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Michigan lawyers specializing in civil litigation





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Saturday, March 20, 2004

This will be the last post on this weblog.  We have been at it for about 20 months now, and it has been a rewarding experience.  But the technical problems with Radio have proven to be intolerable.  For the second time in a month, we have found that new postings and/or edited postings have not been posted to the site for several days after they were created.  There is no reason that a user should have to accept such a poor level of service. 

The subscription is good until July 2004, so these pages will be up until then. 

We may decide to set this site up with another service, and if we do, we will post a pointer here.  For now, though, thank you and good night. 

10:28:59 PM    

Two reports in recent days involving forensic evidence disputes:

Cardiologist: FenPhen Trust Conspired To Destroy Her 

A physician who was named as a defendant by the Settlement Trustee in the Fen-Phen cases, and accused of falsifying numerous echocardiograms, has filed a counterclaim alleging that:

Specific cases that she had identified as showing a compensable injury are now being used by the trust to train its examiners to reject legitimate claims, despite the fact that the trust's own overreads confirmed them as legitimate.

The dispute arises from an obsolete and unscientific definition of "moderate mitral regurgitation" as used in the Settlement Agreement.  She alleges that she is being targeted because she followed the definition used in the Agreement.  (Source: LexisOne)

Dog-handler pleads guilty

Woman admits in Detroit court to planting bones at crimes scenes across Michigan, U.S

An internationally known handler of a cadaver dog admitted she planted bones and other phony evidence at crime scenes across Michigan and Ohio. Sandra Marie Anderson of Sanford and her Doberman-German short-hair dog, Eagle, participated in hundreds of searches, including at the World Trade Center after September 11 and at mass graves in Bosnia and Panama. Anderson, 43, searched dozens of historical sites — from a Nebraska Native American burial ground to a Mackinac Island golf course, hunting for remains of soldiers killed in 1812.

But she has admitted she planted evidence for Eagle to find in at least a half-dozen cases. Lawyers for Azizul Islam of Plymouth, convicted in the 1999 murder and dismembering of his wife, have asked for a new trial based on the disclosure.

(Source: Detroit News)

10:31:26 AM    

Tuesday, March 09, 2004

A group in Britain has published The Dead Good Funerals Book, providing ideas for alternative services for those who believe that funerals are too damned somber.  They are sponsoring a contest to see who can come up with a better coffin design.  Numerous different disposal alternatives are described, but I see nothing about setting Viking longboats aflame. 

9:55:01 PM    

Last week, on her radio show, I heard Laura Ingraham repeat a fallacy commonly voiced by those who do not fully understand the First Amendment's guarantees of free speech.  The free speech guarantee should not apply to pornography, she said (referring to all forms of sexual expression and not just to the much more narrow concept of obscenity) because the Founders intended the free speech clause to protect political speech and certainly did not intend it to protect speech, expression, or conduct describing sexual acts. 

The fallacy of her position may be demonstrated by considering a couple of hypotheticals.  Suppose that the State of Ohio were to pass a law prohibiting the sale of science fiction novels.  All other forms of fiction would be permitted without restriction, but science fiction would be prohibited outright. 

Suppose further that the State of Indiana were to prohibit any written or graphic depiction of people eating food, as well as any photos or drawings depicting human mouths, tongues, or lips.  Perhaps the courts would limit such prohibitions to depictions designed to appeal to the esurient interest.

In each case, there is no aspect of political speech that is involved.  Neither would be protected under the limited concept of freedom of speech that Ingraham envisions.  But both statutes would be clearly unconstitutional, inconsistent with guarantees of free speech as we understand them. 

9:51:11 PM    

Monday, March 08, 2004

Cops Kill Man Breaking into Sex Offender's Home - "Police shot and killed a knife-wielding man attempting to break into the home of a registered sex offender who police warned neighbors might still be abusing children. Authorities on Monday defended their decision to circulate a flier in a Bakersfield neighborhood identifying Vincent Verdile as a registered sex offender even though the information was 'completely unsubstantiated...' On Saturday, police shot and killed Gabriel Angel Garcia, who was attempting to kick in Verdile's front door. Police had not yet established a motive for why Garcia, a 20-year-old neighbor of Verdile, was trying to break into the man's home. But several weeks ago, Bakersfield police circulated a flier around Verdile's neighborhood with a picture of Verdile on it and listing his height, weight, hair color and race under a banner that read, 'Serious Sex Offender...'" - Mercury News (US)

One of the major objections to a sex offender registry is the possibility that someone will decide to take justice into his own hands.  Perhaps ordinary citizens don't much care if that happens to a child molester, but the indiscriminate nature of the listings in many states, including our own, mean that the same thing can happen to people guilty of no more than youthful indiscretions. 

10:38:09 PM    

Sunday, February 22, 2004

The key most needed by Windows users. (Source: Mercury/Digital Res)

8:51:51 AM    

Friday, February 20, 2004

Gongwer reports the following:

Court Of Appeals Orders Child Support From Sex Abuse Victim -- A man who was the victim of criminal sexual conduct when he was 14 years old has been ordered by a panel of the Court of Appeals to pay child support to the child conceived as a result of the relations with a married woman.

The case, Evelyn v Shire, is reported here.   An excerpt:

Respondent argued that he was the victim of an act of criminal sexual conduct committed by Evelyn because he was fourteen years old when she induced him to have sexual intercourse. He reasoned that because he was under the age of consent, his participation was legally involuntary. This argument confuses two distinct legal concepts. Because of his age at the time of the sexual conduct, the law refuses to permit the adult in the relationship to claim consent as a defense. People v Gengels, 218 Mich 632, 641; 188 NW 398 (1922) (“Proof of consent is no defense, for a female child under the statutory age is legally incapable of consenting.”); People v Bennett, 45 Mich App 127; 205 NW2d 831 (1973) (fourteen-year-old boy incapable of giving legal consent to act of taking indecent liberties). Therefore, even if respondent was a willing participant in the sexual intercourse, Evelyn could still have been charged with, at least, third-degree criminal sexual conduct. MCL 750.520d(1)(a) (victim between 13 and 16 years old).

However, the issue presented by this case is not Evelyn’s criminal culpability for criminal sexual conduct, or whether respondent was – or could have been – a “consensual” participant in that activity. Rather, we are concerned with whether respondent may be liable for child support for the child that resulted from the sexual activity. Child support is not imposed to penalize or victimize either parent. “The purpose of child support is to provide for the needs of the child.” Macomb Co Dep’t of Social Services v Westerman, 250 Mich App 372, 377; 645 NW2d 710 (2002), citing Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995). “Child support is not imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the child.” Pellar v Pellar, 178 Mich App 29, 35; 443 NW2d 427 (1989).

10:37:04 PM    

Wednesday, February 18, 2004

Isn't it interesting that it is a city executive and not a judge who is the activist in San Francisco?  Even more interesting is the fact that so many conservative commentators are criticizing the judges who are hearing the cases challenging the mayor's actions for taking the cautious, non-activist approach rather than jumping right in to make a big splash with a quick ruling. 

When I was in college, a couple I knew (a man and a woman) held a marriage ceremony and thereafter lived together as husband and wife.  The only trouble was, they had never applied for a marriage license and thus the ceremony was of no legal effect.  A couple of years later, that made the "divorce" quite easy. 

The same thing is happening in San Francisco.  A bunch of people are going through a ceremony of no legal effect, one which will not create a relationship which will be recognized anywhere.  I have a hard time getting all that worked up about it. 

8:07:33 PM    

Monday, February 16, 2004

Earlier this month, Nick Confessore of TAPPED wrote "In Defense of No-Name Bloggers", responding to what he called a "very weak attack" by Salon's Christopher Farah against those who post on weblogs under assumed names.  Confessore notes a critical distinction in correcting Farah's reference to them as "anonymous" authors, observing:

That's incorrect. They're pseudonymous, like, say, the authors of The Federalist Papers. And it's an important distinction. Anonymous writing can indeed be poisonous, because it frees the writer from any consequences whatsoever for his ideas. . .

Blogging continuously under a pseudonym, however, is a very different matter. Someone like Atrios or TMFTML has an intellectual identity and a reputation to defend.

A very good point.  (Credit NetLawBlog for the pointer.)  

9:15:30 PM    

Peter Nordberg of Blog 702 has some favorable words about these last two postings and some thoughtful comments on the criteria that can be used to judge what he describes as the "ethics" of legal and political discourse. 

In my series of longish postings on the "John Edwards - cerebral palsy - junk science" topic over the last three weeks,  I have made clear my disagreements with Walter Olson on certain key points on this topic, but I would be remiss if I did not observe at the same time that Olson and his colleagues with the Manhattan Institute have made major contributions to the overall topic of abuse in and abuse of the court system and its participants over the last ten years.  The Overlawyered site, in particular, continues to be a cornucopia of craziness, a fountain effusively overflowing with the fatuousness and folly that permeates our legal system.  (I watched a Dennis Miller performance last night, and I just can't help myself.) 

I do think that Olson's mission is ultimately political and not legal, and thus he and his colleagues do tend to describe in terms of sharp black and white ideas and concepts that I view in shades of grey.  But that is the nature of political discourse, and that fact has to be accepted.  Olson has been very gracious in linking to my comments and in responding, and even was good-humored about the fact that I did at one point confound his own comments about Edwards with those offered in a guest editorial by his MI colleague, Jim Copland [NRO, January 26], and thereby did perhaps engage in a bit of caricature myself.  I would echo Nordberg's thoughts on the markers of quality in discourse, and borrow from a well-worn phrase in commenting that we can disagree with those we respect, and do so without being disagreeable.

7:51:09 AM    

Sunday, February 15, 2004

The fact that only 10% or 20% of cases of cerebral palsy are related to perinatal hypoxia does not mean that only 10% to 20% of the lawsuits making this claim are valid, for a number of reasons.  Nonetheless, I will be the first to acknowledge that only a minority of these claims are in fact meritorious, and that most cases that are filed on the basis of this causation claim do not hold water medically.  Yet they commonly result in verdicts for the plaintiff when they reach the trial stage, and they more commonly result in generous pretrial settlements because the defendants do not want to see what might happen when they reach the trial stage. 

