Justinian Lane - Commentary on law, politics, and tort "reform."

Dilbert Was Right – It’s Probably Marketing’s Fault

Having spent about a decade in the IT field, it’s not surprising that I’m a fan of Dilbert. I often found a lot of truth in the characterizations the comic made, from HR being evil to marketing being the root of all problems.  I was reminded of that at work recently.  I’m working on a products liability case that resulted in someone dying.  I read the depositions of people in product development and quality control.  They struck me as being competent, caring, professionals who wanted to make a good product.  As such, they recommended that a specific change be made.  They believed that the change would make the product safer and better.  Marketing, on the other hand, thought the change would hurt sales.  So the change wasn’t made until AFTER several people died.  Because of a legal rule of evidence (Google/Bing “subsequent remedial measures”) the jury will never know that the change was made.  That’s too bad.  It’s also too bad that this story repeats itself in corporations all over the world. 

Some tort “reform” advocate asked the rhetorical question "Do you think we want to make dangerous products?”  He answered it by talking about how his company prizes excellence and tries to foster a culture of excellence.  Excellent this, that, and the other thing.  I believed him, and still do.  The trouble is that the guys and gals in marketing also strive for excellence.  And an excellent marketing campaign means downplaying or concealing the faults of the product.  Take the late, great, (I mean that) Billy Mays.  Did you ever see him yelling about how if you misuse a product it could hurt you?  Of course not.  The measure of an excellent marketing campaign is how many units it sells.  And selling a lot of units requires you to exaggerate the strengths and downplay the weaknesses of a product.  Look at beer commercials.  They all show young, attractive guys surrounded by young, even more attractive women.  The commercials strongly imply that monetary and sexual wealth will be yours if you drink their beer.  I know a guy who goes through between 80 and 120 cans of beer on a weekend.  He’s not rich and he rarely has the company of any woman, let alone a gaggle of attractive women.  You can damn sure bet that beer companies won’t be using him in commercials, even though his experience is more typical than the guys they use in the commercials.  Marketers know that reality doesn’t sell.  Similarly, the marketers at this company won’t be putting the people who were injured or killed by the product in question on TV.  Because again, the marketers want to sell units, and reality doesn’t do a very good job of that.

So to answer that rhetorical question: No, I don’t think your engineers want to make a dangerous product.  But I do think your marketing department couldn’t care less how dangerous a product is provided it sells well.  Exhibit A in that argument is the cigarette, Exhibit B is asbestos, and Exhibit C is the list of drugs withdrawn from the market due to safety concerns.  Behind every one of those products was an engineer who wanted to do “the right thing” and either improve the product or adequately warn the public about it, and every one of those engineers was overruled by some schmuck in marketing who just wanted to make a buck. 

Technorati Tags: Dilbert,product liability lawsuits,marketing,incompetence

Cool Screen Capture From Call of Duty 4

I picked up Call of Duty 5 and love the new graphics… but the levels just plain suck.  The only one I like to play is Dome, but that gets too crazy too quickly.  So I went back to COD4.  Last time I tried to play it, I couldn’t because Punkbuster didn’t work on Windows 7 64-bit.  But apparently it does now, and I’m quite happy about that.  I was just playing in Crossfire (my favorite level) and came across this guy hanging from the ceiling.  I shot someone right above him, so I can’t take credit for this unfortunate fellow’s pose.  But I thought it was cool enough to screen cap.

I can’t wait for the sequel to Call of Duty 4 to come out in what, October?  Oh, and yes, that is an MP44 I’m using.

Technorati Tags: Call of Duty,Call of Duty 4,screen captures,guys hanging from ceilings

Dear Big Government, Thank You

On this, our Independence Day, I often like to reflect upon how lucky I am to live in truly the greatest country this world has ever known.  Sadly, Independence Day is also the day when those whose idea of patriotism runs to flag lapel pins and hollow slogans bash our system of “Big Government.”  To you, America, and to them, the fake patriots, I’d like to take this opportunity to list the things I’m thankful “Big Government” does for me.

