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Wednesday, June 29, 2005

An inconsistency that's not inconsistent

Over at Volokh, David Bernstein criticizes plaintiffs' attorney Barry Nace for a perceived inconsistency.  Bernstein writes that Nace defended a malpractice lawsuit by arguing, inter alia, that he

wasn't liable to the client because 'courts soundly and uniformly reject the notion that Bendectin causes birth defects.'  Two years later, Nace told the New York Times that he still believes that Bendectin causes birth defects. I guess he forgot to tell his lawyer.

Bernstein suggests that Nace's two statements -- that courts reject Benedictin cases, and that Nace believes that Benedictin causes birth defects -- are inconsistent.  (Hence the snarky "I guess he forgot to tell his lawyer").  But Bernstein is missing the obvious.  The two statements "courts think X" and "I personally believe not-X" are in no way inconsistent.  It's puzzling how Bernstein could even confuse these two arguments.

Indeed, the very New York Times article to which Bernstein links makes clear that Nace's personal views differ from his legal opinion on the legal merits of the cases.  (For a malpractice suit, it's the legal merits that matter).  The article quotes Nace as saying "this is the safest drug in terms of litigation" and that the Benedictin litigation is "hopeless."  It later quotes Nace saying "In my mind, there is no question that Bendectin causes birth defects." (emphasis added).  Sounds pretty consistent to me.

Of course, there will always be room for disagreement on the merits of the Benedictin cases.  But Bernstein seems quite wrong to suggest that Nace's two statements are inconsistent, when they are in fact very easy to reconcile.  And it seems unwarranted to suggest that Nace "forgot to tell his lawyer" about his personal views. 

(Can you imagine that conversation?  Nace:  "By the way, I personally think that Benedictin causes birth defects.  Does that change this summary judgment motion any?"  Lawyer:  "Nope."  Nace:  "Didn't think so.  Just checking.")

Posted by Kaimi Wenger on June 29, 2005 at 12:13 AM in Deliberation and voices, Kaimi Wenger | Permalink


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» A Day Late, and A Dollar Short on Bendectin: from The Volokh Conspiracy

There was once a safe and effective prescription remedy for morning sickness called Bendectin (Debendox in other countries). After a great deal of "phantom risk" hysteria, B... [Read More]

Tracked on Jun 29, 2005 9:36:36 AM


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I think Professor Bernstein's point (though he is surely able to set the record straight himself), is that Nace argued not only that courts rejected the causation argument but that they "soundly" rejected it. The problem is that "soundly" is ambiguous in that context. Kaimi (and I) would read it as "thoroughly" or "firmly," whereas Bernstein appears to read it as "correctly" -- surely a plausible meaning of the term, but I think incorrect in context. (Wouldn't an admission that he thought he was presenting fraudulent or insupportable claims open him to trouble with his state bar?)

Posted by: Michael Dimino | Jun 29, 2005 1:26:21 AM

It's a great example of hypocrisy. Here's Nace's argument: When I sued you, Benedictin caused birth defects. When I'm sued, Benedictin does not cause birth defects. If that's not a double-standard, then I'm not sure what is.

A recent example in California comes from Browne Green. As a plaintiffs' lawyer, he advocated against mandatory arbitration clauses. But when he was sued, he argued for arbitration.

Well, does Benedictin cause birth defects, or doesn't it. According to Nace, it does or doesn't depend upon whom is being sued.

Posted by: Mike | Jun 29, 2005 2:52:24 AM

I initially read the brief (as did the source who sent it to me, and the source who sent it to him) as denying that Bendectin causes birth defects, not simply that many courts have rejected causation. The wording of the entire paragraphy is awkward and, as noted, somewht ambiguous. The argument also isn't very persuasive without the concession that Bendectin doesn't cause birth defects--the argument is that because many courts that have adopted an admissibility test allegedly similar to New Jersey's have rejected Bendectin evidence, the New Jersey trial court, in a summary judgment context, should reject the notion that evidence that Nace originally planned to present would have been admitted. But I'll update the Volokh post, right now the server is down.

Posted by: David Bernstein | Jun 29, 2005 5:55:29 AM

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