Fosamax: 2d bellwether case dismissed

Osteonecrosis of the jaw is a widely reported phenomenon among patients taking bisphosphonates - the class of drugs to which Fosamax belongs.

In 2005 Merck, with FDA approval, changed its label, adding this Precaution:

Dental

Osteonecrosis of the jaw, generally associated with tooth extraction and/or local infection, often with delayed healing, has been reported in patients taking bisphosphonates. Most reported cases of bisphosphonate-associated osteonecrosis have been in cancer patients treated with intravenous bisphosphonates, but some have occurred in patients with postmenopausal osteoporosis.

Known risk factors for osteonecrosis include a diagnosis of cancer, concomitant therapies (e.g., chemotherapy, radiotherapy, corticosteroids), poor oral hygiene, and co-morbid disorders (e.g., pre-existing dental disease, anemia, coagulopathy, infection).

Patients who develop osteonecrosis of the jaw (ONJ) while on bisphosphonate therapy should receive care by an oral surgeon. Dental surgery may exacerbate the condition. For patients requiring dental procedures, there are no data available to suggest whether discontinuation of bisphosphonate treatment reduces the risk for

ONJ. Clinical judgment of the treating physician should guide the management plan of each patient based on individual benefit/risk assessment.

The American Association of Oral and Maxillofacial Surgeons, in a Position Paper on Bisphosphonate-Related Osteonecrosis of the Jaws Approved by the Board of Trustees September 25, 2006 expressed the conviction of practitioners that the hazard was well established for some patients. In legal argot this is evidence in favor of "general causation" - that the drug can have the toxic effect in at least some patients.

The first of the 950 Fosamax cases to be selected for trial in the consolidated Multi District Litigation was declared a mistrial because of a bitter interpersonal conflict within the jury. The second - Bessie Flemings v. Merck - pitted a 73 year old cancer patient against Merck. U.S. District Judge John Keenan - manager of the cases - dismissed Fleming's case after a Daubert motion narrowed the class of cases which he deemed were sufficiently supported to go to a jury.

The court was dismissive of the quality of the medical evidence. Keenan found that plaintiff's dentists had not presented adequately reasoned opinions linking Fosamax to Fleming's affliction - one to which cancer patients are particularly prone. The treating physicians' `subjective belief' was inadequately supported by reasoning and could not establish the necessary individual causal link ["specific causation"], Keenan ruled.

Particularly sensitive patients are very risky for plaintiffs. While the vulnerability of the plaintiff is appealing, the presence of a strong pre-disposition is very dangerous for proof of the drug's causal role. Weak dose-response evidence often proves fatal unless the biological mechanism strongly implicates the drug. That was fatal to Flemings' claim - and is an ill omen for the upcoming plaintiffs. Judge Keenan finished the job he began in July 2009. He ruled then in Daubert motions that plaintiffs had no proof sufficient to establish that stopping Fosamax led to any improvement in patients with active osteonecrosis.

Plaintiff does not provide the Court any scientific literature or studies that would support Dr. Rose’s theory of causation. Through the course of this multi-district litigation, other experts have opined based on scientifically valid methodologies that Fosamax can cause ONJ. However, nowhere in its opposition to Defendant’s motion for summary judgment, or in the exhibits attached thereto, does Plaintiff provide the Court information regarding Dr. Rose’s theory — that a patient’s ONJ would heal soon after she stopped taking Fosamax only if in fact the injury was caused by the drug.5

5 The Court observed in its ruling on the parties’ Daubert motions that the Plaintiffs’ Steering Committee and its experts “did not defend the reliability” of a similar theory — that a “drug holiday” before dental surgery reduces the risk of developing ONJ. In re Fosamax Prods. Liab. Litig., No. 06 MD 1789, 2009 WL 2222910, at *31 (S.D.N.Y. July 27, 2009). The Court therefore granted Merck’s motion to preclude testimony that “cessation of Fosamax treatment is appropriate before major dental surgery.” Id.