As I stated earlier, this militates in favor of some alternative to the tort system for these injuries.  There are two states which have adopted similar no-fault plans covering birth-related injuries, and each has been in effect for more than a decade.

In the State of Florida, a Florida Birth Related Neurological Injury Compensation Act (sometimes referred to as NICA), was passed to allow families to recover compensation for certain catastrophic birth injuries without consideration of fault.  Signficantly, only certain type of injuries are eligible, and it must be established that the injuries were caused by events during the intrapartum period (i.e., during labor and delivery - contrast "perinatal" events, which may include anything in the last few months of pregnancy).  The Fund covers claims for treatment and intervention, including medical and rehabilitation expenses, equipment, drugs, etc.; up to $100,000 to the parents; and attorneys' fees.  It does not award any compensation to the child for non-economic damages such as pain and suffering, disfigurement, or disability, or for economic losses relating to the inability to work. 

Physicians join the fund on a voluntary basis, and contributions to the fund by hospitals are mandatory.  Contributions to the fund come from participating physicians, all hospitals, and liability insurance carriers.  In 2003, the contribution for participating obstetricians was $5,000 per year, and the assessment on non-participating physicians is $250 per year.  Hospitals are assessed $50 for each birth, with an annual maximum of $150,000.  There is provision for an assessment on liability carriers if needed to ensure the financial viability of the program, but it has not been invoked.

A participating physiciain is immune from tort liability, and the immunity extends to all health care providers who were involved in the delivery.  The fund has per-occurrence and annual aggregate limits, and the physician may still be liable for payments which exceed those limits.  

The statute was passed in 1988, so it has been in effect for more than ten years in Florida.  A report shows that, as of June 2002, 161 claims have been approved for benefits.

The Virginia Birth-Related Neurological Injury Compensation Act was passed in 1987.  Eligibility factors are essentially identical to those in Florida.  Funding is similar, but there is an actual assessment on liability carriers.

The Virginia statute differs from Florida's in the payment to the family.  There is no compensation for the parents, but Virginia does compensate families for the child's lost earnings, described as "loss of earnings from age 18 to 65 calculated at 50% of the average weekly wage of private sector, nonfarm workers".  

The Virginia Legislature created a Joint Legislative Audit and Review Commission to evaluate the program in 2002.  It reported that 75 children were participants in the program, and the average yearly benefits paid were $62,000.  The fund was reported to be not actuarially sound at that time, holding about $84 million in assets against unfunded liabilities of $88 million.  In other words, some adjustments of assessments will need to be made; the program is not in imminent danger of collapse.

An amendment to the statute was passed in 2003 to add an additional payment, up to $100,000 in the discretion of the commission, to the family of an infant who dies within 180 days of birth, to compensate for "sorrow, mental anguish, solace, grief associated with the death of the infant, and all other material factors that are relevant".


An overview of both programs can be found at the web site of the State of Connecticut. 

With a grant from the Robert Wood Johnson Foundation, the Duke University Medical Center undertook a study and evaluation of the systems in both states.  A short-form report is available.  The findings as listed in the report were:

  • The Florida and Virginia no-fault programs achieved their primary objective, which was to maintain the availability of affordable obstetrical liability coverage for physicians.
  • Administration of no-fault is less expensive than under the tort system, and the speed of resolving no-fault cases, once filed, is very high.
  • No-fault claimants generally expressed satisfaction with the programs.
  • Only a small portion of potential claimants seeks compensation under either no-fault or tort.
  • The Florida and Virginia programs are too limited in scope to achieve many of the goals that proponents ascribe to the no-fault system — such as broader access to compensation and increased prevention of medical injuries.

The findings and detailed reports were published in a number of medical journals:

Bovbjerg RR and Sloan FA. "No-Fault for Medical Injury: Theory and Evidence." University of Cincinnati Law Review. 67 (Fall): 53-125, 1998.

Bovbjerg RR, Sloan FA, and Rankin PJ. "Administrative Performance of 'No-Fault' Compensation for Medical Injury." Law and Contemporary Problems. 60 (Winter & Spring): 35-70, 1997.

Sloan FA, Whetten-Goldstein K, Entman SS, Kulas E, and Stout E. "The Road from Medical Injury to Claims Resolution: How No-Fault and Tort Differ." Law and Contemporary Problems. 60 (Winter & Spring): 71-115, 1997.

Sloan FA, Whetten-Goldstein K, and Hickson GB. "The Influence of Obstetric No-Fault Compensation on Obstetricians' Practice Patterns." American Journal of Obstetrics and Gynecology. 179 (September): 671-676, 1998.

Sloan FA, Whetten-Goldstein K, Stout EM, Entman SS, and Hickson GB. "No-Fault System of Compensation for Obstetric Injury: Winners and Losers." Obstetrics & Gynecology. 91 (March): 437-443, 1998.

Whetten-Goldstein K, Kulas E, Sloan F, Hickson G, and Entman S. "Compensation for Birth-Related Injury: No-Fault Programs Compared with Tort System." Archives of Pediatrics & Adolescent Medicine. 153 (January): 41-48, 1999.


Both states' compensation programs require that the claimant establish the causation element that we have been discussing.  The numbers discussed above reflect the claimants who have been found to be eligible.  The Robert Wood Johnson report disclosed that about half of the claims in Florida were rejected for failure to establish causation. 

6:32:17 AM    

Saturday, February 14, 2004

In response to my posting of February 1, in which I took the position that the obstetrics malpractice cases pursued by John Edwards when he was a plaintiff's trial attorney in North Carolina were not based on "junk science" as that term is used and understood in current parlance, Walter Olson responded on February 2.

Recall that the cases in question reportedly involved claims for damages for cerebral palsy allegedly arising from perinatal hypoxia - deprivation of oxygen to the newborn, before or during delivery.   The "causation hypothesis" under discussion is that cerebral palsy is or can be caused by perinatal hypoxia, sometimes also called intrapartum asphyxia. 

Olson's responsive posting cited two sources from the political rather than from the medical literature:

"A two-volume report from the Institute of Medicine, entitled Medical Professional Liability and the Delivery of Obstetrical Care, in the course of exploring its subject, built a substantial case that many obstetricians were being wrongly sued. It appeared in 1989. In his widely reviewed book Galileo's Revenge, which was and remains the leading popular work assailing "junk science", my Manhattan Institute colleague Peter Huber accords a central role (and a full chapter) to cases charging obstetricians with causing cerebral palsy."

The Institute of Medicine's report had this to say:

"Until recently, cerebral palsy was thought to be linked to abnormal parturition, difficult labor, premature birth, and hypoxia or asphyxia of the infant. The committee evaluated more recent data that cast serious doubt on the correlation between presumed hypoxia and later cerebral palsy."

The publication went on to cite the many studies published by Nelson and Ellenberg (the most active researchers in this area) in the 1980s and their conclusions, including the following specific items.  We will correlate the statements with the reverse and deductive conclusions that are not mentioned:

"Of the cases studied, 69% [of the cases of CP] did not have even one clinical marker of asphyxia [at birth]." 
(This means that 31% did.  The conclusion, one with which all will agree: other things may also cause CP.)

"Of the 21% that did [note the mathematical error], 58% had an alternative explanation." 
(This means that for 42% of those which did show asphyxia, it was the only factor.  The presence of two or more alternative factors complicates the analysis for the 58%, which explains why OB malpractice cases are so complex.)

It then quotes directly from Nelson and Ellenberg, including the following:

"[The] results suggest a relatively small role for factors of labor and delivery in accounting for cerebral palsy."

A "relatively small" role is not the same as "no role".  

Galileo's Revenge, published in 1991, was a well-written book, but it has been subjected to some criticism of its own.  A review of the author's carefully-chosen language is instructive.  At p. 82, Huber cites to a well-known 1986 study published in the New England Journal of Medicine for the proposition that:

"More than half [of babies later diagnosed with cerebral palsy] who display at least one sign of asphyxia at birth also exhibit some more important risk factor, like congenital malformation, low birth weight, or microcephaly."

This language, though, means that nearly half of the CP babies who showed evidence of perinatal asphyxia did not have any other associated risk factor. 

The various sources cited by Huber did not conclude that hypoxia at birth does not cause cerebral palsy.  What they concluded and declared was that hypoxia at birth is not the only thing that causes cerebral palsy.  That is a different thing entirely. 

Huber (who is an engineer, not a physician) stated the following as a conclusion, made without any citation to medical authority:

"Yes, it is possible for asphyxia to cause cerebral palsy, but only if the asphyxia is especially severe and prolonged."

For a critical evaluation of Huber's book, see "Galileo's Retort: Peter Huber's Junk Scholarship", 42 Am. Univ. Law Rev. 1637 (Summer 1993) by Kenneth J. Chesebro, and "Junk Scholarship In Search Of Junk Science" by William F. Gallagher.  In the latter, Gallagher commented:

"Huber's treatment of the cerebral palsy cases would embarrass even a first year law student. He argues that obstetric malpractice accounts for a negligible number of cerebral palsy cases, and consequently most suits brought by plaintiffs that allege medical malpractice as the cause of infant cerebral palsy are frivolous, and efforts to reduce cerebral palsy by improving obstetrical care are nothing more than a cruel and expensive hoax. Huber asserts that most cerebral palsy babies are doomed long before an obstetrician comes near them. His argument relies most heavily on an article appearing in 1986 in the New England Journal of Medicine, Karin B. Nelson and Jonas H. Ellenberg, Antecedents of Cerebral Palsy: Multivariate Analysis of Risk, 315 New Eng. J. Med. 81 (1986). Huber claims that this study brings to a definitive end the century long debate over the causes of cerebral palsy.

