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Personal Injury Law Round-Up Number 38

Personal Injury Law Roundup Number 38

Thanks for coming back to this week’s personal injury round-up after the short Thanksgiving week. Since it was a busy week, we’ll hop right into it.

Keeping with Eric’s form, we’ll start off with tort reform.

We’ll start with a trio of Texas stories. First, the Dallas Morning News had an article featuring criticism of the Texas Supreme Court, where big business and insurance companies win over 87% of their cases.

Moving on to Houston, a columnist in the Houston Chronicle once again debunks the Stella Awards.

And for the final swing through the Lone Star State, the Boston Globe has a look at the effect of Texas medical malpractice caps. The story looks at a claimant unable to find an attorney following his father’s death and at an anesthesiologist who moved from Maine to San Antonio (a town that already had approx. 200 anesthesiologists) who says the caps were a factor in his move.

Staying with Southern damage caps in med mal cases, the South Florida Lawyers Blog has a post on whether Florida med mal caps have significantly helped decrease premiums for Florida docs.

Moving up the coast, Barry Boughton of Public Citizen writes that New York’s rising medical malpractice rates are not the result of some “medical malpractice crises,” but result from insurers’ own errors.

Also, by now, everyone knows that Mitt Romney has been calling for nationwide damage caps in med mal cases.

The Law and More blog wonders whether Dan Rather’s lawsuit against CBS will be the next poster child for tort reform. And Justinian Lane responds at CorpReform.

Moving to arbitration, Walter Olson at Overlawyered has thoughts on ADR and pre-dispute arbitration contracts. He highlights a letter to the editor in the Wall Street Journal. The letter claims that attorneys are against ADR because avoiding costly litigation means some lawyer is losing money. This is, of course, wrong. As plaintiff’s attorneys working on contingent fees, we want to settle cases early if defendants offer fair settlements, and we support any ADR measure that facilitates that. What we are against is giving up our right to a jury trial via arbitration agreements for the cases where the defendants are unwilling to make fair offers.

On a related note, Stephanie Mencimer has a new article up at Mother Jones magazine looking at mandatory arbitration agreements. And she had this lengthy blog post following it up where she details the story of an arbitrator who appears to be unwilling to abate an arbitration until one of the party returns for serving in Iraq.

And finally, it’s not really tort reform related, but former AG John Ashcroft’s consulting firm gets $52 million to monitor an implant case. (The irony of US Attorney Christopher Christie referring $52 million of work to his old boss in an underlying case involving kick backs and other unethical conduct is evident.) The fee includes a flat fee of $750,000, professional services billed at a rate of up to $895 an hour, and as much as $250,000 a month for expenses. Having been a part of several class action suits, I can’t imagine what kind of first class monitoring $52 million buys you.  Anyway, keep this story in mind the next time you hear people complain about attorneys’ fees in mass tort or class action litigation.

And on to litigation:

The trial stemming from the massive blast at the Texas City British Petroleum plant started this week. One novel issue to watch is whether the plaintiffs can prove BP fraudulently obtained air-quality permits prior to the blast. Such a finding would nullify the state’s caps on exemplary damages. The Houston Chronicle also has a short story on the first day of voir dire.

Texas billionaire Sam Wyly is suing Milberg Weiss and other firms for allegedly dropping some claims and settling others too cheaply in a 2003 settlement of a class action against Computer Associates. (Via the WSJ Law Blog.)

Speaking of class actions, Ford has agreed to settle several rollover class action claims.

Eric Turkewitz at the New York Personal Injury Law Blog posts on the widely publicized Heparin overdose of the Quaid twins. He has a great summary of the story. It also goes to show how some of these tort stories hit close to home. The Quaids are sometimes Austin residents, and the twins’ uncle is a local attorney I consider a friend (we met serving on the same non-profit board several years ago). Our thoughts and prayers are certainly with them in this tragic time.

Almost every major newspaper in the country picked up a story of a Rhode Island hospital that had its third instance this year of a doctor performing brain surgery on the wrong side of the patient’s head. Simply unbelievable. Also check out the Brain Injury News and Information Blog for their report of the story.

The FDA will recommend new warnings for flu drugs Tamiflu and Relenza. There are several sources for this, but the big cite goes to the Consumerist for the title of its story: TAMIFLU AND RELENZA TREAT FLU, BUT MIGHT MAKE YOU CRAZY. The Maryland Accident Law Blog and the DC Med Mal Blog were also on top of the story.

Relating to inappropriate prescriptions, a big story of the week was How Drug Industry Money Affected A Psychiatrist’s Judgment. Kevin MD and Pharmalot also has their views on the story.

And also Kevin MD notes that the standard of care changing every few years is a problem with governmental regulation because the regulation is too slow to keep up.  Perhaps another argument for med mal cases as a way to weed out bad doctors?

Moving away from med mal stories, Ron Miller discusses a 2003 study that addressed the impact of race and poverty on tort awards.

Also on product regulation, James Dorn of the Cato Institute writes on Toxic Toys: Congress Risks Making Things Worse. Dorn’s view is that we should simply let the market protect our children — caveat emptor.

Moving to trucking wrecks, Ken Shigley reports that Diane Feinstein has asked the Federal Motor Carrier Safety Administration to require electronic data recorder black boxes on tractor-trailers.

Also, Ron Miller highlights a potentially helpful reference item in Information That Medical Malpractice Lawyers Can Use.

It was also a big week for news re: photos at trial. Anne Reed at Deliberations points to a study that when jurors are presented with gruesome evidence they are more than five times more likely to convict than a juror not privy to such information. On a related note, USA Today had an article that Sharon Cave, whose daughter was murdered here in Austin, is pushing for juror counseling after seeing the jurors’ reactions to the gruesome photos introduced at the criminal trial that resulted from her daughter’s murder. Presumably, these same issues will apply in numerous personal injury cases.

And not specifically lawsuit related (but it may affect some of our clients), a recent study finds that mirrors can help prevent phantom limb pain.

And a new study in the New England Journal of Medicine reports that CT scans, ever present in litigation, have been linked to cancer. (Via Houston injury lawyer Bob Binstock.)

And a couple of miscellaneous notes.

San Diego lawyer Randy Walton addresses a San Diego Tribune Article that makes serious allegations about a San Diego personal injury firm being a p.i. “mill.”

I can’t turn down a link to multimillion dollar litigation related to the song “Grandma Got Run Over By A Reindeer.”

Federal judge Harold Baer has issued a 129 page decision that includes a lengthy “manifesto” on declining civility in the legal profession.

And Blawg Review 136 is up (or down under) at Australian Peter Black’s Freedom to Differ.

That’s it for this week.

Brooks Schuelke

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