From the monthly archives:

September 2008

Do Not Allow Your Rights To Be Further Eroded

by Brian Herrington on September 29, 2008 · 0 comments

Please read the story below, reprinted in its entirety from the website of the Center for Justice & Democracy. The story is about contingency fees. Simply put, contingency fees allow lawyers to front the costs of litigation for clients who cannot afford to pursue their cases. The lawyer takes all the risk and does not get paid until the client gets paid.

Contingency fees are crucial to our civil justice system because they allow the courthouse to remain open for everyone regardless of how much money they have — remember, the courtroom is the only place on Earth where the poorest individual can stand on equal footing with the richest multi-national corporation. Contingency fee contracts must be upheld. We do not need judicial activism or legislation impinging on this vital entry point into the civil justice system.

If you hear of others talking about the evils of trial lawyers, remind them that trial lawyers and the contingency fee contract are the last line of defense for most individuals.

Judge Cuts Attorney Fees in Crash Award: Future Victims Could Pay

Imagine for a moment you are James McMillan—a forty-four-year-old former Fulton Fish Market worker in New York City and victim of the 2003 Staten Island Ferry crash which killed 11 people and injured scores more. On that horrible day, while standing near the ship’s bow, you are pinned facedown by debris and several bones in your spine are crushed, rendering you permanently quadriplegic. You now require the assistance of an aide for even the most basic activities. You also suffer migraine headaches and cannot regulate your body temperature, among other complications.

You know you need the services of a reputable attorney, but unfortunately, you are unable to pay for one since you have lost the use of your arms and legs and are totally unable to work. Luckily, Attorney Evan Torgan agrees to take your case on a standard contingency basis—that is, you pay nothing up front, and Torgan agrees to cover all litigation costs (which could total thousands, and perhaps even millions of dollars). In return, if you win, Torgan’s compensation will be one-third of your award. If you lose, Torgan will receive nothing.

The city initially offers to settle for a completely inadequate sum, but Torgan knows a lowball offer when he hears one—so he advises you to go to trial, and you agree. Following the trial, you are awarded 83 percent more than the city originally offered. But most importantly, you’re in a far better position to pay for the life-long expenses you will incur as a person who is completely paralyzed from the neck down.

Now put yourself in Attorney Torgan’s shoes. By any measure, you have done a magnificent job in obtaining justice for your client. Nevertheless, following the trial, the judge (Judge Jack B. Weinstein) inexplicably decides to reduce your fee to 20 percent—leaving you with roughly the same amount you would have received had you not invested your time and resources in preparation for trial, and simply accepted the city’s lowball offer.

Unfortunately, this is exactly what happened—and it could have a very chilling effect on the ability of future injury victims to obtain justice from the courts.

Simply put, if Weinstein’s decision is allowed to stand and/or signals some sort of new trend in judges inserting themselves into attorney/client fee agreements, attorneys may no longer be able to accept the risk of representing clients on a contingency. And even if they do, they’ll be tempted to settle immediately no matter how unfair the offer may be to the client, knowing that the resources they expend in preparation for a trial may never be recouped.

Thankfully, Weinstein stayed his judgment for 20 days to allow the parties to seek relief from the 2nd U.S. Circuit Court of Appeals. In the meantime, for the sake of injured people everywhere, let’s hope the 2nd Circuit responds appropriately to Judge Weinstein’s ridiculous fee ruling—by tossing it out with the other garbage.

Source

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Science, Your Health, And Your Legal Rights

by Brian Herrington on September 26, 2008 · 0 comments

in Civil Justice System, Drug/Pharmaceutical News

If you sue over injuries sustained by a defective product, drug, or medical device, you’re going to need experts in a court of law to help you win your case. Those experts will testify about the science at issue — it’s called the Daubert standard. Your whole case can be effectively destroyed if your experts get disqualified. So, the article below has special relevance to legal practitioners. If science can be bought, who can be believed?

