June 16, 2006
Grace Exiting Bankruptcy, Settling Asbestos Claims
Funeral Home & Casket Company Not At Fault For Casket Problem
I haven't noticed any earlier coverage of this incident, despite the fact that it's local to me:
What happened to Sixto Gomez during his funeral is unclear. His family says he fell out of his coffin. The funeral director says its lid popped open, but Gomez stayed in.
Either way: Ick.
The family sued in Hampshire district court for the shock; yesterday, a jury concluded that neither the funeral home nor the casket company were liable. Quoth the casket company's defense lawyer: "Unfortunate things happen to everybody."
June 15, 2006
Last year, a four-year-old died a couple of hours after riding Mission: Space at Walt Disney World. They've now filed suit:
The suit contends that Disney was negligent in letting the small child board the intense ride; that it posted insufficient warnings of Mission: Space's dangers; and that it was ill-prepared for the medical emergency and did too little to help the stricken boy.
Earlier this year, a 49-year-old German woman died a day after falling ill after the ride. Press reports in both deaths indicate that the riders likely had preexisting heart or other conditions that contributed to their deaths, though most reports indicate that the ride forces were also involved. In the child's case, the condition was evidently unknown; the adult was aware of her conditions.
Mission: Space is a spaceflight simulator. From my understanding, the ride is made up of rotating ride vehicles on a centrifuge-style device. Inside the capsules, the acceleration of the centrifigue simulates launch conditions, while the capsules' rotations simulate various maneuvers. The gravitational forces on the ride are likely not significantly greater than those on many rides at a typical carnival, though other than warnings (see below), those forces are generally much more obvious to someone at a county fair than at Mission: Space, where the actual ride motion is hidden from guests' views. Additionally, it is, I think, fair to say that patrons of a carnival likely expect more intense thrills than those at a Disney park (whether or not those expectations are reasonable).
The contrast between the intensity of Mission: Space and other rides at WDW, along with the fact that the ride itself is essentially hidden from view made warnings that much more important. And indeed, riders at Mission: Space are met with thirteen warning signs and, as many news stories noted at the time, they're provided with vomit bags. This story has a photo of one sign. This site has many videos, including the warning video shown to each rider at a point where they have the opportunity to decide not to ride, but requires registration. Google Video has a video (itself motion sickness-inducing) of the full experience, including a ride operator's exhortations to read the warnings and Gary Sinise, of all people, providing warnings as well. Finally, this site has the text of many warnings, including these:
For safety you should be in good health, and free from high blood pressure, heart, back or neck problems, motion sickness or other conditions that can be aggravated by this adventure.
CAUTION! You may experience motion sickness on this adventure! Mission:SPACE is a realistic and intense simulation of space flight. It is unlike anything that you have ever experienced.
The warnings discuss the intensity of the ride and the fact that people with many preexisting conditions ought not ride. The signs are in English, though warning brochures are available in many other languages. I'm not sure which signs existed when, but I know that extensive warnings have been part of the ride since it started.
Since the second death, Disney has added a version of the ride with the capsule rotation but without the centrifuge motion -- in other words, there's motion, but no significant gravitational forces.
Setting aside the allegation of a failure to respond properly (about which I know nothing), the lawsuit presents a fairly fundamental question in amusement litigation: when a ride does exactly what it is supposed to do, and when that action is well-disclosed to riders and is safe for the vast majority of people, who, if anyone, is responsible when that action causes foreseeable injuries to people with unknown preexisting conditions? Or, for that matter, known preexisting conditions, as in the case of the more recent fatality?
I don't think anyone has suggested that the boy's parents should have known (or did know) of his heart condition, and I certainly am not doing so here. So it's not facially plausible to say that they shouldn't have let him on the ride, as often follows injuries to young children.
And though the lawsuit apparently suggests otherwise, I haven't seen anything else that suggests that the boy's youth was part of why he was prone to injury -- if anything, I would assume that younger riders would be less likely to be prone to injuries of this sort. So it's similarly not facially plausible to say that the park should bar young riders.
As for a warnings claim, I don't think I've ever seen a ride with such thorough signage. Indeed, a non-amusement attorney I spoke with last week made a similar comment. The non-English question is interesting, but good non-English warnings were available on request.
That leaves design defect. If the ride is defectively designed because it caused this injury, it is probably impossible to design a high-intensity thrill ride for anyone that would not be defectively designed. What probably caused these deaths is exactly what makes the ride what it is. I am sure the "green mission" (the name given the no-spinning version of the ride) is fun, but I am equally sure that most kids would opt for the spinning version.
A few years ago, a prominent roller coaster designer made an poorly-considered comment about something like an "acceptable number of deaths" from amusement rides after a series of incidents involving safety equipment and restraint problems. I think the number for restraint failures should no doubt be zero. But for injuries like this, it's a trickier question. If the number of post-ride heart injuries should be zero, then the rides just won't exist.
