Friday, January 19, 2007
In a not-remotely-surprising (and entirely appropriate, in my view) action, the family of Jennifer Strange, the woman who died from water intoxication after participating in a radio station's "Hold your Wee for a Wii" contest, has filed suit.
It will certainly be interesting if we get to see the release in question, but this seems like an appropriate suit to be settled quickly, especially since, as I've previously suggested, I think the station's actions could reasonably be construed as gross negligence, claims for which I believe are not waivable under California law.
More suits have been filed on behalf of under-age girls who were allegedly assaulted by people they met on MySpace. MySpace has responded to the string of incidents by making some efforts to improve security, while also noting the importance of personal and parental responsibility.
The plaintiffs include
a 15-year-old girl from Texas who was lured to a meeting, drugged and assaulted in 2006 by an adult MySpace user, who is serving a 10-year sentence in Texas after pleading guilty to sexual assault.
The others are a 15-year-old girl from Pennsylvania, a 14-year-old from upstate New York and two South Carolina sisters, ages 14 and 15.
See here for my past posts on the MySpace suits.
Thursday, January 18, 2007
The EFF reports on its view of the hearing in the Zyprexa documents matter here.
Mind Freedom (not sure that's the group's name, but it's their domain) has another.
I'll digest the reports (and others) more later, but for now it appears the injunction will stand until a final decision, sometime in February.
A frequent concern in fraud litigation is the somewhat-fading requirement to show reliance. A forthcoming Arizona Law Review article (on SSRN) by John C.P. Goldberg (Vanderbilt), Anthony J. Sebok (Brooklyn), and Benjamin C. Zipursky (Fordham), addresses the question, arguing that it needs to stay central in fraud claims but not necessarily consumer protection statutes. The abstract:
To prevail on a claim of common law fraud, the plaintiff must prove reliance on the defendant's misrepresentation. This requirement is puzzling, given that, under many modern formulations of the tort, the plaintiff must also prove that the misrepresentation was a factual and proximate cause of the plaintiff's detriment. One standard view of reliance emphasizes its role as the mechanism by which defendant's misrepresentation generates harm to the plaintiff. But, cast as such, it seems redundant with factual causation. Another way reliance is understood is as setting a practical limit on the amount of liability that a misrepresentation can generate. So regarded, it seems redundant with proximate cause.
In this Article, we explain why reliance forms a distinct element of fraud. Conceptually, we argue, the wrong of fraud is not an interference with the victim's interest in avoiding certain types of harm, such as economic loss, but instead an interference with her interest in being able to make certain kinds of decisions free of misinformation generated by others. Thus, a knowing misrepresentation that foreseeably causes harm to another does not defraud that other unless and until she is induced by that misrepresentation to make a decision she would not have otherwise made. Structurally, we argue that the requirement of reliance is linked to a more general feature of tort law, namely, the relational structure of tort duties. To commit a tort is to breach a duty that is owed by an actor to a class of potential victims. Therefore, to prevail, a tort plaintiff must establish not merely that wrongful conduct has caused harm to her, but that the conduct was wrongful as to a person in her position. When it comes to fraud, plaintiff's reliance is essential to establishing that the defendant's conduct was wrongful as to her, and hence to establishing her right to recover.
Having explained the place of reliance within fraud, we next explain why reliance need not be central to other wrongs that bear some resemblance to fraud, including, for example, private enforcement actions brought under consumer protection statutes. Likewise, we demonstrate that some claimants who have been injured by misrepresentations without relying on them will have valid claims for other torts, such as negligence and tortious interference with contract. The take-away point is this: An understanding of why reliance functions (or doesn't function) as a component of a legal wrong that involves misrepresentation must be sensitive to the institutional source of the legal prohibition that defines the wrong and, relatedly, the interests that are meant to be served by that prohibition.
For a different view, read this guest post from Arnold Friede from Pfizer.
Wednesday, January 17, 2007
So said one of the DJs in the water intoxication death in the face of a warning, according to a news story.
