December 4, 2001
The Manhattan Institute is sponsoring a conference on lead
paint litigation. It is taking place on Thursday, December 13,
2001 in Baltimore, Maryland. See below for details. RSVP: Acceptances
Only, to (212) 599-7000, Ext. 411.
TOPIC: Finding Effective Solutions to Lead Paint Hazards
8:15 - 8:45 A.M. Registration and Continental Breakfast
8:45 - 9:00 A.M. Welcoming Remarks:
Judyth W. Pendell
Director, Center for Legal Policy at the Manhattan Institute
9:00 - 9:45 A.M.
Randall Lutter, Resident Scholar, AEI/Brookings Joint Center
for Regulatory Studies
"Litigating Lead-Based Paint Hazards: Is It A Solution?"
9:45 - 10:45 A.M.
Dr. James R. Price, III, Director, CLEARCorps/USA
"A Family-Centered National Service Approach to Preventing
Childhood Lead Poisoning"
10:45 - 11:15 A.M.
Andrew Miller, Dickstein, Shapiro, Morin & Oshinsky LLP;
Former Attorney General of Virginia
"Model Act, Model Solution"
11:15 - 12:00 NOON
Daniel O. Chute, CIH, CSP, Director, Environmental Health &
Safety Services, MasiMax Resources, Inc.
"Effective Delivery of Services: Inspection, Management,
and Elimination of lead Paint Hazards"
12:00 - 12:45 P.M. Lunch
12:45 - 1:45 P.M.
Donald Gifford, Professor of Law, University of Maryland Law
Former Chairman, Maryland Lead Paint Poisoning Commission
"Solve the Problem: Don't Play the Blame Game"
Hyatt Regency Baltimore
300 Light Street
8:15 A.M. TO 1:45 P.M.
(Lunch Served at 12:00 P.M.)
RSVP: Acceptances Only
(212) 599-7000, Ext. 411
52 Vanderbilt Avenue
New York, NY 10017
November 5, 2001
- In Volume 33.4 of the Connecticut Law Review, Victor Schwartz
and Leah Lorber write on "State Farm v. Avery: State
Court Regulation Through Litigation has Gone Too Far." They
"A paradigm example of regulation through litigatiion is
the $1.2 billion judgment case State Farm Mutual Insurance
Company in Avery v. State Farm. The case was brought as
a nationwide class action covering 4.7 million State Farm
policyholders in forty-eight states and the District of Columbia.
Fundamental class action rules require that facts in common to
the class predominate over facts that were not common. This clearly
was not the situation in Avery. Each repair was different.
Nevertheless, the Court knew that class action certification was
a fundamental weapon toward the path of regulation through litigation
and held that a nationwide class action was proper...Former Secretary
of Labor Robert Reich, who coined the phrase "regulation
through litigation," has observed that "[t]he strategy
may work, but at the cost of making our frail democracy even weaker.
The Avery case clearly illustrates how well-meaning state
judges and juries can go awry when they attempt to set nationwide
public policy. The appellate judicial system in Illinois can cure
the problem within that crucial state. Federal action is needed
to curb the practice nationwide."
October 15, 2001
- In a decision released on October 9, 2001, the Connecticut
Supreme Court unanimously rejected claims by the City of Bridgeport
for monetary and injunctive relief from handgun manufacturers,
trade associations and retail gun dealers for alleged injury and
damages to the city arising from handgun use. The city claimed
increased costs of municipal services, increased tax burdens,
reduced property values, loss of investment and economic development,
lost productivity, injuries and deaths to its residents, destruction
of communities, and negative impact on the public health, safety
and welfare. The city's complaint also alleged that the named
firearms industry defendants had engaged in a conspiracy to mislead
and deceive the City of Bridgeport and its residents regarding
the safety of handguns. The complaint alleged claims under Connecticut's
products liability act, unfair trade practices act, common law
nuisance, negligence, civil conspiracy and unjust enrichment.
The court applied long-standing common law precedent to hold
that the claims were too remote and indirect under all theories,
and concluded that the City lacked standing to assert the claims.
The Court observed that every federal appellate court that had
considered similar claims in the tobacco context
had dismissed them on the grounds of remoteness. Connecticut's
Attorney General, one of the most active attorney generals in
the tobacco litigation and settlement, filed an amicus brief
before the high court in support of the City of Bridgeport's
The first-named defendant, Smith & Wesson, was unable to
benefit from this ruling because it had entered into a settlement
with the City of Bridgeport.
