Plaintiff's Attorney Research Articles

Daikin settles PFOA suit

A federal circuit court judge has approved a $5 million payment by Japanese chemical maker Daikin to settle charges that it polluted drinking water in Decatur, Ala. About $4 million will be used to install a system to filter the fluorosurfactants perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) that leached into the Tennessee River from Daikin’s fluoropolymer manufacturing site in Decatur. The remaining funds will be used to pay plaintiff attorney fees and to compensate residents, who were warned not to drink the contaminated water. Also named in the suit are fluorochemicals maker 3M and its Dyneon fluoroelastomer subsidiary, which likewise operate in Decatur. 3M says the claims against it lack merit and that it stopped manufacturing PFOA and PFOS more than a decade ago. In February, Chemours and DuPont agreed to pay $670 million to settle claims that PFOA-contaminated drinking water near Parkersburg, W.Va., sickened residents. Water contaminated with

Jostling for a larger piece of the (class) action

Both third-party litigation funders and plaintiff lawyers have attempted to improve their competitive positions in the class action market. First, in an environment with very little regulation, litigation funders have sought court approval for the introduction of a ‘common fund’ that would dramatically tilt the cost-benefit calculus in favour of the funder, providing them with far greater certainty about the risks involved in funding a particular action. Second, entrepreneurial lawyers have tested some questionable strategies designed to circumvent the prohibition on lawyers charging contingency fees. To date, neither has succeeded but their efforts have prompted discussion about the way class action litigation should be funded, who should be allowed to fund it and the need for greater regulation.

What? A Resident as an Expert Witness?

What? A Resident as an Expert Witness?

What ethical behavior do judges, juries, plaintiff and defense lawyers expect of expert witnesses?

Introduction: Addressing legal and ethical issues for selecting experts for court testimony. Methods: Review some salient articles and legal cases. Results: The adversary system invites lawyers to ...

Can you program ethics into a self-driving car?

IT’S 2034. A drunken man walking along a sidewalk at night trips and falls directly in front of a driverless car, which strikes him square on, killing him instantly. Had a human been at the wheel, the death would have been considered an accident because the pedestrian was clearly at fault and no could have swerved in time. But the reasonable person legal standard for driver negligence disappeared back in the 2020s, when the proliferation of driverless cars reduced crash rates by 90 percent. Now the standard is that of the robot. The victim's family sues the vehicle manufacturer on that ground, claiming that, although the car didn't have time to brake, it could have swerved around the pedestrian, crossing the double yellow line and colliding with the empty driverless vehicle in the next lane. A reconstruction of the crash using data from the vehicle's own sensors confirms this. The plaintiff's attorney, deposing the car's lead software designer, asks: Why didn't the car swerve?

Midurethral slings: evidence-based medicine vs the medicolegal system

Midurethral sling procedures are minimally invasive surgeries for stress urinary incontinence that use a trocar system to place a narrow ribbon of polypropylene mesh under the midurethra. The peer-reviewed scientific literature on these procedures is abundant and midurethral slings are the most well-studied incontinence procedure ever. Systematic reviews of the literature demonstrate that midurethral slings are safer and more (or equally) effective as traditional procedures. The midurethral sling is the worldwide standard for the treatment of female stress urinary incontinence and >3 million procedures have been performed. The Food and Drug Administration and international scientific review agencies have consistently differentiated transvaginal mesh for stress urinary incontinence from transvaginal mesh for prolapse. In the recruitment of patients to participate in transvaginal mesh litigation, plaintiff lawyers have not made the distinction between stress urinary incontinence and prolapse procedures because more women have received midurethral slings than transvaginal mesh for prolapse by an order of magnitude. The litigation costs of defending their products have forced several companies that manufactured midurethral slings to leave the marketplace. It is not inconceivable that midurethral slings could become absent from the US market. If that happens, then US women with stress urinary incontinence will be harmed because they will not have access in this country to the best and safest stress urinary incontinence surgical procedure ever developed. It may be time for the Institute of Medicine or another comparable national agency to provide evidence-based recommendations on the midurethral sling.

The Role of Social Networks, Medical-Legal Climate, and Patient Advocacy on Surgical Options: A New Era.

