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Personal Injury Law Round-Up #58

Life has returned to normal, and I hope the Round-Up can return to its usual standard of glory (or substandard, as the case may be). But before we move on, congrats to Eric Turkewitz for being named the ABA’s Blawg of the Week.

We’ll start off with tort “reform”….

I suppose the big tort reform story of the week is the story of Sue Easy (TinyURL provided). Turkewitz asks, “Is Sue Easy the Worst Lawyer Idea Ever?” Fellow Texan Luke Gilman has “SueEasy, So Easy It Can’t Be Good, Really.” Above the Law has “Only in America:SueEasy.Com.” And Walter Olsen has a surprisingly restrained post at Overlawyered. Generally, I think this might be the worst idea since I thought would be a good URL for a plaintiff’s firm.

Moving on, this is news from March (and I may even have written about it then) but I found a post this week pointing to a study in the March 2008 Journal of Empirical Legal Studies that finds that there is no empirical data to support the assertion that OB/GYNs were relocating due to tort reform or malpractice premiums. It has the thrilling title, “A Longitudinal Analysis of the Impact of Liability Pressure on the Supply of Obstetrician-Gynecologists.” With a catchy title like that, I don’t know how I could have missed it.

Subject to Complete Defeasance (new to the round-up this week) has “More Bad News on the FDA Preemption Front” looking at the Colacicco v. Apotex decision.

And this is a new category this week, the pseudo-personal injury case/tort “reform” category…

Four Alabama residents filed suit against Southwest after flying on planes that needed inspections. Miller and Zois have their response. And from the post at Overlawyered and the comments at the Consumerist, you can tell this has the potential to be another poster case for tort reform.

In California, a judge approved the settlement of a Ford Explorer class action. As an attorney that does a fair amount of class action work, I think this is a poor settlement. The plaintiffs in the case claimed that the value of the vehicles decreased due to perceived rollover risks. Under the settlement, class members are eligible to receive coupons of $500.00 for the purchase of a new Explorer or $300.00 for any other Ford vehicle. The attorneys stand to gain up to $25 million in fees and costs. This coupon settlement seems, on its face, to be unacceptable. The National Association of Consumer Advocates Class Action Guidelines contains the following, “Certificate settlements have many disadvantages and should be proposed by class counsel only in the rare case.” The NACA guidelines set out the following basic positions:

(1) certificate-based settlements should never require identifiable class members to purchase major, large ticket items as the sole relief.

(2) certificates should have some form of guaranteed cash value.

(3) certificate settlements should never be proposed to the court unless it is apparent that the defendant is providing greater true value to class members than would be available from an all-cash settlement.

(4) a settlement involving coupons should require a minimum level of redemption by the class members within a reasonable period of time, and the defendant should provide other relief if that minimum level is not met.

(5) class counsel and defendants should submit to the court and all counsel detailed information on redemption rates during the life of the coupon so there is a public record to assist in future class action cases.

It’s apparent that this proposed settlement violates the first guideline, and I haven’t been able to determine if any of the other safeguards were provided in the settlement. I’ll also add that in Texas, the settlement likely couldn’t go forward. Our version of Rule 42 requires that if any portion of a settlement is in the form of coupons then the attorneys’ fees awarded must be awarded in cash and noncash amounts in the same proportion to the class’s recovery. (Though I’ll add that it appears that the lawsuit in California pre-dates this version of the statute). Anyway, I’ll get off my soapbox and move on.

The personal injury litigation news…..

Probably the biggest litigation story in the blogosphere this week was the JAMA and NYT articles on Merck using ghostwriters in their Vioxx studies. There was commentary from Injuryboard, Mass Torts Lit, Pharmalot, the WSJ health blog, and HealthLaw Prof Blog, among others.

From Virginia lawyer Dan Frith, a Baltimore jury awarded $1.75 million in a lead paint case.

From Bill Childs at TortProfs, there’s a new danger in plastics, including sippy cups.

In the “this is never good category,” the Illinois Nursing Home Abuse Blog reports that police arrested assisted living facility staff for using the facility as a drug front. (You don’t really need to click the link, that’s about all the details in the sketchy story.)

From Pharmalot, the Pharma industry continues to lobby for off-label rights.

In car wreck litigation, we’ve written a lot about the dangers of cell phones while driving. Now, Des Moines lawyer Steve Lombardi takes it one step further and asks whether the IPOD is causing more auto accidents.

And a new phenomenon in the medical malpractice arena is insurance companies providing ratings for doctors. SURPRISE, maybe the insurance companies are not giving the highest ratings to the best doctors, but to the cheapest. (Via KevinMD) (Kevin also has a link to problems with patients rating doctors. I do wonder who can rate doctors.)

And on to the miscellaneous….

John Day has How to Be a Great Trial Lawyer Part 12.

And if you’re into reading about presentation skills, the Presentation Zen website continues to provide excellent examples of speeches with a link to a new Steve Jobs keynote and The Story of Stuff.

Well….that’s it for this week. Thanks again for reading, and have a great weekend.

Brooks Schuelke

To contact Austin Personal Injury Lawyer, Austin Personal Attorney, Austin Accident Lawyer, Austin Injury Lawyer Perlmutter & Schuelke, PLLC or to learn more about Austin Personal Injury visit

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