"However, Huber fails to inform the reader that the editors of the New England Journal of Medicine, in the very issue that published the Nelson and Ellenberg article, noted significant analytical flaws in the article. In an unusual step, the editors paired the publication of the Nelson and Ellenberg study, which they obviously regarded as provocative, with their own critique of the article's underlying analytical premise. The author of the editorial, Dr. Nigel Paneth, of Columbia University College of Physicians and Surgeons, stated concern that the methods used by Nelson and Ellenberg could have obscured the asphyxia. Birth and the Origins of Cerebral Palsy, 315 New Eng. J. Med. 124, 125 (1986). Dr. Paneth criticized Nelson and Ellenberg's study for confounding prediction with cause: the fact that certain pre-birth conditions unrelated to delivery may predict cerebral palsy does not mean that physicians cannot overcome these problems through state of the art birth procedures that can ensure a healthy baby. Thus, failure to use these procedures may constitute a proximate cause of cerebral palsy.

"Moreover, Huber fails to acknowledge that one of the co-authors of the Nelson and Ellenberg study essentially recanted her conclusion two years later. See, Karen B. Nelson, What Proportion of Cerebral Palsy is Related to Birth Asphyxia? 112 J. Pediatrics 572, 573 (1988). Huber's failure to even apprise the reader of either Dr. Paneth's editorial or Nelson's disavowal of her earlier study is incomprehensible. If he did it in a Connecticut court, he would probably end up before the grievance committee. Huber can hardly claim inadvertence. He was well aware of both the editorial criticism and the Nelson recantation because he cited both sources earlier in his chapter as background on the problem of cerebral palsy."

I do not venture to say whether Huber's analysis or Gallagher's is more sound.  I simply point out that there are many views clamoring to be heard.

Medical sources

Each of the sources cited by Olson has some useful information, but I prefer to refer to medical sources when discussing medical issues. Edwards practiced in North Carolina from 1977 to 1998, so the medical sources which were extant during that time period should be considered.

The following is the entry from Williams Obstetrics, 17th edition, 1985, p. 794:

"Cerebral palsy may result from preterm birth complicated by asphxia in utero [i.e., cord compression] or in the newborn period, from severe hyperbilirubinemia, from cerebral and cerebellar malformations, and from infections acquired in utero. . ."

It then goes on to note an early study (dated 1982) that raised some questions about the causation issue, but still found a causal association in a certain number of cases. 

"Holm has provided a review of 142 cases of cerebral palsy.  One half were the consequence of events that occurred before labor and delivery. No more than 10 percent were considered to be caused by labor and the method of delivery."

Again, a 10% correlation is not the same as no correlation. 

Compare later developments in the fields of obstetrics and pediatrics.  The entry from the 1997 edition of Williams is much more detailed and much more reserved on this issue, but it still supports the causation hypothesis in certain specified cases.  The following is language based on a study done under the joint auspices of the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics in the mid-1990s:

"In order to establish that hypoxia near delivery was severe enough to cause hypoxic ischemic encephalopathy [brain damage caused by oxygen deprivation], all of the following must be met:

[The text then goes on to list highly technical names and descriptions for what we can identify in shorthand somewhat-plain English as

 1. Cord pH less than 7.0
 2. Apgars at 3 or less after five minutes
 3. Neurologic problems
 4. Dysfunction of several organs]

In the section entitled "Brain Disorders", the author notes a number of studies that call some of the previously-held conclusions into question, but the ultimate conclusion repeats the factors listed in the ACOG-AAP consensus criteria stated above. 

The conclusion is that, in those cases in which the listed factors are present, the medical profession today accepts a causal relationship between intrapartum asphyxia and neonatal brain damage that can later manifest as cerebral palsy.  A graphic figure taken from a 1985 study shows the following:

  • For babies with mild to moderate brain damage at birth, 12% had fetal hypoxia as a risk factor.
  • For those with severe brain damage at birth, 22% were associated with fetal hypoxia. 

I will repeat my statement.  The state of medical thought on the causation issue has seen a lot of development over the last 20-30 years.  I believe that the position in favor of a causal connection was not by any means "junk science" during the 1980s and 1990s, and even today there is still widespread controversy on the topic.  A conclusion that birth defects are caused by maternal use of Bendectin (as an example) can accurately be called "junk science", because (1) there is no reliable medical evidence demonstrating the connection and (2) the medical profession as a whole does not accept the connection as having been scientifically established.  By contrast, the belief that there are causal connections between perinatal asphyxia and cerebral palsy has been accepted by the medical profession in the past and continues to be accepted today, though in a more narrow range of cases.

This issue is enormously complicated from both a medical and legal perspective.  It is one which is also enormously important, given the amount of money which passes from the medical profession to professional liability claimants in these cases.  The causation issue does not lend itself well to the simple statements and overarching accusations which tend to be used in political commentary.

4:02:31 PM    

The Ohio State Medical Association is soliciting its members to submit examples of frivolous lawsuits against doctors, with the hope of using a few egregious test cases to seek redress from the litigants and/or the attorneys filing the cases.  It has already received 40 candidate cases, and expects more.  The focus of OSMA's efforts appears to be "shotgun" filings, cases in which nearly every health care provider who had contact with a patient is sued, with the intent to winnow out the true targets later. (Source: American Medical News)

7:59:52 AM    

Friday, February 06, 2004

The opinion of the Massachusetts Supreme Court entitled OPINIONS OF THE JUSTICES TO THE SENATE *, which has recently been in the news, is based solely on the Massachusetts Constitution, and thus should be impervious to any appeal to the U.S. Supreme Court.  For reasons that I have mentioned earlier at this site, there is no constitutional basis for any amendment to the U.S. Constitution to overturn this decision.  The folks in Massachusetts, in my opinion, should have to live with the results of their Supreme Court's decision, unless and until appropriate processes under the laws of the Commonwealth can counter it.

A quote from the opinion:

The bill's absolute prohibition of the use of the word "marriage" by "spouses" who are the same sex is more than semantic. The dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.

(Quaere which same-sex couples are not homosexual.)

My favorite comment is that by Pat Buchanan, who of course deems this ruling an "outrage" and would surely favor invasion of Massachusetts by Federal troops:

"By next June, we'll have a bevy of blushing brides with beards and mustaches."


* We have applied a tinyURL to the opinion, since the original URL is as follows:;n=3&ACTION=SEARCH&bhcp=1&bQlocfnd=True&CFID=0&DB=MA%2DORSLIP&Method=TNC&query=to%28allsct+allsctrs+allsctoj%29+&RLT=CLID%5FQRYRLT564462&sp=MassOF%2D1001&ssl=n&strRecreate=no&sv=Split&RS=WEBL2.92&VR=2.0&SPa=MassOF-1001&serialnum=2004108962

11:01:52 PM    

Sunday, February 01, 2004

This will be my last comment on these issues for a few days. 

Among the discussions engaged in by Walter Olson, Peter Nordberg, David Bernstein and I over the last week about the legitimacy of the claims made in some of the cases John Edwards pursued as a North Carolina plaintiff’s trial lawyer – essentially, that errors made by delivering physicians led to intrapartum hypoxia causing cerebral palsy in the neonate – it seems that I have neglected to address one important issue: whether Edwards had any reason to disbelieve the theories he was advancing on behalf of his clients.  In so doing, I fear that I have given too much credence to Olson's initial criticisms of Edwards.  Those who have read my comments on the obligation of strong advocacy by the trial lawyer for his client may perceive that, by leaving it unchallenged, I have accepted Olson's position that Edwards's obstetrical malpractice cases were founded on "junk science". 

Nordberg and I have not addressed the question of whether the weight of scientific evidence supported those causation theories. By contrast, Bernstein poses the question based on an extreme assumption:

I agree with Wally Olson that trial lawyers should not be obligated under ethics rules to pursue claims based on admissible evidence that the attorney knows to be "junk science."

This is the classic "straw man" argument. Bernstein proceeds from the premise that Edwards was a showman and a charlatan, that he knew as a lawyer that the theories he espoused were fallacious, and that he knowingly advanced them despite that knowledge. Olson likewise suggests (putting it very bluntly) that Edwards knew that he was slinging bullshit in the courtroom, but knowingly chose to do so, despite the harm it caused to the obstetricians he sued, because it made him wealthy.

Olson's criticism is, as I have suggested, a political rather than a legal or medical argument, since that is his job. 

In fact, the theory that perinatal hypoxia or perinatal "asphyxia" can cause cerebral palsy has been an hotly debated issue in the fields of obstetrics and maternal-fetal medicine for the last 25 years. It was not until a year ago that some authoritative declarations were made in this area. Even those, however, are still far from definitive on this issue.

The report of the ACOG Task Force on Neonatal Encephalopathy and Cerebral Palsy was released almost exactly one year ago today, on January 30, 2003. That is the first release of what can be characterized as a "consensus" view within the obstetrics profession on this vital issue. For 25 or more years prior to that report, the issue of whether and to what extent depriving the neonate of oxygen can result in neurological deficits was an open question, one which was widely debated and highly controversial during that time. Indeed, a review of most of the medical literature and authorities published during the 1980s and 1990s shows a preponderance of belief in favor of the association. Although some studies questioning this long-held belief began to emerge, it is accurate to say that many level-headed and disciplined scientific minds were persuaded that such an association existed during the last quarter of the 20th century, including the entire time that John Edwards was practicing law.

Indeed, even the 2003 report does not dissociate the two completely.  Instead, it differentiates those forms of CP which can be from those which are not associated with intrapartum asphyxia:

Spastic quadriplegia and, less commonly, dyskinetic cerebral palsy are the only types of cerebral palsy associated with acute hypoxic intrapartum events. Spastic quadriplegia is not specific to intrapartum hypoxia. Hemiparetic cerebral palsy, hemiplegic cerebral palsy, spastic diplegia, and ataxia are unlikely to result from acute intrapartum hypoxia.

Some translation is needed:

"Spastic quadriplegia and, less commonly, dyskinetic cerebral palsy are the only types of cerebral palsy associated with acute hypoxic intrapartum events."

This means that there is a known association between deprivation of oxygen at birth and both spastic quadriplegia and dyskinetic CP. 

"Spastic quadriplegia is not specific to intrapartum hypoxia."

This means that other things cause spastic quadriplegia, too.

This is far from a resounding declaration that the causation hypothesis is regarded as laughable by the profession.

