Corp Reform - Not Tort Reform

The Worst Attack Op-Ed Against Obama I’ve Seen To Date

I know I shouldn’t expect anything decent to come out of the Madison County Record, as it’s a sham newspaper published by the Chamber of Commerce in order to push tort “reform” rhetoric.  But the editorial entitled: “The Audacity of Arrogance: The Fresh Prince of Hot Air” is worse than the usual malarkey you’ll find in the Record.

The opening paragraph invokes Barack’s middle name for no good reason and then hangs a silly nickname on him:

…I have always felt that Barack Hussein Obama bore a striking resemblance to Will Smith. As the campaign unfolds, and we learn more and more about our junior senator, perhaps it is fitting to pirate a proper nick name, "The Fresh Prince of Hot Air," a slight variation of the early success of his look alike.

Source: Madison County Record | The Audacity of Arrogance: The Fresh Prince of Hot Air

No one ever calls McCain “John Sidney McCain.”  But it gets worse:

With unbridled arrogance, he conducted not just the traditional and accepted fact finding tour, but a premature victory lap choosing instead to use his undeserved, unearned and unjustified bully pulpit to criticize - if ever so veiled - the current administration, and indeed the country as a whole.

My God, man, do you ever stop to take a breath?  That sentence would be the epitome of run-on sentences if it weren't for this one you wrote:

Now, with his unexpected fund raising success - the obscenity of any candidate, much less a Democrat raising and spending a projected $600 million staggers the senses (how could the hypocrite look a hungry child in the eye after such self indulgence?) - he conveniently renounces the limits.

I love the "much less a Democrat" jab.  What, Democrats aren't allowed to raise money?  And as for the "hungry child" bit?  How about this: "How can John McCain, who supports spending trillions of dollars on Iraq, ever look a hungry child in the eye?"  Check this out:

In my lifetime, I have not seen a person less deserving of the keys to the White House front door than him.

Really?  So the only person you've ever seen in your entire life must be George W. Bush.  Next, the guy tries to sound poetic:

Without real substance, the Prince blows hard and hearty, hoping that words and style will cover the lack of substance. Tested not, he usurps the stage as an impostor, a phony, a fake and fraud. His transparent self adoption of the aura of John F. Kennedy is not only inaccurate, but indicative of his lack of original thought. No matter how hard Obama tries to wear the JFK suit, it shall not fit until he grows just a bit.

"It shall not fit until he grows just a bit."  I can do that, too: After reading your writing just a bit, I am convinced that you are full of shit.

Read the whole thing if you want.  It's some of the most poorly-written, bloviated political prose I've ever read. 

Ted Frank again refuses to engage in open discussion.

Ted snarkily suggested that I was “crowing” about Pfizer sales reps getting fined for lying about competitors’ drugs.  I’d hardly call it crowing, but no big deal.  He then suggested I omitted a ton of useful information about how the fines came about.  Well, duh – the post in question was a “roundup” post, which rarely have substantive information.  Even at Overlawyered.

But then Ted went off as he is wont to do about how those damned trial lawyers are killing people by convincing people to stop taking their medication.  What follows is the comment threat from OL.  Anything in bold is new, and my response or commentary.  I’m doing it here because Ted has already accused me of trolling, which is his code for “I’m about to censor your comments.”

I’m going to have to disagree with you about trial lawyer conduct being worse. These reps were lying to doctors directly. They abused their positions to influence doctors to write prescriptions for their own medicines. That’s a bit different than a lawyer putting up a web site to look for clients. Many lawyer web sites even state not to stop taking medication without first consulting with a doctor.

I have no double-standard with this. Lawyers aren’t telling patients “stop taking this drug and hire us now.” They’re telling patients “if you were injured and were taking this drug, hire us now.” If some patients as a result of such an ad stop taking their medication without consulting a doctor, that’s unfortunate. But no more so than if the same patient stops taking a drug because of a news story about the drug.

I know you often complain of “alarmist” news reports about prescription drugs, which you suggest are created for ratings. Do you have any suggestions on how to curb either these news reports or lawyer web sites without infringing on First Amendment rights?

Justinian Lane on July 27th, 2008

Justinian’s factual predicates are, as they often are, fictional. The top three Google hits for Avandia lawyers have none of the disclaimers that Lane claims are common. Neither do the top hits for Zyprexa lawyers. After which I stopped looking: Lane’s simply making stuff up again, which he really needs to learn not to do if he wishes to have any credibility.  What?  You mean Ted acknowledges I have some credibility to begin with?  Wow.