During the contest, a listener - self-identified as a nurse - called the live radio broadcast and warned that the game was dangerous.
"I want to say that those people drinking all that water can get sick and die from water intoxication," said the caller.
"Yeah, we're aware of that," replied a DJ. "They signed releases so we're not responsible, okay?"
[Fellow contestant] Logsdon tells KOVR-TV news that they didn't hear that on-air warning in the room where he and the others were filling up way beyond comfort.
Update: Just came across a cached version of the morning show's website (Download wiiwinner.pdf) that indicates this:
Hold Your Wee for a Nintendo Wii!
Congrats to Lucy Davidson! She drank a gallon and half of water and held her wee for 3 hours to win the Nintendo Wii!!
At this time we would like to express our deepest condolences to the family of Jennifer Strange. We want to thank all of our listners for their continued support...and we ask, that you join us by keeping Jennifer and her family in your thoughts and prayers. Lukas, Maney, and Trish
My inclination is that this is more of a management issue than a DJ issue, notwithstanding the idiotic "we have a release so we're not responsible" line, but it surely is a management issue worthy of at least civil suit.
By an odd coincidence, the final exam I just finished graded happened to have an injury caused by a wacky morning show DJ throwing a football in the studio, and part of what I was looking for was a respondeat superior argument (and a direct negligence claim) that wacky morning show DJs are supposed to do stupid things, and the management is supposed to pay attention to such things.
Tuesday, January 16, 2007
It's subscription-only, so I haven't read the whole thing yet, but this JAMA article promises to be interesting.
Avorn frequently testifies on the plaintiffs' side in pharmaceutical litigation. I haven't seen the other author (an MD/JD named Aaron Kesselheim), though a Google search brings up this report of an interesting study he performed, concluding that plaintiffs' experts in birth injury cases tend to be less qualified than their defense counterparts. Both authors' brief bios can be seen here.
More later on, perhaps, but a quick rundown of the interesting ones:
- Declaration by James Gottstein, who pretty much emphatically nods his head in the direction of Egilman, though his brief argues that Egilman did not violate the CMO either;
- Lilly says the documents are still pretty kinda sorta secret;
- Lilly also submitted proposed findings of fact (and exhibits) with the first declaration from someone from Lanier's firm (plaintiffs'-side), who confirms the firing of Egilman.
Gotta go get the car from the shop. Will try to review these more later and perhaps note some highlights.
Update: Commenter "Supremacy Claus" at Overlawyered asks why no Torts prof is discussing assumption of risk, and suggests that the woman's behavior is equivalent to someone (he posits a Torts prof) leaping from a 50th-story window for a PlayStation.
Of course, assumption of risk requires knowledge of the risk; I just (finally!) finished grading a whole pile of exams addressing that very point. Grabbing the closest-at-hand hornbook (Shapo's), "Courts often require defendants to show that plaintiffs had highly specific knowledge of a hazard." In other words, it's not enough to say that "Well, everything in excess is bad for you, and she knew that." (Additionally, to respond to yet another comment from the same poster, this is already a subjective test and would require nothing like legislative action.)
Even if one thinks that the specificity of knowledge required is too great (and there's a good argument for that), I've seen nothing suggesting that the decedent knew that there was any risk -- certainly not one of death -- from drinking lots of water. (No, I don't think a warning label is necessary and I don't think the bottler would be held liable.)
I would be interested in that liability waiver, though, since it might have informed participants of risks. My sense from the coverage I've seen is that it did not.
(Earlier post, with archived page from the station's website, is here.)
I've previously mentioned Will Hall, an activist with the Freedom Center here in Northampton, a group that provides (per today's local paper) "support and holistic alternatives for people with mental illness." Hall is also one of the recipients of the Lilly Zyprexa documents and the subject of the injunction. I'll be talking with him today on my law and policy radio show on Valley Free Radio, 103.3 FM in Northampton and streaming online. It's at noon eastern. I'll post a link to the podcast later on.
