Justinian Lane - Commentary on law, politics, and tort "reform."

New Corpreform / Tort Reform Products at Cafepress

I finally got off my ass and added a couple of new products at my Cafepress store: A black oval sticker, and a black t-shirt.  The sticker is $4.00 for 1, or $90 for 50, and the shirt is $21.99, and available in a bunch of colors besides black. 

 

Unfortunately, my thoroughly tongue-in-cheek Hitler products are no longer for sale.  It seems that neither Zazzle nor Cafepress understand the concept of satire and both think my products presented Hitler in a positive light.  How calling the man a tyrant is possibly praising him, I don’t know.  To be clear, I think that Hitler is one of the most evil men to ever walk the Earth.  I dare say he may even have been this evil:

And we all know how evil Skeletor was.  (Is?  Did He-Man ever off the evil SOB?)

If you know of anyone who will let me use the following picture on any products, do let me know.  It’s the ultimate invocation of Godwin’s Law.

Technorati Tags: Tort reform,Corpreform,Hitler,sarcasm,Skeletor

Partial Site Redesign

Thanks to the wonderful folks at InjuryBoard.com, I have a few bucks to have my site redone.  This is the first step - darker colors and a new logo.  Before the end of the year, there will be:

• The width of the main frame will increase.
• Text size will increase.
• A top menu-bar for navigation will be added.
• Slight color changes

As always, I welcome feedback.

Technorati Tags: Corpreform, Justinian, InjuryBoard.com

Mobile blogging test post

I am blogging from a smartphone. dangerous stuff. I also just took a pic and blogged it.

Google Rankings

Since I slacked for several months, I dropped into the sixties on a Google for "tort reform."  I'm happy to be back on the front page again, directly below atrafoundation.org.  Make my day and link to me to push me above at least one of the ATRA's sites.  ATRA.org is at number one now, followed by Wikipedia, but they've been battling for 1 and 2 for some time now.

At least I'm way above the shysters and charlatans at the Pacfic Research Institute. :)

My first citation in a law review

It's with no small measure of pride that I report I've officially been cited in at least one law review article:

Patricia F. Miller, 37 St. Mary’s L.J. 515 (2006), Comment 2003 TEXAS HOUSE BILL 4:

UNANIMOUS EXEMPLARY DAMAGE AWARDS AND TEXAS CIVIL JURY INSTRUCTIONS

I was cited approvingly for my coverage of the McDonald's coffee case.  I can only hope this will be the first of many citations to come.

Seen me in print elsewhere?  Drop me a line and let me know.

Ethical Violations

At Point of Law, Ted mistakenly assumed that I had worked for a Michigan law firm, and that the law firm violated ethical rules.  I've replied to his mention of the post at Overlawyered, and am sending a trackback to the post at Point of Law so any readers can see my response, just in case Ted declines to post my comment at Point of Law. While I don't believe he was questioning my ethics, some readers may believe he was and thus I feel as though I must respond.  My comments are as follows:

Ted, since you don't have comments enabled at POL, I'd appreciate it if you'd post the following for me:

The law firm in question was in Texas, not in Michigan.  I've never worked for a Michigan law firm.

To save you the trouble, the applicable rule is 3.04:

"A lawyer shall not:

(b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case."

I am not privy to the exact circumstances surrounding the fee drops, but I was present during one conference call in which the expert on his own offered to drop his fee because of a smaller-than-expected settlement.  As I read 3.04, it's not a violation for the attorney to accept it; paragraph (b) isn't mentioned in the comments.  The acceptance of the lower fee also doesn't appear to violate Texas Ethics Report 458: http://www.law.uh.edu/Libraries/ethics/Opinions/401-500/O458.html

Ted, even if you disagree with my interpretation of the rules, I hope you'll acknowledge that any ethical failure was my employer's, and not mine.

Update: Ted has made a minor revision to his post at Point of Law, but I still take exception with it for the following reasons:

1: He says that my disclosure was "accidental" - which it was not. 

2: He still seems to argue that there was an ethical violation because an attorney accepted a reduction in an invoice from an expert witness.  Since this expert did not enter into a contingent-fee agreement with the attorney, there was no ethical violation on the part of the attorney.

3: It's a minor quibble, but Ted hasn't approved the Trackback I sent to his post.  Granted, it's his blog and therefore his choice not to approve it.  However, I think it's in poor taste to not approve a trackback sent from a person who you mention by name if the trackback doesn't include any profanity or otherwise offensive material. 

