Wednesday, October 31, 2007
Also from the NYT, the Senate Committee on Commerce, Science & Transportation has approved a bill that would expand the authority of the Consumer Product Safety Commission:
The bill would increase the maximum penalties for safety violations and make it easier for the government to make public reports of faulty products, protect industry whistle-blowers and prosecute executives of companies that willfully violate safety laws. It would ban lead in toys and give state prosecutors the authority to enforce federal consumer safety rules.
From the New York Times: A new federal study issued by the Congressional Research Service reports that 21 states will run out of money for the Children's Health Insurance Program (CHIP) in the coming year, and of those states, 9 will exhaust their funding by March, including Alaska, Georgia, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey and Rhode Island. Bipartisan talks continue on the bill vetoed by President Bush earlier this month (prior posts here and here):
Their goal is to revise a bill, vetoed by President Bush, to pick up Republican support in the House and gain enough votes to override another veto threatened by the president.
Tuesday, October 30, 2007
CBS News is reporting that a professor at Ashland University has found very high levels of lead in a variety of Halloween-themed products, including "ugly teeth" which, as you might suspect, are made to go in a child's mouth. A later report indicates that the distributor and retailers are trying to get them pulled from shelves, and Amscan (the distributor) has announced a recall (though it's not on its press releases page).
In only very slightly related news (i.e., I discovered it while looking for Halloween-themed material), it is with no small amount of pride that I observe that the Google search for "Halloween torts" has as its very first result my very first Torts exam [PDF]. I am particularly fond of this part:
Spooky Scary World was an event that ran for four weeks in the fall every year. It was operated as a benefit by the Center to Cure Mild Irritability and Crankiness (“CCMIC”). The CCMIC hired over two hundred short-term employees to staff the half-dozen haunted houses as scare actors and operators of the various technologies involved in the attractions.
(I also rather like the description of a particular "scare zone": "an almost entirely vacant warehouse “spook zone” entitled “Britney’s Brain” (featuring one actor performing as a “thought” roughly every twenty minutes).")
And perhaps the funniest line I've ever gotten from a student was in response to my use in the exam of a scare actor dressed as then-Red-Sox-player Johnny Damon: "Everyone knows that Johnny Damon is only scary with runners in scoring position."
The New Jersey Law Journal (via law.com) reports on the oral arguments before the New Jersey Supreme Court on whether Merck can be held liable for medical monitoring for individuals who may have suffered "silent heart attacks" from use of the drug Vioxx. John Beisner of O'Melveny & Myers argued on behalf of Merck, while Elizabeth Cabraser of Lieff Cabraser argued for the putative class.
The New York Times reports that the U.S. Supreme Court has granted cert in the Exxon punitive damages case arising out of the Exxon Valdez oil spill in Alaska back in 1989:
A jury in Federal District Court in Alaska had awarded $5 billion, which the United States Court of Appeals for the Ninth Circuit cut in half in a decision issued last December. It was the biggest punitive damages award ever ordered by a federal appeals court, and was five times the economic damage of $500 million suffered by the class of 32,000 plaintiffs.
Exxon argued in its appeal to the Supreme Court that given the nearly $3.5 billion the company had already paid in environmental cleanup costs, fines and settlements of private claims, the $2.5 billion was outside the boundary of constitutional due process that the court has drawn in recent decisions overturning other punitive damage awards.
In accepting the appeal, however, the justices granted review only on three statutory questions focused on maritime law. As a result, while the case will be of interest to the shipping industry, the decision will shed little light on the constitutional framework that the Supreme Court intends to apply to the question of punitive damages. The case is scheduled to be argued in February and decided by early summer.
SCOTUSblog has a thorough post analyzing the cert grant with links to the briefs.
Monday, October 29, 2007
Cass Sunstein and William Meadow have posted a new article to SSRN, "Causation in Tort: General Population vs. Individual Cases." From the abstract:
To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff's harm by reference to the ordinary standards of causation.
The Houston Chronicle reports that the New Mexico Attorney General has filed a brief with the New Mexico Supreme Court in support of a class action against Dell. The case alleges that Dell's computers do not have as much storage as promised, and brings claims under New Mexico's consumer fraud statute.
Sunday, October 28, 2007
In a piece that explores the alternatives to class certification in mass products cases (where such certifications are almost never appropriate), Byron Steir (Southwestern) suggests in a recent SSRN posting of a 2005 Utah Law Review article the rise of informal and formal litigation networks as a potential means for resolution:
In the last few decades, mass tort litigation has wrestled with widespread, multijurisdictional problems that have greatly stressed the caseloads of courts. Certifying for trial multiple-incident, product-liability class actions for personal injuries has promised the resolution of expansive problems. But as appellate courts have increasingly held, these actions are not appropriate for class treatment because they involve numerous individualized issues that require unmanageable individualized adjudication. Without a perceived workable alternative, many trial courts have continued to try radical class action trial plans that violate state substantive law and federal constitutional law, but which bring tremendous pressure to settle upon defendants who fear they may not be able to obtain appellate review. Attempting to defuse this crisis, Congress recently passed the Class Action Fairness Act of 2005, greatly expanding federal jurisdiction for class actions. Once class actions are removed to federal court, however, the Act still provides no alternative for federal courts to the Hobson's choice framed by plaintiffs' counsel: certify a class, or be inundated with thousands of unmanageable, wasteful, and repetitive individual cases.
