Corp Reform - Not Tort Reform

But they still let Ford crucify the expert on the stand...

Walter at Point of Law discusses a Daubert ruling that excluded a video prepared on behalf of a plaintiff in a product liability suit against Ford.  

Daubert strikes again, as a Texas federal judge throws out a test video relied on by the plaintiffs' expert in a case against Ford.

PointofLaw.com | PointOfLaw Forum: "I think my daughter’s high school science fair projects are more scientific than this....”

What he leaves out is the following excerpt from the opinion:

"As a result of the exclusion of Irwin’s tests, Mahon was not
allowed to testify about the results of the tests or its role in
shaping his expert opinion. According to the Wrights, this allowed
Ford’s attorneys to cross-examine Mahon “aggressively” concerning
his lack of testing conducted by him personally supporting his
theory that the reverse sensing system was capable of detecting a
three-year-old child, creating the impression for the jury that his
theory was without basis and easily disregarded."

That sounds fair, doesn't it?  Letting Ford beat a guy up for not performing any tests, when he did in fact perform the test?

Technorati Tags: Walter Olson, Point of Law, Ford, Product liability, Daubert, Fifth Circuit

Another example of regulatory failure - this time in your grocery store.

One of the standard arguments in the "reformer" arsenal is that if a product is approved by a federal regulatory agency, it's unfair for injured consumers to sue if they're injured by that product.  This argument assumes that our federal regulatory agencies are competent and unbiased.  The Vioxx debacle (56,000+ killed by Vioxx) is but one reason not to trust federal regulatory schemes.  Here's another:

Agribusiness powers are playing a shell game with the “fresh” meat sold in stores. One clear sign of freshness that consumers can rely on is the meat’s red color, right? No more. The industry has come up with a deception that keeps the meat red not just for a few days, but for months. The meat can go bad, but a little spritz of carbon monoxide and other gases inside the plastic package prevents the tell-tale browning that signals spoilage. (Justinian: A symptom of carbon monoxide poisoning is turning bright red.)

In 2004, federal food regulators expressed alarm that the gassing trick could mask dangerous meat. Industry lobbyists moved in, and within a month the regulators reversed themselves, approving perpetually red meat for sale. Our so-called watchdogs did not conduct any studies, instead relying on industry data. Nor did they bother notifying consumers that the redness of meat should no longer be trusted.

The Democratic Congress is moving to require that this color-altered meat be labeled as such. Once again, industry lobbyists are on the prowl, claiming that such labels would be “alarmist” and “unfair.”

Jim Hightower - The Texas Observer

Without the aid of color, an innocent consumer will have only one thing to rely upon in judging whether meat is too old to buy: The tiny date label.  And if a careless stockboy were to put a "manager's special" label over the date, one would have no way of knowing if the meat is past its prime. 

This is almost enough to make me rethink having prime rib for Thanksgiving.  Almost.

Technorati Tags: spoiled meat, Jim Hightower, lobbyists, carbon monoxide, Thanksgiving, federal regulatory failure

Comparing the Vioxx Settlement to...

By now, the blawgosphere is aflame with commentary about the Vioxx settlement.  The "reformers" are apoplectic over the sheer size of a $4.8 billion settlement.  Let's look at that $4.8 billion number.

I recently read Creating Winning Trial Strategies and Graphics (a great read, btw) and that book points out that all numbers are meaningless without some sort of reference. According to the book, the relevant question about all numbers is, "Compared to what?"

So I took it upon myself to figure out what to compare that $4.8 billion figure to.  At the top of the list is the total sales figures for Vioxx from 1999 to 2004.  The number I came up with is only an estimate.  I reviewed the annual reports from Merck from 1999 to 2004 and their own sales figures aren't consistent from year to year.  One report claims that Merck sold $2.2 billion worth of Vioxx in 2002, while another puts the figure at $2.3 billion.  So the estimate below might be off by a few percent. 

Here are a few numbers to compare the Vioxx settlement to:

• Vioxx Settlement Cost: $4.85 billion
• Average cost of developing a drug like Vioxx: $800 million
• Total Vioxx Sales from 1999 - 2004: $11+ billion
• Total number of deaths caused by Vioxx: 56,000+
• Total number of Americans killed in Vietnam: 58,000+
• Cost to Merck for each death: ($4.85 billion divided by 56,000) $86,000

I'm obviously not privy to Merck's internal financial reports, so I don't know how much of that $11 billion in sales was profits.  But I'm willing to bet that Merck still pocketed at least a couple billion in profit even after deducting development costs, the settlement costs, and the cost of manufacturing and selling Vioxx. 