Thank you to Injury Board!

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Offensive Medicine Costs Us ALL

Have you ever heard of defensive medicine? That's the term used by the "reform" lobby to describe a physician ordering tests or procedures purely to prevent litigation. Examples include MRI's and CT scans, cancer screenings, etc. I've written about why I don't think defensive medicine is bad for patients, and so has Greedy Trial Lawyer. The gist of both of our arguments is that an ounce of prevention is worth a pound of cure; wouldn't you rather your doctor err on the side of caution when treating you? "Family Guy" also extols the virtue of excessive medical caution in the episode The Tan Aquatic With Steve Zissou. From Wikipedia:

"When Brian advises Stewie to "wait and see" whether or not he has cancer, Stewie says "Jim Henson had a wait and see attitude, and look what happened to him. Now we've got wrong-sounding Muppets," a reference to Henson's failure to properly address a cold he had, which led to pneumonia, and ultimately his death in 1990."

But this post isn't about defensive medicine. It's about offensive medicine. Cyrus Dugger cited an example of offensive medicine in which his dentist tried to push unnecessary procedures that were conveniently covered by Cyrus' insurer. Cyrus declined the procedures, but undoubtedly some patients do choose to have unnecessary services performed. While Cyrus' dentist and other unethical doctors may practice offensive medicine, they're amateurs at best. The real masters of offensive medicine are pharmaceutical companies, which have lined their pockets with billions of dollars – including taxpayer dollars – by pushing unneeded medications on healthy patients.

From June 26-30 of 2005, The Seattle Times published "Suddenly Sick," a chronicle of the pharmaceutical industry's campaign to convince healthy Americans that they need to take prescription medication every day for the rest of their lives. By exaggerating the likelihood of illnesses and influencing the definition of diseases, pharmaceutical companies have been successful in persuading healthy individuals to seek treatment for trivial or nonexistent maladies. There's even a term for these healthy people: The Worried Well.

"Suddenly Sick" explains that in the case of some illnesses, new guidelines promulgated by doctors with financial ties to pharmaceutical companies have classified millions of people as diseased. In fact, according to those guidelines, three out of four Americans has a disease that should be treated by prescription medication. One disease which had its definition broadened is obesity. Under the new guidelines, Shaquille O'Neal is considered obese. Now, if ever an individual could honestly say, "I'm not fat, I'm big-boned." It's Shaq. Thankfully, Shaq never took phen-fen to treat his obesity.

Obesity isn't the only disease to have its definition expanded dramatically. "Suddenly Sick" explains how lowering the thresholds for high blood pressure has created a windfall for pharmaceuticals.

"In recent years, expert panels from prestigious medical-research organizations such as the World Health Organization (WHO) and the federal National Institutes of Health (NIH) have called for lower thresholds for blood pressure.

Behind each of those panels were the giant pharmaceutical companies that manufacture the new and expensive hypertension drugs.

In May 2003, for example, an NIH panel recommended broader use of hypertension drugs at lower blood pressures. Nine of the 11 authors of the guidelines had ties to the drug companies (see chart).

The drug industry welcomed the new treatment guidelines and marketed them vigorously. Not surprisingly, as doctors followed the new guidelines and treated hypertension at lower readings, sales of the newer drugs increased.

Last year, patients and their insurance companies spent $16.3 billion for blood-pressure pills, up $3 billion from five years earlier."

That's a sales increase of over 500% in five years. I don't know how much the pharmaceuticals paid the doctors at the WHO and the NIH, but even if it were in the millions, the pharmaceutical companies had an excellent return on their investment.

So we have major pharmaceutical companies paying doctors who study disease guidelines; those doctors recommend expanding the disease guidelines in such a way that millions of patients would instantly be considered diseased. Coincidentally, the pharmaceutical companies that paid the doctors just happen to have products to treat the diseases. For some reason, few people question the neutrality of the doctors and the validity of their recommendations. Imagine if a group doctors on the payroll of various law firms recommended expanding the definition of medical malpractice in such a way that millions of patients would instantly be considered victims of medical malpractice. Coincidentally, the law firms that paid the doctors just happen to specialize in medical malpractice lawsuits. I bet few people wouldn't question the neutrality of the doctors and the validity of their recommendations.

