TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, February 18, 2006

Bird Flu Vaccine Antibiotic, Dangers, and Science

I've previously pointed to and do so again, this time to an interesting piece on the Tamiflu product and, more generally, the anti-vaccine groups.  As he points out, the fundamental basis for many of the criticisms is incorrect -- Tamiflu is not, in fact, a vaccine -- it's an antibiotic.

She tells us of the evils of the measles vaccine (”which caused untold paralysis, damage and death”), and then she tells us how, because vaccines are only able to make your body recognise the appearance of certain strains, and the bird flu virus will change with time, so the drug will become useless: “Why flu drugs don’t work: all flu viruses change antigenically to evade recognition by the host’s immune system.” But Tamiflu, as you know, is not a vaccine.

* * *

[T]his time she has people dying from a vaccine that doesn’t actually exist: “Indeed, the flu shots are worse than useless. Japan has already reported that eight people have died - not from the virus, but from the avian flu jab itself.” Lordy. Good luck jabbing a Tamiflu capsule into your arm. Even better is where they call a virus with a 50% kill rate a pussycat: “At its worst, the avian flu has killed fewer than half the number of poultry workers who have been infected…however, if it truly is as lethal as we have been warned, it surely should have eventually killed everyone it infects.”

One might come up with interesting torts hypotheticals (or perhaps there are actual cases; I haven't checked) on parents who choose not to vaccinate their children and a disease is spread further as a result.

February 18, 2006 in Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, February 17, 2006

Public Nuisance Gun Suit in Trouble

Last year's federal legislation barring the use of the federal gun trace database in civil litigation has potentially doomed NYC's gun lawsuit, which had earlier survived a challenge under the Protection of Lawful Commerce in Arms Act, also passed last year.  Judge Jack B. Weinstein issed an order Wednesday ordering the city to explain how its suit could survive the database law, based on the apparent fact that its suit does, in fact, rely on data from that database.

February 17, 2006 in Current Affairs, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

On Agencies Declaring Their Actions to Preempt State Law

(Via WSJ Law blog)

The Post notes what I've noted before -- a trend of federal agencies asserting that their rules preempt state tort lawsuits.  Both the WSJ blog and the Post assume something that's not self-evident to me -- that the agency's views on the preemptive power of their rules mean anything.

The Bush administration is using federal rulemaking to limit consumer rights to seek damages under state laws governing faulty products.

The Consumer Product Safety Commission will vote today on a rule that would restrict such suits in the case of mattresses that catch fire, the most recent rule changes undertaken by several agencies. Last month, the Food and Drug Administration limited consumers' ability to recover damages for injuries from agency-approved drugs.
Meanwhile, the National Highway Traffic and Safety Administration is seeking to give automakers similar legal immunity from lawsuits over defective roofs if their vehicles meet new roof-crush standards. It is also proposing to limit consumer lawsuits in a rule that would address seat-belt requirements.

I assume that courts are interested in hearing from the agencies in question (or at least willing to listen), just as they're interested in other amici (or at least willing to listen).  Indeed, I'd guess the courts are more interested in the agencies' views than, say, mine.

But the question of implied preemption by Congress is a question for the courts -- and the agency saying so can't make it express preemption.

Or can it?  Am I missing something?  Comments are, as always, open.

Update: The CPSC yesterday approved new mattress guidelines and declared that the guidelines would have preemptive effect.  As with the FDA, the declaration was in the preamble.

Also, PrawfsBlawg has more.


(Prior posts on preemption by regulation: first, second, third.)

February 17, 2006 in Current Affairs, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (2) | TrackBack (1)

Thursday, February 16, 2006

Food Cases Galore

We're approaching the food and drink section in my Products Liability class, so this Long Island Press story is a handy resource on various related incidents and lawsuits, including this one:

A few glasses of milk did a body bad after a man in Washington State reported that they gave him a stroke. Norman Mayo, 61, filed a lawsuit against Safeway supermarkets and the Dairy Farmers of Washington in 1997 because the milk Mayo claimed he was addicted to didn't have any warning label indicating that it would clog his arteries. Unfortunately for Mayo, a federal judge ended up throwing out his lawsuit. On a completely unrelated and untrue side note, Harold Milk claims he got a stroke after consuming a few jars of mayo.

