TortsProf Blog

City, State Settle Station Lawsuit

The last two major defendants have settled in the lawsuits arising from the fire at The Station nightclub in West Warwick, Rhode Island, that killed 100 people.  Rhode Island and West Warwick have each agreed to pay $10 million, bringing the total to $175 million.  The most recent settlements include claims relating to allegedly botched inspections and negligent security (performed by an off-duty police officer).

--BC

Mercury-In-Tuna Class Action Gets Green Light

The Legal Intelligencer (via law.com) reports that the Third Circuit has reversed the dismissal of a class action against the manufacturer of Chicken-of-the-Sea brand tuna.  The suit alleges that the company failed to warn consumers that excessive tuna consumption could lead to mercury poisoning. 

The unanimous three-judge panel found that a lower court improperly dismissed the suit on the grounds that it was pre-empted by U.S. Food & Drug Administration regulations.

"The FDA has promulgated no regulation concerning the risk posed by mercury in fish or warnings for that risk, has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under federal law or as contrary to federal law in any other respect," Senior U.S. Circuit Judge Walter K. Stapleton wrote in Fellner v. Tri-Union Seafoods. 

A copy of the opinion is available here. 

- SBS

 

Loser Pays: Good or Bad?

That's the question addressed in detail at NewTalk.org, with comments from people all over the spectrum.

--BC

Welcome back, law students everywhere!

Today is the start of orientation at my law school and I assume many others are starting now too.  Congratulations!  You're (probably) going to (mostly) have fun.

If you're a 1L, don't be scared off by the name of this or any of the other law professor blogs in the network.  You can keep up on what people teaching and practicing in these areas think is interesting, and think about how it might fit into your legal education.

So stick around and read some of our neighbor blogs, or at least our roundups (posted on Fridays).  It's good for you.

--BC

Sebok on Public Use of Private Lawyers

In last week's Findlaw column, Tony Sebok discussed County of Santa Clara v. Superior Court, which is on appeal to the California Supreme Court regarding whether a public entity may retain private counsel to prosecute a public nuisance abatement action under a contingency fee agreement .  (Prior post here). 

Sebok believes that the California Supreme Court can take two approaches.  On the one hand, Sebok argues the court could "simply agree with the trial court that public nuisance litigation is identical to criminal prosecution, and that municipalities cannot “farm out” the state’s prosecutorial power."  Sebok, however, argues that this approach would "be a mistake" because the analogy to criminal prosecutions is misplaced.    Alternatively, Sebok argues that the court could go behind the prosecution analogy, and ask "whether the lack of neutrality which is present in every litigation—whether brought by the state or a private actor—is exacerbated in unacceptable ways by the retention of plaintiffs’ firms." 

- SBS

Illinois Med-Mal Reforms Headed to IL Supreme Court

The St. Louis Post-Dispatch reports that "[a] lawsuit testing the constitutionality of Illinois' medical malpractice reforms is expected to come before the state's Supreme Court this fall — and with it the very real possibility that the law will be nixed."   The suit involves a challenge to a 2005 law that limited non-economic damages in medical malpractice cases to $500,000 for doctors and $1 million for hospitals. 

(Via Point of Law).

- SBS

A day off

I'm traveling with less access than expected. We will return to posting tomorrow, however.

--BC

Klein on Comparative Fault and Fraud

Andrew Klein (Indiana-Indianapolis) has posted Comparative Fault and Fraud on SSRN.  Here is the abstract:

The evolution of comparative fault is among this generation's most important tort law developments. Today, nearly every state follows some form of the rule, seeking to better align liability with culpability. Despite this guiding premise, states have struggled to define comparative fault's boundaries within the context of doctrine that developed in an earlier era. Courts have addressed many issues as part of this effort. One question that has escaped significant attention, however, is whether comparative fault should apply in a fraud action.

This Article asserts that comparative fault jurisdictions should not bar plaintiffs from recovering in fraud when they fail to establish justifiable reliance on a misrepresentation. Rather, courts should apply comparative fault principles and evaluate all parties' conduct in assessing damages. The Article begins by providing a brief overview of fraud, including the traditional element of justifiable reliance. It then considers the forces arrayed against the extension of comparative fault to fraud. These include the argument that justifiable reliance is merely a proxy for other elements of fraud, as well as courts' historical hesitation to apply comparative fault in any intentional tort claim or actions for purely economic harm. From there, the Article questions the status quo. It suggests that, in fact, some courts do take justifiable reliance seriously. It also notes that historical barriers to comparative fault's application in the area might be eroding. The Article then asserts that the application of comparative fault in fraud actions makes sense. It notes that policies relied upon by scholars who would limit the extension of comparative fault do not inherently apply in the area of fraud. More positively, the Article suggests that extending comparative fault to fraud would serve policies that led courts and legislatures to adopt comparative fault in the first place, as well as policies that underlie tort law generally. In sum, the refusal of courts to apply comparative fault to fraud is a vestige of an earlier day in which "all-or-nothing" rules dominated tort law. The policies that led to the development of comparative fault in almost every other area of tort law also deserve consideration in fraud.