It’s Not the Answers That Are Biased, It’s the Questions
If Two Similar Studies Completely Disagree, Look at How the Funders Framed the Issue

By David Michaels
Special to The Washington Post
Tuesday, July 15, 2008; HE03

Wal-Mart and Toys R Us announced this spring that they will stop selling plastic baby bottles, food containers and other products that contain a chemical that can leach into foods and beverages. Even low doses of the chemical (bisphenol A, or BPA) are linked to prostate and mammary-gland changes in laboratory animals that were exposed as fetuses and infants. The big retailers are responding to the fears of parents, and Congress is considering measures to ban the chemical.

But is there enough evidence of harmful health effects on humans? One of the eyebrow-raising statistics about the BPA studies is the stark divergence in results, depending on who funded them. More than 90 percent of the 100-plus government-funded studies performed by independent scientists found health effects from low doses of BPA, while none of the fewer than two dozen chemical-industry-funded studies did.

This striking difference in studies isn’t unique to BPA. When a scientist is hired by a firm with a financial interest in the outcome, the likelihood that the result of that study will be favorable to that firm is dramatically increased. This close correlation between the results desired by a study’s funders and those reported by the researchers is known in the scientific literature as the “funding effect.”

Having a financial stake in the outcome changes the way even the most respected scientists approach their research. Scientists make many decisions about the doses, exposure methods and disease definitions they use in their experiments, and each decision affects the result.

For instance, when assessing the risk of exposure to perchlorate, a rocket-fuel ingredient that can affect the thyroid and contaminates many water supplies, scientists on a National Academy of Sciences panel chose perchlorate’s effect on thyroid iodine uptake as the most important indicator of its effect on health. On the other hand, scientists working for companies that might have to bear the costs of perchlorate cleanup selected the chemical’s effect on one thyroid hormone as the basis of their risk estimation. These scientists estimated a safe level for perchlorate exposure nearly three times higher than that of the NAS scientists.

Within the scientific community, there is little debate about the existence of the funding effect, but the mechanism through which it plays out has been a surprise.

At first, it was widely assumed that the misleading results in manufacturer-sponsored studies of the efficacy and safety of pharmaceutical products came from shoddy studies done by researchers who manipulated methods and data. Such scientific malpractice does happen, but close examination of the manufacturers’ studies showed that their quality was usually at least as good as, and often better than, studies that were not funded by drug companies.

This discovery puzzled the editors of the medical journals, who generally have strong scientific backgrounds.

Richard Smith, the recently retired editor of BMJ (formerly the British Medical Journal), has written that he required “almost a quarter of a century editing . . . to wake up to what was happening.” Noting that it would be far too crude, and possibly detectable, for companies to fiddle directly with results, he suggested that it was far more important to ask the “right” question.

What Smith and other researchers, such as Lisa Bero of the University of California at San Francisco, have found is that industry researchers design studies in ways that make the products of their sponsor appear to be superior to those of their competitors. Smith, Bero and others have catalogued these “tricks of the trade,” which include testing your drug against a treatment that either does not work or does not work very well; testing your drug against too low or too high a dose of the comparison drug because this will make your drug appear more effective or less toxic; publishing the results of a single trial many times in different forms to make it appear that multiple studies reached the same conclusions; and publishing only those studies, or even parts of studies, that are favorable to your drug, and burying the rest.

The problem is equally apparent in review articles and meta-analyses, in which an author selects a group of papers and synthesizes an overall message or pattern. Decisions about which articles to include in a meta-analysis and how heavily to weight them have an enormous impact on the conclusions. This was apparent in two different conclusions that came out of National Toxicology Program-sponsored reviews of BPA literature. Two independent expert groups made different decisions about including and weighting studies with particular exposure routes, and the groups expressed different levels of concern about the effects on prostate and mammary glands of fetuses and children exposed to low doses of BPA.