• Without Big Government, I might have to fear that diminutive little jackass in North Korea.  But I know my tax dollars have helped pay for the greatest military force in history.  If that rotten little bastard decides to send a missile our way, I know we can make a lesson out of his country that will endure for a thousand years.  And I know we can only do that because of our “high” taxes that fund our military. 
• Thank you, Big Government for my college degree.  Without your Pell Grants and subsidized student loans, I doubt I’d have been able to go to college.  I say thank you today in words, but I’ll thank you tomorrow by paying taxes on a higher salary that I’ll only be able to earn because you helped me go to college.
• And also thank you for helping me go to law school.  Again, without your subsidized student loans, I might not have been able to go.
• I’m fortunate enough to have a job this summer in Texas.  To get here, I drove on many miles of Interstate Highways.  Without Big Government, I know that the Interstate system wouldn’t exist.  Getting from Michigan to Texas could have taken twice as long or more.
• Like many Americans, I had a hamburger today on the 4th of July.  Thanks Uncle Sam for having a USDA and FDA that inspects our beef to make sure it comes from cows and not cockroaches.  I know from time to time you have to recall some beef due to e. coli and other bugs, but thank you for using my tax dollars to keep me safe from food borne illnesses.
• Also like many Americans, I’m celebrating today with a little alcohol.  Due to a variety of Big Government agencies, I know I’m not buying “White Lightning” or antifreeze, or some other concoction that would leave me blind or disabled.  I don’t mind that some of my tax dollars go to fund the agencies that keep crooked businessmen from selling me poison at the liquor store.
• Recently, I took a plane trip.  I’m lucky enough not to have a fear of flying.  But I’m even luckier to know that the FAA protects me by ensuring that airlines don’t cut corners by skipping maintenance or inspections.  I just might develop a fear of flying if I knew no one was keeping the airlines honest.
• I’m writing this post on a broadband Internet connection.  Thank you, Big Government, for breaking up AT&T, thus spurring the competition that eventually led to broadband.  I’d hate to try and play Call of Duty 4 & 5 over a dialup Internet connection.  Assuming there would even be such a thing.
• And thank you, Big Government, for the Internet.  Without the grants you made many years ago, there might not be any such thing as a blog.  The tax dollars you spent back then have surely paid off just from the taxes you collect from Google or Cisco, let alone every other Internet business out there.
• I had a flat tire recently and had to get it replaced.  I’m glad to know that NHTSA and the DOT make sure tires have to pass minimum safety standards.  Without you, who knows what kind of dangerous tires I might end up with on my car.
• Similarly, thank you for all of the safety tests you make auto manufacturers go through.  Sure, the ‘67 Corvette with a 427 is one of the most badass vehicles ever built, but I’d hate to be in a car wreck while driving one.  Your requirements for shoulder belts, airbags, and impact standards have probably saved hundreds of thousands of lives over the past 4 decades or so.  Yeah, I know your standards add a few bucks to the price of my car, but if I wanted a cheap deathtrap, I’d import a Trabant.
• I don’t listen to the radio much, but when I do, I like knowing that (a) my FM radio will work anywhere in the country, and (b) one radio station with a big transmitter and bigger pocketbook can’t just jam out the signals of every other radio station.  I also know that without the FCC, (a) and (b) might not be true.
• With all the financial trouble lately, I’m very thankful you use a portion of my tax dollars to offer FDIC guarantees to people who keep their money in banks instead of mattresses.  It makes me happy to know that if my bank fails, my money is safe.  Thanks for that, Uncle Sam.  Without your foresight, I might have pulled everything out of the bank when other banks started to fail.  We need only look to the past to know what happens when people start pulling their money out of fear.
• Thanks to the taxes I pay, I also know that any prescription drugs I may have to take have been proven to be at least partially safe and efficacious.  I often complain that the FDA can’t protect people from deadly drugs, but that’s really just a complaint that you need to spend more tax dollars on funding that agency.  But regardless of whether you do or don’t, I’m glad my taxes pay for Article III judges and courts to hold those companies accountable that knowingly sell defective drugs and other products.

Happy Birthday, America.  I hope to be alive in 2076 to celebrate the big Three-Oh-Oh with you.  Even if I don’t make it until then, thank you for your “tax and spend” policies that have made my life safer, richer, and better.

Technorati Tags: Big government,patriotism,4th of July

Victor Schwartz Cited Me In A Law Review Article

In early 2003, I first decided I wanted to be a lawyer.  I knew even then I wanted to do personal injury, so I decided I’d bone up on tort law.  The very first law book I ever bought was a torts hornbook that Schwartz was the editor of.  In addition to writing/editing several torts books, Schwartz is also a major player in the tort reform movement.  Here’s a snip of his bio:

Victor is a member of the American Law Institute (ALI) and served on the Advisory Committee to the Restatement (Third) of Torts: Products Liability, and Apportionment of Liability Projects. He continues to sit on the Advisory Committee to the Restatement (Third) of Torts: General Principles. He was inducted as a Life Member of the ALI in May 1997.