Studies show that doctors don’t rely on what reps tell them, and use the reps as a source for further inquiry in more reputable sources. What the Australian reps did was wrong (and against Pfizer policy), but there is no evidence anyone was actually misled or harmed. In contrast, what lawyers do is official policy and there is substantial evidence of adverse health effects. 

It’s interesting that Lane raises the first amendment (which I agree protects the attorneys’ and journalists’ conduct); he’s perfectly willing to abridge the first amendment when it comes to manufacturer speech. And unlike attorneys, manufacturers only make money in the long run if their products promote health.  Or if manufacturers can conceal the risks of their products.  Someday I’ll write a post about “The market for lemons” and pharmaceutical companies.  Google it.

The solution is simple: stop giving attorneys the financial incentive to lie about drugs. There’s no evidence that private lawsuits do anything to promote public health, and substantial evidence that they are counterproductive.

Ted Frank on July 27th, 2008

Many attorneys do include the warning I mentioned. See William Berg, for example. He has the warning at the very top of his Zyprexa page and again in the text. And I’ve seen others, but I don’t want to link-spam Overlawyered to prove an irrelevant point: Regardless of which attorneys do or do not advise patients to consult with doctors before changing their medicine, attorneys reap no financial benefit if patients just stop taking their meds. The benefit only comes to them when injured patients hire them.

I’m not going to argue with you about whether anyone was harmed by the sales rep lies, because you acknowledge that the conduct was inappropriate.

Can I ask what evidence you rely upon to claim that I want to “abridge the first amendment when it comes to manufacturer speech”?

Justinian Lane on July 27th, 2008

Berg is one attorney, not “many.” And Berg isn’t in the top forty search results for Zyprexa attorneys: the only reason you’re aware of him is because he was quoted in the AP story on the subject.

It’s not true that attorneys reap no benefits from their advertisements.  Note here that Ted put words in my mouth.  I never said that attorneys reap no benefits from their advertisements.  He’s setting me up for a charge of "subject changing” if I reply.

Lane has repeatedly praised the prosecution of off-label marketing, and called for increased regulation of it, without regard to whether the off-label claims are true. For more on the first amendment implications of this, see the AEI event on the subject.  I’ve repeatedly praised the enforcement of the law, yes.  I love how Ted alternates between talking to me “the only reason you’re…” and then talking about me: “Lane had repeatedly…” 

Ted Frank on July 27th, 2008

I didn’t say attorneys reap no benefits from their advertisements. I said they reap no benefits from convincing people to stop taking medications, which is true. Attorneys are actually better off if individuals keep taking their medications, as that increases the likelihood of the person having an adverse event and thus being a potential client.

When I’m an attorney, if I decide to do mass torts, rest assured I’ll have that disclaimer all over my site.

Do you believe pharmaceuticals should be liable in failure to warn lawsuits if they promote off-label and thus not FDA-approved uses of a drug?

Justinian Lane on July 27th, 2008

I didn’t say attorneys reap no benefits from their advertisements. I said they reap no benefits from convincing people to stop taking medications, which is true

Which is changing the subject, since we’re talking about their advertisements, which usually don’t include disclaimers because many lawyers do want to control the flow of information to their potential client without regard for the health consequences. Stop trolling.  A ha!  I’m a subject changing troll because I responded to his claim about advertisements. 

Do you believe pharmaceuticals should be liable in failure to warn lawsuits if they promote off-label and thus not FDA-approved uses of a drug?

Note that Justinian has changed the subject again, since we were talking about his willingness to impose first-amendment restrictions on manufacturers. Stop trolling, Justinian. And maybe you can actually read what I’ve written on the subject before asking questions I’ve already answered. Once again, I’m a trolling subject changer because I ask him to directly answer a question he would prefer not to.  See, I bet Ted doesn’t think pharmaceuticals should be liable in this instance, but he knows that’s trying to have it both ways: A major argument he makes for FDA preemption is that the “expert” FDA has approved a drug to treat Condition X, so it should be considered safe. 

