Saturday, January 13, 2007
Article in the Washington Post -- High Court Adds Death-Penalty And Tobacco Cases to Docket, by Robert Barnes:
The cigarette case, Watson v. Philip Morris (05-1284), comes from Arkansas, where consumers alleged that the company had violated the state's deceptive-advertising law with claims about its "light" cigarettes. Similar class-action lawsuits have been filed around the country.
But Phillip Morris, whose parent company is now known as Altria Group Inc., was successful in having the case transferred to federal courts, saying that its advertising is regulated by the Federal Trade Commission, and that made it a "person acting under" a federal officer.
The Bush administration said it disagreed with the U.S. Court of Appeals for the 8th Circuit ruling upholding the lower court's decision. Nevertheless, Solicitor General Paul D. Clement had recommended the Supreme Court not take the case, saying it did not warrant the court's review.
Those who sued said the move to federal court denies the right of states to be the primary forum for adjudicating state laws.
Here's a link to the docket for the Watson case in the United States Supreme Court. Murray Garnick of Arnold Porter is representing Philip Morris, and David Frederick of Kellogg Huber is representing Lisa Watson.
Article in the Washington Post -- Officials Track E. Coli Strain to Calif., by Andrew Bridges of the Associated Press:
Contaminated California-grown lettuce was the possible source of the E. coli outbreak that sickened more than 80 people late last year at Taco John's restaurants in two states, health officials said Friday.
State and federal investigators said they have matched the strain of the bacteria associated with the outbreak to two samples taken from dairy farms in California's Central Valley. The farms are located near lettuce fields, the Food and Drug Administration said.
Investigators continue to study whether bacteria-laden manure from the dairy farms could have contaminated the nearby lettuce-growing areas, the FDA said. The FDA said other sources of contamination were possible.
The outbreak sickened about 81 people who had eaten at Taco John's restaurants in Minnesota and Iowa in November and December. Among those sickened, 26 were hospitalized. There were no deaths.
Thursday, January 11, 2007
Article in the New York Times -- House Bans Smoking, and Few Complain, by Anne E. Kornblut:
Democrats banned smoking inside the House on Wednesday. Then they quickly congratulated themselves, squeezing as much symbolism out of the moment as they could.
Whether Democrats are any less inclined to make backroom deals than Republicans, the new majority will be remembered for bringing the rules of the House into line with those in the rest of the District of Columbia, numerous states and corporations, several European countries and all major airlines.
And it did so with surprisingly little outcry from the smoking crowd. “I’m O.K. with it,” Representative Mike Simpson, Republican of Idaho, said as he headed out onto an adjoining balcony for a cigarette between votes.
He did, however, glance nostalgically toward the spot where a large ashtray once stood.
Article in the Chicago Tribune -- Legislator proposes statewide public smoking ban, by John Chase and Monique Garcia:
Though a patchwork of cities and suburbs already have banned smoking in public places, state lawmakers today introduced legislation that would prohibit smoking in all public spots in Illinois -- from taverns and restaurants to stores and bowling alleys.
State Sen. John Cullerton (D-Chicago), who introduced the bill, said the time has come for Illinois to join more than a dozen other states with broad smoking bans. He said medical studies prove secondhand smoke is dangerous to patrons and employees, especially those working in bars and restaurants.
"We need to level the playing field for all workplaces and provide the same health privileges to workers and patrons throughout Illinois. Many municipalities are waiting eagerly on the sidelines for the state to act on this matter, and it's about time we do that," Cullerton said.
Legislative leaders and the governor reacted cautiously to the measure, one of the first bills to be introduced in the newly minted General Assembly. The offices of Democratic Gov. Rod Blagojevich and House Speaker Michael Madigan (D-Chicago) said they wanted to see the legislation first.
Wednesday, January 10, 2007
Article in the Wall Street Journal -- Amid Suits Over Mold, Experts Wear Two Hats: Authors of Science Paper Often Cited by Defense Also Help in Litigation, by David Armstrong:
Soon after moving into a New York City apartment, Colin and Pamela Fraser say, they began to suffer headaches, rashes, respiratory infections and fatigue. They attributed it to mold.
But their lawsuit against the cooperative that owns the building hit a roadblock when the court wouldn't let their medical expert testify that mold caused their problems. This is "unsupported by the scientific literature," the state trial judge said.
She relied in part on a position paper from the American College of Occupational and Environmental Medicine, or ACOEM. Citing a substance some molds produce called mycotoxins, the paper said "scientific evidence does not support the proposition that human health has been adversely affected by inhaled mycotoxins in the home, school, or office environment."
The paper has become a key defense tool wielded by builders, landlords and insurers in litigation. It has also been used to assuage fears of parents following discovery of mold in schools. One point that rarely emerges in these cases: The paper was written by people who regularly are paid experts for the defense side in mold litigation.
The ACOEM doesn't disclose this, nor did its paper. The professional society's president, Tee Guidotti, says no disclosure is needed because the paper represents the consensus of its membership and is a statement from the society, not the individual authors.
Tuesday, January 9, 2007
The next Vioxx trial in New Jersey is scheduled to begin January 22. It's a consolidated trial of four cases, the most significant trial aggregation to date. The court posted on its website a Vioxx Trial Information sheet explaining the phased trial. The first phase will be a consolidated trial "on issues of what Merck knew about the risk of Vioxx; what warnings they gave the physicians; whether the warnings were adequate." If the jury's special verdict at the end of this phase is in Merck's favor, then the case is over. If in plaintiffs' favor, then the trial moves to a second phase of separate, individual trials (before the same jury) on individual causation and damages.
Ted Frank has an interesting post at Overlawyered on the social cost of excessive warning labels. A contest for wacky warning labels had turned up such gems as a washing machine with "Do not put any person in this washer" and a cell phone with "Don't try to dry your phone in a microwave oven." David Rossmiller at the Insurance Coverage Law Blog commented that maybe the warnings weren't so wacky, because he's seen people do equally ridiculous things. Frank offered a more serious take on the problem: "Such overwarnings have real social costs: as numerous studies have documented, if one's personal watercraft manual says 'Never use a lit match or open flame to check fuel level,' one's going to be less likely to slog through the whole thing and find the warnings that aren't so obvious."
Frank puts his finger on a real concern about failure-to-warn litigation: In any lawsuit, the marginal cost of adding a warning appears deceptively small and the marginal benefit appears deceptively large, because the perspective is ex post. In hindsight, it's tempting to say that if only the manufacturer had added this one small warning, it could have saved this life or prevented this injury. But in a world of imperfect foresight and countless potential risks, failure-to-warn liability promotes warnings that include so much that consumers simply stop reading.
The challenge, of course, is finding the level of warning that is "just right." And for those of us interested in tort litigation, a constant question is whether litigation -- as opposed to regulation, market forces, or some other mechanism -- offers the best hope for achieving sensible warnings that reduce overall risk.