As a defense attorney who has been defending doctors for the last two decades, I can state quite definitively that during that entire time there has been no perception that the association between perinatal oxygen deprivation in the neonate and neurological deficits in later life is "junk science" as that term is generally used. It has instead been an actively debated and litigated issue of causation. "Junk science" refers to a principle of causation which is unproven and not generally accepted in the relevant field of practice. Up to 2003 for many forms of CP, and even now for others, that label would not properly apply to the causal arguments in question.

For further consideration in this area, look at the CDC’s publication on cerebral palsy, including the section entitled "What causes cerebral palsy? Can it be prevented?", which was current as of October 2002. It can fairly be said that the CDC tries to be even-handed on these hotly-contested causation issues.  The following is the first paragraph under that section:

Cerebral palsy is caused by brain damage that affects a child's ability to control his or her muscles. The part of the brain that is damaged determines what parts of the body are affected. There are many possible causes of the brain damage. Some causes affect how the child's brain develops during the first 6 months of pregnancy. These causes include genetic conditions and problems with the blood supply to the brain. Other causes of cerebral palsy happen after the brain has developed. These causes can occur during later pregnancy, delivery, or the first years of the child's life. They include bacterial meningitis and other infections, bleeding in the brain, lack of oxygen, severe jaundice, and head injury.

One can criticize John Edwards for many things. As far as I know from the evidence available to me, participation in legal charlatanry is not one of them.

Demonizing a political opponent is splashy and makes for good theater, but in the end it is not too far removed from the scene of Geoff Fieger depicting Richard Thompson, the Oakland County prosecutor of Jack Kevorkian, as a caricature of a clown with a big red nose before the television cameras.  I prefer to think of my political opponents and my courtroom opponents as human beings who in many ways are like myself.  I find that I understand them better and can oppose them more effectively if I do.

11:52:39 PM    

Walter Olson responds to us and to Blog 702.  In so doing, he misses one mark but makes a side point. 

In noting our position and that of the Blog702 author, he says,

A theme has developed among several lawyer and law-professor bloggers that Edwards should not be held up to reproach even if it turns out that he employed dubious expert testimony to extract fortunes from innocent obstetricians, on the grounds that a trial lawyer is just doing his job when he seeks to introduce all admissible evidence on behalf of his client; in fact, he may even be obliged to do so as an ethical matter of "zealous advocacy". . . We ourselves aren't buying this line of reasoning, but it has some articulate advocates. . .

My first thought is that Olson is obviously not a lawyer if he does not accept this line of reasoning. Not that there's anything wrong with that.™  Olson does not need to be a lawyer to be a knowledgeable commentator on the legal system, but one would expect that he would at least have some appreciation of the nature of the duty owed by a lawyer to his client before offering criticism.

In his posting, Olson points to an earlier item, written in July 2003. That earlier comment and the points made deserve some thoughtful consideration, although in the end they do not make Olson's point for him.  

The July item noted a proposal made by the State Bar of Arizona to amend that state's Rules of Professional Conduct to remove the word "zealous" from its provisions, and to substitute in its place an obligation to "act honorably in the furtherance of a client’s interests". The thinking, as Olson notes, based on the comments of an unnamed member of the committee, was that "The term 'zealous'. . . was erroneously being used by some attorneys to defend behavior that was seen as unprofessional and potentially belligerent".

The Arizona committee has an excellent point, one that is quite well appreciated here in the home state of Geoffrey Fieger. The lawyer's obligation to be "zealous" can be properly interpreted or it can be misinterpreted. The proper understanding requires that the lawyer work hard for his client’s best interests, that he serve the client well, and (most important for our considerations here) that he advance all arguments on behalf of his client that will accomplish his client's goal. The limitation is that the positions advanced must be either well-founded under law or (as the formulation is commonly phrased) supported by a good-faith argument for extension or revision of existing law.

The standard of "zealous advocacy" does not in any way require or support hostile, belligerent, or improper conduct. It does not permit the lawyer make an effort to bribe the judge, to tamper with the jury, or to use sneaky tactics to introduce obviously improper evidence before the jury. The standard does not justify any of Geoff Fieger's actions:

  • It does not require or even condone the lawyer appearing on television, putting fake red noses on a caricature of the prosecutor to depict him as a clown.
  • It does not require or condone taking to the airwaves to call judges who have ruled against the client's position "idiots", "clowns", or "Nazis".

The standard of zealous advocacy does not excuse the lawyer who utilizes such tactics or in any way shield him from the legal or ethical repercussions of his misconduct.

But there is no evidence in any of the reports that Edwards was guilty of any such misconduct. Indeed, he has been described by those who observed his handling of trials as a very effective advocate, one who could persuasively argue his client’s case before a jury and who could articulate complicated medical issues in a way that a lay jury could understand.

Under our system, whether or not the term "zealous" is used, all lawyers and judges understand that a lawyer is not only permitted, he is required to use the current rules of evidence to introduce whatever admissible evidence is going to assist his client’s position in the case. As long as the system allows that evidence to be used, it is proper to use it, and it is the mark of an effective advocate that it be used well in his hands.

The difficulty of having lay juries sit in judgment on complicated issues of professional negligence and of having them sort out and attempt to differentiate between sound science and half-baked theories of causation and other elements of "junk science" may well argue in favor of some process other than the tort system for redressing claims and injuries caused by professional negligence, but there is no legally justified basis to criticize a lawyer who works within that system for using that system and its rules to work for the goal of his client. That is his job, it is what the courts and society expect of him. If that reality is to be changed, it will be necessary to change the system.

Of course, the criticisms that are being leveled against Edwards are being made in the political arena, where neither the legal rules nor the rules of common sense and fair play apply. In the political arena, in the end it is all caricature.

5:50:06 AM    

Saturday, January 31, 2004

Now on iTunes: the January 27 release of "Baby Monkey" by Voodoo Child (he who may be you-know-who).  I have downloaded the album and will be firing it up to play once I finish this post.

Apple has tapped into a reality that P.C. Connection used to excel at, and which no other vendor (listening, Jeff?) has yet appreciated:  the key to geek happiness is instant gratification

Baby Monkey 
Voodoo Child


9:39:47 PM    

Monday, January 26, 2004

Source: boing boing

8:13:19 PM    

The excellent Blog702, which focuses on issues relating to Daubert and the admissibility of scientific evidence, has something important to say about the criticism leveled against John Edwards by Walter Olson and others, criticizing his use of "junk science" in cases he pursued as a plaintiff's trial attorney:

So it's worth mentioning that the expert evidence Edwards has been criticized for using was ruled admissible, in lawsuits in which Edwards's clients prevailed. Litigators, after all, do owe their clients a duty of zealous advocacy. It wasn't Edwards's job to adjudicate his clients' claims himself. It was his duty to present the strongest legally legitimate evidence on their behalf to a court and jury, in furtherance of the clients' interests under applicable law. There's no scandal in that. What would have been scandalous is telling a client that although expert evidence admissible under prevailing legal standards would support a verdict in the client's favor, Edwards personally disagreed with the evidence, or believed it should not be admissible, and therefore wouldn't offer it. . . Offering admissible evidence on behalf of his client was not some moral or ethical failing. It was his job.

I would only add that it was also his job, under the rule of "zealous advocacy", to push for admissibility of this evidence whenever possible.  A plaintiff's attorney is not expected to simply use admissible expert evidence when the law clearly allows it.  He is expected to argue for and urge the acceptance of expert evidence favoring his client whenever the circumstances would suggest it. 

The lawyers for the parties are not the gatekeepers under Daubert and under similar state laws.  That is the job of the trial judge. 

A more fruitful area for inquiry might be: Who were the witnesses on whose testimony Edwards built his cases?  Were they known to be honest, or were they known to be less than honest?  The judges who heard his cases and the defense lawyers who opposed Edwards would know.  And a trial lawyer is known by the company he keeps.

7:52:38 AM    

Sunday, January 25, 2004

The Grand Rapids Press reports today that the Michigan Supreme Court is being asked to address the case of David Sanchez, an illegal alien who was seriously injured on the job in 1998 at Eagle Alloy, a Muskegon foundry, and who drew workers' compensation benefits for about a year until his illegal status and his use of forged documents was discovered. 

The issues in the case, as described by the Press:

Lawyers for Sanchez maintain he's entitled to benefits even after he was fired since state law provides that "aliens" are covered as well as citizens.

But a provision of the law exempts employers from paying compensation if a worker cannot work because of imprisonment or "commission of a crime." Eagle Alloy maintains it's not required to pay compensation because Sanchez -- by virtue of his fraudulent application and illegal status -- committed a crime.

This will be an interesting case for our textualist-minded Justices.  The section in question is MCL 418.361, which provides for the payment of wage loss benefits and then carves out an exception:

However, an employer shall not be liable for compensation under section 351, 371(1), or this subsection for such periods of time that the employee is unable to obtain or perform work because of imprisonment or commission of a crime.

This section does nothing to disqualify a worker, including an alien, from receiving workers' compensation benefits if he committed a crime in securing the job (falsifying his papers) or in continuing to work.  This section is designed to prohibit a worker who is eligible for benefits for receiving those benefits while imprisoned or while otherwise unable to work as a result of a criminal act.  Unlike the driver thrown in jail for OUIL while receiving benefits, this man is not physically or otherwise "unable to. . . perform work because of" a criminal act.  The article does not suggest that Sanchez is currently imprisoned, under a deportation order, or otherwise unable to work as a result of his illegal status.  Indeed, it discloses that he is currently working:

As he awaits a decision in his case, he is working another factory job. Sanchez said he's not looking for any special help to make in here. He expects to earn his way. "I need to work," he said.

But even if he is regarded as ineligible for employment because employing him would be a crime, that does not make him unable to perform work because of "commission of a crime".  The "inability" to perform work would be a result of the need to avoid committing a new crime.

Textualism isn't as easy as it sounds, is it?

9:45:08 PM    

It took Instapundit to point it out to us:  The Detroit News is seeking volunteer weblog authors for 30-day runs during the 2004 election season.  I would consider participating, but the News would want to publish my photo, which would tend to diminish the reputation I have so carefully crafted.