But with off-label marketing, the pharmaceutical is trying to sell the drug to treat Condition Y, which the FDA has not approved.  Thus, Ted can’t make any FDA arguments to oppose these lawsuits.  But he also doesn’t want to admit he thinks pharmaceuticals just shouldn’t be sued for off-label marketing, because that makes a lot of people uncomfortable.   So he again resorts to calling me a troll, and then uses his favorite dismissive phrase “Read what I’ve written before you speak to me, boy!”  OK, he left out the “boy” but it’s implied from the tone.

Source: An interesting double-standard

As for the title of the post – I don’t think there’s a double-standard at all.  When sales reps lie to doctors, it’s wrong.  When lawyers lie to clients, it’s wrong.  And I don’t think anyone’s First Amendment rights should be abridged. 

Technorati Tags: Ted Frank,Overlawyered,FDA preemption,trolling,subject changing,tort reform

In describing mold litigation, Ted Frank also describes the "reform" movement

I saw that Ted got snubbed by LA Weekly as they only used a snippet of an interview with him.  That sucks - and I'm not being sarcastic.  Not yet, anyway.  In reading the following passage of the full interview, I realized Ted could easily be describing the reform movement.

I want to be absolutely clear about something: The following passage has been edited.  Some of Ted's words have been deleted, and others replaced.  The words that I have added are in italics.  The link below takes you to the entire interview.  I am not in any way trying to mislead anyone into thinking this is Ted's position.  It isn't.  It's simply my attempt to show how so many of the financial incentives the reform movement complain about apply equally to them.  Imagine what would happen to the various tort "reform" groups if we enacted all of their suggestions: The need for the groups would greatly diminish and a whole lot of guys (and a couple of gals) making $300k+ per year would be out of jobs.  With that disclaimer, here's a sarcastic rewrite of the interview:

What does this fear of an enigma say about our society?

Fascinating, isn’t it? We coexist with mold for thousands of years. My friend, Walter Olson of the Manhattan Institute has said sarcastically “How unfortunate must we be to live in the twenty-first century, when plaintiffs’ lawyers have discovered the terrible health effects!”  It's always better for business if plaintiffs' lawyers don't know something is deadly.  See the first half of the 20th century and asbestos, for example.

Economic incentives have a lot to do with it:  reform thinktanks have an economic incentive to describe something relatively innocuous– rarely-awarded and often-reduced punitive damages, contingency fees that enable the poor to have court access, medical malpractice lawsuits against guys like Dr. Desai –as something deadly and fit it into the fictional  evil trial lawyer paradigm, which appeals to jurors’ preconceived notions.  Low-quality scientists of a variety of levels of sincerity are given the economic incentive to take the same position. Journalists have the economic incentive to tell a story that fits the paradigm whether or not it’s true, because the victims-and-villains storyline that could affect the viewer because of our made-up "tort tax" attracts eyeballs. The three work together symbiotically: the expert witness feeds stories to the thinktank and vice versa; the thinktank feeds stories to the journalist with the expert; the journalist creates publicity that brings credibility to the thinktank, which in turn creates more stories for the journalist.

The culture of fear is a lot larger than that (others take advantage of it), but I think the reason it is so much larger in America is because only here do we make people millionaires for inventing new things to be afraid of. Look at the six (and perhaps seven) figure salaries of the leaders of the reform movement, for example.  Selling fear of lawsuits is big business.

Modified from source: LA Weekly: The Mold Rush and the case of Sharon Kramer and Bruce Kelman

Note also the manner in which Ted kicks Ed McMahon while he's down by referring to the man's sad situation as "poetic justice" for filing a mold lawsuit.  You'll have to click the link to read it, and while you're there, read the original interview so you can verify that my version is merely sarcasm & satire.

Technorati Tags: Mold lawsuits,Ted Frank,LA Weekly,Ed McMahon

Let's raise gas taxes so we can use the revenue to lower corporate taxes!

No, I'm not making that argument.   An economist who obviously has no trouble paying to fill his gas tank is:

A new gasoline tax that ensured high prices would accelerate the move toward fuel-efficient vehicles and provide enough revenue to allow a cut in corporate taxes.

....

Economist Gregory Mankiw has estimated a $1 tax increase on gasoline could raise $100 billion in revenue that could (and should) be used to reduce the ridiculously high U.S. corporate tax rate. That, in turn, could lead to more jobs and better pay in virtually all domestic industries.