The dissemination of information online and resultant public discourse through social media and other online channels has influenced the practice of medicine in dramatic ways. Physicians have historically worked to develop new techniques and devices for the benefit of their patients. It is only a more recent phenomenon, however, that these tools are either removed or their use is curtailed largely driven by anecdotal reports; passionate, vocal, often media-savvy advocates; and plaintiff attorneys. The use of power morcellation, hysteroscopic tubal sterilization, and mesh in urogynecologic procedures all have been victims of these societal pressures. It is important for health care professionals to be involved in the debate to ensure that public outcry does not unduly influence what we, as clinicians, are able to safely offer our patients. By being better advocates for our field, our instruments, and our patients, we can ensure medical decision-making is driven by good science and not public fervor.

Republication: History of physicians fighting frivolous lawsuits: An overview

Legal and medical professions are intertwined in an intimate and complex relationship. Medical malpractice arguably constitutes the biggest point of contention between the two professions. While a significant proportion of medical malpractice complaints is not frivolous and is based on appropriate research and screening criteria, most of these complaints are ultimately settled or taken to trial, with a fairly good chance that the outcome will be favorable or at least satisfactory to the involved physician. At times, the legal system fails to “filter out” frivolous cases. Such cases can and at times, do end up in court. Although majority of them are ultimately decided in favor of the defending physician, the emotional anguish and the potential damage to the physician's reputation can be significant. In addition, the spiraling costs of malpractice insurance and the fear of further malpractice insurance rate increases following a legal complaint cause many doctors to engage in costly and sometimes dangerous practice of defensive medicine. Due to the overall magnitude of the malpractice lawsuit misuse and the devastating consequences of such misuse, frustrated physicians have resorted to initiating countersuits in response to abusive and frivolous lawsuits. This review presents cases where physicians who were unfairly sued filed successful countersuits against the plaintiff's attorneys. A review of relevant medical and legal literature is also included. The following core competencies are addressed in this article: Interpersonal skills and communication, Practice based learning and improvement, Professionalism. Republished with permission from: Dippolito A, Braslow B, Lombardo G, Hoddinott KM, Nace G, Stawicki SP. How David beat Goliath: History of physicians fighting frivolous lawsuits. OPUS 12 Scientist 2008;2(1):1-8.

Contingent Fees with Legal Discovery

This paper analyzes the principal-agent relationship between a plaintiff and her lawyer when the lawyer chooses the settlement offer and undertakes legal discovery. Our objective was to highlight the implications of discovery for the contingent-fee arrangement that is optimal for the plaintiff. We consider bifurcated contingent fees and show that the consideration of legal discovery attenuates the standard asymmetry between the contingent fee for a settlement and the contingent fee for a judgment. To obtain the maximal joint surplus of the plaintiff–lawyer pair, the arrangement must specify nonlinear contingent fees.

Receiving a Subpoena

Receiving a Subpoena

Attitudes towards evaluation of psychiatric disability claims: a survey of Swiss stakeholders.

In Switzerland, evaluation of work capacity in individuals with mental disorders has come under criticism. We surveyed stakeholders about their concerns and expectations of the current claim process. We conducted a nationwide online survey among five stakeholder groups. We asked 37 questions addressing the claim process and the evaluation of work capacity, the maximum acceptable disagreement in judgments on work capacity, and its documentation. Response rate among 704 stakeholders (95 plaintiff lawyers, 285 treating psychiatrists, 129 expert psychiatrists evaluating work capacity, 64 social judges, 131 insurers) varied between 71% and 29%. Of the lawyers, 92% were dissatisfied with the current claim process, as were psychiatrists (73%) and experts (64%), whereas the majority of judges (72%) and insurers (81%) were satisfied. Stakeholders agreed in their concerns, such as the lack of a transparent relationship between the experts' findings and their conclusions regarding work capacity, medical evaluations inappropriately addressing legal issues, and the experts' delay in finalising the report. Findings mirror the characteristics that stakeholders consider important for an optimal work capacity evaluation. For a scenario where two experts evaluate the same claimant, stakeholders considered an inter-rater difference of 10%‒20% in work capacity at maximum acceptable. Plaintiff lawyers, treating psychiatrists and experts perceive major problems in work capacity evaluation of psychiatric claims whereas judges and insurers see the process more positively. Efforts to improve the process should include clarifying the basis on which judgments are made, restricting judgments to areas of expertise, and ensuring prompt submission of evaluations.