You'll pardon me if I don't believe that the tort system has enough deterrent power.

Technorati Tags: Vioxx, Merck, tort reform, product liability, tort system

I'm thinking that this is a great example of defective design

I don't design children's toys.  But if I did, I would suspect I shouldn't cover my toys in a substance that turns into roofies.  

Unfortunately the small Aqua Dots are colorful and just the right size to be candy. The covering of the dots metabolizes into a drug often referred to as the "date rape" drug. It causes the children become confused, then suffer lose of muscle control.

Aqua Dots recall : Texas Injury Law

I know, I know: our "broken" tort system might result in the maker of Aqua Dots being sued out of existence, thus depriving children of other wonderful products, such as the forthcoming "draino dots" and "My Li'l Methlab."

Technorati Tags: Roofies, Aqua Dots, product liability, you have got to be kidding

Live in Michigan? Don't buy cheap crap from China - here's why.

The law firm of Thompson, O'Neil, & VanderVeen in Traverse City, Michigan posted today about what "reform" has done to Michigan. 

These products bear an additional risk for Michigan residents, since after tort "reform" the seller of the product is not legally responsible for defects or injuries they cause.  Further, the Chinese government doesn't allow its industries to be sued (particularly since most are government-owned).  As a result, when a "Thomas" occurs in Michigan, if it causes catastrophic injuries to someone, no one is responsible and has to stand behind it.

Source: TOV Blog: Product injuries and the Flat Earth

So what happens if a person on public assistance gets hurt by say, poisonous toothpaste from China?  Why, the generous taxpayers of Michigan get to pick up the tab for their treatment.  Even if they bought the toothpaste from a wealthy store like Wal-Mart, Target, etc. 

That the "reformers" talk up the supposed "tort tax" but refuse to acknowledge the costs of "reform" to taxpayers speaks volumes as to their dishonesty.

 

Technorati tags: tort reform, Michigan, Traverse City, product liability, tort tax, Made in China

Pharmaceutical doesn't blame tort system for high prices

And not greedy trial lawyers, surprisingly. 

“The psychology of the industry is that, if you are first, the price should be high,” [Elan CEO] Martin tells The Financial Times. “The economic structure is unsustainable. The tension will grow and something has to give.”

Source: Pharmalot » What Did He Say? Elan CEO: Lower Prices

Of course if you're first to market, your prices are going to be high.  It's just refreshing to read a CEO admit that openly and not claim it's because of the tort system.

Technorati tags: Elan, Kelly Martin, Pharmaceuticals, drug prices, pharmalot

Better never than late...

The National Association of Manufacturers just yesterday posted about the incredibly flawed study done by the Pacific Research Institute about the supposed costs of the tort system:

"Out-of-control litigation and a broken legal climate cost Americans the equivalent of almost $10,000 for every family of four, a study by the Pacific Research Institute has determined. Here to describe his findings from "Jackpot Justice: The True Cost of America's Tort System" is the study’s author, Lawrence J. McQuillan, PRI’s Director of Business and Economic Studies. Renee Giachino of The American Justice Partnership adds the AJP's latest news and views on tort reform.

America’s aging infrastructure is a major factor in manufacturing’s ability to compete. John Horsley, executive director of the American Association of State Highway and Transportation Officials, highlights a new report that lays out the full scope of the problem." (Emphasis added.)

Source: This Week on America's Business

 

It would have been better if NAM had never cited the PRI's study, but it's embarrassing they cited it this late in the game.  Note that just one paragraph later they point out a real problem to manufacturers...

Technorati tags: NAM, National Association of Manufacturers, John Engler, Lawrence J. McQuillan, Pacific Research Institute, bogus study

Are there really doctors this crooked? And do the pharmaceuticals really pay the bribes?

Another development in the Avandia story is the claim that Dr. John Buse was improperly pressured by GlaxoSmithKline to keep quiet about his concerns about the drug.  The entire article at the NY Times is worth a read, but the portion below really jumped out at me: 

"In a recent interview, Dr. Peters said that she had previously received money from Glaxo as a speaker on behalf of Avandia, but had resigned because she was worried about the drug’s risks.

