November 4, 2006
NYC Mayor Observes Search at WTC Site
Article in the New York Times -- NYC Mayor Observes Search at WTC Site, by the Associated Press:
Mayor Michael Bloomberg quietly visited the World Trade Center site, thanking crews for their work on the renewed search for remains of Sept. 11 victims, according to those at the site.
After human bones were inadvertently found in a manhole at ground zero last month, the city launched a wider effort to examine other subterranean areas that may have been overlooked during the months-long cleanup years ago. Some 200 pieces of remains have since been found.
In a spontaneous visit Friday afternoon, Bloomberg walked along the western edge of the site where workers are digging into several cavities beneath a service road.
Ford, Mazda SUVs probed after 8 fires
Article in today's Los Angeles Times -- Ford, Mazda SUVs probed after 8 fires, by Bloomberg News: "Ford Motor Co.'s Escape and Mazda Motor Corp.'s Tribute sport utility vehicles are being studied by U.S. regulators over complaints of fires in the engine area after they are turned off."
November 3, 2006
Anti-Youth-Smoking Ads May Have Opposite Effect
Article in the Washington Post -- Anti-Youth-Smoking Ads May Have Opposite Effect:
The surest way to get teenagers to do something is to tell them not to.
That principle appears to apply to some smoking-prevention ads created by tobacco companies, a new study has found.
Youngsters 12 to 17 were less likely to see smoking as harmful and had stronger intentions to smoke after the airing of television ads that urged parents to talk to their children about not lighting up, according to the study to be published in December in the American Journal of Public Health. The slogan of the national campaign, begun in 1999 by cigarette industry leader Philip Morris USA, was "Talk. They'll listen."
A Mine's Still-Toxic Legacy
Article in the Washington Post -- A Mine's Still-Toxic Legacy, by David Fahrenthold:
Some of the most poisoned water in Maryland flows out of a hillside here, its color like Coca-Cola and its acidity in the same range as stomach juices.
The water runs through a culvert into Georges Creek, turning it the colors of the autumn leaves overhead. For four miles downstream, hardly anything is alive.
"Everything died. Everything died here in this stream," fishing guide Ken Pavol said one recent morning.
The source of the problem is an abandoned coal mine, one of more than 150 in Western Maryland that leak groundwater tainted with acid and dissolved metals. In August 2005, this particular trickle turned into a torrent stronger and far more caustic than it had been.
Nuclear Cleanup Site Has Cities Cleaning Up Financially: Effort That Began In 1989 Has Been An Economic Boon
Article in the Washington Post -- Nuclear Cleanup Site Has Cities Cleaning Up Financially: Effort That Began In 1989 Has Been An Economic Boon, by Blaine Harden:
Out on the Hanford nuclear reservation, a fantastically poisoned plateau where the federal government brewed up most of the plutonium for its nuclear arsenal, the cleanup is going rather badly.
Now in its 17th year, the nation's largest and most complex environmental remediation project is costing many billions of dollars more than expected and will continue far longer than experts once predicted.
That dismal forecast is music to the ears of local residents.
"The silver lining is all local, where there are no consequences for failure and no misdeed goes unrewarded," said Robert Alvarez, a senior scholar at the Institute for Policy Studies in Washington and a former Energy Department official who monitored the cleanup during the Clinton era.
By almost every measure, except the radiation and chemical illnesses suffered by some Hanford workers, five decades of making bombs were a blessing to Pasco, Kennewick and Richland -- neighboring towns along the Columbia River that call themselves the Tri-Cities.
Remains of Three 9/11 Victims Identified
Article in the Washington Post -- Remains of Three 9/11 Victims Identified, by Bill Brubaker:
The remains of the 40-year-old head flight attendant on American Airlines Flight 11, which crashed into the World Trade Center's north tower, have been identified, along with two other victims of the Sept. 11, 2001, attacks.
The announcement today by the New York medical examiner's office came as an alliance of 9/11 support groups planned a rally at Ground Zero this afternoon to demand a more thorough search for remains around the Twin Towers site.