7:03:23 PM    

Friday's Free Press reports that Judge Gerald Rosen of the Eastern District of Michigan has declined to dismiss a case against Northwest Airlines alleging that it failed to supervise an 11-year-old girl who was traveling alone, allowing her to be molested by another passenger.   Rosen rejected the argument that the case must fail under previous Michigan cases holding that businesses have no general duty to protect their customers from the criminal acts of others, noting that the girl's parents had paid a special $40 fee to allow her to travel alone, and also noting that the airline's web site had represented that payment of the fee would provide a "safe, comfortable, and fun flight" for an unaccompanied child.

6:46:30 PM    

Thursday, January 22, 2004

Richard Schweder, writing in Tuskegee Re-Examined at the Spiked Science section of the Spiked Online site, reports on the Tuskegee study, popularly mischaracterized as a racist and genocidal experiment in which black men were deliberately kept from receiving treatment for syphilis.  In many accounts it is falsely claimed that they were deliberately infected with syphilis for the study.  Schweder looked into the study in the interest of learning what did occur, and found that things are not as they are commonly portrayed in the media and elsewhere.

Some highlights:

Accusations of racism, egregious harm and betrayal (lack of informed consent) are common features of the horror-story account. A sober representation in this genre might state that the Tuskegee syphilis study was 'a US Public Health Service experiment that allowed 400 black males of Tuskegee to go unknowingly without syphilis medication for 40 years simply to satisfy the medical profession's curiosity about what happens to people when they aren't cured of venereal disease' (3).

The implication of that statement, of course, is that the syphilis infections of the residents of Macon County in 1932 could have been cured, yet vulnerable black men were kept ignorant of their condition and left to suffer because of the racist attitudes at the Public Health Service - and that all this was done in the name of callous science by researchers who had no real interest in the public good or the welfare of members of a poor minority group in the South.

*     *     * 

I also learned that the therapies of that era were in fact so weak, hazardous, lengthy, costly and difficult to administer that very few people with syphilis were willing to tolerate the drugs for the full course of the treatment. Most patients (perhaps 85 per cent) simply voted with their feet and gave up on the 'therapy'. Of those who did suffer through the full treatment (it could take more than a year and required carefully monitored intravenous administration of the drug) relatively few patients were ever cured of the syphilis infection or protected against its potentially damaging effects because of those therapies.

Indeed, one of the most astonishing facts about the disease (at least to those of us who are not medical scientists, or who naively associate syphilis with the demise and devastation of Frederick Nietzsche) is that, after the early stages of infection, the vast majority of people who have untreated syphilis either remain asymptomatic all of their lives or else spontaneously recover from the disease. For most people, a syphilis infection is either a self-limiting or self-correcting disease, and in the 1930s the degree to which doing something (a year of protoplasmic arsenic poisoning) was better than doing nothing at all was at the very least uncertain, and was thus a matter of urgent medical and scientific concern.

*     *     * 

I also learned that the study emerged out of a liberal progressive public health movement concerned about the health and wellbeing of the African-American population. The study was done with the full knowledge, endorsement and participation of African-American medical professionals, hospitals and research institutes.

Schweder's introduction is worth reprinting for consideration:

Some of the intellectual virtues we associate with a Thucydides, or with a Socrates (a principled commitment to explore the other side) are at risk of being sacrificed in our contemporary public policy forums. All too often these days one witnesses the triumph of identity politics over critical reason. All too often a rhetoric of evil and moral horror demanding protective public interventions has produced a rush to judgement about matters of great consequence.

7:49:18 AM    

Tuesday, January 20, 2004

And while we bask in the glow of positive comments on our adversaries, check out the column by Ralph Peters in the New York Post, describing Bill Clinton's speech to a conference in Qatar.  Peters was surprised at how forceful and how positive Clinton was.

As soon as he took the podium, Clinton began taking stands as brave as they were necessary. With virtuoso skill, he led the audience where they needed to go - while convincing them it was where they had wanted to end up all along. His sense not only of what required saying, but of how best to express it to that complex, contrary audience was almost supernatural. . . He didn't pander. He made America's case and made it well. Beginning with a sometimes-rueful look at the progress his administration had failed to make and noting that the wars that plague the world are begun by men his own age or older, but paid for in blood by the young, he refused to direct one syllable of blame at the Bush administration. Accepted as a citizen of the world, he spoke as a convinced American.

Asked by an eager-to-Bush-bash delegate if he, Bill Clinton, would have behaved differently after 9/11, our former president said he would have followed an identical course, pursuing our enemies into Afghanistan and beyond. Queried about his position on Iraq, he stated that any disagreements he might have would be most appropriately expressed at home in the U.S., not before a foreign audience.

The contrast between the former President, speaking confidently and positively to a group that would not be expected to be friendly, and the bunch of nattering nabobs of. . .  well, you know, who want to have the chance to run for President could not be more striking. 

8:32:45 PM    

The Mackinac Center for Public Policy, a conservative think tank based in Midland, has issued a report card, grading Gov. Granholm after her first year in office.  The verdict, perhaps a bit surprising: a B-.

The report compliments Granholm for avoiding the prevailing liberal tendency to resort immediately to tax increases to counter declining revenues, the approach used by Gov. Bob Taft of Ohio.  She has cut spending at many levels of state government, including the Executive Branch, and the report notes that this is a sharp contrast to the President's push for "massive hikes in domestic, nondefense spending at more than double the rate the Clinton administration delivered".  She has even sought modest reductions in K-12 education, a "sacred cow" of politics in any state.

One key observation:

While we applaud many aspects of Gov. Granholm’s handling of the state budget deficit this year, we know that a new and important test on that front may be coming soon. What will the governor do when the nascent economic turnaround begins to yield higher revenues for Lansing? Will all the talk about reinventing government give way to pleasing traditional constituencies, throwing money at one perceived problem or another, expanding state programs that the citizenry would do better without? Will she set state government once again on the course of more spending, thereby making it all the more difficult for Michigan to weather the next downturn, whenever it comes? This remains to be seen.

The report identifies several areas in which Granholm has faltered, including the debacle over charter schools in Detroit, but overall a grade of B- is a pretty favorable rating for a Governor from "the other side of the aisle".

6:35:25 PM    

William Saletan offers two pieces in Slate, one new and one old, describing how chaotic and erratic the Iowa caucus procedure is.  It makes Florida 2000 look, well, democratic by comparison. 

8:20:06 AM    

Sunday, January 18, 2004

A physician wrote a recent "Piece of My Mind" article entitled "Winners and Losers" in the January 7, 2004 issue of the Journal of the American Medical Association, in which he described his experience as a defendant in a Virginia malpractice case which ended up with a $1 million verdict in favor of the plaintiff.  The operative act of alleged malpractice: the doctor's decision, after discussion and consultation with his patient in his mid-50s, not to order a PSA test to screen for possible prostate cancer.  It was found at some unspecified later time that the patient had advanced and incurable prostate cancer.  The individual physician, a third-year resident, was found to have complied with the standard of practice, but the verdict (says the article) was that "my residency was found liable for $1 million".  In other words, although the individual did act properly, the institution was found to have improperly trained its residents. 

The article has generated a lot of heat in the medical blogosphere [examples: 1 - 2 - 3], in part because the plaintiff's strategy was to place the blame on the emerging practice principle of Evidence-Based Medicine. 

"During closing arguments the plaintiff's lawyer put evidence-based medicine on trial. He threw EBM around like a dirty word and named the residency and me as believers in EBM, and our experts as the founders of EBM. He defined EBM as a cost-saving method and stated his belief that the few lives saved were not worth the money. He urged the jury to return a verdict to teach residencies not to send any more residents on the street believing in EBM."

As he notes, there is significant controversy about doing the PSA test.

"In the medical world it is well accepted that screening for prostate cancer is a risky proposition, in which there is the potential for more harm than good. Nearly all of the national guidelines—including those of the American Academy of Family Physicians, the American Urological Association, and the American Cancer Society—recommend nearly identical approaches a physician should take when it comes to prostate cancer screening. This approach is discussing with the patient the risks and benefits, providing thorough informed consent, and coming to a shared decision. Family medicine has begun to stress the shared decision-making model because of the uncertainty in the literature with regard to such practices as hormone therapy, screening mammography, and many other medical procedures. The shared decision-making model and national guidelines are both losers in this story."

One paragraph struck me:

"Four physicians testified that when they see male patients older than 50 years, they have no discussion with the patient about prostate cancer screening: they simply do the test. This was a very cogent argument, since in all likelihood more than 50% of physicians do practice this way." 

I do not know Virginia law, but in Michigan the expert witnesses would not be permitted to offer this testimony.  An expert testifying about the standard of care must phrase his answers in terms of the standard of care, not his own personal practice.  The law in Michigan recognizes that an expert who tells the jury what he would have done in a certain situation may well mislead the jury, because this testimony is calculated to suggest that the witness' practice is in fact the same as the standard of practice. 

More to the point, this episode underscores one point about the "standard of care": that standard is not based on what the majority of physicians do, but rather on what physicians in general would recognize as sound and responsible professional practice.  When there is a true controversy or difference of opinion among practitioners, a physician may theoretically choose either one when making his clinical decisions, without being found guilty of malpractice.  Further, the "respectable minority" standard posits that a course of action which is recognized and accepted as proper does comply with the standard of practice even if most physicians are doing it a different way.  It is "respectable" rather than "minority" which is important in this phrase. 

The issues of whether or not to do a screening PSA in men, or to do annual screening mammograms in women between 40-50 years old, are excellent examples of this principle.  There is no general agreement on this point.  Responsible physicians differ on these issues, and for that reason neither can be "right" or "wrong". 

(We pause for a moment for a simple explanation of why the common practice is as the four plaintiff's experts said it was, courtesy of

"The PSA conversation takes 20 minutes, but just ordering it takes about 20 seconds."

In other words, the primary motivation is the convenience and of course the enhancement of income for the doctor, not the well-being of the patient.  Hmmm.)

But note my careful use of the word "theoretically".  What happens in a litigated case depends much more on what the jury can be persuaded to accept than on the medical and scientific principles involved.  The system depends on ordinary men and women making these decisions, with the aid of arguments of counsel and expert testimony from physicians.  The human factor, including emotional issues and inter-personal relationships, is a big part of the picture.  Trying cases can sometimes be as much about showmanship as it is about science.