About five years ago, she said, she helped change the formulary — or list of preferred drugs — for Los Angeles County so that patients in her clinic would get prescriptions for Actos rather than Avandia.

“The Avandia people, it was just so surprising, they asked me what I wanted to keep Avandia on the formulary,” Dr. Peters said, recounting events that occurred sometime in the 2000-to-2002 period. “They asked me, “What can we give you that will have you keep it on the formulary?’ ”

Dr. Peters said that she asked the company to establish a database at the clinic that would track the outcomes of patients on both drugs.

When she asked for the database, which would have cost several thousand dollars, she said, a company representative replied: “That’s all you want? Other doctors ask to go to the Caribbean.”

Dr. Peters said that Glaxo representatives first asked her to write a proposal, then asked her to go to Philadelphia to meet with company officials before the database could be approved. She decided to purchase it herself." (Emphasis added.)

Source: Doctor Says Drug Maker Tried to Quash His Criticism of Avandia - New York Times

If it's true that doctors ask for and receive "free" vacations to lie about the safety and efficacy of drugs, we need to put concerns about medical liability aside and focus on medical reliability.  If this practice is occuring, I hope it's investigated and those involved see actual jail time.  And when I say "those involved" I don't just mean the sales rep, but I mean the executives who approved the purchase orders.

Cross-posted to TortDeform 

Technorati tags: Avandia, GlaxoSmithKilne, Dr. John Buse, John Buse, bribery

Statute of Limitations for Vioxx Suits May Be Extended In Oregon

 The Statesman Journal reports that Oregon citizens injured by Vioxx but unable to sue because the statute of limitations expired may get justice after all:

Some Oregon lawsuits against the manufacturer of Vioxx could proceed under a bill that the Oregon House passed Tuesday.

House Bill 2448, which went to the Senate on a 58-0 vote, would fix a glitch in Oregon law that blocks some people from suing Merck. Vioxx was introduced in 1999 as a medication to relieve pain from arthritis, but was withdrawn in 2004 because of an elevated risk of heart attack and stroke.

The Supreme Court ruled in 2001 that liability suits had to be filed within two years of an injury, regardless of when the plaintiff discovered the connection between the injury and the product in question. The 2003 Legislature changed the law to allow a lawsuit two years after such a discovery, but the law applies to injuries occurring after Jan. 1, 2004.

The bill would allow suits by those injured after the court's 2001 decision but before the Legislature's 2004 fix.

-- Peter Wong

Source: 2007 Legislature - StatesmanJournal.com

Relevant portions of the bill are below:

(2) A civil action for injury, including any product liability action under ORS 30.900 to

30.920 and any action based on negligence, resulting from the use of a COX-2 inhibitor must

be commenced not later than four years after the date on which the plaintiff first discovered,

or in the exercise of reasonable care should have discovered, the injury and the causal re-

lationship between the injury and the product, or the causal relationship between the injury

and the conduct of the defendant.

(3) A civil action for death, including any product liability action under ORS 30.900 to

30.920 and any action based on negligence, resulting from the use of a COX-2 inhibitor must

be commenced not later than six years after the date on which the plaintiff first discovered,

or in the exercise of reasonable care should have discovered, the causal relationship between

the death and the product, or the causal relationship between the death and the conduct of

the defendant.

Source: House Bill 2448

Here's hoping that the bill becomes law.

 

Technorati tags: vioxx, Oregon, House Bill 2448, HB2448, Statesman Journal

The Pharmaceutical Industry and Tort Reform

It's no secret that the pharmaceutical industry is a big proponent of tort "reform."  That industry is lobbying heavily for laws that will basically eliminate the ability for individuals to sue over defective prescription drugs - like the law we have in Michigan.

Part of their argument for such immunity is the notion that the companies would never knowingly release a defective drug and that pharmaceutical companies are good, ethical companies.

Here is just a sampling of posts regarding fines, convictions, and guilty pleas of pharmaceutical companies and executives.  All of these are pulled from one of my new favorite sites, Pharmalot.  As you'll notice, there are quite a few examples.  And all of them have been reported since May 1st.

Before we pass laws to benefit this industry, why don't we regulate the industry in an effective manner that forces them to comply with the laws they routinely break?  It seems foolish to grant lawbreakers protection from the law.