November 3, 2006
New Competition for Oprah's Book Club
The Consumer Law & Policy Blog just launched a new feature, the "online book club," featuring discussions of relevant books. They're starting out this week with Michael S. Greve from AEI, discussing his book on consumer class actions.
November 2, 2006
Updated: Physicians in Texas: Numbers Growing, Or Not?
Charles Silver (Texas) has a useful post at TortDeform about the purported increase in physicians practicing in Texas. His conclusion:
In sum, the 2003 Texas reforms transferred a lot of wealth from malpractice victims, their families, employers, and health insurers to physicians and their liability insurers. This was the main object of the 2003 reforms, and the reforms achieved it. But the reforms have not increased physician supply, which grew at a sub-par rate in the post-reform years. The facts show yet again how wealthy and concentrated interest groups use the political process to advantage, at the expense of groups whose members are anonymous and dispersed.
Update: The comments discussion at TortDeform is worth following.
Spam, Spam, Spam, Spam
...and the SSRI plaintiffs' lawyers have evidently decided spam is a worthwhile way to find clients. This showed up in my home e-mail's spam file today:
Have You Taken Anti-Depressants?
Important Lawsuit Information
[purported unsubscribe information removed]
14545 J Military Trail #137
Delray Beach, FL 33484
The plumluster.com address eventually redirects to http://ilp.legalleadshost.com/neuro1/urn/application/2QW2JXIDEURqP/. That page, perhaps of note, is titled "Neurontin Legal Center" and the metadata is filled with neurontin information. (Neurontin is not an SSRI.) Nice job updating your site, there.
LegalLeadsHost.com has, unsurprisingly, blocked its whois information. Overlaywered has noted the site as a destination for spam relating to overtime as well, and The Stopped Clock dug a little bit further down after receiving a Vioxx spam, and ultimately found an address at -- who woulda thunk it? -- the same UPS store in Delray Beach.
November 1, 2006
Aren't Judicial Elections Fun?
You get things like unapologetic cyber-squatting.
[Madison] County Public Defender John Rekowski last year registered a website named www.citizensformcglynn.com. McGlynn's campaign committee is Citizens for McGlynn. Rekowski uses the Web address to redirect visitors to the site of McGlynn's political opponent, Circuit Judge Bruce Stewart of Harrisburg.
* * *
"People cyber-squat all the time," Rekowski said. "I'm an American citizen, and I can do as I please."
Statutes of Limitations & Section 1983
Sherry Colb's Writ column has a fairly detailed look at the case to be heard by the Supreme Court on November 6.
OT (again!): Happy Halloween
Gotta give my son equal time:
He initially wanted to be an eyeball, then a walking skeleton. But his big sister is scared of skeletons, so he (on his own) said he'd like to be a book about walking skeletons. And then at preschool, they did the face painting to make him a saber-tooth tiger. So I guess he's a saber-tooth book.
Down at the bottom of the cover of the book is a review from Stephen King: "I laughed! I cried! I maybe wet my pants!"
The back of the book has a bunch of reviews (and a
mark of the beast bar code!):
“"Loved it. Only thing that would have made it better: Purple crayon."- Harold of Crockett Johnson's Harold and The Purple Crayon
"It's no To Kill a Mockingbird but it does have skeletons!"- Harper Lee
“Way better than anything I’ve written, but how hard is that?”- Anne Rice
“Don’t bother voting. Just read The Walking Skeleton. Really. Just stay home. Please.”- Karl Rove
“An instant and timeless classic.I wish I had used walking skeletons in A Christmas Carol.”- Charles Dickens
October 31, 2006
More on Williams
The Tortellini (which is, by the way, a new daily read for me) has a post on the Williams argument, concluding that the plaintiffs seem to end up in a better place, with the argument focusing on the propriety of the jury considering conduct related to people other than the plaintiff in suit.