A new SSRN paper attempts to predict the likely consequences of increased disclosure of medical errors, providing an interesting counterpoint to the frequent arguments that telling patients (and apologizing) about mistakes will reduce malpractice claims. (See SorryWorks.net for one organization based in part on this idea.)
The key part of the abstract, based on modeling "litigation consequences of disclosure by combining existing data on the epidemiology of medical injuries and malpractice claims with expert opinion about likely patient reactions to disclosure," is:
We found that under nearly any set of assumptions, the chances that disclosure would decrease either the frequency or cost of malpractice litigation were remote. An increase in the number and costs of claims was highly likely. The key driver of the model's findings is the well-established fact that only a tiny proportion of seriously injured patients sue, creating a huge reservoir of potential claims.
Monday, January 15, 2007
And what does a judge do when the cat/bell/horse/ship is already out/rung/free/sailed? Hold a hearing. Punish the initial leakers if they acted in bad faith. And throw up his hands. I predict that is what will occur in Brooklyn tomorrow.
I've been corresponding this morning with a friend about the Zyprexa case and what it represents in the ongoing story of law and technology. Historically, if documents subject to a protective order were improperly disclosed, a court would have at least a fighting chance of getting most of them back. The point of this current adventure is that -- at least in cases like this, with a high-profile product and tech-savvy (or even just tech-competent) activists involved -- that chance is now zero.
And so I'm inclined to think that McGeveran is right that punishment of the initial leakers is the only recourse. But it further seems to me that, especially when the massive and speedy distribution that occurred here is in play, those punishments should probably be pretty significant. (I'm setting aside the question of whether the lawyer receiving the documents is within the court's reach, and mostly focusing on the expert who gave up the documents.) If the back-end "fix" is no longer feasible, shouldn't we increase our focus on the front-end prevention?
On the argument that the documents' disclosure is in the public interest, well, sure, maybe they are. But the protective order [PDF], as it must, provides for a way to make that argument to the court, and I think it's fair to say that Judge Weinstein would be at least as open to those arguments as any judge I can think of. In most mass torts, the bad documents eventually come out in open court, though certainly it might be nice for them to come out sooner -- and that's why Gottstein could have made the request for declassification via Judge Weinstein.
When the initial step seems very likely to have been in violation of the protective order (an order which exists for undeniably good reasons), the term "ton of bricks" leaps to mind as an appropriate approach by the court.
(Welcome also to BoingBoing readers.)
Sunday, January 14, 2007
A woman who competed in a radio station's contest to see how much water she could drink without going to the bathroom died of water intoxication, the coroner's office said Saturday.
Jennifer Strange, 28, was found dead Friday in her suburban Rancho Cordova home hours after taking part in the "Hold Your Wee for a Wii" contest in which KDND 107.9 promised a Nintendo Wii video game system for the winner.
Hard to argue with Orac's take:
One can only hope that such a criminal level of ignorance and negligence results in appropriate penalties. In actuality, although I do not discount individual responsibility, most people are ignorant of how little it takes to cause water intoxication. It is not stated whether qualified medical personnel were present or whether the radio station had vetted its idea with a physician, but any competent physician would have told the organizers that this contest was a very bad idea indeed. The radio station showed an uttterly reckless disregard for the safety of the contestants.
Hold Your Wee for a Nintendo Wii!
We managed to get our hands on another one of this years hottest gifts...
A Nintendo Wii! We're gonna give it away Friday morning. All you have to do is call the Rave and tell us your lame, worst, most boring Christmas gift you got this year! It just may get you into our contest! Can you hold "it" in for a long time? We're having you drink water every 15 minutes! And the last person to go to the bathroom wins the Wii!
Update: This story indicates there was some sort of liability waiver.
Another update: Our sentencing neighbors address the criminal law question.
The EFF has created a separate page for Zyprexa document-related items.
The Wiki that's part of some of the controversy has some (legal) documents posted too.
And James Gottstein continues to add documents to his page.