TortsProf Blog

Editor: Christopher J. Robinette
Widener Univ. School of Law

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Saturday, June 2, 2007

Poision In Toothpaste From China

The New York Times reports that the FDA has found "diethylene glycol, a sweet, syrupy poison" in toothpaste imported from China.   The FDA has warned consumers to throw out toothpaste labeled as made in China.

- SBS

June 2, 2007 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, June 1, 2007

Top 10 Torts Downloads On SSRN

Listed below are the top 10 downloads for papers posted on SSRN from April 2, 2007 to June 1, 2007 in the Journal of Torts & Products Liability Law :

Rank Downloads Paper Title
1 401 Do Judges Systematically Favor the Interests of the Legal Profession?
Benjamin Barton,
University of Tennessee, Knoxville - College of Law,
Date posted to database: April 3, 2007
Last Revised: May 4, 2007
2 243 It's a Wonderful Life
Ronen Perry,
University of Haifa - Faculty of Law,
Date posted to database: April 4, 2007
Last Revised: April 17, 2007
3 87 The Death of Strict Liability
Peter M. Gerhart,
Case Western Reserve University - School of Law,
Date posted to database: March 28, 2007
Last Revised: April 13, 2007
4 74 Discrimination and Outrage: The Migration from Civil Rights to Tort Law
Martha Chamallas,
Ohio State University - Michael E. Moritz College of Law,
Date posted to database: April 6, 2007
Last Revised: April 13, 2007
5 68 Pain Detection and the Privacy of Subjective Experience
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: March 29, 2007
Last Revised: March 30, 2007
6 62 Dispatches from the Tort Wars: A Review Essay
Anthony J. Sebok,
Brooklyn Law School,
Date posted to database: May 10, 2007
Last Revised: May 10, 2007
7 60 Property and Half-Torts
Lee Anne Fennell,
University of Illinois College of Law,
Date posted to database: January 27, 2007
Last Revised: May 4, 2007
8 60 Punitive Damages and Valuing Harm
Alexandra B. Klass,
University of Minnesota Law School,
Date posted to database: April 15, 2007
Last Revised: April 27, 2007
9 60 Physicians' Insurance Limits and Malpractice Payments: Evidence from Texas Closed Claims, 1990-2003
Kathryn Zeiler, Charles Silver, Bernard S. Black, David A. Hyman, William M. Sage,
Georgetown University Law Center, University of Texas at Austin, University of Texas at Austin - School of Law, University of Illinois College of Law, University of Texas at Austin,
Date posted to database: April 20, 2007
Last Revised: May 31, 2007
10 59

Defending Torts: What Should We Know?
Herbert M. Kritzer,
University of Wisconsin, Madison - Department of Political Science,
Date posted to database: March 30, 2007
Last Revised: April 19, 2007

- SBS

June 1, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Is The TB Traveler Liable To His Fellow Airline Passengers?

Stephen Bainbridge and Dan Solove both have posts pondering whether Andrew Speaker, the groom who traveled to Europe with a virulent form of tuberculosis, could be held liable for his transatlantic flights.  (Stories on the TB Traveler abound: WSJ Law Blog, NY Times, and CNN are just a few.)

Both Bainbridge and Solove suggest a negligent transmission theory.  (Bainbridge analogizes to negligent transmission of venereal diseases).  In an AP News Story, Lawrence Gostin and Peter Jacobson suggest the same theory.   But this raises an interesting question:  Do we have a duty to our fellow passengers when we fly?  If so, what is the scope of that duty?   Could a passenger be liable for transmitting a cold?

Bainbridge and Solove also both mention the possible intentional/negligent infliction of emotional distress claims.   Again, the same questions:  how far could this theory go?

-SBS

June 1, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, May 31, 2007

A Small Thought About Flea

The NY PI Blog continues to be the leader in blog coverage of the Flea-blogging-his-own-trial-and-then-settling-when-outed case.  I've read very little of it, so I may be repeating something said elsewhere and better.  But:

Is there anything particularly unique here?  A witness -- here a party -- decided to settle when it became clear that things he had said elsewhere were known to the other side and that those things would affect the case. 

Those things were on a blog in this instance, but is it really different than an expert taking a position in an earlier article contrary to that presented at trial?  (Seen that.)  Or a treating physician in a pharma tort case being impeached by his own records?  (Seen that, too.)  Or an investigating officer being crossed on past racist comments?  (Wish I had avoided that on Court TV.)

