Thursday, November 30, 2006
Now that Rhode Island's criminal investigation of the tragic fire at The Station nightclub several years ago is complete, investigators have released (AP story by Eric Tucker) several thousand pages of documents, with many more apparently yet to come. Among the new batch is a statement from the fire inspector who said he didn't notice the flammable foam because he was distracted by various other fire hazards, including the re-installation of an inward-opening door he had previously ordered removed.
I hadn't noticed before that the Trial Lawyers for Public Justice have a handy page containing all of their amicus briefs and various other documents. I noticed, among other things, one about FDA preemption and one about NHTSA preemption [both PDFs].
Wednesday, November 29, 2006
The United States of America apologizes to Mr. Brandon Mayfield and his family for the suffering caused by the FBI's misidentification of Mr. Mayfield's fingerprint and the resulting investigation of Mr. Mayfield, including his arrest as a material witness in connection with the 2004 Madrid train bombings and the execution of search warrants and other court orders in the Mayfield family home and in Mr. Mayfield's law office.
Tuesday, November 28, 2006
A wrongful death action against military contractor Blackwater can proceed under a ruling issued by a state judge. The suit was brought by the families of four contractors who allege that Blackwater did not provide proper equipment or personnel. To date, the litigation is focused on the proper court for the proceeding and whether the matter should be stayed based on Blackwater's claim that it is an extension of the military.
I previously noted the lawsuit, focusing more on the information-gathering aspects of it.
Good people, I'm so glad you're here tonight. But please, just a few words of caution. Now, we are going to set this pile of evil ablaze, but because these are children's toys, the fire will spread quickly, so please stand back and try not to inhale the toxic fumes.
(Because there is no blog posting that cannot be improved with a Simpsons quote.)
In what could be used as the Mad-Libs of Products Liability exams, this year's Ten Worst Toys list has been announced. Among the highlights:
- "Heelys" -- those weird shoe/skate combinations, which apparently include this delightful warning: ""There is no way to heel and/or grind without running the risk of SERIOUS BODILY HARM, including head injury, spinal injury, or even death." No, I don't know what it means to "grind" in this context.
- "Fear Factor Candy Challenge" -- In addition to being simply nasty, this product, which includes "mystery meat," has (according to the rating group) the possibility of encouraging eating contests, since the show evidently has eating contests.
...and eight others. Enjoy.
Update: It's worth noting, incidentally, that the group putting the list together was founded and is directed by Edward Swartz, who is a plaintiff-side products liability lawyer who specializes in (among other things) child safety suits. I don't know if he has any suits pending related to the toys identified on the list.
Interesting Christian Science Monitor piece on the current status of trans fats in the legislative and public health arenas. It doesn't explicitly make the link to tort law, but one can't avoid noticing that the other two products in the title -- lead paint and cigarettes -- have more than a passing acquaintance with the courthouse.
(Yeah, it's a little weird to describe lead paint or cigarettes as having an acquaintance with anything.)
In any event, I'm not sure I buy that trans fats fits in the same box as lead paint and tobacco, and it seems probable that the trans fats issue will largely resolve itself through voluntary action -- but it's fun (if you have a broad definition of "fun") to think about the litigation issues.
The Globe has a brief overview of various lawyers' views of the chances for the gross negligence claim to stick. That story also confirms my prior guess, that the gross negligence claim is the hook for seeking more than the $150 million set as the cap by the parties' contract.
Only Bechtel and Modern Continental Construction are alleged to have been grossly negligent; the rest of the parties are being sued for ordinary negligence (and some for contract breach).
Monday, November 27, 2006
American Medical News reports on the AMA's approach (though the full article requires a paid subscription). Caps on noneconomic damages are still on the wish list, though they seem to (realistically) recognize that something short of that is much more likely.
The Massachusetts AG is suing many of the entities involved in the Big Dig project in Boston, alleging gross negligence. As I've previously noted, liability is contractually limited to $150 million, though the allegation of gross negligence may be an attempt to get around that limitation.
Sunday, November 26, 2006
Saturday, November 25, 2006
Interesting SSRN paper posting addressing potential remedies for being improperly included in spam filters. The abstract:
This paper discusses the growth and increasing significance of e-mail in the business and personal environment, and how unsolicited bulk commercial e-mail, also known as spam, has become a significant drain on technical and economic resources. It analyzes the statutory and self-help efforts to combat spam, focusing on block lists and automated spam filters, and how alleged spammers have brought lawsuits in U.S. courts claiming they had been wrongfully included within block lists and filters. Finally, it describes possible claims under U.S. law, then argues for a higher standard of care among block list vendors and the need for recourse to courts when self-help remedies for mistaken block listing fail.