For over two decades, he has been co-author of the most widely used torts casebook in the United States, Prosser, Wade and Schwartz’s Cases and Materials On Torts (10th ed. 2000). He also is author of the leading text, Comparative Negligence, and co-authored Guide to Multistate Litigation. He has authored hundreds of law review articles, which have frequently been cited by state supreme courts. He has received awards for his scholarship from universities and leading civil justice reform organizations. He speaks before national and international audiences interested in the subject of civil justice reform.

Victor is General Counsel to the American Tort Reform Association. He co-chairs the Civil Justice Reform Committee of the American Legislative Exchange Council and chairs the American Bar Association’s Legislative Subcommittee of the Product Liability Committee. Victor has an active appellate practice and assists product manufacturers on injury and accident prevention.

Now, he and I don’t share the same views about the civil justice system.  But I absolutely respect the man and all of his accomplishments.  You don’t edit casebooks and make partner at Shook, Hardy, and Bacon unless you’re a brilliant and gifted lawyer.  So when I recently found out that Schwartz cited me in a law review article, I was flattered.  Now, I’m under no delusion that I was cited as an authoritative source or anything of the like.  Here’s a screen cap of the relevant part of the article:

Professor Thornburg recognizes “the quotation, is certainly a disturbing one,” but then suggests that a “closer examination shows that Justice Neely was neither speaking of himself nor endorsing the attitude portrayed in the quotation.” [FN36] Others have suggested that Justice Neely was merely being “ironic.” [FN37] Therefore, it is important to put the quote in greater context.

[FN37]. Justinian Lane, Are “Reformers” Lying or Just Being Sloppy When They Use this Quote?, Tort Deform: The Civil Justice Defense Blog, available at http://www.tortdeform.com/archives/2008/06/are_reformers_lying_or_just_be.html (last visited Apr. 10, 2009) (quoting retraction in ABA Journal, January 1989, in which the Journal stated, “Neely was using an ironic style to mimic the unspoken rationale he feels some judges use to rule for plaintiffs. The quote does not reflect Neely's personal position on the matter, and the Journal regrets inadvertently distorting his views.”).

The title of the law review article is “WEST VIRGINIA AS A JUDICIAL HELLHOLE: WHY BUSINESSES FEAR LITIGATING IN STATE COURTS,” and it appears in the Spring 2009 issue of the West Virginia Law Review.  The cite is 111 W. Va. L. Rev. 757.

The law review article was also co-authored by the President of the American Tort Reform Association (ATRA) and another lawyer at Shook, Hardy, and Bacon.  I’ve spent so many years bashing the ATRA but I had no idea that its President and its General Counsel actually noticed.  That they would even mention me in a law review article is even more surprising.  Certain other players in the “reform” movement are loathe to write my name, and when they link to me, they have to do so via TinyURL or some other link-shortening service so they don’t give my web sites any “link juice."  Kudos to the gentlemen at the ATRA for not playing such childish games.

And thank you for citing to me, even if to disagree with me.  Many law students cite Schwartz, but not many can say Schwartz cited them.

(Cross posted at TortDeform.com)

Technorati Tags: Victor Schwartz,Justinian Lane,tort reform,law review,West Virginia,Richard Neely,judicial hellhole

The Rockford Files Predicted The Future

So I just got done watching the final episode of Season 4 from The Rockford Files.  It was a two-part episode that dealt with a shady computer company trying to – get this – setup a database that kept the private financial and criminal records of 200 million Americans.  Those dastardly businessmen had a computer file that would show your bank balance, your credit limits, your criminal history, property you own, and your credit ratings.  Thankfully, Jim Rockford was able to shut them down, in part because they also happened to commit a murder.  I can’t imagine what privacy used to be like.  I recently had the opportunity to use a new service from Westlaw for locating people.  I ran myself, and it showed virtually everything about me that the evil computer company in Rockford tracked.  And I know that lots more is available to people with the right computer access.

Was there really a time when Americans cared so much about their privacy that you could make a TV show where the bad guy was basically the CEO of Equifax/Experian/etc.?  I mean, the bad guy had to commit the murder to protect this secret database that was being built in a missile silo so no one would know it existed.  Today, a CEO wanting to build a database like that would be welcomed with open arms and tax breaks for creating new jobs and providing useful analysis tools to the financial sector.

I think I’ve written about it before, but I have an unrealistic dream.  One day, I hope to be financially self-sufficient such that I have no need for credit in any form.  Then, I hope to sue the major credit reporting agencies for violating federal law (which they do fairly often) with regard to my credit history.  Instead of collecting money, I want to enter into a settlement with them in which they agree to never carry any information about me whatsoever.  On a scale of one to ten, I wonder just how unrealistic that is.  I  bet a seven.

