March 18, 2006
Mousssaoui Witnesses Coached to Protect Tort Defense?
Wow. If this is true, it's a pretty big deal.
Lawyers representing victims of the 9/11 attacks said Friday that Transportation Safety Administration lawyer Carla J. Martin, alleged to have coached witnesses . . . and disclosed part of the government's case in violation of a sequestration order . . . in the trial against Zacarias Moussaoui . . ., did so to ensure that witness statements did not undermine the defense strategy of United Airlines and American Airlines in a separate civil action brought by 9/11 families. The lawyers noted that the government's case against Moussaoui took the position that gate security could have stopped the hijackers had security personnel been on the look-out for short-bladed knives such as the ones used by the hijackers. This position is completely contrary to the airlines' defense strategy and would substantially undermine their case. Communications between Martin and airline defense lawyers were outlined in a brief . . . filed by Moussaoui defense lawyers Thursday.
The key part of the letter brief [PDF, letter brief at end] referenced is this:
I should note that the testimony the TSA attorney was apparently urging is consistent not just with the airlines' presumed litigation position but also with improving the credibility of the criminal prosecution's position. In other words, you could seek to encourage or elicit this sort of testimony from the aviation witnesses not just to help the airline defendants, but also to help the prosecution avoid a defense argument ("The opening has created a credibility gap that the defense can drive a truck through.").
Either way, of course, the coaching appears contrary to the court's order -- and remarkably explicit, from this e-mail anyway. And relying on and citing to conversations with private aviation attorneys (and identifying yourself as one of them) as a reason to shape testimony in a particular way is problematic at best.
More on the TGN1412 Clinical Trial
In The Pipeline has an inside-baseball take, including a suggestion that the problems with this trial may cause trouble for other Phase I trials, citing The Black Triangle blog, which has collected a tremendous amount on the science involved.
March 17, 2006
Clinical Trial Disaster
There's been plenty of coverage of the British clinical trial of a drug directed at treating leukemia, MS, and arthritis that went very, very wrong, with two participants suffering very serious side effects. The best summary coverage I've seen is, not surprisingly, the BBC's, but I also keep an eye on The Consumerist's. TeGenero is posting statements as well. (Update: So is Parexel, the US-based contract research company that was running the study.)
I have not seen a copy of the consent form, but it'd be interesting to see.
OT (mostly): Angry Young Blog
It'd be okay with me to never have a mental image of anyone from NAM (or really anyone, from any group, ever) rocking out to Billy Joel.
But those Verizon guys do know the way to rock (and, as I understand it, there is only one way to rock.)
(Note: Rocking out, or rawking out, may result in personal injury. Rocker/rawker takes all responsibility for injuries and waives any claim against TortsProf or its corporate overlords for any and all injuries resulting from rocking or rawking. Your mileage may vary, and if you really are wishing to rock or rawk, may I suggest the new Mates of State release?)
The House approved the measure, eliminating joint and several liability, yesterday. It is not clear what will happen in the Senate.
I've asked before, but I'll ask again: Does anyone know of any data on what effect the elimination of joint and several liability has had in, for example, Arizona? The Florida story notes a belief that eliminating the doctrine will help recruit "top-notch employers" to the state; has that happened in Arizona? Malpractice rates gone down?
Sounds like other measures may be coming soon in Florida, too:
Rep. David Simmons, chairman of the House Judiciary Committee, said he believes there is ''a good chance'' proposals that give businesses increased immunity from lawsuits when people are injured on their property, reform the way class-action lawsuits are handled in Florida and impose new restrictions on expert witnesses can be passed.
March 16, 2006
No Tobacco Punitives in Georgia
The Georgia Supreme Court ruled that, based on the state's 1998 settlement and dismissal of its suit against R.J. Reynolds and others, individuals in Georgia cannot obtain punitive damages. From The Business Journal story:
"The court determined that, under Georgia law, punitive damages are a matter of public interest, and when a state dismisses its claim for those damages in a consent decree, individuals are bound and may not recover them on their own," Martin L. Holton III, senior vice president and deputy general counsel for litigation at R.J. Reynolds. "We obviously are pleased by the decision."
The Supreme Court's summary (way at the bottom):
In Brown & Williamson Tobacco Corp. v. Gault et al., S05Q1465, the Supreme Court has ruled that “[t]he State’s release of its punitive damages claim as parens patriae precludes plaintiffs from pursuing the same claim for punitive damages in this action.”
Presiding Justice Carol W. Hunstein wrote the majority opinion to which Justice Thompson dissented. Superior Court Judge Gail Tusan served in place of Justice Melton who did not participate.
