Here it is: this week’s best of the blawgosphere (or at least the best of what I read):

• Professor Alberto Bernabe, “On The Risks of Taking Generic Drugs and the Hypocrisy of Tort Reformers.” Professor Bernabe explains just why Big Pharma is aligning itself with the FDA.

• Eric Turkewitz strips away the hysteria and explains just how and why a four-year old can be sued for negligence in his latest post here.

• Over at Huffington Post, Joanne Doroshow explains the cyclical fluctations in insurance premiums and how premium increases are not really driven by lawsuit costs.

• Over at Concurring Opinions, Miriam Cherry points to some evidence suggesting that cell phone carriers are turning over cell phone records to auto insurance companies investigating crashes. (Perhaps the customer service rep Cherry spoke with simply meant that cell phone companies are producing these records if subpoenaed?).

• He’s not a legal blogger, but I could resist tossing in this week’s quote from Boston Red Sox owner John Henry: “Medicine is not a precise science. If it were, you would never hear the phrase ‘second opinion.'” Henry evidently gets medicine, and medical malpractice lawsuits, a lot better than the people like Peter Orzag .

• Professor Alberto Bernabe agrees with my assessment of the CVS inhaler situation: there would be no duty under the common law. Prof Bernabe also provides a link to some musings by Jonathan Turley about the tort defenses available to someone who forcefully took an inhaler from the pharmacy to help the woman.

• Professor Bernabe also highlights Duke Law’s “Voices of American Law“: a great series of mini-documentaries on important recent Supreme Court cases.

• Most joggers’ biggest roadway fears is being hit by a car. But Tom Vanderbilt highlights a recent case where a bicyclist fatally struck a jogger. This incident and others raises the question: can multi-use paths be shared safely by cyclists and runners? Or should cyclists have their own paths?

• “The Easy Case For Products Liability Law,” a Harvard Law Review article by Professors Goldberg and Zipursky, defending products liability law.

• Professor Alberto Bernabe reports on the $21 million verdict that a New Hampshire jury returned against a pharmaceutical company. The plaintiff in the case developed Stevens-Johnson Syndrome from her use of a generic nonsteroidal antiinflammatory, leaving her with burns all over her body. If you are brave and not easily nauseated, you can read more about the ravages of Stevens-Johnson Syndrome here.

• This goes back aways, but Ted Frank at Point of Law blogs about the growing number of inadequate security lawsuits against banks brought by ATM customers robbed after withdrawing money.

• Eric Turkewitz on why the insurance companies aren’t like you or me.

• I want to go on vacation with Eric Turkewitz. He definitely goes on way cooler vacations. [New York Personal Injury Law Blog].

• Over at Torts, law professor Alberto Bernabe covers an ethically troubling phenomenon: the outsourcing of pediatric clinical trials. More and more pediatric clinical trials are being conducted outside the United States. Nearly forty percent of pediatric clinical trials are now being carried out in developing countries. Given a recent Second Circuit decision, the outsourcing of clinical trials might not reduce the pharmaceutical companies’ legal exposure, but patients in the developing world are certainly more likely to have a tougher time getting a lawyer with the skills to successfully sue for them. Also problematic, as Bernabe points out, is the distribution of benefits from these clinical trials. Local populations are the test subjects in these clinical trials but once these expensive pharmaceutical make their way to market will they be available in poor corners of the world? [Torts].

• Over at the Volokh Conspiracy, Professor Volokh raises a question that has long puzzled me: Why does the Supreme Court often use a series of asterisks as an ellipsis? [Volokh Conspiracy]

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• You probably saw the news a couple weeks ago that Boston Scientific’s division Guidant, LLC agreed to plead guilty to two federal misdemeanor counts and pay a $296m fine in connection with its sale of defective heart devices. The backstory involves reprehensible conduct on the part of some executives: aware of the fact that these implanted defibrillators were short circuiting at the rate of one per month, Guidant decided not to warn doctors about the dangers and sold off its defective inventory, instead of recalling the product.

• Courtesy of Bob Kraft, I came across this American Association For Justice illustration, showing all of the safety features in modern automobiles that products liability lawyers are responsible for. It’s a pretty astonishing list of features, but it shouldn’t be too surprising. Since safety features aren’t “sexy” features that sell cars, the implementation of most safety features has come, not via consumer demand, but by trial lawyers making a dent (no pun intended) in car maker’s bottom lines and by government regulation.

• The Rhode Island Supreme Court rules that a lawsuit can proceed against the City of Newport for allegedly unsafe conditions on that city’s famed Cliff Walk. The injury victim, a honeymooner, was paralyzed when he fell 28-feet off the Cliff Walk while walking with his new wife.

CNN reports on the latest research studying the relation between Neurontin (gabapentin), Depakote and several other drugs and an increased risk of suicide, including the new Journal of the American Medical Association article on the subject.

Sometime ago, I read a favorable review of a documentary called The Last Campaign. (I believe the review was by David Yas, the editor of Mass Lawyers Weekly, but I cannot be certain.)
The movie made its way into my Netflix queue and arrived in my mailbox this weekend. The movie depicts the 2004 re-election campaign of West Virginia Supreme Court justice Warren McGraw. In the election, McGraw, a populist opponent of big business, was defeated by his Republican opponent, the relatively unknown Brent Benjamin.
Despite being a popular incumbent, McGraw found himself the underdog when Don Blankenship, the CEO of Massey Coal, poured millions of dollars into the election to run ads against McGraw. McGraw suffered a defeat in the election and Massey Coal succeeded in installing a justice – Brent Benjamin – whom many alleged the company had bought – on the court, right before an appeal was heard in a $50 million lawsuit against it.
Over objections that he should recuse himself from the case because of a conflict of interest, Benjamin went on to cast the deciding vote in a West Virginia Supreme Court opinion that overturned the $50 million dollar verdict against Massey Coal.
The movie does not allude to it, since it was released in 2005, but the story has a post-script: Massey Coal’s influence in the election of Justice Benjamin wound up before the United States Supreme Court in the case of Caperton v. A.T. Massey Coal Co. In that case, the Supreme Court held that the “probability of bias” by Justice Benjamin was so great that he should have recused himself and that, therefore, the decision by the West Virginia Supreme Court was invalid under the Due Process clause.
This week, a further post-script to The Last Campaign: the coal mine disaster in West Virginia occurred at a Massey-owned coal mine. Just another reason to be glad you live in Massachusetts.

I recently came across this statistic: in 2008 more US Marines died in motorcycle accidents than died in Iraq. The actual numbers: twenty-five Marines died in motorcycle accidents in 2008, twenty-two Marines were killed in Operation Iraqi Freedom.
In response, the Marine Corps has produced “Semper Ride,” a motorcycle safety film. The film features many top bikers and motocross figures, including Ben Bronstom, Chris “Teach” McNeil and Josh Herrin.
The film makes many sensible points, including that no matter how good a rider you are, you can be the victim of a serious motorcycle accident if a car driver is careless even for a second. Also, if you’re a beginning rider, dirt biking is good training for learning to handle a motorcycle.
Upon reflection, the stats about Marines’ motorcycle accidents should not be so surprising. When the war in Iraq was at its height, car safety advocates were pointing out that the number of lives claimed by our nation’s roads annually – approximately 42,000 – dwarves the number of lives lost in Iraq. The only surprising thing is that even among a cohort like the Marines, who face so many dangers, motorcycle accidents are a serious risk.
Sadly, the lives lost in auto and motorcycle accidents are often easily preventable deaths. So buckle up and keep an eye out for the Marine, or other motorcyclist, who might be in traffic with you.

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