpublished, not subjected to the normal peer review process and generated solely for use in litigation." (Id. at p. 1131, fn. omitted.) Emphasis added. I cannot imagine how an attorney could ethically prepare a “study” solely for use in litigation. Ultimately, the Supreme Court issued its landmark ruling, cited above, making federal judges "the gatekeepers" with aresponibility of keeping "junk sciecne' out of the courtroom.

Now, a Canadian Company plans to market a drug with the same ingredients as Bendectin, to be called Diclectin. By now, there is a large body of research showing that there is no connection between Bendectin and birth defects. Unfortunately, doctors are reluctant to invite lawsuits by prescribing a drug that even ahs the underserved reputation of causing birth defects. I don’t blame them, but, in the meantime we lose an important tool in improving our quality of life. Certainly, in this case, more harm than good was done.  I object to junk science because its use has harmful consequences that should have been avoided.

CDC backs off Mold Claim

The Canadian Occupational Safety magazine has an interesting article on mold exposure.  The typical mold related lawsuit will be careful to allege exposure to Stachybotrys, an allegedly harmful mold implicated in an outbreak of respiratory disorders among young children in Cleveland.  Now it seems the science behind that finding is questionable and the CDC has retracted its earlier report.  From the online article:

I realize that many who read this Newsletter make a good living in the search and destruction of mold in various indoor environments. As a toxicologist, however, I have real reservations about the science (or lack thereof) currently used to support the notion that molds may readily cause adverse health effects in humans.

Much of the concern about Stachybotrys relates to reports, dating back to 1994, of a cluster of infants in Cleveland, Ohio who were diagnosed with pulmonary hemorrhage or pulmonary hemosiderosis. Since these infants were found in homes with water damage and/or contamination with Stachybotrys strains capable of producing trichothecene mycotoxins, a causal association between these serious hemorrhagic lung disorders and this mold was made

What has happened is that moot clinical studies in humans combined with misinterpreted toxicological findings in animals have led to the creation of a "junk science" abetted by both the scientifically naive and unscrupulous opportunists. [emphais added]

The Centers for Disease Control (CDC) has recently announced a retraction of its earlier tentative support for a link between Stachybotrys and pulmonary hemorrhagic disorder.

Common Good: Common Good's Second Annual Gatekeeper Awards

Common Good: Common Good's Second Annual Gatekeeper Awards.

Common Good has announced the winners of its second annual Gatekeeper Awards. The Awards highlight the appropriate role of judges in determining who can sue for what. They honor judges whose decisions eliminate frivolous lawsuits.

The First Annual awards are here.

Via Overlawyered

Congratulations and a sincere thanks to all the winners.

PointofLaw.com | Information and opinion on the U.S. litigation system

Point of Law is a great site for national legal news. I highly recommend it.

Link: PointofLaw.com | Information and opinion on the U.S. litigation system.

This post deals with Code of Civil Procedure Section 998 offers. These are not as effective as they could be because they do not generally result in an award of attorneys fees unless the prevailing party is already allowed to recover attorneys fees by statute or by contract. In the typical tort action there is no underlying right to attorneys fees and Section 998 doesn't create one.

Medical Malpractice Myths

William Brody, President of Johns Hopkins, has a great article in the Washington Post on myths of Medical Malpractice.

Here's a sample:

And a recent study by Harvard University researchers found that 80 percent of malpractice claims were filed against doctors who had made no error whatever. For instance, recent articles in scientific journals have documented that many, if not most, cases of birth-related cerebral palsy -- cases in which juries tend to be highly sympathetic to plaintiffs -- are not the result of malpractice by obstetricians. Juries often deliver sizable awards against providers who commit no errors for what are unfavorable, but random, outcomes of nature.

And one chief culprit is a failure of judges to control expert witness testimony.  Under Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (1993), the U.S. Supreme Court declared that federal judges were the "gatekeepers" and should keep junk science and unsubstantiated expert opinions from the jury.  If the quoted paragraph is true, that is not happening at the state level, and I know it is not happening in California, where the courts have particularly disclaimed the gatekeeper role in medical malpractice cases.  A typical example of this is Roberti v. Andy's Termite and Pest Control 113, Cal.App.4d 893, 6 Cal.Rptr.3d 827. In that case, plaintiff offered medical expert testimony that  Dursban caused plaintiffs autism.  The trial judge applying California's equivalent of Daubert, the Kelly test, wouldn't permit the expert to testify. [People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976)]

The court of Appeal reversed, holding that the Kelly analysis only applies to novel scientific evidence or techniques, not to expert opinion of medical causation even if the expert opinion on causation had not gained general acceptance in the relevant medical community.  The court of appeals specifically rejected defendant's suggestion that California courts employ the Daubert gatekeeper analysis. This allows all kinds of wild medical theories to be admissible and explains why cerebral palsy cases are so lucrative even though there is no scientific connection between the medical services rendered and the cerebral palsy.