The Court found that after “Clara Gault Freeman died of lung cancer in 2001,” the appellees “brought this product liability action against B&W in Fulton County seeking compensatory and punitive damages”; and that “B&W removed the case to the United States District Court for the Northern District of Georgia and moved for summary judgment, asserting that the plaintiffs’ punitive damages claim is barred by the doctrine of res judicata.” The United States District Court of the Northern District of Georgia subsequently certified this question to the Supreme Court: “Does the doctrine of res judicata bar individual Georgians from seeking punitive damages against [B&W] when the Attorney General of Georgia, suing on behalf of the State of Georgia, released [B&W] from all future punitive damages claims related to the manufacture or use of tobacco products by signing the Master Settlement Agreement?”
In his dissenting opinion, Justice Thompson argues that “the application of the doctrine of res judicata in this case violates our State's public policy” in that “our legislature did not intend to bar a punitive damage claim simply because punitive damages were sought and settled in a prior proceeding.”
The full opinion is here [PDF].
Express Warranties and Pharmacies
The Maryland case, described here by our neighbors at the Products Liability Prof Blog, is worth a look.
March 15, 2006
Rating Amusement Rides
Last year, a young boy tragically died on the "Old Mill" ride at Playland in Rye, New York. The ride is a gentle boat ride, where the boats float through dark tunnels and past mildly spooky scenes. The boy, seven years old, went on the ride by himself. While nobody witnessed how he died, the best guess appears to be that he may have gotten scared, climbed out of the boat, and struck his head.
The boy's mother, through her attorney, has proposed a state-implemented rating system for amusement rides, along the lines of movie ratings (though those, of course, are at least nominally voluntary). The proposal seems interesting beyond the very small number of law profs doing amusement safety (I think I'm half of that universe, with Chad Emerson being the other half) for a couple of reasons.
First, like many state court regulatory schemes, it comes out of a high-profile tragedy, in this case higher-profile due to a death a year earlier on a ride at the same publicly-owned park. The earlier death had some surface similarities in that it involved a young child on a dark ride.
Second, the proposal promises simple solutions, but I think the reality is that such a ratings system is quite unlikely to do much to increase safety. This likely failure is due partially to state regulators not being the right people to do such a thing (they generally know mechanics, not the psychology of kids, for example), and due partially to evidence that ratings that exist are rather uniformly ignored.
The facts of the case raise interesting questions about the obligations of manufacturers to anticipate misuse by consumers, especially in cases where the ride is designed to -- at least a little bit -- scare kids and where kids are permitted to ride alone. I've found similar facts to be a good foundation for a discussion in both Torts and Products Liability classes.
This is the Sound...of Silent Tort Reform
It's a few days old now, but this NYT piece (free reg. req.) has a nice summary of the various attempts to preempt state law, and even gives it a swell name, "Silent Tort Reform." (...which, incidentally, would be a good name for a band.)
"It's very troubling," said Professor Thomas O. McGarity, an expert on regulation and tort law at the University of Texas School of Law. "There is a certain hubris on the part of the regulatory agencies to make the assumption that they are doing their jobs perfectly and should not be second-guessed, especially in light of repeated history of agencies being misled by industries."
* * *
Administration officials, industry representatives and their scholarly supporters disagree. They say that overzealous state regulators and vexatious lawsuits require a federal response that sets uniform national standards.
"What has been happening is largely reactive and responsive to industry demands that arise because the industries are confronting similar problems—private liability lawsuits and state attorneys general," said Michael S. Greve, the John G. Searle scholar at the American Enterprise Institute and director of the research organization's Federalism Project. "What Professor McGarity thinks as insufficiently demanding standards, too many people think of as outrageously demanding. Many people think that too high standards imposed by the states hamper research and innovation."
"I just don't see how enforcement by Eliot Spitzer or trial lawyers in Beaumont, Tex., will yield better results," he added.
(See this piece and entries linked to there for earlier preemption posts.)
March 14, 2006
Humanizing Tort Reform
Evan at Notes from the Legal Underground linked to and discussed my series of posts about "Humanizing Torts," providing his perspective as a plaintiffs' lawyer (and as a former defense lawyer):
The discussion has touched on tort reform, too, which seems logical enough: if you humanize torts, the debate about tort reform can take on a new meaning. Consider it from the point of view of a tort reformer: if you're trying to sell a program of curtailing individual rights for the good of corporations, it's much easier to do if you can "de-humanize" the individual. You can do it in a number of ways: you can deride the individual by claiming he or she doesn't care about "personal responsibility"; you can mock the individual by claiming he or she is only interested in "jackpot justice"; you can draw attention away from the individual by focusing on the motives of his or her "greedy lawyer," and so on. Unless you de-humanize the victims, tort reform is a much harder sell.