Complete opinion dismissing Bessie Flemings v. Merck & Co., Inc., November 26, 2009, SDNY, 1:06-cv-7631 (JFK)

Resources:

Medline Plus: Fosamax (alendronate) page [National Institutes of Health]

FDA Postmarket safety page

Journal of Oral & Maxillofacial Surgey

Fosamax: Inventing a diagnosis, creating a blockbuster drug

Pillbox Biography: The Creation Of A Blockbuster Drug - NPR

With millions of women affected by osteoporosis, Merck knew it had a potential blockbuster drug when it developed Fosamax. The problem: A lack of bone density scanners and high costs meant not many women were getting diagnosed. Merck worked hard to make bone scan machines cheaper and more prevalent — and was wildly successful. By 2005, Fosamax sales peaked at almost $3.2 billion worldwide. Medicare claims for bone screening exams continued to increase, reaching 2.8 million in 2007. The drug went off patent in 2008. Currently, Congress is considering reducing Medicare payments for many types of scans.

How Merck did it - NPR

1992 World Health Organization osteoporosis meeting coins term osteopenia

1993 Fosamax approved in Italy

1994 Fosamax approved in Mexico

1994 77,000 file for Medicare reimbursement for mineral density studies

1995 Merck creates the Bone Density Institute

1995 Fosamax approved by FDA

1995 Only 1,000 U.S. sites have bone density testing machines

1997 Fosamax approved by FDA for preventive use Merck SEC filing says number of eligible women increases from 20 million to 39 million

1997 Pres.Clinton signs Bone Mass Measurement Act requiring Medicare to pay for bone density studies for post-menopausal women

4,000 sites have capacity to measure bone density

1998 Bone Mass Measurement Act goes into effect

1999 1.25 million women file Medicare claims

2000 Fosamax sales are $1.2 billion

2004 2.6 million women file Medicare reimbursement claims

Jeremy Allen - Merck strategist:

Images: graph - NPR, photos: Coburn Dukehart/NPR

Katie Benghauser, 57, has been diagnosed with osteopenia and takes Fosamax as treatment to prevent osteoporosis; Jeremy Allen

Drug problems: Menopause

Menopause, as Brought to You by Big Pharma

By NATASHA SINGER and DUFF WILSON

New York Times - Published: December 13, 2009

Lawsuits and internal documents show how Pfizer and its predecessors promoted the idea of taking hormone drugs.

Lauren Hutton video

Wyeth video on menopause

In re: Prempro Products Liability Litigation. Donna Scroggin, Plaintiff/Appellant, v. Wyeth, and its divisions; Pharmacia & Upjohn Company, L.L.C., Defendants/Appellees, 8th Cir., 2009 Opinion

Pfizer petition for rehearing and hearing en banc

Menopausal Hormone Litigation Documents

China: Jerome Cohen on Akmal Shaikh execution

NYU law professor Jerome Cohen, in an opinion piece in the South China Morning Post, laments China's courts' refusal to allow psychiatric evaluation of the defendant in the drug smuggling prosecution of a British citizen, Akmal Shaikh, who is to be executed tomorrow. China's obstinacy in the face of an appeal by British Prime Minister Gordon Brown on behalf of the UK citizen has drawn much criticism.

Cohen observes:

in some recent highly publicised capital cases, in which mentally disturbed defendants were charged with heinous offences such as multiple murders, the Supreme People's Court failed to insist on psychological evaluations in accordance with fair procedures. Last year's execution of police-killer Yang Jia is only the most notorious illustration.

Yet, Chinese courts have sometimes met the challenge. Several years ago in Beijing, for example, an American, ultimately diagnosed as a paranoid-schizophrenic, killed his Chinese wife because of the delusion that she was poisoning him. The trial court called for a thorough examination by experts at a local mental hospital.