Who is surprised to learn that the funding effect is particularly strong in studies that look at the health effects of secondhand smoke and are sponsored by the tobacco industry? The cigarette manufacturers had initiated a special program to fund, publish and promote studies that found secondhand smoke harmless. When researchers at the University of California examined 106 review articles on this topic in the scientific literature, they found more than a third concluded that secondhand smoke was not harmful. Three-quarters of these dissenting reviews had authors who were affiliated with the tobacco industry.

It has become clear to medical editors that the problem is in the funding itself. As long as sponsors of a study have a stake in the conclusions, these conclusions are inevitably suspect, no matter how distinguished the scientist.

The answer is de-linking sponsorship and research. One model is the Health Effects Institute, a research group set up by the Environmental Protection Agency and manufacturers. HEI has an independent governing structure; its first director was Archibald Cox, who famously refused to participate in President Richard Nixon’s “Saturday Night Massacre” meant to help cover up the Watergate scandal. HEI conducts studies paid for by corporations, but its researchers are sufficiently insulated from the sponsors that their results are credible.

David Michaels is an epidemiologist who teaches environmental health policy at the George Washington University School of Public Health and is author of “Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health” (Oxford University Press).

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Science, Your Health, And Your Legal Rights

by Brian Herrington on September 24, 2008 · 0 comments

in Civil Justice System, Drug/Pharmaceutical News

It’s Not the Answers That Are Biased, It’s the Questions
If Two Similar Studies Completely Disagree, Look at How the Funders Framed the Issue

By David Michaels
Special to The Washington Post
Tuesday, July 15, 2008; HE03

Wal-Mart and Toys R Us announced this spring that they will stop selling plastic baby bottles, food containers and other products that contain a chemical that can leach into foods and beverages. Even low doses of the chemical (bisphenol A, or BPA) are linked to prostate and mammary-gland changes in laboratory animals that were exposed as fetuses and infants. The big retailers are responding to the fears of parents, and Congress is considering measures to ban the chemical.

But is there enough evidence of harmful health effects on humans? One of the eyebrow-raising statistics about the BPA studies is the stark divergence in results, depending on who funded them. More than 90 percent of the 100-plus government-funded studies performed by independent scientists found health effects from low doses of BPA, while none of the fewer than two dozen chemical-industry-funded studies did.

This striking difference in studies isn’t unique to BPA. When a scientist is hired by a firm with a financial interest in the outcome, the likelihood that the result of that study will be favorable to that firm is dramatically increased. This close correlation between the results desired by a study’s funders and those reported by the researchers is known in the scientific literature as the “funding effect.”

Having a financial stake in the outcome changes the way even the most respected scientists approach their research. Scientists make many decisions about the doses, exposure methods and disease definitions they use in their experiments, and each decision affects the result.

For instance, when assessing the risk of exposure to perchlorate, a rocket-fuel ingredient that can affect the thyroid and contaminates many water supplies, scientists on a National Academy of Sciences panel chose perchlorate’s effect on thyroid iodine uptake as the most important indicator of its effect on health. On the other hand, scientists working for companies that might have to bear the costs of perchlorate cleanup selected the chemical’s effect on one thyroid hormone as the basis of their risk estimation. These scientists estimated a safe level for perchlorate exposure nearly three times higher than that of the NAS scientists.

Within the scientific community, there is little debate about the existence of the funding effect, but the mechanism through which it plays out has been a surprise.

At first, it was widely assumed that the misleading results in manufacturer-sponsored studies of the efficacy and safety of pharmaceutical products came from shoddy studies done by researchers who manipulated methods and data. Such scientific malpractice does happen, but close examination of the manufacturers’ studies showed that their quality was usually at least as good as, and often better than, studies that were not funded by drug companies.

This discovery puzzled the editors of the medical journals, who generally have strong scientific backgrounds.

Richard Smith, the recently retired editor of BMJ (formerly the British Medical Journal), has written that he required “almost a quarter of a century editing . . . to wake up to what was happening.” Noting that it would be far too crude, and possibly detectable, for companies to fiddle directly with results, he suggested that it was far more important to ask the “right” question.

