Law Commons^™

Diversity In Mdl Leadership: A Field Guide, Elizabeth Chamblee Burch

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Multidistrict litigation (MDL) includes some of the most high-profile torts of our day—opioids, talc, RoundUp, to name a few—but the attorneys who spearhead these proceedings often look a lot like they did fifty years ago: predominately white and predominately male.

A debate has emerged over whether attorneys best positioned to fill MDL leadership roles are the grizzled repeat players who appear time and again—and who are largely white, older, and male—or newcomers with fresh ideas and energy who may not always look like their predecessors. And if diversity is important, what kind of diversity matters?

In this short essay, I …

Mdl Revolution, Elizabeth Chamblee Burch, Abbe Gluck

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Over the past 50 years, multidistrict litigation (MDL) has quietly revolutionized civil procedure. MDLs include the largest tort cases in U.S. history, but without the authority of the class-action rule, MDL judges—who formally have only pretrial jurisdiction over individual cases—have resorted to extraordinary procedural exceptionalism to settle cases on a national scale. Substantive state laws, personal jurisdiction, transparency, impartiality, reviewability, federalism, and adequate representation must all yield if doing so fulfills that one goal.

Somehow, until now, this has remained below the surface to everyone but MDL insiders. Thanks to the sprawling MDL over the opioid crisis—and unprecedented opposition to …

Information For The Common Good In Mass Torts, Elizabeth Chamblee Burch, Alexandra D. Lahav

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In recent years, judges have privileged confidentiality over transparency in discovery, especially in large scale multidistrict litigation such as the Opiate litigation. By uncovering the assumptions underlying our current regime, this Article sheds light on the process that got us here as a first step towards re-envisioning the rules governing information in litigation. We investigate an untold history of discovery’s publicity to show that many of our assumptions about what is public and what is private is historically contingent, even accidental. So too are our assumptions about the best way to arrive at truth.

Accordingly, we suggest that courts ought …

Ensuring Government Accountability During Public Health Emergencies, Fazal Khan

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The main argument of this Article is that the gravest threat to civil liberties during a public health emergency (PHE) stems from federal powers premised on post-9/11 national security justifications, not putative state powers under the Model State Emergency Health Powers Act (MSEHPA). While I concur with earlier assessments that the MSEHPA is seriously flawed and that PHEs should be construed as primarily federal issues, going forward, more critical attention needs to be focused on the federal role during PHEs as the initially alarming MSEHPA appears to be more of a paper tiger. First, as the responses to Hurricane Katrina …

Paging King Solomon: Towards Allowing Parents To Donate Organs Of Anencephalic Infants, Fazal Khan, Brian Lea

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In October of 1987, Canadian doctors artificially sustained the life of an anencephalic infant so that her organs could be transplanted into another child, touching off a fiery debate. At the request of her parents, doctors connected Baby Gabrielle, who was born missing most of her brain, to a respirator before flying her to Loma Linda, California, where her heart was transplanted into the world's youngest recipient of a heart transplant. While Baby Gabrielle's parents insisted that their daughter's organs be used in this manner and were presumably happy with the resulting transplant, one of Baby Gabrielle's doctors expressed qualms …

Amicus Brief, Lebron V. Gottlieb Memorial Hospital, Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Neal R. Feigenson, Lucinda M. Finley, Marc Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H. Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne Martin, Frank M. Mcclellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, Richard W. Wright

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Illinois Public Act 82-280, § 2-1706.5, as amended by P.A. 94-677, § 330 (eff. Aug. 25, 2005), and as codified as 735 ILCS 5/2-1706.5(a), imposes a $500,000 “cap” on the noneconomic damages that may be awarded in a medical malpractice suit against a physician or other health care professional, and a $1 million “cap” on the noneconomic damages that may be awarded against a hospital, its affiliates, or their employees.

