• 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

  PANEL PRESENTATIONS:
  
  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 School
  Former Chairman, Maryland Lead Paint Poisoning Commission
  "Solve the Problem: Don't Play the Blame Game"
  
  Hyatt Regency Baltimore
  300 Light Street
  Baltimore, Maryland

• 8:15 A.M. TO 1:45 P.M.
  (Lunch Served at 12:00 P.M.)
  RSVP: Acceptances Only
  (212) 599-7000, Ext. 411
  ------------------------------------------------------
  Manhattan Institute
  52 Vanderbilt Avenue
  New York, NY 10017
  Phone: 212-599-7000
  Fax: 212-599-3494
  E-mail: mi@manhattan-institute.org
  

• 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 write:
  "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."

• 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 claims.

  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 “They’re Making a Federal Case Out of It…In State Court” concerning class actions in the first issue of its 2001/2002 season. For more details on this report, CLICK HERE.
  
  

• JUDGES, JURIES, AND PUNITIVE DAMAGES: AN EMPIRICAL STUDY - OR A TEMPEST IN A TEAPOT?
  

• 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 root@wlf.org, http://www.wlf.org
• 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 work.
  
  See http://www.wlf.org/Resources/Releases/litigationupdates-detail.asp?id=153 for more information.
  

• 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 Journal.

• 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 manufacturer’s share of the national handgun market does not necessarily correspond to the amount of risk created by its alleged tortious conduct…We recognize the difficulty in proving precisely which manufacturer caused any particular plaintiff’s 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. See http://www.courts.state.ny.us/ctapps/decisions/apr01.htm.
• 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 Consumer’s 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 allies—private attorneys, many of whom are major campaign contributors—with lucrative contingency fee contracts." See http://www.cato.org/pubs/pas/pa-400es.html for the full report.

• 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.

• 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, see http://www.lrp.com.

• 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 Martin’s 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.

• For the recent decision Badillo v. American Brands, Inc., see: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nv&vol=117NevAdvOpNo4&invol=2 The decision holds that Nevada common law does not recognize a cause of action for medical monitoring.

• The latest issue of Business Week details "The Litigation Machine," which describes the work of plaintiff lawyers and groups such as ATLA. See http://www.businessweek.com/2001/01_05/b3717001.htm.