Sadly, it is now too late for a similar evaluation in Shaikh's case, although British clemency pleas may yet succeed. In any event, the National People's Congress should enact legislation that will confirm detailed procedural protections to guarantee a fair and accurate mental assessment whenever the defence reasonably requests.

China's leaders continue to affirm their commitment to advancing the rule of law, so I welcome the passage of the tort law which I translated, and welcome the recent vigorous legislative discussion of the State Compensation Law - a means of redress for governmental misconduct.

But China's leaders are equally committed to disappointing those of us who want to see adherence to the norms that we have come to consider elementary. The other day Lu Xiaobo, author of a liberal manifesto, was sentenced to 11 years in prison for incitement of subversion under Art. 105 (2) of the Criminal Code. The judgment was by a court of the first instance and is subject to second instance trial and appeal.

But there is little reason for optimism that liberal advocacy such as Lu's will be tolerated, given the breadth of the statute's prohibitions. Banned are efforts to subvert the socialist system by "publishing, printing, reproducing, disseminating or airing publications", according to an Interpretation by the Supreme Peoples Court. ( 最高人民法院关于审理非法出版物刑事案件具体应用法律若干问题 的解释)."

Similar advocacy was criminalized in America 60 years ago in the Smith Act under which the leaders of the Communist Party were tried and convicted in U.S. v. Dennis. This law was determinedly beaten back by the Communists, their sympathizers, but more consequentially by civil liberties advocates, and, ultimately, the members of the United States Supreme Court who in the Yates case, 354 U.S. 298 (1957) limited prosecution to speech which presented a clear and present danger. Finally, in Brandenburg v. Ohio (1968) the United States Supreme Court limited criminal prosecution to speech "likely" to produce "imminent" lawless action.

The prospects for successful push back against anti-libertarian measures in China is markedly poorer than it was in the United States. The Chinese constitution's rights measures are not guaranteed by a court system that has neither a tradition of autonomy nor of using the Constitution to provide protections not afforded by legislation. That a legislative majority can amend the Constitution of China deprives the courts of a foundation for independent interpretive judgment.

Nor does China have the tradition of the trial as contest that is embedded in the 6th Amendment to our Constitution. The right to counsel, to confrontation of witnesses, to compel favorable testimony are not similarly embedded in Chinese criminal law or practice. It is the lack of the tradition of the trial that perhaps most dramatically divides our criminal justice system from China's. The things that flow from that - autonomous bar organizations and a bar committed to preserving the right and duty of vigorous advocacy - are absent in China. Disappointment is likely our fate - but for us, as observers, it matters little. For citizens of China the consequences are great.

Images: Akmal Shaikh, Gordon Brown, Jerome Cohen

5 more death sentences in Xinjiang riot killings

5 more death sentences have been announced bringing to 22 the number of people sentenced to death in the ethnic street violence early this year in Xinjiang between Uighurs and Han. It appears that the violence was initiated principally by Uighurs and that the bulk of the victims were ethnic Han who are the overwhelming majority of China's citizens. Nearly 200 died in the strife. This group of condemned is reported to be Uighur.

The Times account is HERE

Pitfalls of fame: Tiger's not alone

New York Times: Opinionator

Doug Glanville, who played for the Cubs and the Phillies from 1996 - 2004, points out in his Times column that the tiger pit into which Tiger Woods fell is the product of the deadly sin of pride into which it is particularly easy for a professional athlete to fall.

China: NPC adopts new tort code

The National People's Congress, after the fourth reading, adopted the Tort Law chapter of the revised civil code, Xinhua news Service announces:

The 92-provision law covers liabilities for a range of circumstances, including traffic accidents, medical accidents, work-related injuries, pollution, harm caused by other people's pets and mental distress.

It also covers infringements of personal rights, such as name, reputation, portrait and privacy.

The law, with equal importance with another civil rights law, the Property Law, was endorsed by the National People's Congress (NPC) Standing Committee. It takes effect next July.