To date, the medical examiner has identified 1,601 of the 2,749 World Trade Center victims.
Even in Nevada, Smokers’ Options Are Shrinking
Article in the New York Times -- Even in Nevada, Smokers’ Options Are Shrinking, by Steve Friess:
[I]n Nevada, antismoking sentiment appears ready to trump the anything-goes lifestyle. On Nov. 7 voters will decide two ballot measures that would restrict where people can smoke. One bans smoking in parts of indoor restaurants where minors may be served; the second, and far more stringent, bans it in almost every indoor setting, including convenience stores, restaurants, bars that serve food and “indoor places of employment,” a phrase some say could include hotel rooms. This being Nevada, both measures exempt casino floors.
Statewide polls show both measures are likely to pass by wide margins, and the one that gets the most votes will become law. Those same polls seem to indicate more support for the more lenient proposal, Question 4, the Responsibly Protect Nevadans From Second-Hand Smoke Act, over Question 5, the Clean Indoor Air Act.
Smoking-related measures are on the ballot in six other states this year, including two — Arizona and Ohio — that have two proposals similar to Nevada’s. Voters in California, Missouri and South Dakota will vote on whether to raise cigarette taxes; those in Florida will consider whether to require more financing for antismoking education. In November, a law will go into effect in Hawaii making it the 14th state to ban smoking in workplaces and public places.
DRI Conference on Toxic Torts
The Defense Research Institute is sponsoring a seminar on Toxic Torts and Environmental Law in New Orleans on March 8-9, 2007, with a heavy emphasis on science issues. Bill Childs of Torts Prof will speak on Daubert and the interaction between lawyers and scientists.
November 2, 2006
Ford loses appeal of $82.6 million Explorer rollover judgment
Article in the Los Angeles Times -- Ford loses appeal of $82.6 million Explorer rollover judgment, by Bloomberg News. The brief article notes: "A San Diego jury in June 2004 awarded Benetta Buell-Wilson and her husband $369 million, including $246 million in punitive damages. An appeals court reduced the judgment to $82.6 million in July." The California Supreme Court refused to review the appellate court decision, and Ford plans to appeal to the United States Supreme Court.
Torts gone wild: Justices risk sending the wrong message in a 'hard case' concerning punitive-damage awards
Editorial from today's Los Angeles Times -- Torts gone wild: Justices risk sending the wrong message in a 'hard case' concerning punitive-damage awards. Perhaps it's indicative of a shift in popular opinion that the L.A. Times would urge the overturning of a huge punitive damages verdict against a tobacco company and also tangentially note that the plaintiff in the case "had disregarded warnings from his family about the risks of smoking." Here's an excerpt:
After Oregon's highest court affirmed the jury verdict against Philip Morris, the U.S. Supreme Court asked lawyers for the company and Mrs. Williams to address two questions. One was whether Philip Morris' "reprehensible" conduct overrode the requirement that punitive damages bear a reasonable relation to actual damages. The other was whether the Constitution allows a jury in a case brought by one individual to punish the defendant for the effects of its conduct on others.
Both questions seem like no-brainers in light of past decisions about the need for punitive damages to bear a reasonable relationship to proven harm. Yet during oral arguments Tuesday, several justices seemed to suggest that ambiguities in the record — such as whether the Oregon Supreme Court had concluded that punitive damages could be based on harm to non-parties — might require returning the case to lower courts.
Punting the case would be a terrible idea. As this lawsuit demonstrates, many lower courts are uncomfortable with the Supreme Court's efforts to curb outlandish punitive-damage awards. An inconclusive ruling would embolden those courts in their resistance. It also would encourage speculation that recent changes in the high court's membership have undermined its punitive-damage precedents. Two of the six justices in the majority in the 2003 ruling, the late Chief Justice William H. Rehnquist and Sandra Day O'Connor, are no longer on the court.
Huge awards in individual lawsuits — as opposed to sensible legislation — are not the best way to curb smoking, obesity, gun violence and other threats to public health. The Supreme Court should see through the smoke screen of this "hard" case and say that.
