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Editor: Christopher J. Robinette
Widener Univ. School of Law

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Saturday, April 15, 2006

Money-Grubbing Plaintiffs Defendants Everyone, Apparently

In one corner, you have various tort reform groups with the mouth-filled-with-money image on the "Please Don't Feed the Trial Lawyers" billboards and other media (along with what could euphemistically be called an enthusiastic discussion, both at that site and Overlawyered).

In the other, you have ATLA and their full-page USA Today ad [big PDF], with the CEOs'-pockets-filled-with-money image over the "Haven't the big corporate CEOs taken enough?" phrase.  (Complete with poorly-Photoshopped "C.E.O." initials on the shirtcuff!)

Subtlety?  Recognition of the complex issues?  Not really the focus at this point, it seems. 

But we can all agree: stuffing money into orifices and/or pockets is golden imagery, baby.  Kum ba yah!

April 15, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (2) | TrackBack (0)

Friday, April 14, 2006

A Snapshot of Thimerosol Debate

The ongoing discussions of thimerosol in vaccines are too extensive to try to capture here, but I do think it's worth an occasional glance to see how they're proceeding in non-law circles.  So go check out Respectful Insolence's most recent post, which pulls together a bunch of posts related to a recent study that purports to establish a drop in autism since thimerosol has been removed from vaccines.

The discussion interests me also as an instance of just how quickly and thoroughly folks online get involved in critiquing developments.  Whether or not that's all to the good, it's remarkable to watch.

April 14, 2006 in Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, April 13, 2006

Death at Disney's Epcot

Yet again, my odd interest in amusement park safety compels a post on a death on the Mission: Space ride at Epcot.  This is the second death in about a year on the ride (low absolute rate, high profile, high for the industry).  I've posted about it at my other blog, MassTort.org.

Given the evident fact that the ride did not malfunction in either case, and the likely fact that both decedents had preexisting conditions related to their death, the incidents raise interesting questions about design and warnings, as I discuss over there.

April 13, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Swann Calls For Eliminating Joint & Several Liability, Excessive Touchdown Celebrations

Okay, he actually only called for ending joint and several liability, saying he would have signed the Fair Share Act vetoed by Governor Rendell.

''Insurance costs are continuing to go up,'' Swann said after taking a brief tour of Moravian Hall Square, a 300-resident nursing home and assisted living community in Nazareth. ''We've got to have real tort reform.''

Although he believes people should have the right to sue, the onetime wide receiver also believes frivolous filings are clogging the judicial system.

See this entry for more on the Fair Share Act's provisions.

April 13, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 12, 2006

Estrogen Alone Apparently Okay

A useful summary from The Scientist online.

Exogenous estrogen by itself does not raise the risk of breast cancer among women who have had a hysterectomy, and appears to even reduce the risk of some types of the disease, according to findings from the Women's Health Initiative released in the Journal of the American Medical Association (JAMA) this week. The authors suggest that progestin -- a synthetic progesterone already blamed for a number of diseases -- may be the culprit in the increase in cancer rates following hormone replacement therapy (HRT) that combines estrogen and progestin.

April 12, 2006 in Experts & Science, Products Liability | Permalink | Comments (1) | TrackBack (0)

Suits Regarding Benzene in Soda

...specifically an Israeli suit about benzene in Fanta (which I must admit I didn't know was still marketed).

A request to file a NIS 200 million (USD 43 million) class action lawsuit against the Central Bottling Company (Coca Cola Israel) was submitted to the Tel Aviv District Court.

The plaintiff, Yaakov Huri, who filed the request through his lawyer Yochi Geva, alleges that the Central Bottling Company misled consumers of its Fanta brand soft drinks because the drinks are not suitable for human consumption. The plaintiff claims that the Fanta drinks contain a combination of two ingredients—sodium preservatives and acerbic acid—that together create Benzene, which is believed to be a cancer-causing ingredient in humans.

Two U.S. suits have been filed as well, specifically tied to exposure by kids in kids' drinks:

"It's impossible for parents to know which soft drinks are safe and which contain cancer-causing benzene," said Timothy Newell, one of the plaintiffs.

Atlanta-based In Zone makes BellyWashers, juice drinks that come in reusable bottles featuring Spiderman, Hello Kitty, Scooby Doo and dozens of other well-known characters. Worcester, Mass.-based Polar Beverages makes fruit-flavored sodas and seltzers as well as mixers.

The lawsuits allege that independent laboratory tests found benzene in the companies' drinks at levels above the federal drinking-water limit, which is 5 parts per billion.