The first draft was issued by the NPC in December 2002. The document, though more modest in scope, had a gestation period quite like that of the current (3rd) Restatement of the Law: Torts.

I have translated the first two drafts. Changes in the 3rd draft (tabled in October) and the 4th (final) draft are modest. Links to my work can be found HERE. The complete text (in Chinese) can be found HERE.

TNR: Why the health care bill is the greatest social achievement of our time.

The New Republic

And the Rest Is Just Noise

Why the health care bill is the greatest social achievement of our time.

At some level, it is possible to understand the roots of liberal frustration. The machinery of Congress has ground away at the health care bill, as it does to almost any bill. But at a broader level, the liberal mood is insane. What has emerged from that machinery is not merely “better than nothing” or “a good start.” It is the most significant American legislative triumph in at least four decades. Why can so few people see that?

- Jonathan Chait

For his full reasoning click HERE.

Thanks for the tip to James Fallows. Embarrassing to admit, but James Fallows only grabbed my attention about a year ago. Better late than never. It was his analysis of the Democratic primary debates in The Atlantic that got my attention. Then I found his blog - and his observations during the last of this three years in China and I was hooked. No regrets.

Legal aid lawyers: Congress lifts bar on attorneys fee awards for federally funded Legal Services Corp. lawyers

It is easy for progressives to draw false conclusions from the superficial reports of the "mainstream media". One of those false conclusions is that "nothing has happened". Actually a lot has happened - if you count that the economy is now in a stall rather than collapse.

But there is much more. One small item is an important reversal of a Reagan-era assault on Legal Services: the bar on recovering attorneys fees when a federally funded legal services organizations wins a case asserting citizens's rights.

The Congress has passed and President Obama signed on December 16 a repeal of that punitive statutory bar. The measure also increased Legal Services' federal funds from $390 to $420 million. It is not the $750 million proposed by Senator Tom Harkin  [D. Iowa] - the pre-Reagan funding level - but it is a step forward.

Legal Services programs continue to suffer from the collapse in the markets which deprives them of interst on lawyers trust accounts.

Thanks to the Brennan Center at NYU for helping to lead the charge on this issue.

Interactive guide to Recent Republican Sex Scandals

Thanks to Talking Points Memo

I considered that this is really low. It's unfair. What about Eliot Spitzer, and the Diamond rated escort who now has her own column or something? But what the F. It's pretty funny. And look at the hammering we took for Bill Clinton's peccadilloes, which forced us to defend him when we really wanted to smack him for putting us in that position.

Straight No Chaser - The Spirit of Christmas

on NPR Obama defends health reform bill as historic

President Barack Obama, in an interview with NPR, pushed back against those on the left who complain that the health care bill about to be voted by the Senate is fatally flawed because it lacks a government insurance plan - a "public option". It is the biggest reform since Medicare, perhaps Social Security, says the President, slipping uncharacteristically into hyperbole. The transcript is HERE.

I agree with Paul Waldman of the American Prospect. Although it is galling to be forced by the likes of Joseph Lieberman and the cloture rule to take a big bite out of what a majority is ready to embrace, Waldman explains:

For all its weaknesses, even the Senate's version of health reform, which would hopefully move more in the direction of the House's version when the two are merged in conference, contains an extraordinary number of beneficial features. (You can find an excellent summary of both bills here, from the Kaiser Family Foundation.)

It insures over 30 million more people.

It expands Medicaid coverage.

It outlaws denials for pre-existing conditions, rescission, gender discrimination in premiums, and both annual and lifetime coverage caps.

It provides hundreds of billions of dollars in subsidies for low- and middle-income people to buy insurance.

It makes it so if you lose your job, you don't lose your health insurance.

It forces insurers to allow people as old as 26 to stay on their parents' policies.

It establishes dozens of pilot programs to test new ways of saving money and improving care. All of these provisions, and many others, will substantially improve people's lives.