Source: Why we need to keep gas above $4

Sorry if I'm not on board with screwing the American worker so we can lower taxes on companies that are also screwing the American worker.  Someone should kick this guy in the shins.

Technorati Tags: taxes,gas prices,economists,out of touch rich guys

I make a "surprisingly cogent" argument at Above the Law about freedom of contract

Some enterprising students at NYU are paying other students to withdraw from popular classes in order to free up a seat.  Needless to say, the administration doesn't like it and is threatening disciplinary actions for those students who engage in this practice.  I come out firmly on the students' side, because contrary to what some would suggest, I'm a big proponent of freedom of contract. 

Here's my argument, which another commenter described as surprisingly cogent:  

Posted by guest | Permalink Tuesday, July 22, 2008 1:03 PM

The students aren't buying class spots. Student B is paying Student A to withdraw from class at a specified time. Student B then enrolls in the class immediately thereafter. Student A's obligations under the contract are limited only to withdraw at the time specified. It's absolutely a proper contract that shouldn't run afoul of any rules. It could also be done in a different manner. Assume that the class in question meets MW at 10:30 in classroom 100. Student B could pay Student A to not be in classroom 100 on MW at 10:30. Student A would then drop the class because it conflicts with his schedule.

Let's see some enterprising NYU students blatantly inform the school they're doing this, and then file a pro se lawsuit if they're sanctioned for it.

Source: Above the Law - A Legal Tabloid - News, Gossip, and Colorful Commentary on Law Firms and the Legal Profession - Trading Places: At NYU Law, A Clash Over Classes for Cash

I've never cared for school administrators at any level.  So many of them are just control freaks who recoil at the thought that some student might not "respect their authoritah!"  If the school really wants to put a stop to this practice, it should (I can't believe I'm about to make an economics argument) adjust the supply of classes to meet the demand and not punish students who refuse to let a flawed lottery system dictate what classes they take.

Technorati Tags: NYU Law,above The Law,classes for cash

…so what?

Walter at Point of Law cites a study that claims the Pennsylvania AG destroyed "roughly $2.7 billion in shareholder wealth."  So what?  The AG’s job is to follow the law, not look out for the best interests of shareholders.  How much shareholder wealth gets wiped out when the FDA doesn’t approve a drug?  Or when corporations are forced to pay fines for breaking other laws?  It’s not supposed to be all about the Benjamin's when it comes to enforcing the law, folks.

Michael Krauss at Point of Law makes a math error regarding diversity

Discussing a new bonus system by Microsoft, Krauss writes:

The preferred law firms must opt by Aug. 15 for one of two ways they want Microsoft to track their diversity "progress." Under one formula, they must demonstrate a two-percentage point increase in the percentage of Microsoft hours billed by "diverse" attorneys, compared to last year. Under the second formula, law firms must show a 0.5 percentage point increase in total "diverse" attorneys as a percentage of the firms' total attorneys, regardless of whether they work on Microsoft matters.

Included in Microsoft's definition of diverse attorneys are women and those attorneys who are African-American, Latino/Hispanic, Asian, Native Hawaiian/Pacific Islander, American Indian, Alaska Native or "mixed race." Obviously, then, reducing the number of white men on staff is "progress" to Microsoft.

Imagine if reduction in any other group was considered "progress".

Source: PointofLaw.com | PointOfLaw Forum: Microsoft to pay law firms bonuses for reducing the number of white men on staff.

Krauss mistakenly assumes the preferred way to get the bonus is to reduce the number of white men at the firm or on the case.  Not so - a firm can get the bonus by assigning additional EXISTING "diverse" staff members to the Microsoft account, or by hiring new "diverse" staff members.

As I've written before, I don't take race or gender into consideration when looking for a lawyer - only skill.  I think it's rather dumb of Microsoft to setup a bonus system that just looks at race & gender instead of results.  But, it's their money, and if they want to implement a bonus system for firms who ban iPhones, or firms who institute a mandatory casual Friday, well what's wrong with that?

Nuts, yes. Nigger, no.

There seems to me something wrong with the fact that a news outlet will print “cut his nuts off” in the same story they say “N-word.” 

CHICAGO - Fox News said the Rev. Jesse Jackson used the N-word during a break in a TV interview where he criticized presidential candidate Barack Obama.