First Look at Williams Argument
The WSJ Law Blog has an initial review of the Supreme Court argument today in the punitives case. The main conclusion: the core approach is unlikely to change.
Risk-Benefit Decisions and Financial Provisions
I've no idea if BP acted properly or not in the case referred to here at Tort Deform, relating to the massive March 2005 explosion that killed 15 employees in the company's Texas City plant. The Tort Deform post doesn't currently link to the article it quotes, but here's a Washington Post story that certainly suggests that BP's conduct was at least negligent and possibly reprehensible. Indeed, BP has conceded responsibility for the accident in question and has settled many of the claims brought. So we can start off with the sound assumption that the company acted negligently. Good so far.
But the Tort Deform posts suggests that BP "put aside money to pay the foreseeable legal claims from the accident it knew would only happen in a matter of time." Wrong. BP has set aside $1.6 billion to pay claims, but that's obviously a provision for financial reporting purposes for existing liabilities, not something that was done in advance, as the Tort Deform post suggests.
Put another way, BP did not, back in the '90s, say, "Gosh, we could fix this or we could set aside $1.6 billion to pay for the lawsuits to come." Rather, in 2006, BP told investors, "We think $1.6 billion will resolve all of these issues." It's different, and in an important way.
As with my prior reference to Tort Deform (with the incorrect representation of the Ford Pinto memo), I agree with what I take to be the post's main point: Corporate defendants sometimes act badly (as do individual defendants, and plaintiffs, for that matter) and many liability modifications proposed have the potential to reduce deterrence. It's worth noting, though, that the post does not identify which modifications would let BP go "unpunished" (by which I assume the poster means "would make it so the victims would go uncompensated"). I expect it's a reference to caps on noneconomic damages and on punitive damages.
But to imply that BP set aside billions of dollars instead of engaging in proper safety is both incorrect and exceedingly unlikely -- I don't know much about what it would have taken to make the tragedy not occur, but I'll bet it was a lot less than $1.6 billion.
It's really a similar error to that made in the prior post, too, contending that a company made a decision in advance to pay tort liabilities rather than make a facility or product safer. No doubt that happens (and rationally must happen), but that's not what this story is about. And, again as with the Pinto post, it detracts from the value of the point.
OT: Happy Halloween
I try to resist most cute picture posts, but my daughter's Amelia Earhart costume was simply impossible to resist. We're still working on my son's costume (he wishes to be a book).
Bill Bryson on Warning Defects
Well, not exactly, but this Weekend Edition story (click on "listen") has an entertaining bit where Bryson discusses growing up in a time (the 1950s) when smoking was healthy, people didn't need to be warned about the unfortunate possible interactions between gasoline and matches, and so on.
October 30, 2006
Olive Pits in Iowa
The Iowa Supreme Court ruled [PDF] in September that a failure-to-warn claim could survive summary judgment, notwithstanding the foreign-natural doctrine:
Plaintiff has alleged that he opened a jar of pimento-stuffed, green olives, which had been imported and sold at wholesale by defendants. He alleges that he used several of these olives, which bore the label Italica Spanish Olives, in the preparation of a salad and, when eating the salad, bit down on an olive pit or pit fragment and fractured a tooth.
* * *
We are satisfied that, in the case of processed foods, consumers may develop reasonable expectations that certain components of food products in their natural state that serve to impede human consumption will be removed. Specifically, we believe that the purchaser of pimento-stuffed olives may reasonably anticipate that the olive pits have been removed. We need not decide whether this expectation would create an implied warranty of merchantability because such a claim is precluded by statute in the present case. We are convinced, however, that a seller of stuffed olives must be cognizant that consumers will assume that the olives will be free from pits and act on that assumption in consuming the product.
"You know dozens of flower pots spontaneously combust each year, it’s just not really widely reported."
Beware the spontaneously combusting flower pots!