What Smith and other researchers, such as Lisa Bero of the University of California at San Francisco, have found is that industry researchers design studies in ways that make the products of their sponsor appear to be superior to those of their competitors. Smith, Bero and others have catalogued these “tricks of the trade,” which include testing your drug against a treatment that either does not work or does not work very well; testing your drug against too low or too high a dose of the comparison drug because this will make your drug appear more effective or less toxic; publishing the results of a single trial many times in different forms to make it appear that multiple studies reached the same conclusions; and publishing only those studies, or even parts of studies, that are favorable to your drug, and burying the rest.

The problem is equally apparent in review articles and meta-analyses, in which an author selects a group of papers and synthesizes an overall message or pattern. Decisions about which articles to include in a meta-analysis and how heavily to weight them have an enormous impact on the conclusions. This was apparent in two different conclusions that came out of National Toxicology Program-sponsored reviews of BPA literature. Two independent expert groups made different decisions about including and weighting studies with particular exposure routes, and the groups expressed different levels of concern about the effects on prostate and mammary glands of fetuses and children exposed to low doses of BPA.

Who is surprised to learn that the funding effect is particularly strong in studies that look at the health effects of secondhand smoke and are sponsored by the tobacco industry? The cigarette manufacturers had initiated a special program to fund, publish and promote studies that found secondhand smoke harmless. When researchers at the University of California examined 106 review articles on this topic in the scientific literature, they found more than a third concluded that secondhand smoke was not harmful. Three-quarters of these dissenting reviews had authors who were affiliated with the tobacco industry.

It has become clear to medical editors that the problem is in the funding itself. As long as sponsors of a study have a stake in the conclusions, these conclusions are inevitably suspect, no matter how distinguished the scientist.

The answer is de-linking sponsorship and research. One model is the Health Effects Institute, a research group set up by the Environmental Protection Agency and manufacturers. HEI has an independent governing structure; its first director was Archibald Cox, who famously refused to participate in President Richard Nixon’s “Saturday Night Massacre” meant to help cover up the Watergate scandal. HEI conducts studies paid for by corporations, but its researchers are sufficiently insulated from the sponsors that their results are credible.

David Michaels is an epidemiologist who teaches environmental health policy at the George Washington University School of Public Health and is author of “Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health” (Oxford University Press).

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Arbitration And The Erosion Of Consumers’ Legal Rights

by Brian Herrington on September 24, 2008 · 0 comments

in Civil Justice System

The Federal Arbitration Act was passed in the early 20th Century. It originally was implemented so that businesses could resolve their disputes outside of the court system. Fast forward a few decades and you’re lucky if you can buy a toothbrush without having to sign an arbitration agreement. Make no mistake — what’s good for sophisticated businesses who have legal counsel advising them of their rights is not necessarily good for Average Joe.

The disadvantages of arbitration for the consumer are legion. Many an essay, law journal article, commentary, and newspaper article has been written about the evils of arbitration from a consumer’s perspective. For starters, the costs. In court, where disputes are meant to be heard, all a consumer has to pay is a filing fee. In arbitration, a consumer could potentially pay thousands of dollars just on the arbitrator’s fee alone. And inexplicably, the arbitrator’s fee sometimes increases with the amount of money the consumer seeks — yet the arbitrator has to work no harder, no smarter, and no longer if a consumer is seeking $1,000 or $1,000,000. The fee escalation is just an obstacle to a consumer seeking what he thinks he fairly deserves.

Secondly, the win rate for corporations over consumers in arbitration is so high that it’s simply laughable and defies all logic. One can only deduce a corporate bias in arbitration. Sure, there’s a consumer victory here and there. But by and large, the party with “Inc.” in its name usually wins.

This is not what our forefathers had in mind when they wrote the Constitution. Thomas Jefferson, in a letter to Thomas Paine in 1789, wrote, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Should a corporation be held to any less of a standard? Yet with the proliferation of mandatory binding arbitration, corporations are, in effect, sweeping away the right to a jury and creating a private legal system. And who do you think will dominate that legal system?