June 23, 2006
Updated: A MySpace Follow-on Suit
Thanks to Matt in the comments to today's earlier post for pointing out that the alleged third-party criminal/torfeasor is himself considering a suit against MySpace.
(Note that though the Time story refers to it as a "countersuit," it appears to in fact by a suit against MySpace; at this point, Solis (who is under criminal charges) is not a civil defendant.) would be better described as a cross-claim. Solis is indeed a defendant; thanks to KipEsq for correcting me. That'll teach me to post while mediating the kids' argument.
Edit: While I'm somewhat skeptical of the original case (due to some feasibility and causation questions), I'm more puzzled by Solis's potential claim. The aserted lie by the original plaintiff was that she was 15 rather than 14 (which follows from the complaint's acknowledgment that she claimed to be 14 when she registered at age 13).
At a glance, the Texas penal code defines for purposes of sexual and assault charges that "child" is anyone under 17. Is there some other legal significance to her potentially being 14 rather than 15? Perhaps a sentencing enhancement of some sort? I don't see one at a pretty brief look, but maybe it's there...any Texas lawyers want to chime in?
I had an interesting discussion of the MySpace case with around 30 Massachusetts judges yesterday (I was teaching a refresher Torts course), so I thought one more post for the short term might be worth it. So, here's a story about additional efforts MySpace is doing, including a picture of Pete Solis, the not-actually-high-school-student who assaulted the 14-year-old plaintiff in the case discussed in the last couple of days.
"If you're 14 or 15, for example, on our site you can no longer be contacted by anyone who's over the age of 18 unless they know who you are. Knowing who you are means they know your first name and your last name or know your e-mail address," said Hemanshu Nigam, Vice President of MySpace security.
Plus this interesting assertion from Solis:
Just this week MySpace got slammed with a $30 million lawsuit after a 14-year-old girl said she was assaulted by 19-year-old Pete Solis. They hooked up on MySpace and met in person a few weeks later. Solis says he's just as much a victim because the girl allegedly lied about her age in her MySpace profile.
"It was just a complete shock," Solis said. "I mean, I hadn't seen … I mean I didn't expect anything 'cause I didn't hurt her in any way, and if I did I was sorry."
The complaint acknowledges that the 14-year-old registered when underage (and thus presumably lied then):
...but also asserts that she told him she was 14:
June 22, 2006
MySpace Complaint Exhibits
Just to make the MySpace record complete to date, here are the attachments to the complaint: Download MySpaceExhibits.pdf. Thanks to the plaintiff's counsel for providing them.
June 21, 2006
Bill: More FDA Funding, Responsibilities
The Boston Globe has more on the Kennedy (D-MA)/Enzi (R-WY) bill:
The Food and Drug Administration would get needed funding to shore up drug safety and patients and doctors would learn more about the risks of new drugs under the most sweeping overhaul of the FDA proposed in 30 years.
The proposal, which would fund many of the changes by increasing fees charged to drug makers , would also give companies better guidance about what would be expected of them if safety problems arose after drugs reached the market.
Animal Trials & Human Trials
In the Pipeline today has a brief but useful look at the connection between preclinical animal studies and human safety in drug testing. Check it out.
June 20, 2006
The complaint: Download MySpace.pdf [PDF].
Some interesting excerpts:
The complaint includes a fairly lengthy list of criminal conduct that was allegedly tied to the failings of MySpace, and then notes:
The case-specific discussion starts on page 12:
MySpace Sued for Third-Party Tort
In an interesting case with challenging duty and legal cause issues (along with a fundamental question of what ordinary care means in the context), incredibly (and inexplicably) successful web space company MySpace has been sued by a Texas woman on behalf of her fourteen-year-old daughter. The daughter was allegedly sexually assaulted by another MySpace user. The claim focuses on the site's relatively sparse identity and age confirmation processes, and alleged failures to protect against sexual predators.
The Register has one story, as does the WSJ Law Blog (complete with helpful comments like "this is really stupid why would you try to sue a website because your stupid" from "Thunder Down Under"). The law firm's press release links to other coverage.