And the insurance exchange puts in place the structure through which further improvements can be made in the years ahead.

China: NPC begins 4th and final? reading of draft tort code

China's legislature, the National People's Congress, after a month-long period of open public comment in November, has resumed consideration of the draft tort code. It appears there may be some amendments, as the account below suggests. But I have not seen the current draft, described here as the 4th. [I have translated the first and second drafts. Those [and the 3rd draft in Chinese) are available HERE]

China.org.cn reports:

China has more than 40 laws involving tort liabilities, making it difficult to work out a tort law to coordinate all provisions," said lawmaker Ren Maodong.

The NPC Standing Committee sought public opinions on the law through its website from Nov. 5 to Dec. 5, and received 3,468 submissions. Most were positive and urged an early introduction.

However, the draft has been revised following a string of controversial personal rights infringement cases.

On June 27, a 13-floor building collapsed at the Lotus Riverside residential complex in Shanghai, killing a worker. An investigation later blamed the developer, construction company, supervisors and safety inspectors for the accident.

The amendment was then revised for the fourth time for deliberation on whether developers and construction companies should take joint liability for the safety of their buildings.

Last year, Sanlu Group, the dairy company based in Hebei's provincial capital Shijiazhuang, was found to have adulterated its infant formula milk powder with melamine, an industrial chemical, leaving at least six infants dead and about 300,000 others suffering kidney and other problems.

The draft then covered compensation for harm from defective products. It stipulated that victims, especially those who died or whose health was seriously damaged, could seek "punitive compensation" higher than their actual losses, if companies knowingly produced or sold defective products.

Companies that failed to warn customers, recall defective products or take other effective measures to remedy damage, could face civil actions.

In response to medical disputes, the fourth draft version reiterated medical staff should not conduct "unnecessary tests" on patients against clinical criteria despite recommendations to delete this provision because it was too hard to define "unnecessary".

Compensation for mental distress has also been covered, but only those whose life or health were seriously damaged would be entitled to compensation. These include cases in which victims eventually die, are crippled or experience serious psychological damage.

images: NPC in session, Lotus Riverside complex, Shanghai

A privileged minority - the Senate super-majority rule

A minority is blocking the expansion of Medicare, and the government run health insurance company that a large majority of Americans support. The Senate super majority vote rule that sustained segregation now empowers Sen. Ben Nelson to defeat a majority on the issue of government-enabled abortion. It enables Joseph Lieberman to hold out for...what is it that Lieberman wants, really?

James Fallows discusses the filibuster - the now profligately employed ability to prolong debate that has been the nemesis of President Obama, and of Nancy Pelosi, whose majority has beeen rendered nearly irrelevant by the Senate's anti-majoritarian rule.

Would it have been too much even for James Madison, architect of separation of powers? Or is it all that protected us from the Bush-Cheney steamroller?

Paul Starr: Why I support the health care reform bill

The health-care reform legislation pending in Congress would be the largest program on behalf of low- to moderate-income people in the United States since the 1960s.

Besides subsidizing coverage, it would create a new mechanism for purchasing insurance that would give greater buying power to people who now purchase policies individually and through small employers.

It would eliminate pre-existing condition exclusions.

It would enable people to buy policies at the same price regardless of their health (albeit with some allowance for differences in age).

It would raise the standards of coverage for millions of people who are underinsured.

It would represent a commitment by the federal government to make health insurance affordable to every American. And by making that commitment, the government would effectively commit itself to controlling both public and private health-care costs.

Oh, and by the way, according to the Congressional Budget Office, it would reduce the deficit and, according to the Medicare actuary, it would extend the life of the Medicare trust fund.

The full statement by Starr is here. Paul Starr is the author of the landmark The Social Transformation of American Medicine. He teaches at Princeton.

Rockefeller: Howard Dean is Irresponsible and Wrong

"Until now healthcare has been an every 15 - 20 years issue. Now it's going to be every year." I think that is true. We are greatly increasing the number of the insured, bringing nearly all into the system, we take responsibility for all outcomes. We must calculate rather contribution of every sector of the populace (with the exception of the undocumented aliens).