But that is a false dichotomy. This article argues that the alternative to mass tort class actions is not such isolated repetitive litigation, but instead an expansive set of litigation networks of counsel, judges, and clients, using recent advances in information technology, that provide much of the efficiency promised by class actions without violating state substantive or federal constitutional law. As an example, the article discusses the functioning of litigation networks in the ongoing litigation concerning phenylpropanolamine (PPA), an ingredient in cough and cold remedies and appetite suppressants that has been alleged to cause stroke. By sharing information, pooling resources, developing specialized expertise, and coordinating strategy, these networks not only reduce the costs and improve the representation of individual litigation, but also develop accurate claim values for settlement of numerous cases and allow for improved case management over time through pragmatic experimentation. The article concludes that mass tort litigation networks provide a fruitful alternative to impermissible product-liability class actions for personal injuries, and that judges should deny requests to certify such class actions and instead encourage and assist in the creation and functioning of litigation networks.
Friday, October 26, 2007
In a case involving "famously obnoxious" lawyer Geoffrey Fieger, the Ohio Supreme Court has reversed by a vote of 5-1 a $30 million verdict for a baby stricken with cerebral palsy. Fortune's LegalPad (linked to above) has a detailed description of the case, including a fair amount about Fieger's conduct during the trial.
It's not exactly shocking news that testing incoming hospital patients for the "superbug" version of staph could be highly effective, but the article is interesting nonetheless to hear one explanation as to why that's not become the standard of care.
Yet few U.S. hospitals do it, and many fight efforts to require it. Jeanine Thomas, who nearly died from the drug-resistant staph bug, says the reason is simple: "Doctors don't want to be told what to do."
The Chicago suburbanite's personal crusade led Illinois this year to become the first state to order testing of all high-risk hospital patients and isolation of those who carry the staph germ called MRSA.
Powerful doctor groups fought against it. The testing and isolation of patients would be too costly, they said. Many other germs plague hospitals that also require attention. Experts said a more proven approach would focus on better hand washing by hospital staff — a simple measure tough to enforce.
Thursday, October 25, 2007
There is, as you might imagine, a little bit of excitement around these parts relating to the World Series. And so today I direct you to a detailed bibliography [PDF] created by Amy Beckham Osborne of the University of Kentucky law library.
Also: Go Sox.
Wednesday, October 24, 2007
Eric Turkewitz notes (after a spot-on criticism of the site) a post suggesting that SueEasy may be a hoax, presumably to emphasize a perceived sue-happiness. I don't think it is for a couple of reasons:
- First, it would be a stupid one. Once exposed, it would be pretty easy to say, "Um, so you couldn't find enough actual evidence of overlitigation so you had to make it up yourself?" Not a good idea.
- More to the point, the evidence points away from it being a hoax. The whois entry shows that it's connected to Webtronaut which, while a little silly-looking and filled with Web 2.0 gobbldegook, appears to be legitimate. Searching for the name of the listed contact reveals various real-looking references -- the sort of thing that it would be uncommon for a hoax perpetrator to both with.
Put briefly, while I might wish it was a hoax, I don't think it is. It is undoubtedly a terrible idea, but it seems to be a real terrible idea.
The Washington Post reports that Roy Pearson, the plaintiff in the dry cleaning pants lawsuit, will not be reappointed to his position as a DC administrative law judge. (Prior posts here, here, here and here). No formal letter has been issued, however, so any decision is not yet final.
In his latest FindLaw column, Tony Sebok addresses the two recent opinions by the Second Circuit on the Alien Tort Claims Act: Khulumani v. Barclay National Bank and Ntsebeza v. Daimler Chrysler Corp. Although the Second Circuit reversed a dismissal by the district court, Sebok argues that the substantive ruling on ATCA aiding and abetting liability may prove to be a "pyrrhic victory" for the plaintiffs:
The test based in international human rights law is set out in the Rome Statute of the International Criminal Court: One is guilty of aiding and abetting a crime if one renders aid to someone who commits a crime, and does so "[f]or the purpose of facilitating the commission of such a crime."
Judge Korman and Judge Katzmann agree that the Rome Statute should apply. Since they constitute a majority of the panel, that is the standard Judge Sprizzo must apply on remand.
In contrast, the common law test is less demanding (and thus, more pro-plaintiff). On the Second Circuit panel, Judge Hall was the only judge who endorsed this test. He quoted the Restatement (Second) of Torts §876(b), which provides that one is liable for aiding and abetting the tortious conduct of another "if he . . . knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other."
In his next column, Sebok will analyze which test for aiding and abetting should apply to the ATCA.