The decision is reported at Ganim v. Smith and Wesson Corporation,
2001 Conn. LEXIS 374.
- The Manhattan Institute and the Harvard Journal of Law and Public
Policy will publish Theyre Making a Federal Case Out
In State Court concerning class actions in the
first issue of its 2001/2002 season. For more details on this
September 21, 2001
August 31, 2001
- Courts Properly Dismiss Meritless Ritalin Litigation
by James M. Beck
Flush with cash from their wars with the tobacco industry, several
prominent plaintiffs' lawyers have set off on their latest crusade
litigate the "attention deficit disorder" drug Ritalin
out of existence. In addition to suing the drug's producer, the
lawyers included two highly respected patient groups in the class
actions brought in several jurisdictions across the country. The
cases allege that the drug is over-prescribed, and that the patient
groups and the producer conspired to spread falsehoods about its
effectiveness. As this paper discusses, however, several federal
courts have found these claims to be entirely bogus, and have
properly dismissed the suits. The paper provides an overview of
the lawyers' claims and the powerful First Amendment arguments
that defendants have successfully made against them. It then reviews
the two major federal trial court rulings thus far which have
dismissed the Ritalin suits in their entirety. The author then
concludes by urging other courts with similar cases before them
to follow the reasoning of these two decisions. CONTACT: Washington
Legal Foundation, 2009 Massachusetts Ave., NW, Washington, D.C.
20036, 202/588-0302, fax 202/588-0306, email email@example.com,
- With assistance from Victor Schwartz, Mark Behrens, and Rochelle
Tedesco from Shook, Hardy & Bacon, the Washington Legal Foundation
filed a first amended petition with the FTC that provides additional
details regarding the widespread abuses of contingency fee agreements,
and additional reasons why an FTC response to those deceptive
trade practices is appropriate.
On July 25, 2001, WLF filed its initial petition with the FTC
regarding contingency fee agreements.
In its petitions, WLF argued that contingency fee practices routinely
engaged in by attorneys constitute "unfair trade practices"
within the meaning of the Federal Trade Commission Act. WLF said
that FTC action was necessary because the legal profession and
state bar authorities have demonstrated their unwillingness to
address the contingency fee scandal, under which lawyers are pocketing
billions of dollars of their clients' funds, often for minimal
for more information.
May 30, 2001
- Ever wonder how to respond to the media in the height of an
intense public relations nightmare? Tell the truth, says Raymond
J. Tittmann. It could help establish a complete statute of limitations
defense. From the March
16, 2001 issue of the Los Angeles and San Francisco Daily
May 23, 2001
- Two recent Supreme Court cases, Amchem and Ortiz, add new weapons
to the arsenal of arguments against Rule 23 class certification.
Under those cases, any class which includes claims of different
values -- requiring class representatives to render an "allocation
decision" -- presents an internal conflict weighing against
class certification. Raymond J. Tittmann explains how.
- Freddie Hamilton Gail Fox and Stephen Fox v. Beretta U.S.A.
Corp., Taurus International Manufacturing Inc., American Arms,
Inc., and Colt's Manufacturing Co. Inc was decided April 26,
2001. The New York Court of Appeals held 7-0 that handgun manufacturers
do not owe tort plaintiffs a duty of care and refused to extend
liability for injuries allegedly related to negligent marketing
and distribution of firearms. The Court wrote: "Here, the
distribution and sale of every gun is not equally negligent, nor
does it involve a defective product. Defendants engaged in a widely-varied
conduct creating varied risks. Thus, a manufacturers share
of the national handgun market does not necessarily correspond
to the amount of risk created by its alleged tortious conduct
recognize the difficulty in proving precisely which manufacturer
caused any particular plaintiffs injuries since crime guns
are often not recovered. Inability to locate evidence, however,
does not alone justify the extraordinary step of applying market
share liability." Relatives of people killed by handguns
had sued 49 handgun manufacturers in federal court alleging negligent
marketing, design defect, ultra-hazardous activity, and fraud.