I'm neither a doctor nor disputing whether the new guidelines promulgated by pharmaceutical-paid physicians are beneficial. What I am questioning is whether it makes sense to allow pharmaceutical companies to play such an important role in determining the guidelines for the diseases their products treat. How can pharmaceuticals with billions of dollars on the line be expected to remain objective as to the benefits of their products? Should doctors on the payroll of pharmaceuticals be prohibited from influencing the definition of diseases? Or should those doctors have to disclose their financial ties to pharmaceutical companies? These are all questions that we as a society need to consider. "Suddenly Sick" presents evidence that pharmaceuticals work to expand the definitions of disease to include truly healthy patients. Even a small expansion in disease guidelines can lead to thousands of people taking prescription medication they otherwise wouldn't. That can lead to millions or even billions of dollars in sales for the pharmaceutical industry. Who pays for these unnecessary prescriptions? Taxpayers, in the form of Medicare funding, and insured individuals and their employers in the form of insurance premiums. Unquestionably, there is a substantial profit motive for pharmaceuticals to encourage the expansion of disease guidelines. This profit motive can only have grown larger in light of the aging population and the Medicare prescription drug coverage.

"Suddenly Sick" isn't the only resource chronicling the efforts of the pharmaceutical industry to sell to the well. Journalist Ray Moynihan and University of Victoria, British Columbia research Alan Cassels authored the book "Selling Sickness: How Drug Companies Are Turning Us All into Patients." Here is an article from those authors, entitled "Selling to The Worried Well":

"The epicentre of this selling [to The Worried Well] is the United States, home to many of the world's largest pharmaceutical companies. The US has less than 5% of the world's population but represents almost 50% of the global market in prescription drugs. Pharmaceuticals spending in the US continues to rise more rapidly than anywhere else, increasing by almost 100% in just six years, not only because of steep increases in the price of drugs, but because doctors prescribe more and more of them."

If the five percent of the world population in the U.S. consumes fifty percent of the prescription medicine in the world, one wonders why so many tort "reformers" argue that the U.S. tort system and the FDA are preventing medications from coming to market in the U.S. If anything, it sounds like the legal and regulatory systems in other countries are blocking medications from their populations.

I highly recommend reading "Suddenly Sick" with but one caveat: You may become suddenly sick of the offensive medicine practiced by pharmaceuticals and its effect on your pocketbook.

Another day, another personal attack

UPDATE: My email apparently hadn't been working properly, so I was unaware that Ted did in fact email me my comment to inform me he wouldn't approve it. (Outlook 2007 can apparently crash while still appearing to work.) I would like to thank Ted for his courtesy. My unapproved comment is as follows:

I'm on my way out the door, so look for a later reply with more detail.

Three quick points:

1: I specifically cited no less than three state constitutions which specifically guarantee the right to jury trial - not just the Bill of Rights.

2: I have no problem with instituting medical courts IF they are completely voluntary for the plaintiff, meaning there's no contractual obligation to use them. Plaintiffs should have the right to waive a jury trial.

3: I didn't attack you. I even made it clear that I don't know if you support the creation of health courts or not.

Ok, I guess I have a 4th point: Of all the critical issues facing America, do you really think we need to amend the Constitution over medical malpractice lawsuits?

Once again, Ted Frank from Overlawyered criticized one of my Tortdeform posts and personally attacked me. And once again, he refused to approve my comments to his post. I've emailed him to ask if he would send me my comments so I could post them in their entirety. If he's gentlemanly enough to do so, readers will be able to draw their own conclusions as to whether my comments were inappropriate.

In the interest of civil discussion, I've decided to respond to Ted's post in its entirety. His post is below, with my comments in red. Well, at least his revised post is here: another commenter at Overlawyered criticized Ted for making a baseless attack against me, so Ted revised his post to remove the attack.

Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:

I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.

I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.

Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.

"Problems created by the Constitution itself." Is Ted attempting to blame the medical malpractice mess on the Constitution? I'm more inclined to blame inept doctors and rapacious insurance company executives. I'll even concede a few "bad apple" plaintiffs' lawyers have contributed to the mess. But I don't think our Constitution has contributed to the mess in any way.

But one need not go even this far. The real flaw of Lane's thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders' conception of trial by jury. See generally Professor James Oldham's book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries

Ted omits a crucial portion of my original post in which I quoted no less than three State Constitutions that each specifically protect the right to a jury trial. These protections are above and beyond the Seventh Amendment. Thus, Constitutional amendments would be required in those states. Unless of course Ted believes the Federal government should preempt various state constitutions.

