TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, February 4, 2006

Oklahoma Targets Joint & Several Liability (Among Other Things)

Here's a pretty good overview, complete with anecdote and comeback, with nobody really citing Oklahoma-based numbers, but with an interesting survey of Oklahoma judges and a snippet from Texas.

The anecdote:

[An OB-GYN of retirement age] said she was forced to give up on her practice entirely because of rising medical malpractice insurance rates.

"I liked what I was doing, but when I found out my malpractice was going to be $50,000 a year, I decided I just couldn't do that,'' Davis said. "I couldn't just slow down like the doctors used to do, work and see their patients but not feel like they had to work all day long.

"If it hadn't been for the malpractice insurance, I'd still be practicing in my office right now.''

The comeback:

"My opinion ... is that it is a very good fundraising tool,'' said Brad West, a Shawnee attorney and president of the Oklahoma Trial Lawyers Association. "It's one of those things that (lawmakers) can say to their political base that motivates them to give money.

"But it's not that simple.''

The interesting survey:

Oklahoma judges apparently agree. According to a survey conducted by state Sen. Charlie Laster, the chairman of the Senate Judiciary Committee, more than 68 percent of judges said they consider less than 5 percent of cases to be frivolous. Almost 90 percent opposed a cap of $250,000 for non-economic damages.

(An odd way to summarize the results, incidentally.  Two thirds of judges think that less than five percent of the cases are frivolous.  What do the other third think?  I can't find the actual study, though I found this PowerPoint (see HTML version here).)

Finally, the snippet from Texas:

While lawsuit reform proponents say hard caps on non-economic damages will result in lower medical malpractice premiums for doctors and greater accessibility to health care, that isn't what happened in Texas, said Alex Winslow, executive director of Texas Watch, an Austin-based consumer advocacy and research group.

When Texas lawmakers approved a $250,000 cap for medical malpractice cases in 2003, there was a decrease in the number of lawsuits filed, but not much change in the cost of premiums, Winslow said.

"What we were told in 2003 is that doctors could expect significant rate reductions of somehwere between 15 and 18 percent,'' Winslow said.'' Rates across the industry have dropped by no more than 5 percent, and more than half of doctors have seen no reduction at all.

February 4, 2006 | Permalink | Comments (1) | TrackBack (0)

Friday, February 3, 2006

FDA Bootcamp

Lots of folks could use the information at this conference (including a lot of academics).  I do have to admit some amusement at the "bootcamp" title, though --

I don't know what I've been told,
But drug companies can change the label without permission through the CBE process so long as it increases safety information
Sound Off -- CBE!
Sound off -- NDA!

February 3, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 2, 2006

Oregon Upholds 151:1 Punitive: Compensatory Verdict

In the suit against what is now Altria, the court upheld $79.5 million in punitives on a $521,000 compensatory award (reduced from the jury's $821,000).  [Changed the story link to a better AP story on the Post site.]  Guess we'll see how solid that 9:1 ratio is. 

Update: The opinion is now up on the Court's website.  The concluding paragraphs:

Of the three Gore guideposts, then, two support a very significant punitive damage award. One guidepost -- the ratio -- cuts the other way. In the end, we are left to use those competitive tools to assess whether the jury's punitive damage award was not "grossly excessive" and therefore should be reinstated.

The Gore guideposts are not bright-line tests.  See, e.g., Campbell, 538 US at 425 ("there are no rigid benchmarks that a punitive damages award may not surpass"); see also Gore, 517 US at 582 ("we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula"). In other words, the guideposts are only that -- guideposts.  Gore also referred to them as indicia. 517 US at 575 (reprehensability is "most important indicium"); id. at 580 (ratio is "second and perhaps most commonly cited indicium"); id. at 583 (comparable sanctions "provides a third indicium for excessiveness").  Campbell specifically contemplated that some awards exceeding single-digit ratios would satisfy due process.  See id. at 425 ("in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process"). Single-digit ratios may mark the boundary in ordinary cases, but the absence of bright-line rules necessarily suggests that the other two guideposts -- reprehensability and comparable sanctions -- can provide a basis for overriding the concern that may arise from a double-digit ratio.

And this is by no means an ordinary case. Philip Morris's conduct here was extraordinarily reprehensible, by any measure of which we are aware. It put a significant number of victims at profound risk for an extended period of time. The State of Oregon treats such conduct as grounds for a severe criminal sanction, but even that did not dissuade Philip Morris from pursuing its scheme.