--CJR

Personal Injury Roundup No. 3 (8/15/2008)

Week 3 of the Roundup finds most TortsProfs preparing to return to the classroom.  Here's what happened while the syllabi and final footnotes were polished.

Reform, Legislation, Policy

• Attorneys consider a constitutional challenge to Maryland's cap on punitive damages ($650,000 per instance) after a judge reduces a malpractice award from $4.5 million to $1.3 million.  [Gazette.net via Wood/Point of Law]
• "Tort Reform Panic on the Right?"  [Wahlstrom/Legal Broadcast Network, commentary by Franklin/Tort Deform]
• President signs new CPSC bill [Consumer Reports, Point of Law].

New Lawsuits

• Donald Trump files a privacy suit against his former law firm for using his name and image "for advertising purposes."  [ABA Journal]
• Is Big Caffeine the Next Target?  [Frank/Overlawyered]  I sure hope not.
• Investors in alleged real estate scam sue the lawyers. [NY Law Journal/law.com]

Experts & Science

• John Day points his readers to a recent Missouri ruling allowing experts to testify in a res ipsa infection case.  [Day on Torts]

Trials, Settlements & Other Ends

• Jury awards $500,000 against Cohen Milstein for legal malpractice.  [Legal Times/law.com]
• Plame can't sue the government officials who allegedly revealed her secret identity.  [ABA Journal, Denniston/SCOTUS Blog]
• Landlord who wouldn't rent to a family because of lead paint must pay $4,000.  [LegalNewsline]
• Texas Plaintiffs suing over bone-building drugs Aredia and Zometa are preempted.  [Prince/Products Liability Prof Blog]
• PA woman wins $2.78 million in med mal verdict for "chronic and excruciating pain" following an attempt to remove contraceptive implant rods and "unnecessary" neck surgery.  [Delco Times]
• Saudis can't be sued in 9/11 suit [WSJ Law Blog]

Appeals

• Summary judgment in favor of Honda was reversed by the Sixth Circuit because the consumer expectations test applies to air bags.  [Prince/Products Liability Prof Blog]
• Wyeth v. Levine [WSJ, Burch/Mass Tort Lit Blog]
• Kentucky volunteer fire departments could lose the benefit of sovereign immunity.  [Kentucky.com]

Damages

• USSC declines to decide the dispute over post-judgment interest on the punies award, but directs the Ninth Circuit to resolve it.  [Cal Punitive Damages]
• CT Supreme Court reduced damages in worker's comp case because of claimant's smoking.  [Conn. Law Tribue/law.com]
• More controversy on West Virginia Governor Joe Manchin III's decision to file an amicus brief with W.Va. Supreme Court in punitive damages appeal.  [NY Times, Cal Punitive Damages]
• A jury in Utah has awarded punies of 16 times a substantial compensatory award; expect an appeal.  [Cal Punitive Damages]

Miscellaneous

• Apparently a Dallas trial lawyer paid the monthly rent for John Edwards's former mistress to relocate.  [ABA Journal stories here and here, Overlawyered]
• Health care costs to rise by 10% in 2009.  [WaPo, HealthLawProf Blog]
• The Pop Tort has a mini-roundup of potential medical malpractice here.
• Should companies have to disclose the estimated costs of all continuing litigation?  [Slater/WSJ Law Blog]
• Is cheating on a spouse relevant in a p.i. case?  [Miller/Maryland Injury Lawyer Blog]
• Legaline interview with Gerry Spence [LegalTalkNetwork]

Goofy Stuff

• A flight attendant is suing Victoria Osteen, wife of television evangelist Joel Osteen, for an alleged scuffle during a 2005 flight.  I have no opinion as to the assault and battery aspects of the case.  The "goofy" tag applies to the plaintiff's claim that she lost her faith based on the incident.  [ABC News]

Shameless Self-Promotion (favorite posts of this week)

• Chris:  O'Connell and Robinette Publish New Book on Tort Reform (Now that's shameless!)
• Bill: Lawyers & the presidential election

Thanks to:  Bob Ambrogi

--CJR

Accounting & Torts

There's a proposal by the Financial Accounting Standards Board to require publicly-traded companies to disclose "estimated costs" of pending litigation.  As you can imagine, this is causing some angst among those companies with significant but hard-to-predict exposure who predict that the information would be mostly of use to plaintiffs' lawyers, less so for investors.  The WSJ Law Blog has more; Point of Law has been covering it a lot too.

--BC