Those who push for an alternative system, perhaps modeled on the administrative workers compensation system, should keep in mind the deficiencies and faults of that system.  We had a taste of that truth under Michigan's former arbitration system.  When health care providers participated on arbitration panels, the rate of findings in favor of plaintiffs went up. 

If the author's recounting of the verdict and its basis is accurate, one would have to conclude that the verdict will probably not be permitted to stand on appeal.  A claim for what is essentially educational malpractice does not, in most states, state a legally-recognized cause of action.  A claim for medical malpractice has to be based on a finding that one or more health care providers acted in a manner which was inconsistent with the standard of practice with respect to a medical decision relating to treatment.  If no individual was found to have made an improper medical decision, then the institution cannot be held liable for damages.

2:59:20 PM    

Back in the BB ("before blogging") era, in March 2001 to be exact, Howard Bashman wrote an article in the Legal Intelligencer (reproduced at his law firm's site) detailing the reasons for his conclusion that recess appointments to the Federal bench would be unconstitutional.   An interesting piece of information appears therein:  A person who receives the recess appointment is prohibited under 5 U.S.C. §5503 from receiving any compensation from the Federal government for his services.  Judge Pickering, it seems, has given up a paying position as a Federal District Judge for a non-paying and of course temporary position on the Fifth Circuit bench. 

Unless he is independently wealthy, I wonder how he could do that.  Unless. . .

They wouldn't.  Would they?

1:11:35 PM    

In all of the controversy about file sharing, copyright protection, and Digital Rights Management, this is the strangest twist to date: a private RIAA "police force", swooping down on unsuspecting vendors and intimidating them with threats of arrest, complete with dark jackets with "RIAA" stenciled on the back.

"The RIAA acknowledges it all — except the notion that its staff presents itself as police. Yes, they may all be ex-P.D. Yes, they wear cop-style clothes and carry official-looking IDs. But if they leave people like Borrayo with the impression that they’re actual law enforcement, that’s a mistake."

Bullshit. They are counting on the official impression, walking a fine line just this side of impersonating police officers.

10:25:25 AM    

Saturday, January 17, 2004

Jacob Sullum at ReasonOnline has authored Class Conflict: When Clients Serve Lawyers, bemoaning the fact that class action lawsuits are often geared toward recovering millions in attorneys' fees for the plaintiffs' attorneys,  while the class members -- the ones who got shafted the first time but not the last -- get next to nothing. 

My proposed solution is simple: cap the fees for class counsel at 10,000 times the average recovery enjoyed by a class member.  If the average recovery is $7, then the total fees are $70,000.  If the average class member gets a certificate for a free car wash, by all means let the lawyers have 10,000 of them.  Maybe they can sell them for what they're worth.

3:00:06 PM    

Wednesday, January 14, 2004

We are on record at this site (see the first and the second entries, from September 2002 and April 2003, respectively) as advocating for a new "absolute certainty" standard of guilt as a predicate to the imposition of the death penalty.  As we stated in the first entry, the criminal standard of "beyond a reasonable doubt" is appropriate for a finding of guilt and for a penalty involving a fine or imprisonment.  Given the many errors that our judicial system has encountered, however,  a higher standard should be required when the ultimate penalty is to be imposed.  There just is no commutation or reversal of a death sentence once it is carried out. 

We now see that our argument and position have been accepted in some quarters.  In Massachusetts, Gov. Mitt Romney is advocating for a new death penalty statute, but in recognition of the faults of the current system, he is pushing for new safeguards.  In October 2003, he appointed a commission whose charge is to "build a more perfect death-penalty statute", reports the Christian Science Monitor.  The commission is weighing a number of factors, but it will eventually

put greater demands on prosecutors and police, limit the type of murders that qualify for the death penalty, and demand a higher level of proof. 'Going to a punishment that is irrevocable requires a level of certainty beyond what we've ever had before," says [the state's Lieutenant Governor].

And now, in New York state, the lawyers for a convicted killer are asking that state's highest court to impose the absolute certainty standard as a new common-law requirement, the New York Times reports.  

11:31:40 PM    

Friday, January 09, 2004

One of the accepted rules of traditional statutory interpretation is that the language of a statute should be interpreted to avoid a manifestly absurd result, on the theory that the legislature could not have intended a result which does not comport with common sense. 

The reason behind the rule appears to be the belief that the legislature, in choosing the language it used, may not have fully considered all of the different scenarios under which the statute might be applied. 

Among our current Supreme Court Justices, Maura Corrigan has staked out what to some would appear to be an extreme textualist position: that the courts have the duty to apply the language of the statute, even though to do so would produce an absurd result.  The text must be faithfully followed, she says, despite the absurdity of the outcome.  In her view, legal absurdity is no excuse for declining to follow the language of the statute.  If the absurd result is to be remedied, she posits, it is up to the legislature to amend the statute to do so.

Justice Corrigan's position has much to commend it.  If the effect of the language is blunted by judicial interpretation, then the full import of its meaning will not be apparent, and legislators, citizens, and voters will not have any reason to push for amendatory action.  They will be content to allow the courts to amend the statute by judicial fiat, thereby becoming enablers of the addictions of judges.

In her "Dice Loading" Rules Of Statutory Interpretation, published in 2003 in the New York University Annual Survey of American Law, Symposium On State Constitutional Law, Justice Corrigan stated flatly:

The Michigan Supreme Court no longer subscribes to the so-called "absurd result" doctrine. [FN40]  Under this doctrine, judges ignore the plain language of a statute whenever they deem the result required by the statute to be absurd or unjust.  A judge has no authority to disregard a law validly enacted by the representatives of the people merely because the judge dislikes the outcome.  A judge's personal predilection regarding what is unjust or absurd simply is not relevant.

In this passage, I believe, Justice Corrigan overstates the rule.  The rule of avoiding a truly absurd result is far different from a more general principle (if it can be so dignified) which would allow a judge to ignore statutory language if she finds it to be "unjust".  I would agree that allowing judges to use a general standard of injustice gives them a power that the framers of our legal system never intended that they have.  But the same is not true of the absurdity rule.

The opinion cited by Corrigan in the footnote is her own concurrence in Maier v. General Telephone, 645 N.W.2d 654, 654 (Mich. 2002).  The fact that she cites her concurrence rather than a majority opinion is notable; if her position is indeed that of the Supreme Court as a whole, it would be better to cite to a majority opinion saying so.  A review of that concurrence, further, shows that it did not really deal with the absurdity rule.  In that opinion, she criticized the Court of Appeals in its recourse to another long-standing rule, that remedial statutes should be "construed liberally".  Indeed, she used the phrase "dice-loading" and cited Justice Scalia in her textualist argument.  It can be fairly said that this concurrence was a direct precursor of her 2003 article - or maybe it was the other way around.

She referred in the article's footnote 40 to the case of People v. McIntire, 599 N.W.2d 102 (Mich. 1999), which was a majority opinion by the Michigan Supreme Court.  In that case, the defendant had agreed to a grant of immunity in exchange for his testimony before the grand jury but then had given perjured testimony.  Years later, the perjury was discovered, and the prosecutor sought to reinstate the charges against him.  The prosecutor argued, and the trial court and the Court of Appeals agreed, that an obligation that the defendant testify truthfully is an implied obligation of an immunity agreement.  Judge Robert P. Young, Jr., then sitting on the Court of Appeals, had dissented.  By the time the case got to the Supreme Court, so had Young, and he recused himself from participation.  The Supreme Court, speaking per curiam, adopted Young's dissent in toto.

Young's opinion eloquently stated the textualist position:

These traditional principles of statutory construction thus force courts to respect the constitutional role of the Legislature as a policy-making branch of government and constrain the judiciary from encroaching on this dedicated sphere of constitutional responsibility. Any other nontextual approach to statutory construction will necessarily invite judicial speculation regarding the probable, but unstated, intent of the Legislature with the likely consequence that a court will impermissibly substitute its own policy preferences. See Cady v Detroit, 289 Mich 499, 509; 286 NW 805 (1939) ("Courts cannot substitute their opinions for that of the legislative body on questions of policy"). Unfortunately, the [Court of Appeals] majority has abandoned these traditional rules of construction, ignored the plain text of the statute before us, and substituted its own policy preferences for those of our Legislature by finding an unexpressed legislative intent that a witness who lies in a one-man grand jury proceeding forfeits statutory immunity granted under MCL 767.6; MSA 28.946. While [we] do not question the sincerity of [the Court of Appeals majority's] effort, [we] view the [Court of Appeals] opinion as a herculean, yet ultimately unsuccessful, attempt to create an ambiguity where none exists in order to reach a desired result, albeit one with which [we] might wholeheartedly agree [if we were legislators] authorized to enact policy.

He considered the language of the statute and found therein nothing that required that the recalcitrant witness' testimony be truthful.  He observed that there were other sections of the Code which provided a penalty for perjured testimony, and concluded that those were the only sections which afforded relief.  Given the plain language of the statute, first Young and then his colleagues, adopting his position, could not avoid the result that the grant of immunity remained in full force. 

The events which occurred thereafter substantiate Young's opinion and Corrigan's position as stated in her article.  Steps were immediately taken to amend the statute, and as it now stands it provides that the grant of immunity applies only if the testimony given was truthful.  A legislative mistake has now been corrected legislatively, rather than judicially.  Can it be doubted that the result would have been, if the court had ruled otherwise, that the defective legislation would still be on the books today? 

Considered strictly, the result in McIntire was not a truly absurd result.  An absurdity is a logical or philosophical paradox, a conclusion which cannot stand, which is internally inconsistent.  The interpretation of the accrual statute in Connelly v. Paul Ruddy's Equipment and Service Company, 388 Mich 146, 200 NW2d 146 (1972) provides an example.  Section 5827 of the Revised Judicature Act of 1963 provides that a "claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results."  In most cases, this is a perfectly reasonable rule.  The problem arises in cases such as product liability cases, in which a defective product is manufactured and sold but does not cause damage until many years later.  If the date of accrual is the date of the wrong, the date on which the defective product is sold, then the claim for personal injuries expires three years later.  If the injury itself does not occur until several years after that point, a plain reading of the statute leads to the inconsistent conclusion that a claim is stale under the statute of limitations before it ever arises.  That is consistent with the theory and purpose behind a statute of repose, but is entirely inconsistent with the purpose of the statute of limitations.  Hence the Court ruled in Connelly that the term "wrong" would be interpreted to mean "actionable wrong" to avoid this absurd result. 