Wednesday, November 22, 2006
Tuesday, November 21, 2006
Embodiment of evil TV host Nancy Grace has been sued by the parents of Melinda Duckett, the mother of a missing boy. Duckett underwent a rather harsh interview by Grace that at least suggested suspicion of Ducket in her son's disappearance.
Overlawyered is unsurprisingly skeptical. I'm not so sure that -- if the facts as alleged are true -- there's not a decent intentional infliction of emotional distress claim, though certainly I'm hesitant to go so far as to find liability for the suicide. In general, of course, unless the decedent acted while insane or suffering delirium, legal cause in most states precludes liability for suicide. I haven't looked at Florida law, but I'd be surprised if it's different.
The key fact for a claim based on something short of the suicide to me in the complaint is the alleged bait and switch, where Ms. Duckett apparently believed she was going on the show only to publicize her son's disappearance, not to undergo a cross-examination. The complaint certainly focuses on Ms. Duckett's suicide, but presumably the plaintiffs could prove some level of distress short of the suicide (perhaps using the suicide as evidence of that distress, even if no recovery was allowed for her death itself).
The claim for IIED asserted by the parents in their own right, based on the decision to air the interview within hours of Ms. Duckett's suicide, seems somewhat more problematic, in particular in showing intent (even under the reckless disregard standard) and causation.
In any event, if you cover intentional torts late in the course, or if you're just looking for a good IIED hypothetical, this might be worth considering.
Via Overlawyered, a Washington Post story noting (outside the litigation context) the concept of warning dilution, though it also notes some strategies for avoiding warnings becoming part of the background:
Regularly changing the look and sound of public announcements and billboards is a useful first step. Scholl said it also makes sense to limit warnings to times when there is a known and specific threat.
Maybe the FDA should require the use of changing colors of astrobright paper for package inserts. Hey, they could throw in some cartoon characters too!
A couple of years ago, after my first go-round of grading Torts exams, I wrote a piece for Evan Schaeffer's Legal Underground. The piece, A Law Professor Shares The Top Arbitrary Number (Turns Out to be Six) of Things Not to Do on Law School Exams, discusses, well, the top six things not to do on law school exams. I think it was good advice then and remains generally good advice now; you might want to share it with your students.
The first article addressing Murphy v. IRS that I've seen is on SSRN. The piece, from Gregory Germain (Syracuse) has this abstract:
Does Congress have the power under the United States Constitution to tax compensatory personal injury awards? Several months ago, the D.C. Circuit Court of Appeals said “no” in Murphy v. Internal Revenue Service. The court theorized that Ms. Murphy's compensatory damages award did not constitute “income,” as understood by the enactors of the 16th Amendment, because the award merely made Ms. Murphy whole rather than increasing her wealth.
This paper disputes virtually every aspect of the Murphy decision. The court made errors from the beginning in analyzing the statutory issues. While the court ultimately reached the correct preliminary conclusion – that Ms. Murphy's award was statutorily subject to taxation – the court's flawed analysis led it to consider the constitutionality of, and ultimately to hold unconstitutional, the wrong statute.
Even though the court's flawed statutory analysis may have been harmless, its flawed constitutional analysis was not harmless. The court of appeals ignored the Constitution's original Article I grant to Congress of the power to impose taxes, as well as the first 100 years of judicial rulings recognizing Congress's plenary power under Article I to tax both property transactions and income from human capital, such as wages. A proper review of the pre-16th Amendment law shows that Congress could tax Ms. Murphy's award under its original Article I powers even if the award was not “income” under the 16th Amendment.
Moreover, there was no legitimate support in Murphy for the court's conclusion that the enactors of the 16th Amendment in 1913 did not intend for compensatory damages awards to be subject to taxation as “income.” Instead of citing contemporaneous evidence of intent, the court relied on two 1918 administrative rulings that did not even purport to consider the meaning of the 16th Amendment, and the court ignored earlier administrative positions, closer in time to the 16th amendment, treating such awards as taxable.
Viewed in context, the 1918 administrative rulings were an attempt to comprehend then-recent Supreme Court decisions interpreting the meaning of the early taxing acts – interpretations that have long since been undermined by Supreme Court judicial opinions. The court of appeals took these administrative rulings out of their historical and factual context in an attempt to attribute to the enactors of the 16th amendment the conclusion it sought to reach – that Congress does not have the constitutional power to tax compensatory damages awards.
The enactors of the 16th Amendment had a limited objective: to overturn the Supreme Court's 1895 decisions in Pollock v. Farmers Loan & Trust, which held that Congress lacked the power to impose taxes on income generated by real and personal property without apportionment. It is folly to suggest that the enactors of the 16th Amendment had a clear opinion about whether non-physical emotional distress damages would constitute “income.” The enactors of the 16th Amendment left it to the courts to determine the meaning of “income,” and it took decades after the enactment of the 16th Amendment for the courts to develop a coherent definition of income.