The Summary Jury Solution -- Restoring the Seventh Amendment's Constitutional Checks and Balances Protection to the Summary Judgment Procedure in Federal Court

The strength of the United States Constitution lies not only in its delegation of powers to separate branches of the government, but also in its creation of a system of checks and balances that protects the citizens from any one branch of government’s ability to intrude on individual rights. However, with regard to the seventh amendment, this hallowed system of checks and balances has been eviscerated by the use of the summary judgment procedure in federal court.The seventh amendment to the United States Constitution requires that the right to a jury trial in civil lawsuits “shall be preserved”. It states:In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.Despite the clear and unequivocal language preserving the right to jury trial, this right has been significantly diminished by the summary judgment procedure in federal court.The summary judgment procedure allows a federal trial judge to eliminate a jury trial in a civil lawsuit. Instead of a jury trial, the federal trial judge renders judgment by concluding that a reasonable jury would only rule consistent with the judge’s ruling, and therefore, no jury trial is necessary. This summary judgment process is frequently used in federal court and has been the source of vehement ridicule among legal scholars. Most legal scholars that have addressed this issue take the position that the summary judgment process is an unconstitutional violation of the seventh amendment. The United States Supreme Court, however, has held that the summary judgment procedure is not an unconstitutional violation of the seventh amendment.This article takes the position that the seventh amendment requires an inherent checks and balances system that is eviscerated by the summary judgment procedure. This is due in large part to the fact that the very branch of government that violates the seventh amendment’s checks and balances system is the same branch of government that the seventh amendment was designed to check and balance. Plainly stated, the seventh amendment intended that the requirement of a jury trial would allow members of the local community, jurors, to be a check and balance against the power of federal district judges. It is this nullification of the checks and balances system by the federal district court judges that produces the greatest harm to our constitutional structure.Protecting the checks and balances required by the seventh amendment does not require a decree that the summary judgment process is unconstitutional. But it does require creating a process by which the local community is allowed to fulfill its role as a check and balance against federal district court judges. In order to restore the seventh amendment protections to civil trials, the local community must be allowed to participate in the summary judgment process.The solution is to restore the check and balance by adding a civil jury review of a judge’s order granting summary judgment. The civil jury review of the judge’s summary judgment order could be accomplished in a similar procedure to the grand jury used in criminal cases. It could be called a Summary Jury and it could occur during any criminal or civil jury term. The review process could occur by allowing the plaintiff and defendant attorneys an opportunity to orally argue to the jury their positions as to whether the federal judge’s decision granting summary judgment should be upheld. The summary jury would then render a unanimous verdict in support of the decision, which would uphold the decision. Anything less than a unanimous verdict in support of the decision would be a reversal of the court’s summary judgment decision.If this process were employed, it would restore the checks and balances to the seventh amendment, while allowing for a procedure for the court to single out and address frivolous lawsuits. It would wrest from the judiciary the unfettered right to deny the community the opportunity to not only to serve on a jury, but to attend and participate in the process as members of the community.The only way to protect the seventh amendment is to create in the summary judgment process, the checks and balances required by the seventh amendment. The citizens of the community must be allowed to serve on a jury in some capacity during the summary judgment process, and to perform the constitutional function of acting as a check and balance on the federal district court judges in a civil trial.

Does Size Matter? The Influence of Law Firm Size on Litigant Success Rates

In his influential piece, Galanter (1974) argues that repeat players in the judicial system can be expected to succeed at trial in part because of the advantages repeat players enjoy compared to the one-shotters. This article explores the effect of a number of the benefits Galanter identifies on litigation outcomes for civil jury trials in four states with particular attention to the size of the law firms representing the litigants. We find possessing an advantage in relative firm size, without considering other factors, appears to produce no significant advantage in terms of achieving plaintiff compensation. On the other hand, a local presence in the county where the trial occurs increases plaintiff attorney success rates when challenging out-of-town defense firms, especially when the plaintiff's law firm is the larger of the two. Additionally, devoting more resources in terms of human capital to a particular case increases the probability of favorable outcomes.

Cerebral palsy: intrapartum causal criteria used in courts.

