May 20, 2006
Milberg Weiss Roundup
Overlawyered has as good a roundup of reactions as I've seen around.
May 19, 2006
Chicken Little and the Law
Almost a year ago, the California Supreme Court ruled that amusement park rides such as roller coasters trigger the common carrier status under tort law. Not an intuitive outcome, but, as I wrote, it was actually a fairly straightforward outcome given the statute and caselaw (see this entry for my early thoughts on the issue).
There was much gnashing of teeth in the amusement industry, including this:
“It puts roller coasters out of business.” – John Robinson, California Attractions and Parks Association
Not surprisingly, it's done no such thing, and in fact probably has had (and will have) no substantial effect on tort litigation relating to amusement ride injuries or on the building or opening of new rides in the state of California. (Nor, interestingly, did the pending California case make it into any of the amusement companies' SEC filings, so far as I can tell, while I'd imagine the potential of eliminating roller coasters would count as material...)
There's no reason to go through all of the reasons in detail (see this entry for my view at the time). Briefly, though, a good number of states have applied common carrier status to amusement rides for decades, with no discernable impact on parks and rides opening and operating, in addition to the fact that, in general, the incentives are such that -- especially for well-capitalized large parks -- parks already usually comply with the theoretically higher standard of a common carrier.
There's a broader point too, though (and here's where you can tell I'm avoiding grading), and that's about how huge pronouncements like that will often come back to bite you. So -- an invitation: Think back to predictions of doom or disaster from any side of a tort-related issue, check to see if said doom or disaster has come to be, and let me know about them.
Tort Reform vs. Medical Error Reduction?
Interesting piece from the American Prospect. While acknowledging that caps and the like can potentially reduce malpractice insurance rates, Ross Eisenbrey (VP of the Economic Policy Institute) says (a) such reductions will have minimal effect on overall cost of healthcare and (b) we should focus more on reducing medical error in the first place. He uses as one example progress in anesthesia, where deaths have been reduced from 1 in 5,000 to 1 in 200,000 to 300,000 in the space of twenty years. In the same time frame, he says, insurance rates for anesthesiologists have fallen by 37%.
Of course, it's possible for malpractice insurance rates to be a small part of health care costs but still to have a substantial effect on the quality of care, simply through the availability of care. Whether that's true or not is a different issue, but saying that a reduction in insurance rates wouldn't make my health insurance cost much less isn't the end of the issue.
Nonetheless, it seems to me that an effort to join reforms of the liability system to improvements in avoiding malpractice in the first place might be more politically appealing -- at least to some -- than either in the abstract.
May 18, 2006
Tobacco Defense Rejected in Massachusetts
The SJC rejected the "personal choice" defense in a tobacco wrongful death suit, saying it can only be used if the cigarettes were used in a really, really "unreasonable" way. (Backwards? One up each nostril? Actually, they do give examples -- see below.)
Massachusetts puts all of strict liability law within the UCC warranty provisions, and doesn't bar recovery due to the plaintiff's negligence unless the use was "unreasonable." This decision affirms that the doctrine applies in the tobacco context, and that there is no reasonable way to use a cigarette, and thus that the "unreasonable" use defense will ordinarily be unavailable. The only times when it might be would be, the court suggests, when the plaintiff has a particular medical condition that, I suppose, makes it really unreasonable to smoke:
We have examined the numerous warranty cases cited to us by the parties in which the Correia defense was invoked and there is none where the defendant conceded that reasonable use of the product was impossible....
Nor do we conclude, in the circumstances of this case, that the plaintiff's stipulation of knowing unreasonable use to be fatal.... On the record before us, the plaintiff's stipulation restates the obvious: that cigarettes cannot be used safely and therefore that cigarette use is unreasonable. The stipulation that the decedent was aware of the well- publicized health risks of cigarettes merely places him in the same position as the ordinary consumer or potential consumer of cigarettes. Without more, it is insufficient to justify dismissal of the defective design warranty claim.
Our conclusion does not, as Philip Morris claims, eviscerate the Correia defense. We agree with the defendant that the "key to the Correia defense is not the care, knowledge, or intent of the manufacturer, but the duty of the user to act reasonably concerning a product known to be defective and dangerous." But where the defendant merchant affirmatively invites the consumer to use a product that cannot safely be used for its ordinary purposes, then public policy demands that the merchant bear the burden of reasonably foreseeable injuries that result from that invitation.... If Philip Morris chooses to market an inherently dangerous product, it is at the very least perverse to allow the company to escape liability by showing only that its product was used for its ordinary purpose.