Environmental and Toxic Tort Litigation Conference
ALI-ABA is hosting a conference on Environmental and Toxic Tort Litigation on Feb. 1-2, 2007 in New Orleans, addressing CERCLA, CAFA, Daubert, medical monitoring, and other issues of interest to mass tort practitioners.
November 1, 2006
GlaxoSmithKline Reaches Paxil Settlement
Article in the Washington Post -- GlaxoSmithKline Reaches Paxil Settlement, by the Associated Press. The case is pending in Madison County, Illinois before Judge Ralph Mendelsohn. Here's an excerpt:
GlaxoSmithKline PLC has agreed to pay $63.8 million to settle a lawsuit's claims that it promoted its antidepressant drug Paxil for use by children and adolescents while withholding negative information about the medication's safety and effectiveness.
Members of the class, including all U.S. residents who bought Paxil and Paxil CR, a controlled-release version of the drug, for their children each could get full refunds if they have records of their purchases. Anyone without such documentation can get $15 returned to them.
As part of the settlement, GlaxoSmithKline denies the lawsuit's claims, including that consumers paid too much for the drugs, but the world's second-largest pharmaceutical company wants to resolve the matter to avoid further litigation costs.
Study: New Air Systems Don't Clear Smoke
Article in today's New York Times -- Study: New Air Systems Don't Clear Smoke, by the Associated Press:
State-of-the-art ventilation systems used to clear cigarette smoke from bars and restaurants don't eliminate dangerous soot and carcinogens and can even push their levels higher in nonsmoking sections than in smoking areas, researchers concluded.
Their findings from three restaurants in a little-studied field come just a week before voters in Arizona, Nevada and Ohio consider dueling smoking-related initiatives. Ballots in each state include a tough ban on smoking in public places and a more lenient proposal -- with exemptions for bars and casinos -- backed by industry groups.
Two of the restaurants studied were Mesa, Ariz., establishments that had claimed their ventilation systems would comply with that city's smoke-free restaurant law.
But in one of those, contaminants in the nonsmoking sections were higher than in the bar, said lead researcher James Repace, a secondhand smoke expert and visiting professor at Tufts University School of Medicine. And in the other restaurant, the nonsmoking section had very high levels of soot.
When It Comes to Lung Cancer, She Doesn’t Believe in Waiting
Article in today's New York Times -- When It Comes to Lung Cancer, She Doesn’t Believe in Waiting, by Denise Grady. The article details Dr. Claudia Henschke's efforts to have the medical establishment embrace CT scans of smokers as a way to detect lung cancer early and begin treatment. Here's an excerpt:
No one disputes that the scans find small tumors. The study published last week involved 31,567 people scanned at more than 30 hospitals around the world. The scans found cancer in 484, often early; 85 percent were at Stage I. Without CT scans, lung cancer is usually found later, too late to cure.
With surgery, the researchers estimated the patients’ 10-year survival rate at 88 percent — a huge increase over the usual survival rate for Stage I, 70 percent at 5 years. Eight patients in the study who had Stage I tumors but refused treatment died within 5 years.
Other experts want the one thing that Dr. Henschke and her team have not provided — a study comparing two sets of patients, a group given CT scans and a control group given chest X-rays or no screening at all, to see whether the scans really do lower the death rate from lung cancer in the long run.
Such studies, randomized controlled trials, are generally considered the gold standard in medical research.
The article also notes that the National Cancer Institute is undertaking a $300 million study to compare CT and chest X-rays in 50,000 people, with results expected by 2009.
Australian Asbestos Compensation Fund Delayed
Article in the Melbourne Herald Sun -- James Hardie Deadline Extended -- concerning an extension of time for James Hardie Industries to fund a compensation plan (Final Funding Agreement) to meet its asbestos compensation obligations pursuant to a December 2005 agreement and legislation:
THE NSW [New South Wales] government has extended until November 14 the deadline for James Hardie to finalise the funding deal relating to its compensation obligations for victims of its asbestos products.
The previous deadline expired yesterday with the building products company still to reach an agreement with the Australian Taxation Office over the status of the compensation fund.