Food for thought on the day before our Independence Day.

Technorati Tags: The Rockford Files,privacy,credit reporting agencies,the 70's

Lots of Documents Produced During Discovery in Duragesic & Fentanyl Lawsuits

At my Dangerous Drugs web site, I’ve posted quite a few documents produced during discovery in product liability lawsuits against the makers of the Duragesic fentanyl patch.  They really shed some light on how these defective patches were made and made it onto the market.  I’ll be posting more in the near future, but here are some of the best so far:

• Production records and internal investigation reports about Duragesic manufacturing processes.
• An expert report from a Duragesic lawsuit explaining how fentanyl patches can kill
• A deposition from the same expert witness in a Duragesic lawsuit
• An expert report based upon the Duragesic production records linked to above.
• A deposition of the inventor of the Duragesic fentanyl patch – watch him be evasive.
• The FDA inspection report of the Duragesic lawsuit.  This only came out because of the Duragesic lawsuit.
• Details about the Bodolay 1 machine that made Duragesic patches.
• A deposition that explains Duragesic quality control inspectors had to visually inspect 4 patches per second!

The more I read about the fentanyl patch, the more convinced I am that it’s a dangerously defective product.  I’m very thankful these documents became public thanks to several Duragesic lawsuits.  Separate and apart from compensating the victims of defective products, these lawsuits help keep the public informed about the processes and procedures companies use to make pharmaceutical products.  As I turn up more documents, I’ll keep posting them.   Keep watching this site and my Dangerous Drugs website for more.

Technorati Tags: Duragesic,Fentanyl,Duragesic lawsuit,fentanyl lawsuit,discovery documents

Was the Texas Supreme Court being ironic, or trying to add insult to injury?

I'm working on a memo regarding the admissibility of expert testimony in Texas.  The leading federal case is Daubert v. Merril Dow Pharmaceuticals, a case about whether Benedictin causes birth defects.  The U.S. Supreme Court excluded the plaintiffs' scientific evidence, holding it to be too unreliable.  (It wasn't, but that's another argument.)

The Texas Supreme Court got to do the same thing in Merril Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).  In Havner, the court rejected the plaintiffs' scientific evidence.  In the Havner opinion, the Texas Supreme Court cited the Bradford Hill criteria as being good epidemiological practice, and explained them in a footnote.  Here's part of that footnote:

"9. Analogy. “In some circumstances it would be fair to judge by analogy. With the effects of thalidomide and rubella before us we would surely be ready to accept slighter but similar evidence with another drug or another viral disease in pregnancy.” (Emphasis added.) 

I don't know who the "we" that would be willing to accept slighter but similar evidence that Benedictin causes birth defects is, but it wasn't the Texas Supreme Court. 

Considering the drama that accompanied the opinion (see below) I can't help but wonder if the justices weren't just sticking their thumbs in plaintiffs' counsels' eyes.

"The specific portions of the “Respondents' Motion for Rehearing” filed in this Court that raise particular concerns are the “Statement of the Case for Rehearing” (pages 1-5), the “Brief of the Argument” (pages 8, 14, and 16), and the “Prayer for Relief” (pages 19-20). Counsel for Respondents Robert C. Hilliard of the firm of Hilliard & Muñoz, Barry J. Nace of the firm of Paulson, Nace, Norwind & Sellinger, and Rebecca E. Hamilton of the firm of White, White & Hamilton, P.C., are hereby afforded the opportunity to respond as to why the Court should not 

1) refer each of them to the appropriate disciplinary authorities; 

2) prohibit attorney Nace from practicing in Texas courts; and 

3) impose monetary penalties as sanctions."

Interesting musical discoveries

If you've read this blog much, you know I'm a U2 fan.  So whenever U2 releases a new album, I buy it without even listening to it - I know I'll like at least most of the songs on it.  You've probably got a band like that, too.  The only trouble with buying albums "sound-unheard" is that you're predisposed to like it because you know it's from a band you like.  But have you ever ended up buying (or just liking) music that you didn’t know was actually a band you were already predisposed to like?  That doesn’t happen terribly often to me, but today I found out it did.

So way back in the day, I liked the show Twin Peaks.  I also liked the theme, and some of the songs in the show.  Those songs were composed by Angelo Badalementi.  I liked Twin Peaks in 1990 or 1991.  Fast forward a few years until a song called Laid by a band called James was pretty popular for a couple of months in either 1993 or 1994.  It's a silly little sex song, written back before lyrics like "skeet skeet skeet" were allowed to be on the air.  But anyway, I liked the song enough to buy the album.  As it turned out, I liked the album and bought another one of James' albums.  I wore the hell out of them for a couple of years, but either lost or scratched them and then forgot about them.  I found out today that the guy who produced the James album Laid was Brian Eno.  Brian Eno is of course the man behind some of the best U2 albums ever, including the magical "The Joshua Tree" album.