I'd initially queried "Is there anything particularly interesting?" above instead of focusing on uniqueness.  Clearly it is interesting; Flea (er, Dr. Lindeman) is a good and clever writer, and it's always interesting to read about people's first-hand interactions with the tort system.  (Even if I would probably choose a different bass player if I were choosing a pseudonym, though I understand that "flea" has a particular meaning among pediatricians.)

But other than that, I'm not sure it's really a "Wow, look at this new world we're in!" moment.  Instead, it may just be a moment to say that it's never a good idea to disclose privileged information to people outside the privilege, whether it's your neighbor or people who stumble across your blog.

--BC

May 31, 2007 in Current Affairs | Permalink | Comments (1) | TrackBack (1)

Med Mal Case Against "Flea" Settles After He's Outed

The NY PI Blog has a detailed story based on a Boston Globe story.

--BC

May 31, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Silicosis Screening

The WLF has a piece [PDF] by defense lawyer Nathan Schachtman (at McCarter & English) about state regulators imposing sanctions based on the 2002 silicosis screenings in Pennsylvania.

In February 2002, Texas invaded Pennsylvania. No conventional weapons were fired.
The Texans took up positions in mobile vans in motel parking lots across eastern
Pennsylvania. Without prescriptions, physicians’ orders, or regulatory approval, the Texans
directed unlawful X-ray radiation at Pennsylvania workers in the hopes of creating evidence
to be used in lawsuits for silicosis. To help establish their litigation beachhead, the Texans
hired local mercenaries – a New Jersey company in the business of providing mobile X-ray
screenings. Dozens of silicosis lawsuits were created and filed in Philadelphia as a result of
the invasion.

On January 25, 2007, the Commonwealth of Pennsylvania, through its Department of
Environmental Protection (DEP), responded by fining the New Jersey company, MOST
Health Services, Inc. The DEP found that MOST violated Pennsylvania law by conducting
X-ray screenings without physician or regulatory approval. For having unlawfully exposed
161 persons to ionizing radiation, DEP assessed a civil penalty of $80,500.00, against
MOST.

It's worth reading all of it.

--BC

May 31, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (1)

Wednesday, May 30, 2007

Ethics In Negligence Case - Sharp Maybe, But Sanctionable?

The Florida Supreme Court recently sanctioned a lawyer for his conduct in a personal injury case (Florida Bar v. Cocalis).  The lawyer represented the defendant in a dog bite case.  Plaintiffs alleged that the defendant's dog bit their two-year-old daughter, and that the bite caused alopecia (hair loss on the scalp).   During the case, plaintiff's counsel refused to stipulate to the records of a treating physician.   So, defendant's counsel subpoenaed the records custodian to appear at trial.  The custodian, however, mistakenly mailed the records to defendant's counsel.   Defendant's counsel returned the records to the custodian and explained that they should be brought to trial.   

Here's where the case gets interesting:  the mailed copy of the records contained a notation that was not on the original set of document's attached to the doctor's deposition.   The new entry documented a call between the doctor and plaintiff's counsel, stating that the doctor advised plaintiff's counsel that he did not believe the alopecia was caused by the dog bite.   Unaware of the new entry, plaintiff's counsel finally stipulated to the admission of the documents at trial.   Defendant's counsel did not advise plaintiff's counsel that (1) he had received the records from the custodian, (2) that the records contained a new entry, or (3) that the records he sought to admit were not the same as those attached to the depo. 

The Florida Supreme Court found the defendant's lawyer guilty of misconduct under Florida's general "misconduct and dishonesty" rule.  (The Court of Appeals also reversed the case, finding the trial court had abused its discretion in admitting the mailed records.  Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA 2003)).    The Florida Supreme Court ordered a public reprimand as well as attendance in a professionalism program and bar ethic's course.  Notably, the lawyer had no prior disciplinary charges.

Was a public reprimand (and exclusion of the evidence) warranted in this case?   What about the plaintiff's lawyer who failed to follow up with the most current version of the records?   This one just strikes me as odd. 

- SBS

May 30, 2007 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Wrong Casket? Dig Up Your Ancestor and Sue

That's the approach in Arkansas, anyway:

When [Clarence Budy] Simons died in July 2002, the Simons family shelled out $1,745 for an Addison 20 gauge casket that was supposed to be leak-proof for 75 years.

