TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, December 29, 2006

Daubert Isn't Chicken Feed

or chicken litter, for that matter.

Or something.

Anyway, here I am in Fayetteville, Arkansas, visiting family.  There was an interesting trial earlier in 2006 relating to alleged harms from roxarsone, an ingredient in chicken litter.  It was the first of a number of suits contending that farm neighbors suffered from cancer and other ailments, and, after just 21 minutes of deliberation, the jury found for the defendants.  The case has challenging causation issues, and the judge took a fairly active role in evaluating the scientific evidence.

Today's story provides a nice example of the parties' efforts to figure out what to do while that case is on appeal. In essence, the plaintiffs seem to be asking that other cases in which those plaintiffs serve as lead plaintiffs be stayed while the appeal of their case is resolved, but that other cases -- without those plaintiffs in the lead role -- keep going.

Given the tremendous importance of poultry as an industry in this area and others, the line of cases could end up being important.

(I posted briefly about this case in September too.)

December 29, 2006 in Experts & Science, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 26, 2006

Preemption Case Seeking Cert.

A ways back, I noted a case in which state tort litigation arising out of a train crash (and accompanying spill) was held (by my judge, incidentally) preempted by state law.  Twenty states have now filed an amicus brief [PDF] supporting the grant of certiorari.  The press release doesn't exactly focus on preemption-related issues:

“This case has enormous implications for people injured by the negligent acts of railroads,” said [North Dakota Attorney General] Stenehjem in the press release. “These people, some of whom suffered devastating and life-threatening chemical burns from the derailment, deserve to have their day in court.

“This case illustrates what happens when lawyers get caught up in arguing legal technicalities — and forget about doing justice and addressing real-world injuries. State courts have a long history with these kinds of cases. Five years after the derailment, the argument is still over jurisdiction, not substance, with no end in sight. We are filing this brief to ask the Supreme Court to hear this case to ensure that state-law claims are heard in state courts and not subject to prolonged fights over jurisdiction and pre-emption that the victims of the Minot derailment have suffered in this case.”

The brief is substantially more focused on the issues at stake -- the proper placement of the line between complete preemption and substantive preemption, and how the well-pleaded complaint rule plays into it.  Essentially, the defendants contended that the lawsuit could be removed under  complete preemption removal jurisdiction, while the plaintiffs argued that their allegations avoided that doctrine's applicability and that the FRSA does not completely preempt state law claims like those alleged here.

Given the substantial increase in preemption claims (and assertions by regulatory agencies) in the past several years, it could be an important case if cert. is granted.

December 26, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Sunday, December 24, 2006

Pre-Trial Publicity

While we're talking about leaks of documents in contravention of protective orders, there's a new thesis, from a recent masters graduate of the London School of Economics, that sounds like it'd be worth reading: "In Search of the Impartial Juror: An Exploration of the Third Person Effect and Pre-Trial Publicity."

It's author?  Monica Lewinsky.

A quick glance through Google results doesn't immediately come up with the actual paper.  Anyone have it? Here is an overview (thanks to Ted Frank & AboveTheLaw), evidently written by a co-author.  Is that really the full report?

(Happy holidays, all.  I'll be traveling over the next couple of weeks and blogging may be spotty.)

December 24, 2006 | Permalink | Comments (2) | TrackBack (0)