Perhaps this was a wise and just ruling, avoiding the logical paradox that would otherwise result.  But the practical effect of this 1972 ruling is that the defective legislation is still on the books.  Section 5827 says today the same thing that it said then. 

The result in McIntire was not absurd in the sense of logical inconsistency.  It was just a bad result.  But most judges are not logicians and philosophers.  They are men and women, lawyers who have been vested with the responsibility of interpreting and applying the law.  I might even be so bold as to suggest that some of them are not very bright. (The majority were appointed to their positions by a politician, for political reasons.) In ordinary use, "absurdity" does not bear a meaning as stringent as the one I have suggested.  The ordinary dictionary definition of an absurd result is a result that is "at variance with reason", and the synonyms for "absurd" include "ridiculous" and "silly".  Perhaps an license to use absurdity as a basis for a judicial ruling is an invitation to nullify legislation because the judge thinks that it is silly.  And that is not his job.  He is elected as a judge, not a philosopher-king.

The Corrigan-Young brand of "damn the torpedos" textualism has not won converts everywhere.  A recent Court of Appeals decision allowed a 2-1 panel to voice a different position on this issue.  In Nippa v. Botsford Hospital, decided on remand in July 2003, a majority panel of the Court of Appeals had this to say about the issue in its footnote 5:

While we do not believe in judicial activism, we do believe that the role of the judiciary is more than that of a simple statute-reading machine that spits out the plain language of what is put in. . . Judging is an art. It is not best served by reaching absurd results or by reaching decisions that lack common sense or violate the intention of the Legislature. We note that writing is "[t]he bare transmission of data" from the writer to the reader. Irving Younger, Culture's the Thing, 8 Scribes J. Leg. Writing 137, 138 (2001-2002). It is simply "a mechanical function requiring only a command of grammar, syntax, and vocabulary. Though grammar, syntax, and vocabulary can be programmed into a computer," no computer will ever be able to replace the role of judge in our society, and no computer or mechanical device can function at the level of a judge. Id. "The reason is that there are demesnes of [judging] closed to computers," mechanical devices, "and to those who aspire to no more than a computer's function." Id. Computers can reach absurd or illogical results on the basis of the process chosen to program the computer. Reaching an absurd or illogical result is best left to mechanical devices. In our opinion, the judge's role is significantly different.

6:57:44 PM    

Thursday, January 08, 2004

A couple of days ago, I questioned the "magic jurisdictions" quote attributed to Dickie Scruggs.  In my response to my skeptical comment, Jim Copland of the Manhattan Institute was kind enough to forward a copy of the Prudential publication which includes Scruggs's comment.  It is apparent from the context that Scruggs thought he was describing other jurisdictions, not Mississippi, but the quote is accurate. 

The rest of his presentation is of interest as well.  I will see if there is some way that it can be reproduced.

5:53:30 PM    

Monday, January 05, 2004

The current Medical Economics, in "Do these doctors give medicine a black eye?" discusses the questions that have been raised about two cardiologists participating in fen-phen class action litigation for certain plaintiff's firms.  The case has already been settled, and claims are being handled by a trustee responsible for overseeing the use of the funds.  The article discloses:

  • This September, lawyers for the settlement trust filed a civil suit against [a Kansas City cardiologist, one of the experts in question] charging that she had "engaged in a pattern of racketeering activity and intentionally defrauded" the trust by "submitting misleading and false medical evidence to support illegitimate claims" for which the trust has paid many millions of dollars. Her lawyer denies those charges.
  • In November, trust lawyers also filed suit against the New York cardiologist, alleging that he had certified that "certain claimants had serious valvular heart disease when he either knew that they did not or knew he had no reasonable basis for certifying that they did." His lawyer had no comment.
  • In late 2002, worried that many fen-phen claims had "no reasonable medical basis," the judge ordered a suspension of payments on all pending claims submitted by the two plaintiffs' firms or certified by their two medical experts until they are audited.

In commenting on one of the cardiologists, who had made $3 million in less than one year by interpreting more than 10,000 echocardiograms done for one of the law firms, a judge said, "Her practice resembled a mass production operation that would have been the envy of Henry Ford."

7:45:04 AM    

Sunday, January 04, 2004

This has always been, to my eye, an archetype for issues of sex equality and affirmative action:

Several New York City Council members introduced a bill Wednesday to have more restrooms set aside for women than men in most buildings. To women -- and one male law professor -- it's a matter of gender equity.

"Women need more restroom facilities simply because women take longer," John F. Banzhaf III, a public interest law professor at George Washington University Law School, said Wednesday.  [Source: CNN]

Nature or nurture?  Is it physiology or socialization?  Should we change our architectural norms to provide special privileges to women based on their lifestyle choices?  Banzhaf and his supporters cite the anatomical difference as the explanation for why women take longer in the loo.  I suggest that another consideration is: mirror time.  In addition, there is the well-known doubling phenomenon.  When a man needs to relieve himself, he gets up and goes to the facilities.  When the need hits a woman, two or more will depart. 

Plastic notes that Banzhaf is also the moving force behind the fast-food lawsuits against McDonald's.

The CNN story is wryly subtitled "Squatter's Rights". 

2:35:58 PM    

In the Atlantic's D.C. Dispatch for December 31, 2003, Stuart Taylor's "Asbestos Litigation: Evidence Of Massive Corruption?" profiles an upcoming article in the Pepperdine Law Review by Lester Brickman, alleging not only that marginal or questionable asbestosis claims are being filed, but further that the boom in these cases is the result of overt or implicit corruption of the legal process.

These disturbing contentions come in a 137-page article to be published this month in The Pepperdine Law Review. They suggest at least the possibility of ongoing corruption of the civil justice system on a staggering scale by powerful plaintiffs lawyers, with the help of complaisant judges — many of whom are politically indebted to the lawyers — while the U.S. Supreme Court primly averts its eyes.

*       *       *

[One of the perversities of this situation is that] forum-shopping lawyers have filed most of the hundreds of thousands of claims generated over the past 15 years in a handful of jurisdictions in Texas, Mississippi, West Virginia, and Illinois. "What I call the 'magic jurisdiction,'" billionaire plaintiffs lawyer Dickie Scruggs of Mississippi once explained with stunning candor (as quoted in The Wall Street Journal), is "where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges. . . They've got large populations of voters who are in on the deal. . . It's almost impossible to get a fair trial if you're a defendant in some of these places, [no] matter what the evidence or the law is."

This quote comes from "The Tort Tax", an op-ed by Jim Copland, Director of the Manhattan Institute's Center for Legal Policy, published in the Journal on June 11, 2003, and reprinted at the MI web site. 

I have to say that the quote and the positions it expresses are so blatant that its reliability seems questionable. 

A page at Trial Lawyers, Inc., another MICLP arm, adds language to the quote and footnotes the source as follows:

"The cases are not won in the courtroom. They’re won on the back roads long before the case goes to trial. Any lawyer fresh out of law school can walk in there and win the case, so it doesn’t matter what the evidence or the law is."

[57] Richard Scruggs, Asbestos for Lunch, panel discussion at the Prudential Securities Financial Research and Regulatory Conference (May 9, 2002), in INDUSTRY COMMENTARY (Prudential Securities, Inc., New York), June 11, 2002, at 5.

I cannot find any publication by that name by Prudential Securities (now part of Wachovia).  Although I cannot find any hard evidence that the quote is fictitious, it is hard to understand why someone like Scruggs, who practices in Mississippi, would make such a comment to a group of financiers, particularly given his position at the center of the crosshairs. 

As Walter Olson has documented over the last couple of years, Scruggs and several other plaintiff's attorneys in Mississippi are under investigation for actual corruption of that state's Supreme Court.  See Mississippi Ripples (June 2003), Rumblings in Mississippi (October 2002), and several others linked at this page.

1:01:28 PM    

Friday, January 02, 2004

From the London TimesOnline:

A bang on the head may do less harm than the X-rays used to diagnose the degree of damage, a study suggests.  In research that is likely to have a significant effect on how children with minor head injuries are treated, Swedish scientists have shown that even low doses of radiation can impair intellectual development.
The doses involved are typical of those used in CT scans, which may sometimes be done to check if there is any damage after a bump on the head. The authors of the research say that CT scanning after minor head trauma now needs to be reconsidered.

*    *    *

They report in the British Medical Journal that the more radiation the boys were given before the age of 18 months, the lower their subsequent intellectual level. Those given the highest doses were about half as likely to attend high school and scored less well on intelligence tests given when they were called up for national service at 18.

On the same day:  Most Brits 'not bright enough for university'

1:21:27 PM    

Thursday, January 01, 2004

The Atlantic's web site is prominently featuring a link to Ellen Ruppel Shell's 1998 article entitled "Could Mad Cow Disease Happen here?".  A couple of snippets:

A similar epidemic in the United States would be even more catastrophic. Britain before the outbreak had roughly 10 million cows; we have more than 100 million. Cattle and dairy farmers are at the heart of thousands of rural economies, and earn approximately $54 billion a year through meat and milk sales; more than $100 billion in additional revenue is generated by related industries and services.

*  *  *

[The organism] concentrates in the central nervous system, in the spinal cord and brain. And the more of the infectious material an animal is exposed to, the likelier it is to get sick. For this reason Britain has implemented a series of more and more restrictive bans from its food chain, starting with cattle brains, spinal cords, and other tissues that have been shown to contain infectious material, and now including some sheep and goat parts as well. The United States has not followed suit, and the heads and backbones of cows, pigs, and other animals continue to figure prominently in the rendering mix.