Sen. Jay Rockefeller (Dem. - W. Va.) takes on the pouting Howard Dean with remarkable force and effect:

John Podesta: Why I support the health care reform bill

John Podesta, Chief of Staff in the Clinton White House offers his support, differing with Howard Dean (who I trust will no longer head up the Democratic National Committee as soon as a sufficient jolt of electricity passes to his toilet seat). Appalling spasm of ultra-leftism that has the head of the party stabbing its Congressional leadership in the back.

Here is Podesta's analysis. Excerpts follow:

The Senate health care bill is not without its problems. But if enacted, it would represent the most significant public reform of our health care system that Congress has passed in the 40 plus years I have worked in politics. The bill will give health care coverage to a record 31 million Americans who are currently uninsured, lay a foundation that will begin to lower costs for millions of families, and provide all Americans with the access to adequate and dependable coverage when they need it most.

All of us are anxious to see the final language from the Senate. And a final bill must ensure that the subsidies provided are sufficient to make insurance truly affordable for working families. But based on what we know, here are my top ten reasons for why progressives should support the Senate passing the bill:

1. Largest Expansion Of Coverage Since Medicare’s Creation: Thirty-one million previously uninsured Americans will have insurance.

2. Low/Middle Income Americans Will Not Go Without Coverage: For low-income Americans struggling near the poverty line, the bill represents the largest single expansion of Medicaid since its inception. Combined with subsidies for middle income families, the bill’s provisions will ensure that working class Americans will no longer go without basic health care coverage.

Image: John Podesta and Howard Dean in happier days.

Herbert Bell - Creator of Woodsey Owl passes on

From Mark Edwards at Concurring Opinions comes this reflection on the oddity of the United ("no copyright in government works") States took in claiming proprietary rights to Smokey Bear, Woodsey Owl, and a batch of lame slogans like "give a hoot, don't pollute".

Posted using ShareThis

Politics, not Personal Drama (Failings of the voters)

"I'm pretty darn lefty, but Obama does not disappoint me; he's more honest than most politicians, and is doing pretty much what he campaigned on -- albeit on a bit of an unexpected learning curve, given that most of us saw him only after his campaign had accumulated much skill. But he's a good person whose values are not warped, who doesn't give up, who doesn't believe in the power of speech but of action ... all things more important than his exact political alignment.

On the other hand, in my opinion, based on observations of the last year, we are suffering from a plague of incompetent, irresponsible Democratic voters. Obama is partly responsible for this, on account of his early, slogan-based campaigning...?

READ MORE

This is a brilliant rant by TPM reader BS, which Josh Marshall posted on the Editor's Blog.

Joe Lieberman is not the only one to blame for our malaise. The people can disappoint too. As they are the Sovereign the voters are certainly not above criticism.

It does remind me of Bertolt Brecht's ironic lament after the harsh quashing of the " bread riots" a couple of years after the East German state - the GDR - was created "shall we dissolve the people and elect another.?"

Obama - The Nobel Address

Evoking Martin Luther King's words "the arc of history is long but it bends toward justice", President Obama said today in Oslo:

I receive this honor with deep gratitude and great humility. It is an award that speaks to our highest aspirations -- that for all the cruelty and hardship of our world, we are not mere prisoners of fate. Our actions matter, and can bend history in the direction of justice.

As James Fallows observed this morning Obama characteristically expresses a sense of the contradictions that both limit us and define our opportunities. There is a Niebuhrian sense of sin, realism, and hope in his words:

But as a head of state sworn to protect and defend my nation, I cannot be guided by their examples alone. I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world. A non-violent movement could not have halted Hitler's armies. Negotiations cannot convince al Qaeda's leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism -- it is a recognition of history; the imperfections of man and the limits of reason.