Potentially, it is possible that a medical expert's opinion is just too conclusory, or in the words of one medical expert, "It just sort of makes sense." Jennings v. Palomar Pomerado Health Systems, Inc., 114 Cal.App4th 1108, 8 Cal.Rptr.3d 363 (2004). But, such rulings are too rare. If courts would act more like gatekepers and more frequently exclude dubious opinions, then there may be a reduction in unfounded medical malpractice cases.

Proposition 64 Passes, Good News for Small Businesses

Election results show California Proposition 64 passing. Proposition 64 made relatively minor changes to Business and Professions Code Section 17200 and 17500, the California Unfair Business Practices Act and Unfair Competition Act.

Prior to the Initiative, any person could file a complaint against any business entity for unspecified "unfair business practices." Nearly anything could be characterized as unfair competition or unfair business practices. Typically an unscrupulous lawyer "plaintiff" would sue an unsuspecting business under the act and then offer to dismiss the suit for a "reasonable" sum of money, usually $5,000 or so. They would count on the defendant's own lawyer telling the defendant that extortion settlement was cheaper than litigation. Most settled.

Now, the initiative has changed the standing requirement. Any City attorney, district attorney or the Attorney General's office can file suit under the Unfair Business Practices Act, as they always could. However, private citizens who also could previously sue under the act, can now sue only if that private citizen has "suffered injury in fact and has lost money or property" as a result of any unfair business practices. This modest change in the law will allow defendants who are unfairly sued to have non-meritorious cases economically dismissed very early in the proceedings.  I predict that the rampant abuses under the law will dramatically decline.

Here is the text of the Inititative, with additional information.

The TRUE Stella Awards -- Opportunists vs. the American Justice System

The TRUE Stella Awards -- Opportunists vs. the American Justice System

Randy Cassingham publishes an intermitent e-mail on frivolous lawsuits both true and legend. The "Stella" awards are named after the plaintiff who spilled the infamous McDonald's cup of hot coffee in her lap. The Stella site is worth visiting and the newsletter is worth reading.

Also, I highly recommend the companion newsletter, "This is True." Be sure to get it at the same link.

Tort reform measures in various states

Upcoming tort reform measures in several states

Next Tuesday's election has various tort reform measures on several state ballots. In California the only tort reform measure is Proposition 64, partially circumscribing the Unfair Business Practices Act. I think that's a good measure--some restraint of outright abuses is needed and the opponents of the proposition don't appear to be willing to acknowledge the widespread abuse, even extortion, of small business owners.

Flu Vaccine Shortage Blamed on Trial Lawyers

La Grippe of the Trial Lawyers

My only personal experience with flu vaccine was a lawsuit filed after a patient received a flu shot and claimed to be "paralyzed" as a result. She sued the pharmacy, the administering nurse and the flu vaccine distributor. The praralysis was apparently minor non-permanent nerve damage and a tingling sensation. The patient a release and informed consent form that identified certain side effects including nerve damage, tingling, numbness, allergic reaction and even death.

Now, I have no problem with imposing liability when something is wrong, such as administering the wrong vaccine or negligently injecting the shot into the patient's forehead. When the case is based on a reasonably predictable and identified side effect, it's frivolous.

Cracks in the Plaster: Construction Defect Litigation Run Amok

Cracks in the Plaster: Construction Defect Litigation

I think CD litigation is a general scam. In the numerous cases I have worked on, exactly one was meritorious. That one involved concrete pads slowly sinking out of site in marshy residential lots. The rest are bogus and benefit only plaintff's lawyers, developer's lawyers and a few members of an expert's cottage industry. Notice I specifically did not mention plaintiffs as beneficiaries. I'll explain why later.

"You put up these buildings. Even though no one has noticed anything wrong, no one has been injured, nothing has been damaged; by virtue of the fact that you put them up, there must be defects in them. Therefore we will sue."

This is accurate. I'll be follwowing up with a history and critique of the construction defect sytem and recommendations for reform in the next few weeks. Visit often!