TortsProf Blog

Dept. of Unlikely References to Tort Law

Because I have the most exciting life ever, it's Saturday at 10:00 pm and I just finished watching this episode of the Food Network's Good Eats.  "TORT(illa) Reform."  Cute.

--BC

Empirical Data on State Appeals

An interesting new paper by Theodore Eisenberg and Michael Hesie (both of Cornell) analyzing state appeals is now up on SSRN.  The abstract:

Two findings dominate prior empirical studies of federal civil appeals. First, appeals courts are more likely to disrupt jury verdicts than bench decisions. Second, trial court defendants fare better than plaintiffs on appeal. But federal cases are limited by subject matter and comprise a small fraction of the nation's civil litigation activity. This study, which exploits a uniquely comprehensive database of state court trials and civil appeals, presents the first statistical models of the appeals process for a comprehensive set of state court civil trials. Using data from 46 large counties consisting of 8,038 trials and 549 concluded appeals, we find that state court appellate reversal rates for jury trials and appeals by defendants exceed the reversal rates for bench trials and appeals by plaintiffs. The reversal rate for trials appealed by plaintiffs is 21.5% compared to 41.5% for trial outcomes appealed by defendants. The reversal rate for jury trials is 33.7% compared to 27.5% for judge trials. Both descriptive analyses as well as more formal selection models point to appellate judges' attitudes toward trial-level adjudicators as an important explanation for these asymmetric outcomes of civil appeals in state courts. Our results are generally consistent with prior research on federal court appeals but also suggest a higher reversal rate of trial outcomes in state court compared to federal court.

--BC

A Couple of Interesting Suits

Long-time readers know that I have an odd side interest in amusement park safety.  This week provides two interesting suits -- one new and one on the verge of trial.

• The new suit involves a lawsuit relating to injuries after a woman fell out of a roller coaster in Arkansas.  She's quite a large woman and the ride operators (remarkably) allowed her to ride in two seats.  This is a long way from recommended behavior for either ride operators or passengers (though one assumes that there are no express warnings about riding in two seats, and I suppose she can probably point out that she is allowed to ride in two seats in planes, etc.).  She fell eleven feet and alleges that she has not been able to work since the incident; she's seeking $16 million from the park and the ride importer.
• The old suit (set to start trial next week, I understand) relates to the tragic death of Greyson Yoe, who was electrocuted while waiting in line for bumper cars at a county fair in Ohio.  The ride had been inspected the day before, when state inspectors passed it, expressly checking on the inspection form that they had checked the grounding.  In fact, they had not and now disavow any knowledge of how to check grounding.  (I hear that testimony may suggest that they received more electrical training than they now claim.)  The inspectors pleaded guilty a year or two ago to dereliction of duty.  Of note, after the criminal charges, the relevant regulatory agency (which in Ohio is the Ohio Department of Agriculture) removed electrical inspection entirely from their inspectors' forms.  The Ohio legislature directed the ODA to reverse that decision.
  
  This suit is by Yoe's family and estate against the ODA.  (I haven't dug through to find the sovereign immunity decision but I assume there's some sort of exception when there's criminal conduct.)
  
  I wrote about this case in a paper [PDF] I presented to amusement lawyers about criminal charges in amusement accidents and in When Criminal and Tort Law Incentives Run Into Tight Budgets and Regulatory Discretion, 34 CAP. U.L. REV. 581 (2006).

--BC

New York Death Officially Linked to 9/11 Dust

Today's New York Times reports that the New York medical examiner has officially listed dust from the Twin Towers as a "contributory cause" of the death of a civil rights lawyer who was engulfed in clouds of dust as she ran from her office one block from the trade center. 

This finding could have potential relevance in the pending 9/11 litigation against New York City.  Over 8,000 firemen, police officers, rescue workers, sanitation workers, and construction workers have filed suit in NY district court against New York City for respiratory illnesses allegedly caused by exposure to 9/11 dust. 

In a two-part Findlaw series last March and April, Tony Sebok examined New York's efforts to reopen the 9/11 Fund to compensate these plaintiffs.  In Part I, Sebok discussed the background of the 9/11 Fund, and the respiratory illness suits against New York City.  In Part II, Sebok argued that the liability cap imposed by the 9/11 Fund statute could be unconstitutional as applied to the the respiratory plaintiffs.  Sebok then addressed the secondary question: Should Congress reopen the 9/11 fund to compensate the respiratory plaintiffs?  Sebok examined both the legal and emotional issues raised by this question, reluctantly concluding that the answer is "no."

- SBS

North Carolina House Passes Med Mal Cap

WRAL in North Carolina reports that the North Carolina House passed a bill that would cap monetary damages in negligence cases against doctors and hospitals at $1 million.  The bill allows parties to select binding arbitration with monetary damages limited to $1 million.  Interestingly, the North Carolina Medical Society (the doctors) joined forces with the North Carolina Academy of Trial Lawyers (the lawyers) to support the bill. 

- SBS

Med Ad News on Zyprexa

Med Ad News (a publication I admit never having heard of before getting the call from their reporter) has a lengthy piece about the Zyprexa document story, quoting me fairly extensively (at a glance, at least mostly accurately). 

