No option for those killed or injured by medical devices

When it comes to scrutinizing the use of new medical devices, the FDA has fallen down on the job.

Two new studies find shortfalls in the Food and Drug Administration's approval process for heart devices such as pacemakers and stents. Safety targets often weren't clearly spelled out in the research submitted by device makers and important patient information was missing. . .
If you are killed or injured by a defective medical device, you can still sue the manufacturer though, right? No longer true. State products liability suits are no longer available. They have been preempted by the U.S. Supreme Court case of Riegel v. Medtronic. These two revelations demonstrate that safety of consumers of medical devices is not the highest consideration of lawmakers.

Continue ReadingNo option for those killed or injured by medical devices

Kelo vs. New London revisited

Remember the case of Kelo vs. New London? Briefly, it was a case in which homeowners including Susette Kelo sued their municipality to stop it from taking their homes using the power of eminent domain. The city wanted to raze the homes and redevelop the area, making it shiny and new to complement the anticipated Pfizer pharmaceutical research facility. After all, one musn't allow the shabby dwellings of the peasantry to mar the image of success and corporate uniformity that one is trying to project:

So, the politicians picked a 24-acre lot and sold it Pfizer for $10, adding on special tax breaks. Also, state and local governments promised $26 million to clean up contamination on the lot and a nearby junkyard. But Pfizer executive David Burnett thought New London needed to do some more cleaning. "Pfizer wants a nice place to operate," the Hartford Courant quoted Burnett in 2001. "We don't want to be surrounded by tenements." The old Victorian houses in the Fort Trumbull neighborhood next door did not match Pfizer's vision - a high-rise hotel or luxury condominiums would be more fitting.

Continue ReadingKelo vs. New London revisited

California court declines to publish anti-camera decision

Many of us have been caught by those increasingly ubiquitous red-light cameras. Police departments and local governments argue that these sorts of cameras improve safety and increase revenue. Studies are increasingly putting the lie to the safety claim, but nobody's disputing that these traffic enforcement mechanisms bring in revenue. The Wall Street Journal reported in March that

... a study in last month's Journal of Law and Economics concluded that, as many motorists have long suspected, "governments use traffic tickets as a means of generating revenue." The authors, Thomas Garrett of the St. Louis Fed and Gary Wagner of the University of Arkansas at Little Rock, studied 14 years of traffic-ticket data from 96 counties in North Carolina. They found that when local-government revenue declines, police issue more tickets in the following year. Officials at the North Carolina Association of Chiefs of Police didn't respond to requests for comment.
California state law prohibits compensation to operators of these red-light cameras based on the number of tickets issued. Localities have been side-stepping this law through "cost-neutrality" provisions, which allow the cities to pay the operators up to a certain monthly amount. After that cap is reached, the city keeps all the revenue beyond that point. The intent of the law is to remove an incentive to ticket as a means of increasing revenue to the private operators. There is now a second appellate court ruling that has struck down the red-light programs as illegal under the state law.

Continue ReadingCalifornia court declines to publish anti-camera decision

Rage and Injustice

When people ask why laws must be changed to protect behavior that seems "outside" social norms, it can sometimes be difficult to make the point that rights must accrue to individuals and their choices or they mean nothing. So when a woman is stoned in some backwater country for adultery (whether she is in fact married or not) or a young girl has her clitoris snipped off without having any say in the matter or when a child is allowed to die from a treatable illness because his or her parents believe that only prayer can save them or when people are denied basic civil rights because they don't play the social game the same way as everyone else or--- If this were an issue of a racially mixed marriage, everyone would be aware and outraged. In this case it is not, it is a lesbian couple with children, who suffered a dual outrage---the first being denial of partner's rights at the hospital where one perished and the second being the dismissal of a lawsuit brought by the survivor against those who callously disregarded their basic humanity. The assumption by strangers that because they didn't fit some cookie-cutter definition of Normal that their fundamental humanity could be abridged in a life and death situation is not something that is redressable other than by law, because without a law people will make up any old justification to be assholes. And without a law, the rest of us will let them get away with it. Read the story. Be outraged. But do not be silent.

Continue ReadingRage and Injustice

Scalia’s thought process: “Well, he probably did something else wrong anyway.”

Way back in 1989, I happened to be watching Episode Two of a PBS series entitled "Ethics in America." It was a terrific 10-part series that considered compelling topics in ethics. Supreme Court Justice Antonin Scalia was a participant in Episode Two. You can see all of the episodes, including Episode Two here (click on the little "VoD" button next to Episode 2). You might be wondering how I could possibly remember a particular comment from a particular episode from 20 years ago. I do remember: it was burned into my memory because it was so utterly bizarre. At about the 31-minute mark, the moderator (Charles Ogletree, Jr.) posed a hypothetical. What if you were an attorney and your client told you that he committed a murder a couple years ago? The clear answer is that the attorney-client privilege protects that admission; if you were that man's attorney, you could not tell anyone else what your client told you in the course of your consultation with him. Things got much more interesting, as the moderator elaborated on the hypothetical. Assume that your client tells you that after he committed the murder, the police erroneously arrested the wrong man. Further, assume that man has been found guilty by a jury and he is scheduled to be executed. As the attorney, what can you do to protect the life of an innocent man who is about to be executed for a crime committed by your own client who is confessing his guilt to you? This is a tough issue, right? At the moment where the moderator indicated that the innocent man was about to be executed for a crime he didn't commit, Justice Scalia spoke up: "Well, he probably did something else wrong anyway." You can see and hear this statement for yourself at 31:50 in the video. Although I'm certain that Justice Scalia would claim that his utterance was a "joke," (after all, other participants laughed), it makes you wonder, especially in light of a recent case decided by the United States Supreme Court, In re Davis.

Continue ReadingScalia’s thought process: “Well, he probably did something else wrong anyway.”