As in every context, warnings can only do so much -- with unknown preexisting conditions, by necessity, and even with known preexisting conditions, by the choice of riders to ignore them. That means if society wants rides like Mission: Space (or even the Gravitron), there will be injuries to innocents. (This, incidentally, is one of the reasons I am interested in amusement safety -- the issues are much more generally relevant than one might think at a glance.)
In the end, the suit may be the result of Disney's reputation -- whether deserved or not, I don't know -- of settling just about everything. I can't recall any park injury cases from any Disney park going to trial (and I know that a number have settled), but that may well be a function of them having relatively few injuries more than a policy not to take cases to trial.
Campaign Spending & Torts
Alabama's gubernatorial candidates are spending a bunch of money; much of it from trial lawyers and businesses seeking to influence the debate, in particular about what both sides call tort reform. Current governor Bob Riley beat former Alabama Supreme Court Justice Roy Moore (of Ten Commandments fame); interestingly, (a) Moore received a fair amount of money from plaintiffs' attorneys; and (b) the Christian Coalition of Alabama warned against trial lawyer-supported candidates -- including the conservative Christian Moore.
The Coalition's ads are available here. An excerpt from one:
June 14, 2006
NEJM on Food Marketing and Childhood Obesity
Everyone knows that American children are becoming fatter, but not everyone agrees on the cause. Many of today's children routinely consume more calories than they expend in physical activity, but this imbalance results from many recent changes in home, school, and neighborhood environments. Concerned about the health and economic costs of childhood obesity, in 2004 Congress asked the Centers for Disease Control and Prevention to examine one potential cause — the marketing of foods directly to children. The result is a new Institute of Medicine (IOM) study, Food Marketing to Children and Youth: Threat or Opportunity,1 that provides a chilling account of how this practice affects children's health. Food marketing, the IOM says, intentionally targets children who are too young to distinguish advertising from truth and induces them to eat high-calorie, low-nutrient (but highly profitable) "junk" foods; companies succeed so well in this effort that business-as-usual cannot be allowed to continue.
Preemption by Preamble - New Paper
In the preamble to its most recent (January 2006) prescription drug labeling rule, the FDA made clear its belief that "FDA approval of labeling under the act ... preempts conflicting or contrary State law". The latest rule (effective July 2007) handed down by the Consumer Product Safety Commission (CPSC) includes a sweeping preamble statement that the new federal standard preempts "inconsistent state standards and requirements, whether in the form of positive enactments or court created requirements". And, if NHTSA has its way, its new safety standard for roofs on sport-utility vehicles will include language immunizing auto manufacturers from state tort lawsuits over defective roofs if their autos meet federal safety standards. Dubbed "silent tort reform", these preemption preambles may be only the beginning, the tip of the iceberg, a harbinger of a future where federal agency regulations come armed with directives to displace competing or conflicting state regulations or common law as a matter of course.
With the issuance of these recent controversial preambles, federal agencies have thrust themselves into the preemption spotlight. In the "tale of three agencies" that follows, I explore the recent agency action against the backdrop of the dynamics and organization of the various regulatory regimes in question, comparing and contrasting the CPSC, the FDA, and NHTSA. Critical to my analysis is the interplay between private rights of action and federal regulatory schemes. Courts appear to grant agencies fairly expansive discretion to interpret (or declare) the preemptive scope of the regulations they promulgate, but when it comes to inferring private rights of action under those same regulations, their hands are tied by judicial tether. As Justice Scalia colorfully responded in the latter context: "Agencies may play the sorcerer's apprentice but not the sorcerer himself". Why can an agency play the role of the sorcerer in the context of preemption, but must remain a lowly apprentice with respect to implied rights of action? This ostensible asymmetry reveals that any threat to the "rule of law" presented by the federal agencies' preemption preambles rises or falls depending upon either the continuing existence of private rights of action (either express or implied) at the federal or state level, or, alternatively, the provision of a remedial framework as part of the federal comprehensive scheme. In this way, the necessity of private rights of action varies inversely with the comprehensiveness of the federal regulatory scheme.
Expert Testimony Can't Be Basis for Professional Sanctions
...or so says one judge, noted at Blog 702 (who also has the TRO itself, which is fairly cursory). The short version is that a neurologist testified for the plaintiff in a med mal case which was later settled. The AANS later received a complaint from the defendants relating to his testimony, and it indicated that it intended to sanction him for violating the group's expert witness guidelines. The court has enjoined those sanctions pending the outcome of the case.
This is a rather astonishing result at least on its face, though of course who knows what the underlying facts really show.
[P.S. Hi, I'm back from Minnesota. The weather was unpleasant but the company nice. We returned to find that a bear had torn down and destroyed our bird feeder!]
June 12, 2006
Information Flow & Government Science
Not directly torts-related, but it ties into something I'll be writing about later this month, so for now, just a pointer to this NYT piece:
The quality and credibility of government research are being jeopardized by inconsistent policies for communicating scientific findings to the public, says an independent group of scientists that advises Congress and the White House.
Still in Minnesota, so things will continue to be sporadic until Wednesday or Thursday...