In spite of advances in obstetrics and neonatology, the reported incidence of cerebral palsy in developed countries is about two per 1000 live births (Graham et al. Am J Obstet Gynecol 2008;199:587–95). The linked paper by Leigh et al. suggests that almost one in seven cases are the result of intrapartum hypoxia, and the UK Confidential Enquiry into Stillbirths and Deaths in Infancy (1999) found that 50% of 567 of such cases investigated were possibly or probably preventable. In the UK, during 2000–2010, awards for cerebral palsy judged preventable by better care totalled £1 263 581 324: 41% of all obstetric settlements (Ten Years of Maternity Claims. NHS Litigation Authority, 2012). In the case of McKenzie vs Fife Acute Hospitals NHS Trust [2006] ScotCS_63, the judgment included a ‘threefold test’ for duty of care. The harm must be: (a) reasonably foreseeable; (b) there must be a ‘relationship of proximity’ (duty of care) between the plaintiff/claimant and the defendant; and (c) it must be ‘fair, just and reasonable’ to impose liability. Evidence from the International Cerebral Palsy Task Force (MacLennan BMJ 1999;319:154–9) was used to support a causal relationship between acute intrapartum hypoxia and cerebral palsy. The case met all of the three essential criteria: (a) intrapartum metabolic acidosis (pH < 7.00 and base deficit ≥12 mmol/l); (b) early onset severe or moderate neonatal encephalopathy at ≥34 weeks of gestation; and (c) subtype spastic quadriplegia or dyskinetic cerebral palsy. The case also met four of the five non-specific criteria: (a) sudden, rapid, and sustained deterioration of the fetal heart rate; (b) APGAR score of 0–6 for >5 minutes; (c) early multisystemic dysfunction; and (d) early imaging evidence of acute cerebral abnormality. Only one criterion was difficult to establish: evidence of an identified sentinel hypoxic event, such as (a) listed above. The plaintiff's lawyers successfully argued that the prolonged use of Syntocinon®, compounded by misinterpretation of the cardiotocogram, was sufficient to cause damaging hypoxia, however. The judge was satisfied that, on the balance of probabilities, there was an act of omission, as had steps been taken earlier to discontinue the Syntocinon® infusion and expedite delivery the damage would have been avoided. There was a failure to exercise the due diligence that was expected from a reasonably prudent and skilled professional. A similar finding was reached in the more recent case of Jack Clayton vs Yeovil District Hospital (http://www.dailymail.co.uk/health/article-2218209/Oxytocin-How-drug-used-speed-births-starve-baby-oxygen.html), highlighting the medico-legal cost of using a powerful drug without due diligence. Obstetricians and midwives must remember that although many cases of cerebral palsy have genetic, environmental, and antenatal causes, this does not obviate their duty to avoid substandard care that will result in them being held responsible for damaging intrapartum hypoxia. None to declare.

Moral hazard and agency relationship in sequential litigation

The aim of this paper is to determine the optimal fee contract between a plaintiff and his lawyer in a trial process where liability and damages are treated sequentially: the court determines liability at the first stage and chooses damages at the second one. The plaintiff–lawyer relationship is embedded in a dynamic principal-agent setup where the lawyer's effort is unobservable by her client. It is shown that such a sequential process induces an interesting spillover effect for the plaintiff: the prospect of payment at the second period acts as carrot for the first period by inciting the lawyer to make effort in the liability stage in order to enjoy the reward in case of winning when damages are litigated. This effect implies a particular contractual design where the lawyer gets no transfer from the plaintiff at the first period.

Answering Subpoenas Poses Legal, Privacy Risks

Answering Subpoenas Poses Legal, Privacy Risks

Push to Avoid Rehospitalization Has Unintended Outcomes

Push to Avoid Rehospitalization Has Unintended Outcomes

Will Rest for the Weary Wear Everybody Out?

Will Rest for the Weary Wear Everybody Out?

Intervention and Documentation Reduce Exposure From Falls

Intervention and Documentation Reduce Exposure From Falls

Did the Private Securities Litigation Reform Act Work?

In 1995 Congress passed the Private Securities Litigation Reform Act to address abuses in securities fraud class actions. In the wake of Enron, WorldCom, Adelphia, and other high profile securities frauds, critics suggest that the law made it too easy to escape liability for securities fraud and thus created a climate in which frauds are more likely to occur. Others claim that the Act has largely failed because it did little to deter plaintiff's lawyers from filing non-meritorious cases. This article employs a database of the 1,449 class actions filed from 1996 through 2001 to explore whether the Act achieved several of its primary goals - discouraging the filing of non-meritorious suits, reducing litigation risk for high technology issuers, and reducing the race to the courthouse, whereby class actions were filed soon after significant stock price declines, apparently with very little pre-filing investigation. The picture that emerges from studying these data is that the PSLRA did not work as intended. This article demonstrates that as many or more class actions are filed after the Act as before. High technology issuers remain at significantly greater risk than issuers in other industries. There is statistically significant evidence, however, that suggests that the Act improved overall case quality at least in the circuit that most strictly interprets one of the Act's key provisions, a heightened pleading standard. The data in the article also demonstrate that Congress did not achieve its goal of increasing the filing delay in class actions. Actions are filed as quickly now as they were before passage of the Act. Nonetheless, that too may provide indirect evidence that plaintiff's attorneys are selecting more apparent cases of fraud that require less pre-filing investigation.