* * *

"Benzene is ubiquitous to the environment. It's in the air. It's in dozens of foods, including bananas, meat and eggs," said Kevin Keane, spokesman for the American Beverage Association, the industry group.

* * *

In a statement, Polar Beverages president and CEO Ralph D. Crowley Jr. said all of his company's products are safe.

"Polar is committed to ensuring the safety of our products through in-depth research and testing," Crowley said. Polar Beverages had an independent laboratory test its products as recently as February and no trace of benzene was found, he said.

The U.S.-based group Environmental Working Group asserts danger as well:

A computer investigation by Environmental Working Group (EWG) has uncovered results from a Food and Drug Administration (FDA) testing program that contradict blanket safety assurances about benzene contamination in soft drinks made by a top agency official on March 21, 2006. FDA's data show that 79 percent of diet soda samples tested over a six-year period from 1995 through 2001 were contaminated with benzene at levels above the federal limit for benzene in tap water.

The FDA test results, buried deep within an obscure FDA food testing program called the Total Diet Study, were posted on EWG's Web site, www.ewg.org, just days after a top FDA official assured the public that there was no threat from the presence of the toxic chemical in soft drinks. This weekend, Great Britain's public health agency pulled some soft drink products from store shelves because of benzene contamination.

April 12, 2006 in Experts & Science, MDLs and Class Actions, Products Liability | Permalink | Comments (1) | TrackBack (1)

Tuesday, April 11, 2006

Attractive Nuisance and Seventeen-Year-Olds

Never thought those two concepts went together?  Well, they do in Pennsylvania, at least enough to get past summary judgment, and it's a good case to consider for a hypothetical.

Brief version of the facts: Two seventeen-year-olds climbed atop a stopped train car and were severely burned by the 12,000-volt caternary wires; they asserted that they did not believe the wires were live.

Here's the opinion [PDF].  After some introductory material, the court first concludes that there's an issue of fact as to whether the defendant (Amtrak) acted wantonly:

In this case, the evidence presented by the plaintiffs makes it clear that catenary power lines present a grave danger to anyone who comes near them, that the parked and laddered freight car made it possible for individuals to come near the catenary line, and that the public in general is not likely to know about the dangers involved with the catenary lines.  I find this evidence is sufficient to pose a genuine issue of material fact regarding whether Amtrak’s actions were wanton in choosing to leave the freight cars under the energized lines for an extended period of time.  A reasonable jury may conclude that Amtrak had sufficient warning of the possibility of the plaintiffs’ peril given the frequency of trespassers reported in the area, and the prolonged time the cars sat on the tracks.  I will deny Amtrak’s motion for summary judgment on this issue.

The court then turns to the attractive nuisance doctrine, first concluding that the plaintiffs at least present an issue of fact precluding summary judgment as to whether the doctrine applies to them at all:

In this case, the plaintiffs were minors at the time of the accident.  Although a plausible argument can be made as to why the court should set an arbitrary age limit on the applicability of § 339 given Pennsylvania’s negligence standard, no Pennsylvania court prior to this proceeding has so acted.  I find that it would be an inappropriate reading of the case law, and an unprecedented legal jump not warranted at the summary judgment stage of a case, to bar plaintiffs’ use of § 339 as a matter of law.  The plaintiffs have shown they were minors, or children in the eyes of the law, at the time of the trespass, and as such, the defendants have failed to meet their burden of proving that § 339 can not apply.  A genuine issue of material fact exists as to whether the plaintiffs are children within the meaning of § 339.

The court then concludes that the plaintiffs could survive summary judgment on the remaining issues relating to attractive nuisance (including the plaintiffs' failure to appreciate the risk, interestingly).

In this case, the defendants have shown Birdwell saw the power lines above the train.  Both plaintiffs, as seventeen year-olds, knew the dangers associated with power lines and wires.  Both plaintiffs were old enough to realize that the power lines above the train were dangerous and knew to not come in contact with them.   On the other hand, although both plaintiffs knew the risks involved in intermeddling with electricity, neither knew the risk associated with arcing, nor did they realize the electricity connected to the freight train remained on.  The plaintiffs have presented some evidence that seventeen year-old males generally do not have fully mature brains, and as such can not fully control their impulses or appreciate some risks. . . .  Viewing all of the evidence in the light most favorable to the plaintiffs, I find that it is for a jury to decide whether the plaintiffs failed to appreciate the risks because of their youth.  The combination of the plaintiffs medical reports regarding seventeen year-olds generally, and that the plaintiffs failed to realize the lines were energized meets the plaintiffs mere scintilla threshold.  A genuine issue of material fact exists in this case as to whether the plaintiffs failed, because of their youth to recognize the risk of power lines directly overhead a train or whether such a danger is obvious to seventeen year-olds.

