TorteDeForm

Justinian Lane

Inter Alia on the Internet

The legal textbook market is such a racket.  Our bookstore charges more than MSRP.  Thank God for Amazon, eh?

  • Defendant drives up costs with frivolous legal argument: The Defendant tried to prevent the Plaintiff from videotaping her own deposition.  Thankfully, the court got it right and allowed the video deposition. 

  • “The Food and Drug Administration "is in no position" to guarantee drug safety, the editors of the New England Journal of Medicine said in a friend-of-the-court brief.”  Some of the best doctors in the world believe the FDA can’t keep us safe from defective drugs.  But corporate lobbyists paid by pharmaceuticals say it can.  Who do you believe?  H/T to The Pop Tort. 

  • Chambers of Commerce across the country are some of the biggest financial backers of the tort “reform” movement, and routinely criticize lawsuits across the nation – especially those in Illinois.  Will the U.S. Chamber criticize The Greater Springfield Chamber of Commerce’s lawsuit against the Illinois Governor

  • Has economist Jacques Polak ever complained about the cost of lawsuits?  I ask because he’s filed a $6 million dollar slip-and-fall lawsuit against the International Monetary Fund that he helped found in 1947. 

  • Remember the “pharma-free” expert list?  Well, how about a pharma-free doctor list?  “How likely is it that your doctor has a tie to a company that makes drugs or devices? Very likely…”  H/T to TortsProf.

  • I guess I’m not an old law student.  Here’s a 78 year old woman in law school.

  • "Documentary evidence shows that ADVANTAGE is an example of marketing framed as science. The documents indicate that ADVANTAGE was a seeding trial developed by Merck's marketing division to promote prescription of Vioxx (rofecoxib) when it became available on the market in 1999." 

  • Pharma jokes are better than lawyer jokes: “Billy proudly stood up and announced, "My daddy murders people, steals from them, and drinks."

  • What kind of people report animal abuse to the authorities? Spies!  Informers!  Secret police!  Does Walter Olson beat his dog?

  • Justinian Lane: Author Bio | Other Posts
    Posted at 2:53 PM, Aug 21, 2008 in Roundup
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    Comments

    Objection to videotaping is not frivolous. I am surprised the defense did not use the most compelling argument against the videotaping. If the plaintiff is going to act retarded on videotape, her appearance and demeanor is designed to inflame the jury.

    Defendants should always seek to exclude plaintiffs with bizarre, disturbing appearances from the video deposition and from the entire trial. Failure to file such a motion is legal malpractice. Judge forbearance for the appearance of a plaintiff with a disturbing appearance should be the basis of an appeal, during the trial. As a defendant, I would immediately demand the judge recuse himself as biased in favor of plaintiffs and of litigation. If he failed, I would file ethics charges on the spot, and demand a mistrial. If refused, I would demand total e-discovery of the judge's computers to be conducted by computer forensic experts. I would then publish the content of the judge's computers to the web, short of identity theft material.

    I do not see where opposition to the videotaping of a plaintiff with a ghoulish appearance is frivolous. It is an absolute standard od due care for anyone past the first week of an Evidence course.

    Posted by: Supremacy Claus | August 21, 2008 11:07 PM

    I have tried several times in the last month to get an investigational drugs for patients who have fatal diseases. In each case I am immediately directed by the comapny that is prodcing the drug to their retained attorneys who explain that becuase of the liability risk they can not release the medication for humanitarian use. If my patients can go to another country and have it administered there, they would gladly provide the medication.

    Posted by: throckmorton | August 22, 2008 8:47 AM

    Dr. T: Any doc can write a letter to the FDA and request an IND (investigational new drug license), after describing the rationale. It will almost always get granted. Once granted, the doc writes a prescription. It goes to a British pharmacy or elsewhere. The patient provides a credit card number. It gets shipped to the doctor. If the value is over $1000, it gets stopped at Customs. Doc has to retrieve it. Keep the value under $1000. This is for drugs not available here. Once approved here, this is not allowed. Patient will tell you, he was paying 50 cents a pill in England. Now it is $5 in the US. Canada is less desirable. The patient must go for an exam by a Canadian doctor. The latter then prescribes.

    The entire thing is fast, under a month. Even if the FDA objects, they will list the objection, assume you are going to correct them, but give you the go ahead to prescribe for a foreign pharmacy.

    FDA is not an obstacle to getting drugs not available in the US.

    Posted by: Supremacy Claus | August 22, 2008 10:56 AM

    Throck - This brings us back to the post I wrote about the Vioxx moral hazard. Let's assume the patient can enter into a contract with the pharma waiving his or her rights to sue. That still leaves us with the problem of who will pay if the drugs cause side effects. Most individuals can't afford to, so the risk is often shifted to taxpayers. Any thoughts on how we can get patients drugs they need without forcing others to bear the cost of the side effects?