We agree with Philip Morris, however, that a defendant in a cigarette product liability warranty claim should not be entirely foreclosed from asserting the Correia defense as a matter of law. We are persuaded by Philip Morris's argument that, in certain situations, a consumer's use of cigarettes may be so overwhelmingly unreasonable as to make the imposition of warranty liability on the merchant fundamentally unfair. When a consumer, for example, begins smoking cigarettes knowing that she has a particular medical condition, such as emphysema, that is exacerbated by smoking, the Correia defense may be appropriately invoked. To succeed in interposing the Correia defense in such circumstances, the defendant must demonstrate that the plaintiff knew of her particular medical condition and the risks smoking posed to that specific condition at the time she began smoking. The defendant need not show that the consumer had a medical expert's knowledge of the risk; it is enough for the defendant to demonstrate that the plaintiff knew that smoking would exacerbate her specific illness. Cf. Cigna Ins. Co. v. Oy Saunatec, Ltd., supra at 19 (defendant need not demonstrate that plaintiff had technical knowledge of dangerous and defective condition).
The record before us contains no evidence that the decedent's use of cigarettes was overwhelmingly unreasonable in the manner we have described above. However, the plaintiff brought her summary judgment motion early in the litigation, when neither side had full opportunity for discovery. At that stage, the judge properly denied the motion to strike the Correia defense, but she terminated the case prematurely. We do not foreclose the plaintiff from renewing, at a later time and on a more fully developed record, her motion to preclude the Correia defense.
Milberg Weiss Indicted
Guess that "We're hesitant because of that Arthur Andersen collapsing thing" idea has its limits.
Tobacco Punitives Reversed in Oregon
State Farm strikes again, this time with the Oregon Court of Appeals sending the case (which had $100 million in punitives on about $170,000 in compensatories) back because the jury wasn't properly instructed on out-of-state conduct.
The opinion, with enthusiastic dissents, is here. In addition to ordering a new trial on punitive damages, the court does find a sufficient factual basis for awarding such damages -- but also concludes that the jury was not properly instructed on them.
The case is a "low-tar" cigarette case; the basic facts from the opinion:
Decedent began smoking in 1964, when she was 18 and a student in nursing school. . . . When decedent started smoking, she knew that there was a potential link between cigarettes and illness, including lung cancer. Her parents had discouraged her from smoking, in part because of health concerns. Plaintiff quit smoking several years after he and decedent were married and he encouraged decedent to follow his example. However, throughout their marriage, she was unable to quit despite a number of attempts to do so, and she continued to smoke about a pack of cigarettes a day.
Decedent first smoked Benson & Hedges cigarettes, a full-flavor brand manufactured by defendant. In 1976, defendant introduced Merit cigarettes to the public with an extensive advertising campaign that emphasized that Merits had less tar than full-flavor brands but, according to the advertising campaign, tasted like full-flavor brands. At about the same time, plaintiff and decedent discussed her quitting smoking. Decedent suggested that, rather than quitting, she would try a low-tar cigarette; plaintiff agreed, believing that switching brands would be a step toward weaning her off cigarettes entirely. . . . According to her mother's testimony, decedent switched to the Merit brand because she believed that "the low tar and nicotine filters are better for you," an idea that others talked about at the time. . . .
After switching to the Merit brand, decedent continued to smoke the same number of cigarettes as before. However, according to the testimony at trial, her method of smoking changed; she took longer puffs, inhaled the smoke more deeply, and held it longer in her lungs. She began smoking each day early in the morning and continued until late at night. She could not go without smoking a cigarette for more than an hour and a half without feeling deprived. Being without cigarettes made her act nervous, edgy, and irritable; smoking a cigarette would cause her to become calm and serene. On one long international airplane flight, she was so obviously upset from the lack of a cigarette that a flight attendant showed her how to smoke in a rest room without setting off the smoke alarm.
After switching to the Merit brand, decedent made further attempts to stop smoking entirely, including using nicotine patches, but she was always unsuccessful. She once told a physician that she had stopped smoking for six months, but plaintiff testified that she never actually quit. An expert on addictive substances testified unequivocally that decedent was addicted to nicotine. Decedent was diagnosed with a brain tumor in February 1998 that proved to be the result of metastatic lung cancer. Despite treatment and a period of temporary remission, she died on July 13, 1999, at the age of 53. At her son's wedding shortly before her death, while she was in a wheelchair and on oxygen, she begged her mother for a cigarette.
(This is not the other Oregon case involving a 151:1 ratio. That one was upheld by the Oregon Supreme Court. Altria has indicated it will seek cert. in that one.)
May 17, 2006
Milberg Weiss Prepares for Possible Indictment
Interesting overview from the NYT.
Certainly Milberg Weiss is best-known for their securities work, but (I think since the PSLRA largely) they've also got a growing and fairly substantial environmental and mass tort practice.
I wonder if this ad (from Google AdSense) was customized to references to Milberg Weiss -- note the last adjective, one I don't see in most lawyer ads:
May 16, 2006
TPLJ's Class Action Preservation Project
From their press release:
Trial Lawyers for Public Justice (TLPJ), a national public interest law firm, is launching a major new project – The Class Action Preservation Project – to fight a growing attempt by corporations to deprive consumers and employees of their legal rights.
Throughout America, corporations are trying to avoid accountability for cheating and discriminating against their customers and workers by slipping class actions bans into the fine print of their form agreements. The Class Action Preservation Project will battle this growing threat to Americans’ rights.