OT: LSATs and Admissions
I urge you to read my colleague Sam Stonefield's thorough and powerful letter to the ABA relating to the decision to permit law schools to report only applicants' highest LSAT score rather than the average. I'm not certain of my view on the ultimate question, but I fully share his dismay about the lack of careful research evidently performed prior to reaching the decision.
Punitives Cut in Poisoning Case
Several months ago a jury awarded $100 million in punitive damages against a woman who poisoned her husband and set up the scene to look somewhat like American Beauty. The punitives were awarded specifically to ensure that the defendant (serving a prison sentence now) not profit from movies, books, etc., relating to her crime. The case was equally notable for the fact that the jury held her employer (San Diego County) 25% liable for failing to do a drug or background check on her before hiring her as a toxicologist (noted here).
Today it's being reported that the judge, with the plaintiffs' assent, reduced the punitives award to $10 million under State Farm, but apparently has let the $1.5 million judgment against the county stand. The defendant maintains her innocence and is appealing her criminal conviction.
June 19, 2006
Red Hot MDL Action
The JPML has issued [PDF] its schedule for the July 27 hearing in Chicago; as usual, some interesting items.
The panel will hear argument on consolidation of the McDonald's french fry litigation (see this entry on the subject). This is not obesity litigation; it's the presence of gluten or wheat in french fries. If you want to see a complaint from the underlying litigation: Download McGluten.pdf
[PDF]. At least that complaint does allege injury:
The Bausch & Lomb products litigation is also on the docket, as is Fosamax and Actonel.
AMA Calls for Moratorium on DTC Advertising
The AMA recommended a moratorium on direct-to-consumer advertising for newly-approved drugs and device, allowing, they say, for doctors to learn more about drugs before prescribing them. The AMA also proposes new guidelines, saying that DTC ads:
- should provide objective information about drug benefits that reflect the true efficacy of the drug, as determined by clinical trials;
- should show fair balance between the benefits and risks of the advertised drugs by providing comparable time or space and cognitive accessibility, and by presenting warnings, precautions and potential adverse reactions in a clear and understandable way without distraction of content;
- should clearly indicate that the ad is for a prescription drug and refer patients to their physician for more information and appropriate treatment; and [sic]
- should be targeted for age-appropriate audiences; and
- should receive pre-approval from the FDA
That extra "and" in the third-from-last make me wonder if the pre-approval one was added late in the process...probably just an editing mistake.
Many of the proposals track Consumers Union's from late last year.
"Business Judgment" for Medical Malpractice Cases
Blog 702 has a detailed post about this Ted Frank post at Point of Law in which Frank suggested something along the lines of a business judgment rule to be applied in med mal cases -- i.e., if reasonable doctors could disagree, there could be no negligence found. It's an interesting discussion and worth reading both posts.
Experts on Contingency
An interesting piece relating to Milberg Weiss's longtime star expert John Torkelson's own legal woes. Torkelson, who served to quantify investor losses in derivative suits, is about to start his own criminal sentence for improper conduct in Milberg Weiss cases and is under additional pressure to be more helpful...possibly aiming at Bill Lerach.
(via Overlawyered, who has more coverage.)
June 18, 2006
[A] handle on Gomez' poplar hardwood casket snapped off as he was being put on the lowering device above his grave in Spring Grove Cemetery in Northampton five years ago.
The parties dispute whether Mr. Gomez' body came out of the casket and whether witnesses saw it.
After the funeral, [the funeral home director] apologized to the family and offered to buy a headstone.
* * *
[The funeral home] had bought the casket at a discount from Cambium [the casket company]. . . . Drozdal said he chose the casket because he was trying to provide a low-cost funeral. . . .
The jury learned that an Cambium employee claims he told Drozdal the casket was only suitable for cremations, where it wouldn't be handled much.
Drozdal denied ever being told this and testified that he has used such caskets at Jewish funerals many times with no problems.
The jury deliberated for 90 minutes before finding no liability.