February 16, 2006 in Goofy Cases, Products Liability | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 15, 2006

Staking My Claim

I'm guessing I'm the first Torts prof in the country to get a quiz or exam completed based on the vice president's hunting accident.  My evening section is taking the quiz at this very moment (8:05 EST).

Or did someone out there beat me to it?  Say so in the comments...

February 15, 2006 in Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Respondeat Superior?

Donut shop employees spitting and urinating in coffee cups in our fair commonwealth:

Police began asking questions on Jan. 29, after an anonymous tipster said the store manager was ''SPITTING and putting URINE in POLICE OFFICERS COFFEE,'' according to a police report filed in court.

* * *

At least one doughnut shop employee told police she heard DaSilva threaten to spit in a customer's coffee and heard Rodrigues encourage him.

On one occasion, the woman heard DaSilva ''make a spitting sound while the coffees were in front of him,'' then saw him serve the drinks to a customer, according to the police report.

Probably no vicarious liability, given how contrary it is to the purposes of the Dunkin Donuts, but still an interesting fact pattern.

February 15, 2006 in Goofy Cases, Products Liability, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Asbestos Reform II: Electric Boogaloo

Today's Post article, among other stories, notes a medical criteria proposal being advanced by Durbin, among others.

Sen. Richard J. Durbin (Ill.), the No. 2 Democrat in the Senate and a leading opponent of the trust fund, acknowledged that "significant changes in the existing tort system" are needed, and that all the principals -- including the trial lawyers who sought to defeat the proposed fund -- must give ground.

"We have to find a reasonable way to help those victims," Durbin said. He suggested reviving an approach, which Republicans had not advanced for years, to establish medical criteria for asbestos lawsuits within the current system. Trial lawyers opposed that approach, as did most Democrats, which is one reason the fund idea became popular.

Most stories also note, as does Point of Law, that the trust fund bill may not in fact be entirely dead.

February 15, 2006 in Current Affairs, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 14, 2006

Asbestos Bill Dead?

Seems so, for now anyway.

Supporters fell one vote short of the required 60 votes to waive a budget rule barring legislation that increases government spending by $5 billion in any of four decades after 2016. Senate Majority Leader Bill Frist said before the roll call he would shelve the legislation for the remainder of the year if the procedural motion failed to get 60 votes.

(from the Bloomberg story.)

February 14, 2006 in Current Affairs, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

The Estrogen Picture Gets Fuzzier says the Post

Estrogen does not increase the risk of heart disease for women in their fifties and may even be protective, according to a new analysis that reassures women it is safe to use the hormone for short-term relief of hot flashes and other symptoms of menopause.

* * *

The findings are the latest development in a long, often confusing history of hormone use during and after menopause. Millions of women stopped taking estrogen after earlier research concluded it was dangerous. The new findings should ease their concerns about heart disease, experts said.

[Disclosure: My old firm, which still employs me in a consulting role, has involvement in the defense of the litigation.  I did not and do not have any involvement in that litigation.]

February 14, 2006 in Experts & Science, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Georgia Tort Reform Statute Partially Struck Down

The Georgia Supreme Court struck down a portion of last year's tort reform measure yesterday.  The official court summary:

In a unanimous decision written by Chief Justice Leah Ward Sears, the Supreme Court has affirmed a DeKalb County State Court judge in EHCA Cartersville, LLC v. Turner, S05A1560, and partly reversed a Fulton County State Court judge in Garland v. Earle et al., S05A2066. All the Justices and Judge Daniel M. Coursey, Jr., concurred; Justice Harold D. Melton did not participate.

The Court found that “the plaintiffs in both of the present cases filed their medical malpractice actions in a county of residence of a joint tortfeasor”; that “[t]he counties where the plaintiffs filed the actions, however, were not the counties where the torts occurred”; and that “[i]n each case, a defendant who resided in the county where the tort occurred moved to have the case transferred to that county pursuant to OCGA § 9-10-31 (c).”