Fast forward to 1997.  I was just starting to get into electronic music, and bought an album called "Wired: New Directions in Dance."  It had many, many, many wonderful songs on it, including one called Dance of the Bad Angels.  It was probably my favorite song on the album.  It was performed by "Booth and the Bad Angel," a band I had never heard of before.  Today, I found out that Booth was Tim Booth, lead singer of James, and the Angel was Angelo Badalamenti.  No wonder I liked it.

Fast forward to 2000 and the Leonardo DiCaprio movie "The Beach."  I never saw the movie, but I still remember seeing the preview for it in the theater.  I remember because there was a scene where Leo was supposed to be all badass pulling himself up through a trapdoor, and the entire movie theater burst into laughter.  The Leo as action hero meme never took off.  While I didn't see the movie, I did get a copy of the soundtrack from a friend, and I liked a song on it called "Beached," which was by Orbital.  Turns out that it wasn't only by Orbital, but it was also by Angelo Badalamenti.

But wait, there's more. 

Back in 1995, there was a movie called Hackers starring a very young, pre-surgical enhancement Angelina Jolie.  The movie was OK, but during the opening sequence of the film, (at about 2:05) there was a very cool trance song that I would later learn was callled Halcyon +on + on, by Orbital… and Orbital also had a track on Wired: New Directions in Dance.

Anyway, I’m assuming you can tell by now that I’m very bored.  I’m putting off finishing up a torts paper that’s due at the end of the month and somehow got sidetracked into all of this.  So I thought I’d share with all four of my readers the weird game of Six Degrees of Musical Separation I played today.

What Amazon needs to do to win over the student crowd with the Kindle

Saw this article about the cost of ownership issues with the new Kindle:

The Kindle DX runs you $489 as an upfront investment, and the average student spends $488 on new and used course materials a year. In a nutshell, Amazon is asking the average student to fork over more money for the Kindle and then buy the textbooks too.

Add it up and the average student is losing money on the Kindle DX in that first year. Let's say Amazon can halve your textbook costs to $250 a year--you'll still be shelling out nearly $750 in year one.

Over two years, a student will still be behind on the Kindle DX return. Going the paper route on textbooks yields a two-year cost of $976. But the Kindle still runs you $13 more over two years.

Source: With Kindle, why is Amazon blind to Wi-Fi? | Wireless - CNET News

One of the problems the article points out is the used book market and how students buy used books then sell them back since most students don’t want to keep their textbooks forever. 

So here’s the solution: Work with the publishers to rent textbooks on a per-semester basis.  At the end of the semester, the books expire and can’t be used.  Done properly, this could eliminate the used textbook market, a market that publishers and authors hate because they don’t make anything from it.

I’d much rather pay $25 or $50 to rent the book for a semester than play the book buyback game.  Especially since I usually lose it.  For example, I bought one book for a small class that set me back $130, and they only had it new.  I sold it back for $20.  Net cost to me was $110.  If I could have paid $75 to rent the book for the semester, I’d have done it.  And sometimes the used prices are so screwy that I just buy new to begin with: When the book is $80 used (and scribbled in) or $100 new, I usually just pay full price.  When I sell the book back, I usually only get back 30 to 40% of the price. 

There already are some book rental services, but they require me to deal with shipping and have limited selection.  E-textbook rentals could eliminate both problems.  Plus, the money I’d spend on renting the textbooks would compensate authors, and not bookstores who rape me on used books.

Technorati Tags: Kindle,Amazon Kindle,textbooks,textbook rentals

Blogging from my new Mini 9

Wow, I haven’t written in a while.  Things have been busy with law school, and now I’m prepping for my last two finals: Crim Pro 2 and Class Actions.  But I thought I’d take a break to get stuff setup on my Mini 9.  It’s a Dell netbook, and so far I like it.  The keyboard takes some getting used to, and it’s not the fastest system in the world, but it weighs something like 2.5lbs and has no moving parts.  No cooling fans, no spinning hard drives, nothing.  That makes it very quiet and in theory, very reliable.  I got mine in black, and from the Dell Outlet for $125 less than new.  Considering it has the same warranty as new, buying from the Outlet is the smart thing to do.

If you’re in the market for a netbook and want one with a solid state hard drive, go with the Mini.  The HP one is nice, but the VGA output requires a weird cable that no one sells.