New cases re-examine pre-emption; questions persist after the Cipollone ruling

Article Abstract:

The pre-emption doctrine has become a point of dispute between plaintiffs' lawyers trying state tort law cases and defense lawyers citing federal regulation of their clients' industries to shield them from state tort law claims. Advocates of implied federal pre-emption also argue that uniform national standards are needed for industry and that differences in state tort law make these difficult to achieve. Advocates of state tort law argue tort remedies are needed for public protection. Supreme Court cases since the Cipollone holding in favor of implied preemption have not added much clarity.

Exclusive and concurrent legislative powers, Preemption (Legislative power), Torts

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Medical malpractice; changing medical malpractice liability will not reduce health care costs

Article Abstract:

Pres Bill Clinton's health care reform proposal adopts the flawed argument that medical malpractice litigation has a substantial bearing on health care costs. The connection between the two is minimal. According to a 1992 Congressional Budget Office report, less than 1% of US health care costs are spent on malpractice litigation. Clinton wants to mandate medical malpractice claims going to arbitration, when experience shows this adds to costs and delays compensation to injured individuals. Medical costs must not be contained by adopting a program which may have the opposite effect.

Analysis, Cases, Physicians, Medical personnel, Malpractice, Health care reform, Medical malpractice

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When are science experts really expert? Courts split

Article Abstract:

Federal appellate courts disagree on the scientific consensus necessary for an expert opinion to be admissible in court. Federal Rule of Evidence 702, which admits any expert evidence aiding the jury to determine the facts, was drafted without stating whether it overruled Frye v United States, which refused to admit evidence due to a lack of scientific consensus. Opponents of Frye argue that the ruling is so narrow as to interfere with the constitutional right to a jury trial. Toxic torts litigation has given rise to most of the expert evidence debate.

Evidence, Expert, Expert evidence, Toxic torts

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