It's actually quite an interesting story with some potentially good facts for a products liability question:
As a result, the department issued a consumer alert about the fire hazards of potted plants. One reason for the risk, the alert explained, is that there is little, if any soil, in commercial potted plants these days. "What you find is a mixture of peat and vermiculite. When peat is dry it burns easily," the alert said.
(Bonus points if you know the source of the quote in the title of this post. Alternative quote from a different source: "It happens sometimes. Flower pots just explode. Natural causes.")
Top Five SSRN Torts Papers
The top five new (i.e., last 60 days) papers, ranging from 123 downloads to 102 downloads:
A Taxonomy of Obesity Litigation
Theodore H. Frank,
American Enterprise Institute for Public Policy Research,
Date posted to database: August 28, 2006
Last Revised: August 28, 2006
The Case Against Vicarious Jurisdiction
Lonny Sheinkopf Hoffman,
University of Houston Law Center,
Date posted to database: March 31, 2006
Last Revised: October 4, 2006
Restitution for Wrongs and the Restatement (Third) of the Law of Restitution
James Steven Rogers,
Boston College Law School,
Date posted to database: September 5, 2006
Last Revised: September 22, 2006
It Might Have Been: Risk, Precaution, and Opportunity Costs
Douglas A. Kysar,
Cornell University - School of Law,
Date posted to database: September 5, 2006
Last Revised: September 5, 2006
Hedonic Damages, Hedonic Adaptation, and Disability
Samuel R. Bagenstos, Margo Schlanger,
Washington University, St. Louis - School of Law, Washington University, St. Louis - School of Law,
Date posted to database: September 8, 2006
Last Revised: October 17, 2006
Northern Punitives, Eh?
The Ontario Court of Appeal recently ruled on a punitive damages case with strikingly similar considerations as those evaluated by U.S. courts -- in particular those the Supreme Court will presumably be considering tomorrow in the Williams case.
In applying this principle [of proportionality] to the facts of this case, the Court held that a punitive damage award must be proportionate to the blameworthiness of the employer’s conduct, with particular attention paid to the duration of the misconduct. . . . The Court also considered whether [the defendant's] conduct in relation to [the plaintiff] was malicious and high-handed. . . .
The decision of the Court of Appeal also cautions against placing too much weight on the relative size of the corporate defendant in assessing punitive damages, recognizing that "Indiscriminate use of the relative power of the defendant and the plaintiff as a significant factor would lead to unprincipled awards." [T]he Court recognized that a defendant’s financial power could become relevant where it may rationally be concluded that a lesser award would fail to achieve deterrence. . . .
As part of the proportionality analysis, the Court also considered the totality of all other damages assessed against [the defendant] including the compensatory damages awarded [in this case].
October 29, 2006
Capping Appellate Bonds
The defendant's supersedeas or appeal bond was a servile drudge of appellate procedure until enormous punitive damages verdicts catapulted it out of local courthouses into headlines. From the verdict that exceeded $10 billion in Pennzoil v. Texaco in the 1980s to the punitive damages verdict of $145 billion in Engle v. Liggett Group that was reversed in the summer of 2006, appeal bonds have played a crucial role in huge-verdict litigation. This article's topic - tort reform statutes that cap an appeal bond - stemmed from punitive damages verdicts in smokers' trials against tobacco companies.
Beginning with appellate procedure, the article traces the appeal bond through related topics: federal abstention, bankruptcy, the arguments for and against state tort-reform statutes that cap an appeal bond, and state and federal constitutional doctrines, including the United States Constitution's Full Faith and Credit Clause.
Since constitutions neither compel nor forbid a limited appeal bond, the author resolved that the decision to cap or not to cap resides in the legislature's realm of evaluating public policy. The appeal bond cap's function of facilitating the defendant's entryway to the appellate court whose warranty is a crucial imprimatur for accurate and legitimate judicial decisionmaking convinced the author to commend a cap of $25 to $50 million for a defendant's appeal bond on a jury's verdict for punitive damages.