    Posted by: Justinian Lane | August 22, 2008 12:19 PM

    "Any thoughts on how we can get patients drugs they need without forcing others to bear the cost of the side effects?"

    Yes -- stop having taxpayers pay for medical care.

    But your "moral hazard" complaint is disingenuous, because you don't care about moral hazard is any other context, and certainly don't care about the moral hazard problems caused by plaintiffs suing drug companies, which far outweighs the moral hazard problem you identify here.

    In any event, the doctor wouldn't prescribe the drug unless the benefits of the drug outweighed the risk of the side effects, so the patient and the taxpayer both come out ahead. Yet another good argument for preemption. See also Epstein's recent piece in the NW Colloquy, which nicely explains why preemption leads to better drug safety.

    Posted by: Ted | August 22, 2008 1:28 PM

    "stop having taxpayers pay for medical care." Right - that's a great solution. Then people too poor to afford medical care will get sick and spread their sickness to others. Do you support taxpayer-funded vaccinations?

    "In any event, the doctor wouldn't prescribe the drug unless the benefits of the drug outweighed the risk of the side effects..." If only it were that simple. Pharma spends billions of dollars to market their drugs to patients and doctors, and those ads often downplay side effects. We're only now studying how patients perceive side effect info in the ads. Plus, doctor A may think the benefits exceed the risk, while doctor B may not - there's no litmus test for the issue. And your statement has nothing to do with preemption.

    I haven't read Epstein's piece yet, as I'm still chewing on the NEJM's brief. With all due respect to Professor Epstein, I give more weight to the opinions of well-respected medical doctors as to whethern preemption will make me safer.

    Posted by: Justinian Lane | August 22, 2008 2:16 PM

    Justinian: The public always pays, even after a lawsuit. The corporations are pipelines from the wallets of working people to the business jet subscription accounts of the land pirate. The public pays either in higher prices, or in reduced access if prices cannot rise. So your dilemna is false, and misleading. You should stop misleading the public with that bogus law school propaganda. The Tort books are all like Mein Kampfs for the plaintiff bar. They never discuss the devastating effect of land piracy on our economy. It grows at 3% instead of its more natural 9% a year. A strong executive will have to crush the land pirate operation. He would arrest, try and execute the hierarchy, including all appellate judges, no exceptions. They are all in insurrection against the Constitution's Article I Section 1.

    What happens to the injured? First, they should not profit from their injury. To be made whole, all get Medicaid. Period. Cut out the middle man's business jet collection financing scheme.

    Posted by: Supremacy Claus | August 22, 2008 2:17 PM

    The difficulty with the humanitarian release of the investigational drugs is not the FDA, it is the fact that the producer of the drug will not release it for liability reasons. As to Justinian's comment, you get what you pay for.

    Posted by: throckmorton | August 22, 2008 2:29 PM

    Justinian: The editors of the NEJM are notorious left wing ideologues. They have no credibility with doctors. Most of the latter are moderates or right wing.

    Posted by: Supremacy Claus | August 22, 2008 3:07 PM

    Dr. T: If you feel strongly enough, go to court. Get an injunction to make the manufacturer release the drug. About $4000 in cost, if people do not object (maker, FDA, a bunch of other budinskies). If people object, no upper limit to cost or time.

    If something goes wrong, let the plaintiff sue the judge. The results have been mixed. If I were a judge, I would reason, person is dead anyway, why not give them a hope, however slim. I would test the patient knowledge about the medication and risks. Most judges refuse. Justinian's item is an exception. Judges do not want to get in the papers after the patient dies.

    The pharmaceutical test subjects often do not reflect the patient population. Such experiences should get published. Furthermore the statistics and methods of the drug trial have no valid application to clinical care. They use parametric statistics. Those accurately reflect the response of the larger population. Clinical care of the individual has a binomial distribution, and is not parametric. Its statistics are those of consecutive coin flipping. Let's say, a study shows drug worsens 90% of patients, placebo helps 40% of people. That drug would not get approved. However, for the 10% of patients helped by the drug, it is 100% effective.

    That is why the FDA should be banned. They have not even taken 11th grade statistics. They are dangerous, economy devastating, patient killing idiots. And, no Justinian, torts is not an alternative. It is a land piracy scheme, and a crime. The alternative to these two bogus lawyer designed schemes? The internet. Put the data out, let all comment. Let the public decide in the market.

    Posted by: Supremacy Claus | August 23, 2008 8:46 AM

    Good job lawyers. You have deterred the FDA. Now people will die.

    http://online.wsj.com/article/SB121944789005365195.html?mod=opinion_main_commentaries

    Posted by: Supremacy Claus | August 24, 2008 10:22 AM