The longtime civil rights leader already came under fire this month for crude off-air comments he made against Obama in what he thought was a private conversation during a taping of a "Fox & Friends" news show. In those comments, he contended that Obama wasn't speaking to issues important to the black community and unaware that his microphone was still on, he said, "I want to cut his nuts off."

Source: Fox: Jackson used N-word in remarks - Barack Obama News- msnbc.com

Maybe someday we’ll see this headline now that “nuts” is OK: “Dick Gregory, author of the book the N-word, kicked in his nuts by white supremacist.”

Technorati Tags: political correctness,nuts,nigger,Jesse Jackson

What is Ted Frank afraid of?

Ted’s an interesting guy.  He has no hesitation about going to other people’s blogs and just absolutely crapping all over someone else’s posts.  It’s as though he feels he’s entitled to spew his opinion all over the Internet, and he does so in a pushy, bullying manner.  He’s run more than one person off of TortDeform because he's just so bullheaded and aggressive in his criticism.  But like so many others of his type, he simply can’t take criticism. 

For what, the third (?) time now Ted has trashed me on Overlawyered and then deleted my response.  He has never and will never be censored here at my site, and to the best of my knowledge, he hasn’t been censored at TortDeform.  Why then does he insist upon attacking me and refusing to let me respond?  Is he that afraid of what I have to say?  Is he so unsure of his beliefs that he’s afraid others will join me in questioning them?  Or is he just an Internet tough guy?

This time around he dragged out the Richard Neely story again.  (Go to TortDeform and search for Neely to get the whole story.)  For the absolute final time, I’m going to explain why Ted is stupid to criticize me for not having read Neely’s book.

Neely made a statement in his book that comes across as if he ruled in favor of local plaintiffs just to get reelected.  The reform movement has seized upon that and uses it constantly to illustrate the purported flaws in the civil justice system.  One of the first magazines to review Neely’s book issued a retraction about that very statement.  Neely told the magazine that the statement in question was him being ironic, and he didn’t mean it.  That was in the 90’s.  Just to be sure, I called Neely and asked him about it in June of this year.  He again said that the statement was him being ironic and only a simpleton would think otherwise.  So I called Ted and the reformers out for using that quote without acknowledging the fact that Neely says the quote means something else.

Regardless of whether I have read the book, or agree with Neely, my point was and is that it is dishonest to use an author’s quote in a manner he disapproves of without at least noting that disapproval.  Even if I agree 100% with Ted that Neely is lying and he did mean the quote, it doesn’t make it any less dishonest of Ted to use the quote without noting Neely’s stance on it.  Ted is either too stupid to understand that, or too obsessed with discrediting me to care.  He’s been especially pissy towards me since I thoroughly shredded an Amicus brief he filed in Wyeth.  Sorry Ted, but your conclusion didn’t follow from the premise.  And I suppose my Photoshopping the picture of his office didn’t win me any points with him either.  Oh well.  Ted  injects himself into any Internet discussion about tort reform (even when he isn’t welcome) and he writes to every newspaper under the sun hoping for an op-ed.  In short, he’s a public figure and if he can’t take criticism he needs to find a new career.  (And get a sense of humor.  C’mon Ted, Ceiling Cat and Gordon Gecko in the same pic is funny.)

Ted and anyone else is always welcome to comment at my blog, and will never be censored for doing so.  Perhaps someday Ted will muster the intellectual courage to give his critics the same courtesy.  A good step in that direction would be to at least allow those who he attacks to respond on his blog.  From now on, any time I respond to attacks on Overlawyered, I’ll be sure to post them here as well.

Technorati Tags: Ted Frank,Richard Neely,Overlawyered,censorship,thin skin

Oh Noes! Don't let the greedy lawyers sue the Bin Ladens!

Walter at Point of Law links to an article regarding suits against the Bin Laden family by 9/11 victims.

Yet another target in 9/11 litigants' and insurers' money quest: Bin Laden's wealthy Saudi family [WINS]  Source: PointofLaw.com | PointOfLaw Forum: Around the web, June 19

Maybe it's my greedy trial lawyer mentality, but I don't think it's unreasonable to look into whether the incredibly rich Bin Laden family helped finance any of Osama's activities.  And if they did, I don't think it's unreasonable for 9/11 victims to bleed the family dry.  Or should we "reform" the civil justice system to make it more difficult to sue financial backers of terrorism? 

Technorati Tags: 9/11,tort reform,Walter Olson,Point of Law,Bin Laden