This brief will address two of the questions presented for review by the parties:

1. Does the cap violate the Illinois Constitution’s prohibition on “special legislation,” Art. IV, § 3, …

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal Khan

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Given the tremendous financial reward that a blockbuster therapy might generate, there are strong incentives to move drug research and development to developing countries, which have minimal ethical guidelines and little transparency. The danger in this race for the prize--or for the bottom--is the exploitation of subaltern populations that have little legal recourse to hold drug companies accountable for the harm that those populations suffer as a result of unethical clinical trials. In other words, the drug industry is acutely aware that there is a minimal threat of costly civil suits and criminal sanctions for their ethical violations in impoverished …

Georgia's Professional Malpractice Affidavit Requirement, Robert D. Brussack

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Section 9-11-9.1 of the Georgia Code might be the state's most notorious procedural statute. Enacted in 1987 to protect professionals against the harm done by groundless malpractice litigation, the statute provides that a professional malpractice claim ordinarily must be accompanied by an affidavit executed by an expert. In the affidavit, the expert must substantiate the claim by attesting that some act or omission alleged in the claim was a negligent act or omission--a departure from a professional standard of conduct. During the past decade, Georgia's appellate courts have returned again and again to the problem of what section 9-11-9.1 means, …

Implementation And Impact Of The Patient Self-Determination Act, Denise C. Park, Thomas A. Eaton, Edward J. Larson, Helen T. Palmer

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The Patient Self-Determination Act became effective in December 1991 and mandates that patients be given information about legal rights regarding living wills and durable powers of attorney for health care. We investigated the impact this law has had on hospitals, medical personnel, and patients. We conducted a survey of all hospitals in the state of Georgia, collecting data regarding implementation and knowledge of the law, as well as effects of the law and beliefs about it. The data indicated that hospitals relied primarily on the Georgia Hospital Association for implementation policy, that "minimalist" implementation of the law occurs in most …

Experimenting With The "Right To Die" In The Laboratory Of The States, Thomas A. Eaton, Edward J. Larson

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The purposes of this Article are twofold. Our first purpose is to reexamine the legal foundations of a patient's right to refuse treatment. The Court's equivocal handling of the federal constitutional issues in Cruzan v. Director, Missouri Department of Health invites a closer look at state constitutional, statutory and common law. The source of the underlying right will affect state experimentation with substantive and procedural rules in this area. Our second purpose is to describe the current status of the states' experiments with the right to die. That is, we elaborate in more detail on the state constitutional, statutory and …

Human Gene Therapy And The Law: An Introduction To The Literature, Edward J. Larson

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This essay will review introductory selections on the law of human gene therapy in the context of four common starting points: the discovery of DNA structure, past efforts to regulate genetic engineering, America's experience with eugenics, and historical, constitutional, or cultural values.

Immunity Doctrine, Efficiency Promotion, And The Applicability Of Federal Antitrust Law To State-Approved Hospital Acquisitions, James F. Ponsoldt

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The question whether hospitals should be regarded as private businesses, or alternatively as public utilities, in order to maximize productive and allocative efficiency, remains controversial. In recent years, the ability of American hospitals and doctors to provide excellent health care services has been hindered by rising costs and distribution problems. This combination of rising costs and decreased distribution has prevented medical services from reaching the portion of the American population that has the greatest need for these services.

In response to these problems, Congress in 1974 passed the National Health Planning and Resources Development Act (NHPRDA). The NHPRDA is designed …

Res Ipsa Loquitur And Medical Malpractice In Georgia: A Reassessment, Thomas A. Eaton

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Part II of this Article addresses the threshold issue of when a court may consider a medical accident as one that ordinarily does not occur in the absence of negligence. This part criticizes the blanket rejection of res ipsa loquitur in Georgia malpractice opinions. Judicial hostility toward res ipsa loquitur in these cases is based in large part on a misunderstanding of the so-called presumption of due care. This part then explains how an inference of negligence may be harmonized with traditional fault-based malpractice doctrine. Finally, this part addresses judicial concerns about the sufficiency of evidence. It is argued that …

"Body-Snatching" Reconsidered: The Exhumation Of Some Early American Legal History, Walter Hellerstein

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The "heroic age of anatomy" in America was that era, prior to the general enactment of laws legalizing the procurement of cadavers for medical purposes, during which students of medicine (as well as profit-seeking professionals) resorted to the illegal practice of "body-snatching" in order to obtain dissection material for medical studies. This period, which extended form the late seventeenth to well into the nineteenth century, was marked by frequent riots resulting from a deep-rooted public hostility towards grave-robbing and dissection. This hostility was rarely tempered by any understanding of or sympathy for the purposes for which the "resurrectionists," as they …