"Corporations are trying to write their own ‘get out of jail free’ cards by slipping class actions bans into their form agreements," said TLPJ Foundation President Thomas M. Dempsey of Los Angeles. "They hope no one will notice until it’s too late. We all have to stop them or justice can never be done."
The press release (which I snarkily observe repeats [with minor variation] the "slipping class actions [sic] bans into their form agreements" phrase in the space of two paragraphs) also cites to Cardozo Law School Professor Myriam Gilles's very interesting Michigan Law Review article [PDF] on contractual avoidance of class actions.
Great White Litigation
In February of 2003, 100 people were killed and scores more injured in a fire at The Station nightclub in Rhode Island, at a concert featuring hair metal band Great White.
Last week, the band's manager was sentenced to four years in prison for involuntary manslaughter:
Biechele was the tour manager for Great White when on Feb. 20, 2003, he lit a pyrotechnics display that ignited highly flammable foam that lined the walls and ceiling of the Station nightclub in West Warwick. The foam was used as soundproofing and was placed there by the owners after neighbors complained about noise from the club.
Not surprisingly, extensive civil litigation has ensued as well. Some interesting items:
- An early op-ed piece criticizing the potential for suit against Clear Channel and its local radio station (who promoted the show and lost a DJ in the blaze) and Anheuser-Busch (a sponsor who held a promotion at the show);
- An early story with some surprisingly decent analysis (for MTV anyway) on the decisions whether to include the band in lawsuits;
- A story on an early federal suit;
- A 2004 piece noting the filing of a broad suit by 200 plaintiffs, with defendants including the band, Lloyd's of London, Anheuser-Bush and its local distributor, Clear Channel and its local station, the foam manufacturer, state and local building inspectors, the bus company whose bus carried the band to Rhode Island, and others;
- Coverage of the judge's refusal to dismiss the case against the city (but dismissing the state);
- Coverage of the judge's refusal to dismiss the case against the radio station.
This is not an attempt to be exhaustive. The recent sentencing got a lot of local media play and it made me curious about where the civil litigation stands. The sheer breadth of the defendants is genuinely astonishing.
Regulatory Defense Initiative Withdrawn
May 15, 2006
Experts as Industry
Via Blog 702, this Fort Worth Star-Telegram story is worth reading. Its focus on defense-side witnesses is a bit striking (as Peter notes). In practice, my general sense was that our experts (I was a defense lawyer) were rarely making as much as the other side's, but that may be true (if at all) in the mass tort context, where there's no monopoly on the defense side in having the resources to do big-budget focus groups and the like.
FactCheck.org on ATLA Ad
The ad shows him cruising through space and accuses him of saying he "questions why some women work." In fact, Santorum was defending women who give up careers to care for children.
The ad also says he sponsored a bill that "restricts the rights of women injured by medical errors." The bill was actually an attempt to address soaring malpractice insurance rates for obstetricians and gynecologists, and would have limited awards for non-economic "pain and suffering" to $250,000 per doctor or hospital. Not mentioned in the ad is that the bill also would have capped lawyer's contingency fees.
Of course, I think it remains accurate to say that a cap on pain and suffering is a "restrict[ion]" on the rights of "women injured by medical errors." Today, in many states, there are no such caps -- women (and men) have the right to seek non-economic damages above $250,000. Adding those caps = a restriction on a previously-existing right.
Certainly one stated purpose of the bill was to reduce malpractice insurance rates (no cite given by FactCheck.org for the rates "soaring," by the way), and clearly many people believe that the restriction on non-economic damages is a sensible approach to those rates -- but it's not inaccurate as stated. One-sided, but that's no surprise.
Drugs for Dogs
The Post has a story about Deramaxx, a canine anti-inflammatory cox-2 inhibitor analogue to Vioxx that (like all drugs) has some side effects. The story includes a link to a website dedicated to collecting reports of adverse reactions in dogs to drugs.
This paragraph at the end of the story caught my eye:
But many veterinarians resist efforts to force them to share drug information sheets -- provided by the companies and endorsed by the FDA -- with pet owners. Elizabeth Curry-Galvin, interim director of the scientific activities division of the American Veterinary Medical Association, said vets are trained to discuss possible drug side effects with pet owners, and her organization thinks most do so. She said the association opposes efforts to require vets to give out the drugmakers' information because "it's just not the be-all and end-all of the communication that's needed."
May 14, 2006
Top Five Torts Papers
...of SSRN postings in the past 60 days:
1. Libel in the Blogosphere: Some Preliminary Thoughts, Glenn Harlan Reynolds
2. The Green Costs of Kelo: Economic Development Takings and Environmental Protection, Ilya Somin, Jonathan H. Adle
3. The Poverty of the Moral Stimulus, John Mikhail
4. Punitive Damages: From Myth to Theory, Anthony J. Sebok (This is a particularly interesting paper, by the way)
5. People's Republic of China Civil Code: Tort Liability Law, George W. Conk
(One class's grading complete, one to go...slowly crawling back to humanity and more-regular blogging.)