The full text is HERE. Read it. Or watch it HERE

Image: The Telegraph, U.K.

Harold Ackerman, Mensch and Federal Judge is Dead at 81

I sat next to him once on the dais of an event honoring the federally-funded Legal Services program. I asked him who he represented before he became a judge. "The CIO" was the reply. By that remark he stood with John L. Lewis, Walter Reuther, and the sit-down strikers at the Flint, Michigan assembly plants who built the industrial unions which in the 1930's, '40's, 50's and even 60's were seen as the hope of the American working class. Industry-wide unions were built to go mano a mano with GM, U.S. Steel, GE, ATT/Western Electric, and the other giant industrial corporations that were the face of American economic might.

He was a labor lawyer for several years, then a judge for 54. He began as a workers compensation judge in 1955. Beginning in 1965 he served on the Union County District Court, County Court and the Superior Court of New Jersey until 1979 when President Jimmy Carter named him to the federal bench. He served in Newark until his death on December 1, 2009. "I will never retire" he said. And he didn't.

In 1982 he took control of the Essex County Jail, citing inhumane over-crowded conditions that violated the constitutional rights of prisoners and detainees. Judge Ackerman kept it under his jurisdiction for 25 years, aided by Special Masters like Newark labor lawyers Bennett Zurofsky and James Zazzali (a former AG who later served as Associate and then Chief Justice of the New Jersey Supreme Court). Only when the County built the new jail in 2004 did he relinquish jurisdiction.

A friend of labor he was no friend of corrupt union leaders. He took control of Local 560 of the International Brotherhood of Teamsters, based in Union City. Declaring it a racketeer-dominated organization at the urging of the Dept. of Justice he used the civil RICO law to take it from the hands of the Provenzano group. He put the Local's finances, and its pension, health, and welfare funds in the hands of court-supervised trustees.

8 more death sentences in Xinjiang

Three more death sentences were announced today in the July 5, 2009 Urumqi riots. Two have Muslim names and one a Han name, according to China Daily's account today. Earlier this week five death sentences were announced but the press account (like today's) does not specify if any were with a two year reprieve - which usually converts to life in prison. On November 10 nine were executed, after Supreme People's Court review, for their part in the riots which left nearly 200 dead, says China Daily.

China Daily reports that on November 5 internet service was restored in Xinjiang.

Image: China Daily - President Hu Jintao visiting the region in August 2009

China: Executions in Contaminated milk cases

A year ago I was about to leave for China - to bring word of New Jersey's repeal of the death penalty (the stars had lined up for Jon Corzine and pro-repeal legislative leaders in December 2007). I was eager to spread the gospel of New Jersey as a Herald of Change.

Student audiences, academics, and prosecutors generally embraced a gradualist approach. They were encouraged by the Supreme People's Court's 2005 statement of policy "kill fewer, kill carefully", and the commitment of the SPC to review all death sentences. Reductions had already been accomplished the government reported - 30% by one estimate (though the PRC's secrecy is such that we don't know 30% of what number).

The people, we were told, demand the the death penalty. Probably true. You could get a pro-death penalty vote in New Jersey if you asked about the planners of 9/11. The mass killings of 197 in riots in Xinjiang - mostly Uighur against Han, it appears, have led to a dozen death sentences - carefully balanced to include wrongdoers on both sides of the ethnic divide. Here and Here - verdicts with which China Daily declared no one could argue.

Now comes news of two executions in the SanLu contaminated milk scandal. In that scandalous episode 6 children died and 300,000 were sickened by defective products of a major infant formula company. According to the NY Times account:

"The authorities described the two men who were executed, Zhang Yujun and Geng Jinping, as among the biggest culprits of the scandal. Mr. Zhang was found guilty of selling more than 1.3 million pounds of tainted milk powder from July 2007 to August 2008, and Mr. Geng was convicted of selling more than 1.9 million pounds of contaminated product.

