November 11, 2006
Relatives Struggle With 9 / 11 Discoveries
Article in the New York Times -- Relatives Struggle With 9 / 11 Discoveries, by the Associated Press:
Mary Jane Waring has waited five years for someone to find her brother so she can bury a small part of what she lost on Sept. 11, 2001.
But since the recent discovery of hundreds more bones in long-buried places at ground zero, she has become afraid of the emotions that could be stirred up.
''If they do find something, it would be very upsetting for everybody,'' said Waring, whose brother, James Waring, died in the top floors of the World Trade Center's north tower.
Some people who never received any remains of their family members are uncertain about what they want to find. Others, who have already buried some remains, face the possibility of another funeral or burial.
November 10, 2006
Edelman on Comparative Negligence
Comparative fault plays a critical role in some mass torts, both as a liability-reducing device and as an obstacle to aggregation. Vanderbilt mathematician and law professor Paul Edelman has posted a new paper on SSRN -- On Apportionment in Comparative Negligence -- analyzing precisely what it means to apportion fault in various types of tort cases. Here's the abstract:
The vast majority of jurisdictions in the United States have moved to regime of comparative negligence in tort cases. In contrast with contributory negligence, where a showing of fault on the part of the plaintiff acts as a complete bar to recovery, in comparative negligence the jury apportions fault among the parties and the damages are assessed in proportion to the fault assigned to the defendants.
What has heretofore gone unexamined is what exactly it means to apportion negligence. In this paper I will show that there are at least two different methods that one may apply, and the different ways lead to radically different outcomes. What I demonstrate, building on traditional models from law and economics, is that the different methods of apportionment are appropriate in different contexts, depending on the nature of the tort.
To aid in my analysis I introduce three pairs of ideas, all of which are new. I classify negligence torts as being commensurable or incommensurable, based on the nature of the care that needs to be taken by the defendant and plaintiff. I propose two different methods of apportionment, absolute percentages and relative percentages. Finally I discuss two different ways that damages can be related to choice of care: additive care and multiplicative care. These three pairs of ideas are interrelated and together point to how juries should be instructed in a comparative negligence cases.
November 9, 2006
11 Million Bottles of Painkillers Are Recalled
Thanks to Amalia Goldvaser for bringing to my attention the following article in the New York Times -- 11 Million Bottles of Painkillers Are Recalled, by John Holusha:
As many as 11 million bottles of store-brand acetaminophen, the pain killer, were recalled by the manufacturer today because some of the caplets in the bottles are contaminated with metal fragments.
The manufacturer, Perrigo, said it discovered the metal bits during quality control checks. There have been no reports of injuries or illnesses cause by the problem, which affects bottles of various sizes containing 500-milligram caplets.
November 8, 2006
Secret Settlement Restrictions and Unintended Consequences
Christopher Drahozal and Laura Hines have posted on SSRN their forthcoming Kansas Law Review article -- Secret Settlement Restrictions and Unintended Consequences -- on why restricting settlement confidentiality may prove ineffective or counterproductive. Here's the abstract:
This Article evaluates the likely consequences of restrictions on secret settlements. Both the defendant and an early claimant - a claimant who discovers that he or she has a claim before other claimants do - have a strong incentive to maintain secrecy, and they have a variety of means by which they might do so. First, in many cases, a claimant can circumvent restrictions adopted by a single state or federal court by filing suit in a state or court without such restrictions. Second, parties might circumvent secret settlement restrictions adopted by a single state by choosing another state's law to govern the settlement. Third, parties could avoid restrictions on secret settlements in court by settling before the claimant files suit. Finally, many parties could accomplish much the same result as a secret settlement by use of predispute or postdispute arbitration agreements, taking advantage of the privacy of the arbitration process. Indeed, restrictions on secret settlements not only may be ineffective, but in fact may be counterproductive. To the extent the restrictions encourage parties to settle before the claimant files suit or to choose arbitration instead of litigation, they may reduce rather than expand the amount of information available to the public about the dispute. Currently, if the secret settlement occurs after the claimant files suit, the factual allegations in the complaint are a matter of public record for some period of time (at least until the settlement occurs). If secret settlements are prohibited, and the settlement takes place outside of court or the case goes to arbitration, even that information is lost. Thus, rather than increasing the information available to the public about alleged hazards to public health and safety, restrictions on secret settlements may have the unintended consequence of doing exactly the opposite.
November 7, 2006
WTC site yields more remains
Article in today's Los Angeles Times -- WTC site yields more remains, from Times Wire Reports: "Workers found three bone fragments in a second manhole at the World Trade Center site in New York, close to where about 200 bones had already been recovered, officials said."