I haven't read it carefully, but will do so.  I also recently received some other material relevant to the case that I will review, hopefully soon, and post about.  And as that article notes, I'm working on a longer law review article related to the issues raised by it.

--BC

"NOPEC" - High Gas Prices, Let's Sue

On Tuesday, the House passed the "No Oil Producing and Exporting Act of 2007," which would allow the Department of Justice to sue members of the Organization of the Petroleum Exporting Countries (OPEC) in U.S. court.  A similar bill has passed the Senate Judiciary Committee, and has been placed on the Senate's legislative calendar for a vote.  President Bush has threatened to veto the Act, though the House passed the bill with enough votes to override a presidential veto.   

Putting aside the likely demise of this bill in the political process, is the solution to higher gas prices really a lawsuit?   What does this bill say about our cultural propensity to solve problems through litigation? 

-SBS

CPSC Nominee Baroody Withdraws

The AP has more.

The White House said “it became evident to Mr. Baroody that he would not be confirmed.” The statement added that the process will begin immediately to find “another qualified and committed leader to serve in this important position.”

A Senate subcommittee hearing on Baroody's nomination had been scheduled for Thursday. Democratic Sens. Bill Nelson of Florida and Richard Durbin of Illinois wrote Bush last week saying the nomination should be withdrawn.

“We should not put a person who's made a living lobbying against consumer protections in charge of safeguarding the public from dangerous and defective products,” said Nelson.

--BC

SCOTUS Invites SG View On Products/Preemption Case

On Monday, the Supreme Court invited the Solicitor General to file a brief in Wyeth v. Levine.  At issue is whether the FDA's drug label requirements preempt state negligence and failure-to-warn products liability claims. 

Wyeth is appealing a $6.8 million judgment awarded to a Vermont woman whose hand and forearm were amputated after an anti-nausea drug was improperly injected into her artery.  The FDA had approved the drug's label, which included injection as a method of administration and warned of the risk of gangrene when injected into an artery.  On appeal, the Vermont Supreme Court upheld the award, rejecting Wyeth's preemption argument. 

The cert documents are available at SCOTUSBlog as well as the brief in opposition and amici briefs filed by PLAC and PRMA.  SCOTUSBlog gives Wyeth's petition a "reasonable chance" of being granted - and that was before the SG was invited to weigh in.

-SBS 

Michael Moore Takes On Health Insurance

Michael Moore (of "Farenheit 911" fame) premiered his new film, "Sicko," at Cannes this past weekend.  His latest film takes on the American health insurance system, and raises questions about the cost of health care in the United States.  The film opens on June 29th, but Moore is providing a sneak peek for eager fans.  The movie is receiving good reviews, as summarized on Slate.  The Post has a full discussion of the movie, including an interview with Moore.   

- SBS

Hearing on FDA's Role In Evaluating Drug Safety

Thanks to Bill for the welcome!  I am delighted to join him. 

Now for an interesting tidbit about the FDA:  An article in yesterday's New England Journal of Medicine (NEJM) concerning the diabetes drug Avandia is prompting a closer look at the FDA's role in ensuring drug safety.   

• On Monday, Representative Henry A. Waxman announced that the Committee on Oversight and Government Reform will hold a hearing on June 6, 2007, on the FDA's role in evaluating the safety of Avandia. 
• Consumers Union also is pointing to the NEJM research on Avandia as support for legislation limiting the FDA's post-market review system. 
• The FDA has issued a safety alert on Avandia, urging patients to talk to their doctor about continued use of the drug. 
• Today's New York Times has an article on this issue, which includes a response by the drug's manufacturer, GlaxoSmithKline (Bill adds: GSK has statements on its media page, including a fairly detailed discussion of its long-term clinical trials).

- SBS

MySpace, AGs Agree to Data Sharing

The Post has more.

--BC

A Million Little Postcards Offering Small Amounts of Money

The WSJ Law Blog reports on the class settlement in the Million Little Pieces litigation.

--BC

That's Rather Hot.

I'm in New York for most of this week.  In the cab this morning from Penn Station I saw this (I think verbatim) on a food cart:

180º boiling coffee!  Always fresh!

Just another data point in the coffee tort storyline...

--BC

Welcome to Sheila Scheuerman!

Hey, look over there to the left - TortsProf has a new co-editor, Sheila Scheuerman of the Charleston School of Law!

We're still finalizing the posting schedule, but we'll be splitting duties more or less in half starting soon.  And I guess that means I should start signing my posts.

--BC

Foreign Business Execs on U.S. Liability

The Hill has a piece about foreign executives seeking changes to the U.S. liability system:

Threats of class-action lawsuits constitute a serious disincentive to conducting business in the U.S., according to several top executives of foreign companies invested in the U.S. who are lobbying members of Congress this week.

“Litigation is a major business expense in comparison to Europe,” said Gary Elliot, chairman and chief executive of ThyssenKrupp USA, a German steelmaker that last week announced it was spending $3.7 billion to build a plant in Alabama.

(Guess it's not so much of an expense that they won't open a plant in Alabama, a point the article notes later too...)