The Supreme Court has ruled that Georgia’s Constitution “vests the power to change venue in the courts, whereas OCGA § 9-10-31 (c) vests the power, not in the courts, but in nonresident defendants who reside in the county where the tort occurred.” As a result, the Court has ruled “that § 9-10-31 (c) violates the joint tortfeasor venue provision of our Constitution.” However, with regard to OCGA § 9-10-31 (a), the Court has ruled that this provision of the Tort Reform Act of 2005 “vests the power to change venue in the court, and not in a defendant, as does § 9-10-31 (c),” and consequently “OCGA § 9-10-31.1 (a) is a proper exercise of authority under Art. VI, Sec. II, Para. VIII of the Constitution, and thus does not violate Art. VI, Sec. II, Para. IV of the Constitution.”

Both provisions were challenged under this provision of the Constitution:

Paragraph IV. Suits against joint obligors, copartners, etc. Suits against joint obligors, joint tort-feasors, joint promisors, copartners, or joint trespassers residing in different counties may be tried in either county.

The provision in 9-10-31(c) provides that a defendant in a medical malpractice case can transfer venue to his or her home county if that county is where the alleged tort took place, notwithstanding the residency of the plaintiff or plaintiffs.  The Supreme Court held [PDF] that this venue transfer provision violated the state Constitution's venue provision. 

The other provision, 9-10-31(a), essentially adds forum non conveniens to the state civil procedure, an addition the court found consistent with the Constitution. 

The core distinction, as suggested in the summary, is that (c) places venue transfer power with the parties, while (a) leaves it to the courts.

Five UGA profs provided a useful summary of the legislation back when it was adopted; the venue provision was accurately described as "constitutionally suspect" by C. Ronald Ellington.  That summary provides a good overview of the rest of the measures as well.

February 14, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, February 13, 2006

Med Mal Insurance Factors

The Robert Wood Johnson Foundation issued a "synthesis report" [PDF] with what certainly appears to be a careful, balanced approach to explaining the basics of medical malpractice insurance, the factors that go into setting premiums, how much we spend on medical malpractice insurance, what constitutes a medical malpractice insurance "crisis," and how such crises affect premiums.

A key (if unsurprising) observation in the report is the fact that interest groups tend to focus on one of two "genesis stories" to the exclusion of the other.  In other words, tort reform advocates focus on litigation costs, while plaintiffs' attorneys and consumer groups focus on the insurance cycle and investment outcomes, and neither group recognizes alternative sources as being a factor.  The report suggests that both factors are involved and are interrelated.

February 13, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Conference: Dan B. Dobbs Conference on Tort Law -- Economic Torts

This year the American Law Institute has embarked upon a new project to draft the Third Restatement of Economic Torts. These torts can include established causes of action such as fraud, misrepresentation, professional malpractice, bad faith, breach of fiduciary duty, intentional and negligent interference with contract and opportunity, unfair competition, misappropriation of trade secrets, and disparagement, as well as emerging torts such as conversion of intangibles.

At this pivotal time, the Economic Torts Conference, organized under the direction of Ellen Bublick, Professor of Law at the University of Arizona Rogers College of Law, gathers together more than thirty distinguished academics, judges and practitioners to address the appropriate scope and definition of economic torts. Are economic tort suits desirable? Are they really increasing in number? When should parties be confined to contract alternatives to remedy claims of economic loss?

Our conference examines questions like these, probing the contours and limits of these disparate but often overlapping causes of action.

The Economic Torts Conference will be held March 3rd and 4th, on the campus of the University of Arizona Rogers College of Law in Tucson, Arizona.

More information at

February 13, 2006 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Sunday, February 12, 2006

Obesity Efforts and Proof

The Times has a nice overview of challenges to policies such as eliminating whole milk in schools.

"I don't want to say there is no such remedy that will ever work," said Dr. Jeffrey Friedman, an obesity researcher at Rockefeller University. "But the burden should be on those who want to impose them to show they work. To my knowledge, no one has ever done this."

February 12, 2006 in Current Affairs, Experts & Science | Permalink | Comments (0) | TrackBack (0)