And John Stauber, author of a 1997 book on the subject, writes "Mad Cow USA: The Nightmare Begins" at AlterNet.  The money quote comes early:

Those who did read "Mad Cow USA" when it was published in November, 1997, however, realized that the United States assurances of safety were based on public relations and public deception, not science or adequate regulatory safeguards. We revealed that the United States Department of Agriculture knew more than a decade ago that to prevent mad cow disease in America would require a strict ban on "animal cannibalism," the feeding of rendered slaughterhouse waste from cattle to cattle as protein and fat supplements, but refused to support the ban because it would cost the meat industry money.

Last, read today's Chicago Tribune for a piece on Evansville, Indiana, and the predeliction of its residents of German ancestry for brain sandwiches, in "Brain sandwich still heads some menus".  Among its other revelations is the fact that some Chicago-area taco stands offer "cows-head tacos" and that others offer the South Asia "spicy cow-brain delight called mughuz masala". 

7:11:04 PM    

Tuesday, December 30, 2003

In October, we commented on political contributions made by Geoffrey Fieger, and in so doing noted (based on a report at the Follow the Money site) that Fieger contributed the statutory maximum of $3,400 to Michigan Supreme Court Justice Marilyn Kelly's campaign in 1996.

We recently received a message from Justice Kelly, asking us to clarify that her committee returned that contribution, for reasons not specified.  We are glad to set the record straight on that point.  Consider it done. 

This raises an interesting point, however.  If the Follow the Money site reports all contributions received by a campaign, shouldn't it also somehow reflect those contributions that were returned?  Its database does not seem to be geared to handle returned contributions.

11:02:42 PM    

Sunday, December 28, 2003

We have written previously about the case of Gilbert v. DaimlerChrysler, a sexual harrassment claim which resulted in a $21 million verdict in favor of a woman represented by Geoffrey Fieger.  By virtue of the Michigan Supreme Court's Arguments and Briefs page, we have been able to download and peruse the briefs filed by the parties.  This case is shaping up to be a very interesting case for the Court's consideration.  (A caution for those with narrow pipes:  the briefs are PDF scanned image files, over 10 MB each.)

The arguments of error raised by DaimlerChrysler involve, once more, claims of egregious trial misconduct on the part of Fieger.  DaimlerChrysler asserts that Fieger's arguments went far beyond the scope of permissible advocacy in:

  • making pointed references to the company's German connection (the case was tried just after the Daimler and Chrysler "merger" and involved events that long predated the combination of the companies)
  • claiming that the actions of Chrysler's employees were reminscent of the Holocaust and that the plaintiff's experiences were similar to those of survivors of concentration camps

What is more interesting and potentially more fruitful for the defendant's cause is the testimony offered by a social worker, Mr. Stephen Hnat, who is a long-time friend and confidant of Fieger, who worked on Fieger's gubernatorial race in 1998 and who was an employee of Fieger's law firm at the time of the trial.  These connections were misrepresented to the jury during the trial, it is alleged, with Fieger making it appear that the connection was more casual.  But what appears to my eye to be a much more substantial potential argument of error lies in these points:

  • Hnat was found to have falsified his credentials before the court, claiming to have been granted a Master's Degree in "psychobiology" from the University of Michigan and claiming to have been the recipient of a prestigious award, both of which were found after the trial to have been fabrications. 
  • Hnat's testimony far exceeded the scope of the expertise of a social worker by offering a number of medical opinions, including
  • a prediction of premature death by pancreatitis caused by longstanding alcoholism as a result of the acts of sexual harrassment
  • stating, after a review of the plaintiff's medical records, that her current medical condition "reads like a preview of her death certificate", saying that "she is clearly dying", and suggesting "I wouldn't count on her living very long"
  • claiming that the events in question had caused a "change in her brain chemistry" and that she had a "fatigued brain", which appears to be his way of colorfully characterizing the development of a major depressive disorder and the plaintiff's relapse into alcoholism.

The Gilbert case was argued to the Court on December 10, 2003, and this suggests that a decision could be expected by the Spring of 2004.  The unpublished decision of the Court of Appeals, upholding the verdict, can be found (in PDF format) at the Court of Appeals web site. 

Items of interest found in the appellant's brief:

  • The Gilbert verdict appears to be the largest sexual harrassment verdict ever awarded in the United States
  • It was seven times larger than any previous sexual harrassment verdict in the State of Michigan

The appellee's brief notes that the trial of the case was handled by Chrysler's in-house attorneys, a fact which perhaps explains why such things as the relationship between Hnat and Fieger and Hnat's fabrication of his qualifications were not uncovered until after the trial was completed.  Less than aggressive trial efforts may blunt the force of the defendant's arguments over these issues.

It is also of interest that Daimler-Chrysler is apparently sparing no effort to use not-so-subtle political influence in the briefing of this case, having retained the law firm of former Supreme Court Justice Patricia Boyle, and the Washington, D.C. firm of Gibson, Dunn, & Crutcher, to handle the appeal, and prominently listing the names of both Boyle and Gibson's Eugene Scalia on its brief. 

Fieger holds the dubious record of having more money taken away in overturned verdicts than any other attorney in this state, and perhaps in the U.S.

5:09:35 PM    

Thursday, December 25, 2003

One thing about weblogs that has always been somewhat of an annoyance to me is the persistent use of the narrative format for entries.  Long and wordy narratives are well-suited to books by Charles Dickens; they don't work that well on web pages, particularly weblog pages.  Many entries by How Appealing represent the quintessential example of this approach: entries which are quite often long paragraphs, chock-full of links to stories and other objets trouves, with virtually no commentary or editorializing.  A typical "Elsewhere in Wednesday's newspapers" entry for December 24 includes a paragraph consisting of 22 lines with 15 separate links to newspaper stories -- and that is just one of the four paragraphs in that entry.  Howard has one of the leading weblogs in the legal field, and his accomplishments cannot be doubted, but his approach is not the best use of the weblog as internet media.  These long paragraphs, broken up by links, are very difficult to scan and peruse intelligently. 

Today I came across a site which offers a very well-presented alternative form of display:  CyberAttorney.  The entries are presented in tables, using a separate row for each item, and with the date/time, the link, the commentary, and a link to comments presented in separate columns.  This alternative, which borrows from spreadsheets and word processor tables, is much more pleasing to the eye and better suited to the web browsing experience. 

9:52:19 PM    

Kevin Kelly, who has a long pedigree involving both tech and non-tech tools, recommends three charities which he has found, after his customary research and analysis, provide the biggest bang for the buck, the most good done with the amount of money given.  The three finalists as described in his post entitled Powering Virtuous Circles

  • Heifer International -- Donates a breeding pair of domestic animals to a needy third-world family,  and includes a "pay it forward" requirement to recipients.  
  • Opportunity International -- A micro-lender.
  • Trickle Up -- Provides grants to micro-enterprises as seed funding.

If you are inclined to make some last-minute contributions this year, consider one of these three.

7:23:48 PM    

Wednesday, December 24, 2003

The newest and bestest among the web portals:  Give it a try and see why:  The pages load fast, the home page can be personalized, and there are no pop-up or banner ads.  Plain text / link ads only. 

Included on its "no's" page:

  • No banners.
  • No pop-up ads.
  • No pop-under ads.
  • No flash ads.
  • No video ads.
  • No audio ads.
  • No email solicitation.
  • No free-plus-shipping.
  • No come-ons.
  • No free trial offers.
  • No 24-year-old CEO's.
  • No foosball.
  • No super bowl ads.
  • No corporate jets.
  • No launch parties.
  • No calling our industry "space".
  • No corporate campus.
  • No version 8.0.
  • No butterflies.
  • No Steve Ballmer monkey dance.

1:48:59 PM    

Monday, December 22, 2003

It is often the case that a practice which is routine and customary in the health care field can be made to look like something more sinister when viewed under the scope of litigation.  It is also true that health care providers sometimes engage in practices which create unnecessary problems for themselves.

It has been the common practice at most labs across the nation to have Pap smears (done as a screening test for evidence of cell changes that might indicate or lead to cervical cancer) initially read and interpreted by technicians, not routinely by physicians.  Physicians (specialists in pathology or cytology) are expected to review any positive studies (those which show some possible abnormalities) to confirm the diagnosis, and often they will review a certain percentage of negative studies as a quality control measure.  Most Pap smears, however, are not seen by a physician if they are "negative" -- i.e., normal.  Unfortunately, it is well accepted in the field of gynecology that there is a false negative rate of approximately 4% or so when using this test.  This means that some women who do have cellular changes will not have had their studies reviewed by a physician before the report is sent to their gynecologists.  There is no evidence that having every study reviewed by a physician would change that rate. 

That false-negative rate is why the Pap smear is characterized as a screening test and not as a definitive test.

A lawsuit has now been filed against the Magee Womens Hospital, affiliated with the University of Pittsburgh, based on the hospital laboratory's practice of electronically stamping the name of a physician on all reports, positive or negative. This practice, it is claimed, is designed to promote referrals by falsely making it appear that all tests are being reviewed by physicians.   One interesting wrinkle: one plaintiff in the lawsuit is a physician who formerly worked for the lab as a pathologist, but who was reportedly fired from her position in August 2002.   

The plaintiffs are seeking class action certification.  Their law firm has created a web page to promote the lawsuit.  There is apparently no evidence that any of the named plaintiffs have had a diagnosis of cervical cancer missed as a result of this practice.

The news reports do not mention another potential complicating factor:  Under regulations promulgated by the Federal government, many of which are followed by private health insurance carriers, a Pap smear "requiring interpretation by a physician" is billed at a higher rate than a smear "by a technician under physician supervision".  See this page for an example.  (Note that you will have to accept a clickthrough license agreement to use this page, a point which itself could raise a number of intriguing IP-related questions.) 

We have no way of knowing whether billing considerations played a part in the Magee laboratory's decision to use a physician's electronic signature on all reports.  That decision, however, creates a number of unnecessary medico-legal issues now that this issue has been raised in a lawsuit, and none of them put the laboratory in a very favorable light.

In addition, this challenge to the routine use of an "electronic signature" by someone other than the person purported to certify the document could have far-reaching implications for the legal status of signatures outside of the medical field. 


6:21:41 AM    

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