Nineteen others were tried and sentenced in January for their roles in the scheme. Fifteen of them were imprisoned for terms of 2 to 15 years. One received a suspended death sentence, and three received life sentences."

The Chinese courts seem to be using rules of thumb: the most egregious offenders get the most severe punishment, and the scale slides down. This has a surface appearance of fairness. Defense attorneys in capital cases will doubtless recognize the futility of a direct assault and will have to focus on the arbitrariness of the imposition of death sentences. For example - in the SanLu cases "substantial certainty" that someone will die sufficed. In the Xinjiang cases some killers were executed and others spared.

The guidelines issued by the Supreme People's Court in drug cases make distinctions based on quantity, whether children were involved, etc. But looking across the range a coherent pattern does not emerge: some who personally killed are spared; others who risked grave or fatal harm to others are not. Such divisions may be ground which Chinese capital defense lawyers can till. - GWC

Narcissistic Moment

I am grateful to Justice Thomas G. Saylor of the Pennsylvania Supreme Court, who, dissenting a few months ago, in a welcome footnote, plucked from obscurity a line of mine that I like, but that no other writer had ever cited. Here it is:

Dean Wade's reluctance to put a full panoply of risk-utility factors before lay jurors may well be justified, but the reality is that, in design cases, jurors will be charged with the duty to make an informed evaluation concerning design reasonableness, and the trial courts will be responsible to provide the jurors sufficient guidance to accomplish this task. Cf. George W. Conk, Compared to What? Instructing the Jury on Product Defect under the Products Liability Act and the Restatement (Third) of Torts, 30 SETON HALL L. REV. 273, 277 (1999):

"The quality of decisions will be better served if jury instructions invite the presentation of evidence and spur arguments that evoke the full vibrancy of the moment of design for the jury (and the court it assists). The clamor of the competing considerations in the good and prudent designer's mind should be heard in the courtroom and in the jury room.".

Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228, 1248 (Pa. 2009)

Images: Justice Saylor, me

One year to the Mid-Term Elections

It is time to look forward to the mid-term elections. My first was 1982 (before that I was too much the anti-war activist to be involved in electoral politics). I was on Bob Torricelli's issues committee. Unemployment was surging and in working class south Bergen County all we really had to say (and did on thousands of leaflets) was "If you don't vote Democratic they won't get the message". They did and it was a good year for Democrats.

The problem for Democrats now is unnervingly familiar. As a lawyer I remember most fondly my occasional smashing victories. But the reality is that most of the time we were building toward the best available compromise. It was always a hard sell. Politics is that art.

The gap between the message of `Yes we can!' HOPE and the slow slog of Obama's centrism and the persistence of high unemployment feeds skepticism about politics; and anti-tax sentiment (`I need cash') moves back toward ascendancy.

The danger of the current moment for progressives is this: the party in the White House and the majority in Congress ALWAYS loses strength in mid-term elections. 60 votes in the Senate are not really there (making Lieberman and the Blue Dogs king makers). With the bitter pill of compromise on the table progressives will be less motivated. The Right - buoyed by the inevitable loss of air in the 2008 election balloon - will be motivated because their oppositionist stance has freed them from the need to compromise. They can run totally negative, as the infelicitous Chris Christie showed in his New Jersey victory over the competent but hamstrung Jon Corzine.

So I come out for more boldness on the part of the President and the Democratic Party. The success of his Presidency depends on it. And requires a focus on things that can be felt sooner rather than later. For that I turn it over to Paul Starr, the groundbreaking author of The Social Transformation of American Medicine.

The founder and Co-Editor of the American Prospect concludes his December column Faster Please:

According to research by the political scientist Larry Bartels, presidents running for re-election have benefited when economic growth occurred late in their terms rather than at the start.

Democrats running in 2010 have no such consolation, however, and if they lose effective control of Congress, much of the promise of Obama’s presidency may be lost too. A little presidential impatience now would be a good stimulus in itself.