He says that if he uses stories of plaintiffs in discussions of tort reform, he's accused of being manipulative.
Ted Frank responds in the comments that tort reform should be humanized, too:
One of the reasons I took a pay cut more than my father, mother, and brother make combined to work for liability reform is because I think of the tens of thousands of people who lost their jobs because of abusive asbestos litigation, the countless people who will get cancer because of sloppy mass X-ray screenings for profit, the thousands of people who will die unnecessary deaths because pharmaceutical research has been stymied by litigation lobby greed . . . . [a]mong others. It would be nice if McClurg gave any thought to these people who, even though they may not be parties to the lawsuits he talks about, are surely affected by the lack of liability reform. I daresay my approach is more compassionate than that of the policymaker who thinks it important that randomly selected people win jackpot awards and billions of dollars are extracted from the economy by rent seeking.
I think McClurg's point (at least my view) is that there can be reform in both directions, both correcting problems that are to the detriment of defendants and those that are to the detriment of plaintiffs. His proposal includes a fairly limited cause of action (and he notes that caps on the money involved could be appropriate), with money not going to the plaintiffs but instead to a utilitarian memorial. That does not seem to me to be inconsistent with fixing problems that exist elsewhere in the system; indeed, presumably one would want to fix any problems that exist.
If your conclusion is that what he identifies as gaps -- uncompensated categories of harm and uncompensated categories of people he considers victims -- are not flaws, or not flaws to be fixed, that's fine (and more or less the state of law today). But one can support both his proposal and support other reforms that reduce exposure for defendants in other contexts.
(Note: Ted also comments here on Andrew's guest post.)
(See the Teaching Torts category for more posts on the topic.)
The Post has an interesting story about a potential side effect of Ambien, a popular sleep aid (and one you can purchase inexpensively through one of the twenty oddly-spelled spams in your junk file):
The most prescribed sleep medication in the United States may be linked to episodes of sleepwalking and related strange and dangerous behaviors, experts say -- including incidents of nocturnal eating, phone conversations, shoplifting and even driving -- of which the subject has no memory.
Sleep specialists and researchers cite a growing though still inconclusive body of reports associating Sanofi-Aventis's drug Ambien with the incidents. More than 24 million prescriptions for Ambien were written in 2004.
One woman alleges that she ate while sleeping, going from a size 1 to a size 12. She is now part of a class action suit against the maker, Sanofi-Aventis.
March 13, 2006
A couple of updates:
- Florida is considering a bill to eliminate joint & several liability. See this entry for a summary, and this page for links to several useful summaries by legislative staffers.
- Georgia may indeed modify the fee-shifting provisions of last year's bill. See this entry for the background.
Also, incidentally, the blog now has categories. I'm still working on retrofitting the earlier posts into them.
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Another Humanizing Torts Story; Also a Timing Issue
David DeWolf of Gonzaga was kind enough to point me towards his Chronicle of Higher Education piece relevant to the ongoing issue about humanizing the teaching of Torts. Again, it's a short piece and I urge you to go read the whole piece; briefly, it connects both his own personal story and that of a student. He concludes:
And I’m not sure that a little bit of levity is out of place. Just as a surgical team’s repartee may help distract them from the disorienting closeness of the mystery of life and death, we who teach law weave in and out of the mysteries of love and suffering, parenthood and death. Sometimes humor is a means of keeping us on the surface of something that we fear might otherwise drown us. The intimacy we experience with our students must be treated with respect, but also with the same astonishment at our own absurdity that the intimacy of sexuality evokes.
I am entirely convinced that the reminder that the articles all suggest -- that every case involves a person and a family and (often) a tragedy -- is appropriate, and I'm glad I did that this year. I am now trying to consider the timing of that. My assignment of Dead Sorrow was three-quarters of the way through the school year. (The evening section of Torts at WNEC is a full-year four-credit course, while the day section is one-semester, also four-credit.)
That seemed about right, timing-wise, but I expect I'll try to make it an ongoing thread in the course in the future. I wonder, though, if focusing on that too much too early might create some cognitive dissonance. Especially early in the first year, we're focusing on analytically separating relevant facts from irrelevant facts and making evaluations based on those facts. Is there a danger of confusing or disrupting that learning process by emphasizing the human identity behind those facts?