Fortune Magazine on the Milberg Weiss Indictment
Article in Fortune magazine -- The fall of America's meanest law firm, by Peter Elkind -- on the indictment of Milberg Weiss, the dominant plaintiffs' class action firm in America. While Milberg Weiss is primarily associated with securities litigation, the firm has also been involved in other mass tort litigation. The indictment alleges Milberg Weiss illegally paid the named class representatives for its cases. The Fortune article tells a tale worthy of a John Grisham novel, complete with shady characters and envelopes stuffed with cash. We may have to wait for the trial to see if it's true. Here's an excerpt from the beginning of the article:
For decades, few things have inspired as much fear and loathing in the executive suites of corporate America as the law firm of Milberg Weiss and the two outsized personalities who ruled the place, Mel Weiss and Bill Lerach. Through creativity and ruthlessness, they transformed the humble securities class-action lawsuit into a deadly weapon.
Always, Milberg Weiss cast itself as the champion of the little guy. In media interviews Lerach has spoken evocatively about fighting for the honest, struggling blue-collar worker who, through no fault of his own, had lost his hard-earned savings to corporate perfidy. The firm boasts of having collected $45 billion for cheated investors since its founding in 1965.
But somewhere along the way, the work made its ruling partners a little like the CEOs they sued. In an especially profitable year, both Weiss and Lerach personally made more than $16 million. Weiss, 71, is a high roller at casinos who collects Picassos, owns a five-acre waterfront estate on Oyster Bay, Long Island, and has a vacation condo in Boca Raton.
The Brillo-haired Lerach, 60, who bitterly split with Weiss in 2004, taking Milberg's San Diego-based West Coast operation along with him in a new firm, owns a home in Rancho Santa Fe, Calif., and vacation properties in Steamboat Springs, Colo., and Hawaii. Lerach travels the country in a chartered jet, says his exercise is drinking Scotch, and will be married this month for the fourth time, to a partner at his firm.
Brazil air crash lawsuit
Article today on Findlaw by Vivian Sequera (AP) -- U.S. lawyers for Brazil plane crash victims hope for multimillion dollar settlement -- concerning litigation in E.D.N.Y. over the September 29 collision of a Gol Airlines jet with an ExcelAire business jet. All 154 people aboard the Gol Airlines plane (a Boeing 737) died in the crash. The ExcelAire plane (an Embraer Legacy) sustained damage but landed with its passengers and crew unharmed.
American attorneys representing families of victims in Brazil's worst air disaster said Tuesday they hoped to reach a multimillion-dollar settlement with ExcelAire Service Inc. and Honeywell International Inc., which they accuse of negligence leading to the accident that killed 154 people.
On Monday, the lawyers filed a suit in the Eastern District federal court in Brooklyn, New York, alleging that ExcelAire's pilots were flying at the wrong altitude when they collided with Gol Airlines Flight 1907 on Sept. 29.
Honeywell, which made the plane's transponder was also named in the suit. Transponders send out signals alerting air traffic controllers and other aircraft about the location of a plane.
[Robert] Lieff [of Lieff Cabraser Heimann & Bernstein] told a news conference that said he hoped the two companies would settle with the victims' families and that he expected the settlement to reach "several million dollars."
The lawyers said they were not suing Gol, Embraer and Boeing because they don't have evidence yet to implicate them.
Settlement of California asbestos blasting case
Article in today's Sacramento Bee -- Asbestos Dust Case Settled in El Dorado -- concerning a settlement between prosecutors and developers accused of creating public health hazards by blasting hillsides containing naturally occurring asbestos:
Prosecutors have reached a $350,000 settlement with a pair of El Dorado Hills developers and a construction contractor accused of numerous public health offenses in blasting open hillsides that bear a particularly toxic form of asbestos.
Angelo K. Tsakopoulos and Larry Gualco, whose companies form West Valley LLC, and DeSilva Gates Construction of Dublin were accused of but not formally charged with 47 violations of air and water pollution laws based on documented observations by local environmental enforcers, according to Deputy District Attorney Gloria Mas.
The most serious allegations concern the thick dust clouds from explosions in areas the county had designated as known or likely to contain naturally occurring asbestos, Marcella McTaggart, head of the El Dorado County Air Quality Management District, said after signing the settlement Friday.
In other words, decades after manufacturers stopped using asbestos for fire-proofing and insulation, asbestos-related litigation continues for a variety of reasons, including not only disease latency and the continuing presence of asbestos fibers in older products and buildings, but also because the mineral asbestos lurks in hillsides as a naturally occurring potential hazard.