But in 2005, Simons' family learned that some "leak-proof" caskets made by Batesville Casket weren't so watertight, according to the family's lawsuit filed in Pulaski County Circuit Court by their attorney, Charles Phillip Boyd Jr. of Little Rock.

In May 2005, the family exhumed Simons to see if the casket had leaked.

Sure enough, the family said, the casket had leaked and didn't preserve Simons.

Why, yes, they have sued:

The family also learned the casket Simons was in was of "significantly less quality" and cheaper than the one they ordered.

The family said the situation has caused severe emotional distress and has listed several counts on which they are seeking damages, including breach of contract.

Query: Does voluntarily witnessing the exhumation of your father/spouse/family member fit in the category of consent and/or assumption of risk?

(h/t LCC)

--BC

May 30, 2007 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Father of Drunk Driver Sues Restaurant For Son's Death

Howard Wasserman has an interesting post over at Sports Law Blog about a case filed last week by the father of a St. Louis Cardinals pitcher against a restaurant (Mike Shannon's Steaks and Seafood), the driver of a stalled car and a towing company for their alleged roles in his son's death.  A copy of the complaint is available from KMOV in St. Louis.

Cardinals pitcher Josh Hancock was killed last April when his car collided with a tow truck that was assisting a disabled car.  Prior to the accident, Josh Hancock had been drinking at Mike Shannon's.  In the lawsuit, Hancock's father, Noel Dean Hancock, alleges that the restaurant violated Missouri's dram shop law by continuing to serve Josh even though he was visibly intoxicated.  The complaint also brings negligence claims against the tow truck company and stalled car driver.  Notably, reports indicate that Josh was drunk, speeding, and talking on his cell phone with his girlfriend at the time of the crash.  (Check out Wasserman's post for links to several stories about the accident and lawsuit). 

Wasserman provides a thorough analysis of the unlikely success of the dram shop count and the likely comparative fault defenses on the negligence counts against the tow truck and stalled car driver.  Beyond that, Wasserman raises an interesting point about the tort system:  Is this case a frivolous lawsuit clogging our system or a dispute best resolved by a jury? 

(Note to TortsProfs:  The case also may provide some good facts for exam time -- save this idea away for next year). 

- SBS

May 30, 2007 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 29, 2007

Changes In China's Food & Drug Administration

China has announced its first regulations on nationwide food recalls.  This follows the widely-publicized pet food recall here in the U.S., linked to rice and wheat proteins imported from Chinese manufacturers.  The FDA has a comprehensive website on this story (and its related issues). 

In a related story, the New York Times reports that the former head of the Chinese State Food and Drug Administration was sentenced to death after pleading guilty to corruption and bribery charges. 

-SBS

May 29, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

New Jersey Judge Rejects "Prepackaged" Asbestos Bankruptcy

Law.com reports that New Jersey Judge Nicholas J. Stroumtsos has ruled that insurers do not have to pay asbestos claims against Congoleum, a manufacturer of flooring tiles.  Congoleum has been in bankruptcy court since late 2003 as part of a "prepackaged bankruptcy" settlement with asbestos victims. Judge Stroumtsos used strong words condemning the "bad faith" deal:  "GHR [Gilbert Heintz & Randolph]  colluded with [Joseph] Rice [of Motley Rice] and [Perry] Weitz [of Weitz & Luxenberg] to create a framework that would provide Congoleum with both the insurance money and also protect against the asbestos liability, while leaving the insurance companies to bear the costs."

The Wall Street Journal has a link to the decision.

-SBS

May 29, 2007 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (1)

Punitives Possible in Clergy Abuse Case

So reports the AP, with one of the more confused explanations for punitive damages I've seen ("Punitive damages generally are far greater than damages to compensate victims for pain and loss.").

--BC

May 29, 2007 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, May 28, 2007

Check That Fish On Your Grill!

The FDA has issued a warning to consumers not to buy or eat imported fish labeled as "monkfish."   The fish actually may be "puffer fish" (also known as "blow fish"), which contains a deadly neurotoxin and can be deadly if improperly prepared. (Fans of "The Simpsons," may recall the "One Fish, Two Fish, Blowfish, Blue Fish" episode, in which Homer eats a piece of improperly prepared blowfish.).  The Chicago Tribune reported that a woman in Chicago became extremely ill after eating the mislabeled fish. 

So, in the interest of backyard cookout safety, be sure to check that fish before you grill today!

Happy Memorial Day!
- SBS

May 28, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)