- Victor Schwartz addresses in "White House Action of Civil
Justice Reform: A Menu for the New Millennium" the major
civil justice reform issues confronting the new administration
and offers some proposals for dealing with those issues. He proposed
an "Injured Consumers Bill of Legal Rights," which
would provide protection for consumers of legal services. He also
advocates increasing liability protection for school officials
in order to stop frivolous lawsuits that interfere with basic
educational processes, recommends strengthening Rule 11 of the
Federal Rules of Civil Procedures to stop baseless claims and
defenses, and provides a fair solution to the problem of multiple
imposition of punitive damages. Schwartz also proposes national
standards for product liability and proposes reforming federal
class action rules to better servc the purposes for which the
class action was created. The article appears in Volume 24.2 of
the Harvard Journal of Law & Public Policy.
- In "Pistol Whipped: Baseless Lawsuits, Foolish Laws,"
Cato Institute Senior Fellow Robert Levy makes the argument: "Although
Congress and the majority of state legislatures have resisted
enacting draconian gun control laws, the courts are the final
bulwark in safeguarding our constitutional right to keep and bear
arms. Yet the courts of late have been the scene of unprecedented
attacks on that right as gun control advocates have used the judiciary
to make an end-run around the legislative process. Meritless litigation
brought by government plaintiffs in multiple jurisdictions are
just part of a scheme to force gun makers to adopt policies that
legislatures have wisely rejected. Moreover, the suits are used
by politicians to reward their alliesprivate attorneys,
many of whom are major campaign contributorswith lucrative
contingency fee contracts." See http://www.cato.org/pubs/pas/pa-400es.html
for the full report.
May 2, 2001
- The March 2001 issue of Quarterly Business Publication of the
Louisiana Association of Business and Industry features an article
"United They Stood: Trial Lawyer Campaign Contributions in
the 1999 Elections, Part 2." The article documents that large
class action tort litigation has permitted the plaintiff bar to
disproportionately affect legislative cases. In 1999, at least
$2,811,414 was provided by plaintiff lawyers in Louisiana to legislative
candidates. Of that amount, $1.7 million was provided by the coterie
of lawyers involved in the tobacco litigation in big tort cases.
April 11, 2001
- A Florida judge declared the state's sweeping "tort reform"
law unconstitutional. Finding the law violated the state constitution's
ban on laws that embrace more than one subject, the judge found
the legislation comprised no fewer than 20 unrelated subjects.
Among other things, it established rules on the useful life of
products, limited the liabilty of multiple defendants, immunized
employers from the intentional harmful acts of their employees,
and provided lawsuit protections to a number of specific industries.
Florida's constitution provides for the enactment of comprehensive
legislation required to address a crisis, but the judge found
no such crisis existed. The case name is Florida Consumer Action
Network v. Bush, 99-6689, Florida 2d Judicial Circuit.
- Reuters reported that a federal district court ordered Exxon-Mobil
Corporation to pay $500 million in compensatory damages to about
ten thousand dealers in 36 states who claimed the company cheated
them in a gasoline discount program. With interest, the award
could approach $1 billion, the amount the dealers had sought originally.
The case involved a discount for cash program. Under the program,
retail cash customers paid less per gallon than those paying with
credit cards. Dealers were to receive a discount on gasoline they
purchased fromExxon, which a jury concluded they did not receive.
- A study of plaintiff injury damage awards found that the median
award in product liability cases rose from $500,300 in 1993 to
$1.8 million in 1999. The 1999 figure, following the top median
award of $1.2 million in 1998, represents the fastest growth in
two decades. The study was conducted by Jury Verdict Research,
a subsidiary of LRP Publications. The study includes all figures
from plaintiff awards that LRP could collect from states, but
does not represent a comprehensive database of every damage award.
The figures do not include punitive damages. For additional information,
February 13, 2001
- WLF Opposes Class Actions in Medical Monitoring Case
The Washington Legal Foundation filed a brief in late December
with the California Supreme Court urging it to reject class action
status for up to 100,000 class members who claim that they should
receive damages for medical monitoring costs. In Lockheed Martin
Corp. v. Superior Court of California, residents near Lockheed
Martins plant claim that some of their groundwater may have
affected by chemicals discharged from the plant years ago. Their
claim focuses not on any current injuries, but the speculation
that there may be injuries in the future; hence, their claims
for medical monitoring costs. WLF argued in its brief that those
novel claims are better suited for individual cases due to the
varying nature of the harm and the causation of any injury.
February 5, 2001
January 24, 2001
2003 The Federalist Society