Lane knows that his argument is wrong, because it was refuted in the comments of the original post:

We already effectively have legal malpractice (and business malpractice) cases decided by judges in the vast majority of instances. If lawyers were required to be held to the same standard as doctors, the majority of lawyers would be guilty of malpractice. The real question is why other professionals don't get the same benefit of the doubt that attorneys do.

We have professionals, rather than lay juries, that decide social security disability and worker's compensation and black lung fund and immigration cases. The jury system is not universal, even in America, and it (like the Constitution) is a means to an end, rather than an end in and of itself.

Ted, there's a big difference between "effectively" and "mandatory" as well as between "vast majority" and "all." As I said in the comment you refused to approve, if you were to suggest the creation of a "health court" that was purely optional for the plaintiff, I might be open to the idea. As long as it was illegal for a medical provider to refuse to provide services unless a patient waived his or her rights to a jury trial.

Lane went ahead and attacked me anyway without acknowledging or addressing those refutations. What are we to conclude about the honesty of Lane and the Drum Major Institute's weblog?

What are we to conclude about your honesty, Ted? First you question my honesty for failing to address some refutations. You didn't address my point about state constitutions. Does that make you dishonest?

Further, I did *not* attack you personally. I made it quite clear that I do not know if you support the creation of health courts, or merely condemn trial lawyers for opposing them. The only ad hominem I made was to declare "ignominious" those men and women who would butcher the Constitution for corporate gain. Surely you have the reading comprehension to understand that my post would deem you ignominious if and only if you advocated butchering the Constitution for corporate gain.

Everyone’s a Critic

I recently wrote an article at Tortdeform.com criticizing "loser pays." The gist of the article is that if fairness requires applying it to civil law, so too does fairness require it be applied to criminal law. Besides the usual rogues' gallery of critics at Tortdeform, I discovered another critic, Jonathan B. Wilson. He begins his attack with:

"Justinian's first post is noteworthy for making one of the least-informed arguments ever against tort reform."

I suspect he disagrees with me. Since his site doesn't have the ability for me to comment there, I'll respond here and email Mr. Wilson to invite him to respond in the comments thread.

"The problem is that Justinian devotes the remainder of his post to the argument that, for a loser-pays rule to work, it would have to be applied to criminal cases as well.

 This argument is not only factually wrong, but misunderstands the distinction between civil and criminal law in our litigation system and adopts a "straw man" view of the loser-pays rule that has never been adopted by any responsible advocate on the tort reform side of the equation."

Actually, I said for "loser pays" to be fair, it should be applied to criminal law as well – not just for it "to work." For those too lazy to read the original post, I listed a litany of reasons why instituting "loser pays" in the criminal world would be a very bad idea, and extrapolated the consequences to the civil world. I oppose applying it to either.

"Our civil law exists to right wrongs between private parties, primarily through money damages.  Our criminal law exists to punish criminal offenses and to deter crime, largely through the imposition of incarceration."

I'll assume that Mr. Wilson's failure to list the deterrent effects of the civil justice system and of punitive damages was purely an oversight. If I'm incorrect and his omission was intentional, I hope he'll explain why.

"The differences between the two legal systems (which Justinian will, we hope, explore during his first year of law school) are legion, beginning with the matter in which cases are commenced (civil complaint versus indictment) to the standard of proof applicable at trial (simple preponderance versus clear-and-convincing) to the standard of review on appeal."

Neither the burden of proof nor the manner in which cases are commenced are relevant to the fairness of a "loser pays" rule. The principle behind "loser pays" is that a person who didn't commit a tort shouldn't have to pay the legal costs incurred defending himself in that case. I used a specific example in my article to illustrate the point: If an individual sues me for negligent driving, and I was not negligent, "loser pays" would force the plaintiff to reimburse my legal costs. If I should be refunded those legal costs, why I shouldn't also be refunded my legal costs if I'm prosecuted for drunk driving if I was not in fact drunk? Whether a prosecutor or a plaintiff forced me to spend money makes no difference to my bank account. Either way, I'm forced to spend money to defend myself against false accusations. If I spend myself into bankruptcy in a criminal case and am then acquitted, I'm no better off than a defendant who spends himself into bankruptcy in a civil case who also prevails.

If the purpose of "loser pays" is to compensate a person wrongfully accused, it is only fair to apply that protection to wrongfully-accused criminal defendants. That is what "loser pays" is supposed to do, isn't it – compensate individuals who were wrongfully accused?

Or is it really designed to both punish those who wrongfully accuse and to deter others from accusing at all?