In summary, Philip Morris, with others, engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others, even when Philip Morris always had reason to suspect -- and for two or more decades absolutely knew -- that the scheme was damaging the health of a very large group of Oregonians -- the smoking public -- and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million punitive damage award against Philip Morris comported with due process, as we understand that standard to relate to punitive damage awards. It follows that the Court of Appeals correctly held that the trial court should have entered judgment against Philip Morris for the full amount of the jury's punitive damage award.

More later.

February 2, 2006 | Permalink | Comments (0) | TrackBack (1)

Pieces of Emotional Distress

I don't think I've yet noted the various lawsuits about James Frey's book A Million Little Pieces; Overlawyered has done quite a bit on it.  Without getting into whether such lawsuits are a Good Idea (tm), one claim that I haven't seen yet -- suggested by one of my students -- is for intentional infliction of emotional distress.

Stay with me here for a bit.  Recall first that the intent standard for IIED is typically reckless disregard, not actual intent to cause distress.  Consider also the fact that the book was about addiction and marketed as an inspiring story, especially for people going through some of the same experiences Frey went through (whichever of those experiences were in fact true).  Given that marketing, there's knowledge of a particularly susceptible population who are relying upon the book and (maybe) knowledge of a risk of serious distress to readers who discover the fiction.

Of course the real question is whether the conduct of publishing fictional material as nonfiction is outrageous to the relatively high level required for IIED, and whether the plaintiffs in fact suffered the severe level of emotional distress required.  Most likely a small percentage (at most) of those who are bringing suit can support those factual allegations.  But it may be, for those plaintiffs, a better claim than many of the claims out there (value of time spent reading, etc.).

Update: This FindLaw piece by Anita Ramasastry (Washington) does a nice job of methodicall working through the claims that have been made in lawsuits filed thus far.

February 2, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 1, 2006

Whatever Happened to the Shrimp Case?

I check the Google News feed, I check Technorati, and there's no relief for those of us who want -- nay, need -- to know what happened with the Benihana shrimp case (first post and second post).  Instead, we get quarterly filings and someone discussing an old school cheerleading jam, whatever that might be.

Anyone hear what happened with the case?  Anyone?

February 1, 2006 | Permalink | Comments (1) | TrackBack (0)

Exxon Valdez Punitives Argument

The case about the Exxon Valdez punitives returned to the Ninth Circuit for approximately the 3,145th time last week, with the judges and parties continuing to bounce around how much is appropriate for punitive damages.  Exxon noted that it's spent $3 billion in cleanup already, suggesting that amount is sufficient for deterrence.  (The plaintiffs, meanwhile, are presumably hoping that the judges are at least aware, at least in the back of their minds, that the $5 billion verdict would represent the profits from half a quarter).

You can also listen to the argument here [WMA, I think that link will work].

February 1, 2006 | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 31, 2006

Bad Science

I came across while doing some work on my current piece about unintended consequences of Daubert, and it is an entertaining and insightful read.  It's written by a young British physician, Ben Goldacre (biography from The Scientist) who writes a weekly column for The Guardian; a sample (quoted in the Scientist piece):

Ok, hands up. I hate nutritionists and phony diet marketers. I hate them because they confuse evidence and theory. I hate them because they make sweeping assertions that something will work in the real world on the basis of tenuous laboratory data. And they either do not understand that, or they do and they are being dishonest. In either case, I hate them.

This piece about homeopathy and picking and choosing studies -- using individual studies that came out one way rather than the meta-analysis that comes out the other, for example -- is particularly interesting and rather relevant to a lot of what one hears in various mass tort litigation from various purported experts, but it's just one example. 

For anyone trying to understand the way science really works (and to find gaps in a theory), the site might be a good place to start.  And in any event, it's very entertaining, especially the comments.

January 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Conference: The Cultural Foundations of Tort Law

From the description of the conference:

This unique conference will assemble a group of preeminent legal scholars and social scientists to examine the cultural roots of tort law’s central concepts, including causation, person, injury, and compensation. Focusing on contemporary and historical American practices, and comparing such practices to those in Europe, Asia, and the United Kingdom, the conference will offer pioneering insights into the ways in which tort law institutions are shaped or contested by cultural understandings of risk and responsibility, by gender and race relations, and by communitarian and individualistic values.

Abstracts and such at the website (linked above).

January 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, January 30, 2006

An Addition to the Top Verdicts of 2005

I previously noted the Lawyers' Weekly top verdicts of 2005.  I received a note from Kevin Fox (who is, I note, a 1977 graduate of the WNEC School of Law) pointing out that his $212,580,000 verdict would have been number 4 on the list.  The case involved a serious brain injury to a newborn during an attempted VBAC (vaginal birth after Caesarean).