The deal was thrown into doubt after a tax office ruling in June this year that the fund, worth up to $4.5 billion over 40 years, could not be treated as a charity for tax purposes.
October 31, 2006
Supreme Court Hears Tobacco Case
Article in the New York Times -- Supreme Court Hears Tobacco Case, from the Associated Press:
The Supreme Court grappled Tuesday with whether to allow a $79.5 million verdict
against a cigarette company, a case that business groups are pointing to in asking
the justices to clamp down on large damage awards.
Mayola Williams was in the crowded courtroom to hear the justices discuss the
judgment that an Oregon jury imposed against Altria Group Inc.'s Philip Morris USA
in connection with the death of her husband, Jesse.
A two-pack-a-day smoker of Marlboros for 45 years, Jesse Williams died of lung cancer
nine years ago. Mayola Williams followed through on a promise she said she made to
her husband and sued Philip Morris, which makes Marlboros, for fraud. She won.
The article goes on to discuss the oral argument in some detail. The New York Times also provides a webpage linking the briefs submitted and opinions below.
The Washington Post's related story is Philip Morris Asks Court for Relief: Cigarette Maker Challenges $79.5 Million Damage Award, by Charles Lane.
Oral Argument Transcript for Philip Morris v. Williams
The United States Supreme Court has posted the transcript for today's punitive-damages oral argument in the Philip Morris v. Williams case. Andrew Frey argued for Philip Morris, and Robert Peck argued for Williams.
October 30, 2006
Links for Philip Morris v. Williams
The Supreme Court hears oral argument tomorrow in Philip Morris v. Mayola Williams, concerning due process limits on punitive damages. Because the appeal addresses whether a jury may punish a defendant for harm to non-parties, it may prove enormously significant for punitives in a wide range of mass torts including asbestos, Vioxx, and Prempro, as well as in civil rights and consumer fraud cases. For those interested in a preview, here are a few useful links:
Here at the Mass Tort Litigation Blog, you can find info on the case here (with link to Sebok analysis), here (with news report), and here (with link to audio for the argument in State Farm v. Campbell). Here's the Oregon Supreme Court decision. Oyez will have the oral argument audio when it becomes available, and has an abstract. Medill has a handy case summary, and Tony Mauro wrote a Legal Times article on the upcoming argument. The Tobacco Control Resource Center provides an anti-tobacco perspective in its case backgrounder. Ted Frank, skeptical of aggregated punitive damages, wrote an analysis for the American Enterprise Institute and offers additional links on Point of Law here and here. Among law blogs, you'll find the Williams case addressed at Products Liability Prof Blog, at TortsProf, at ScotusBlog, and at WSJ Law Blog.
October 29, 2006
State Farm Oral Argument Audio
The Philip Morris USA v. Williams oral argument in the United States Supreme Court, scheduled for this Tuesday, October 31, concerns the constitutional limits for punitive damage awards. In advance of that argument, one might be interested in listening to the oral argument in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), the prior Supreme Court decision governing punitive damages. Sheila Birnbaum of Skadden Arps argues on behalf of State Farm, and Laurence Tribe of Harvard Law School argues on behalf of Campbell.
Damage Limits at Stake in Tobacco Appeal
Article in the New York Times -- Damage Limits at Stake in Tobacco Appeal, from the Associated Press:
The question of whether juries should be allowed to award massive punitive
damages is at stake when the U.S. Supreme Court hears arguments over an
$80 million verdict against tobacco giant Philip Morris.
The Oregon case is widely seen as a test of how the court will interpret previous
cases on punitive damages -- the additional money intended to punish a company
or individual for their behavior and act as a deterrent.
Two key cases have suggested there should be a limit of 9-to-1 or less on punitive
damages compared to actual or compensatory damages, intended to simply restore
any financial or economic losses.
The ruling in Philip Morris v. Williams -- scheduled for oral arguments Tuesday --
may have a sweeping effect on jury awards beyond the tobacco industry, attracting
intense interest from corporate America and trial attorneys.