The court concludes with a section finding issues of fact as to whether the plaintiffs themselves acted wilfully or wantonly and in denying summary judgment on punitive damages.

The case is particularly interesting to juxtapose with cases relating to capability to be found negligent.  In Pennsylvania, apparently one becomes presumptively capable of negligence at age 14.

[via WSJ Law Blog.]

April 11, 2006 in Damages, Teaching Torts | Permalink | Comments (1) | TrackBack (1)

Florida to "Keep Track" of Effects of Changes

Florida, as I've noted before, is the governor's signature away from eliminating joint and several liability.  Today, the pro-elimination forces say they'll be watching the effect to ensure that they did the "right thing."  The article suggests that the focus of the watching will be on the impact, of any, on taxpayer costs for Medicaid, which seems like a fairly narrow focus for such an evaluation.

Also in the article (from a business magazine) is a fairly honest assessment of the impact of joint and several liability on business recruitment in the past -- i.e., its presence didn't stop businesses from coming in the past:

And the repeal does not only affect Florida businesses. A state's legal environment has become an important criteria for the relocation or expansion of larger companies. Florida is the ninth state to completely ban joint and several liability -- nearby states Georgia, Mississippi and Louisiana have already done so.

Jerry Mallot, executive vice president for the Jacksonville Regional Chamber of Commerce's Cornerstone division, said joint and several liability did not stop companies from coming in previous years, but with the ban, the worry of an unfair legal system can be taken off the table.

April 11, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Monday, April 10, 2006

Surprise Side Effects of Kidney Stone Pulverization

From today's NYT, a potential risk of diabetes and high blood pressure from the blasting of kidney stones:

In the study, which is to be published on Monday from the Mayo Clinic, patients who underwent the pulverizing procedure, known as lithotripsy, developed diabetes at almost four times the rate of those whose kidney stones were treated by other methods. The lithotripsy group also developed high blood pressure about 50 percent more often than a group treated by other methods, the study in The Journal of Urology found.

As with most such findings, of course, it's not at all clear that the findings should mean lithrotripsy should be abandoned, especially considering the alternatives -- instead, the risk should be in the mix of information considered.

The story has an interesting narrative about the article's path to publication as well:

[T]he Mayo team sent its paper to The Journal of the American Medical Association, which rejected it without sending it to independent experts for review, saying it was too specific a topic for its readers, Dr. Krambeck said.

So her team then sent the paper to The Journal of Urology [which accepted it with changes].

Last August, the Mayo team presented its findings at an international meeting, Dr. Krambeck said, but for a number of reasons the clinic did not issue an alert for the thousands of people considering lithotripsy.

Her team did not want to release the findings early because the Mayo Clinic is one of a very few medical centers that still uses the same model lithotripter, Dornier HM3, in use in 1985, she said.

* * *

Another reason for not issuing an earlier alert is that many journals impose strict embargoes on releasing information in papers before publication.

* * *

Dr. Assimos of Wake Forest defended the delay as "appropriate."

Mayo urologists discuss all alternatives for treating kidney stones with patients but use lithotripsy less than other procedures, Dr. Krambeck said. After learning the results of their study, the doctors began informing patients who were considering lithotripsy about "correlations with possible side effects" but without specifying which ones or the data, she said. Now they will provide that information.

Speaking of peer review (honest, we were -- look back), Blog 702 has a posting about my article.  Thanks, Blog 702!

April 10, 2006 in Experts & Science, Products Liability | Permalink | Comments (3) | TrackBack (0)

Preemption, Nth Part

The National Conference of State Legislatures has expressed concern about the "silent tort reform" of federal agencies seeking to preempt state tort law.  Among the NCSL's efforts is the Preemption Monitor [PDF], a report including a number of federal actions that may preempt state law, ranging from laws regulating ingredients in methamphetamine to immigration reform measures.

The Preemption Monitor reviews recently enacted federal  legislation that preempts state authority, describes pending legislation  that would preempt state authority if enacted, and examines U.S.  Supreme Court cases that have implications for state authority.  It also  tracks the status of federal preemption activities in Congress, the  executive branch, the Supreme Court and the international arena. 

[via Greedy Trial Lawyer.]

April 10, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)