The verdict, which was omitted from the LW list, was in fact the largest verdict ever received on behalf of an individual plaintiff in New York State.  It is under appeal by the sole remaining defendant (the rest of the defendants settled pre-trial).  From the summary provided by Mr. Fox (see below), it appears that the non-settling defendant (a surgeon) was allocated 5% of the fault.

Here's the summary: Download VerdictSummary.pdf [PDF, obviously].

If this verdict were included, it would knock out a products case against Ford, leaving the total torts-related verdicts at six.

January 30, 2006 | Permalink | Comments (1) | TrackBack (0)

Needles in Soup Cans

I don't actually intend this to become a blog all about weird things in food (observe the glory that is Kentucky Fried Roaches and Blood-Topped Sundaes), but it seems nearly mandatory to link to the story that contains the sentence "The incident was the fourth report of needles or pins found in food purchased from area stores in the past two weeks."  (The area is Bethlehem, Pennsylvania.)  Pins or needles have also been found in bread, an onion ham, and ground beef.

The supermarket from which the soup can was purchased has declared, fairly sensibly, that it will be upping its security.

January 30, 2006 | Permalink | Comments (1) | TrackBack (0)

Continued (Legal) Use of a (Sort of) Banned Pesticide: Methyl Bromide

The Scientist (which is, for a while yet, free!) has an interesting article on the subject, describing the complications from banning a substance that works really well at what it does (destroy plant-inhibiting pathogens) but also has the unfortunate tendency to cause Bad Things:

The US Environmental Protection Agency (EPA) estimates that the chemical spreads so easily that up to 95% of the methyl bromide injected into soil eventually makes its way into the atmosphere. There, in high concentrations, it can cause a wide range of health effects, such as failure of the central nervous and respiratory systems. A 2003 study by the National Cancer Institute of male pesticide applicators found that those who handled methyl bromide had a higher risk of prostate cancer.

In 1997, the product was banned (mostly), with a phase-out date for developed countries of 2005 and developing countries of 2015.  And yet many farmers continue to use it (around 19,000 metric tons last year in the U.S. alone) under "Critical Use Exemptions" and, according to the story, it may be that more effort is being put into maintaining those exemptions than finding an effective and safer alternative.  Why are the exemptions granted?

In 2000, the US Department of Agriculture (USDA) published a report estimating that if growers had to switch from methyl bromide to the available alternatives, it could cost americans as much as $450 million each year (see chart below). Since that report, the US government has filed for exemption after exemption from the methyl bromide phase-out, under the loophole that people can continue to use the chemical if no "technically and economically feasible" alternative exists.

The story suggests, however, that in fact reasonable alternatives have been developed and points out that Holland (which once was Europe's biggest methyl bromide consumer) phased it out entirely a decade ago...but then also cites credible folks who say the contrary.

Finally, there's a web extra with an interesting story about a fellow who claims to have developed an alternative made from mustard and pepper.

From a torts perspective, I note that Equal Justice has this 2002 report about exposure near fields, but it does not appear to have become a significant tort as yet.  More generally, the entire article presents a nice instance of risk-benefit balancing with no easy answers and might be interesting to discuss in either a Torts or Products Liability course.

January 30, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 29, 2006

Iraqi Tort Reform By Executive Order

This interesting piece by Anthony Sebok and Claire Kelly (both at Brooklyn) contends that President Bush's executive order 13303 went too far:

. . . EO 13303 is now receiving scrutiny from watchdog groups. They fear that it may be used to limit the accountability of corporations doing business in Iraq.

Their fears are reasonable, as we will explain. In particular, it is possible the Executive Order will be used to cut off tort victims' ability to sue corporations working in Iraq.

And that's not the only problem with the Executive Order; there are two others. First, EO 13303 sets a terrible precedent for the abuse of the executive's power over private litigation in the context of national security. Second, it is yet another example of what Professor Sebok has described on this [Findlaw] site as the Republican penchant for "sneaky tort reform."

After comparing this EO to previous EOs that merely suspended, rather than extinguished, claims (as the authors contend this one does), they conclude that the EO seeks to place the financial burden of rebuilding Iraq disproportionately on tort victims who ordinarily could seek compensation in U.S. courts -- in other words, it arguably blocks suit by U.S. citizens against U.S. companies in U.S. courts for torts committed in Iraq.

January 29, 2006 | Permalink | Comments (0) | TrackBack (0)