TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, August 4, 2007

Tour de France Doping = Lawsuit?

The International Herald Tribune (via AP) reports that the German cycling team Gerolsteiner may sue Patrik Sinkewitz, the former T-Mobile Team member who tested positive for doping.  T-Mobile fired Sinkewitz from the team last Tuesday.   The German Team plans to sue Sinkewitz for "damaging cycling and its image;"  the German Team believes that the "doping-marred Tour de France has lowered the value of cycling teams."  Sinkewitz has acknowledged that he used a testosterone gel while training in France - a month before the race and the day before the positive test. 


August 4, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, August 3, 2007

House Bill Requires FDA Overhaul on Food Safety and Allows Prescription Drug Imports

In the flurry of activity before the recess, the House passed a bill yesterday that would require the FDA to overhaul its food safety operations.   Reuters reports on the bill as does the AP (with two very different focuses - you'd think they were talking about different bills). 

It is, in fact, the same bill.   In addition to the food safety overhaul, the bill also allows importation of prescription drugs.  (Reuters focuses on the food safety aspects, while the AP story focuses on the prescription drug provisions).   President Bush has promised to veto the bill.


August 3, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Senate Passes Children's Health Insurance Program Funding

The New York Times reports that the Senate passed a bipartisan bill that would renew and expand the Children's Health Insurance Program (CHIP), which provides health insurance coverage to low-income, uninsured children.  (Prior posts on this story here.)  The vote was 68 to 31, enough to override President Bush's promised veto.  (You can see how your Senator voted here).

The Senate bill would increase spending on CHIP by $35 billion over the next five years.  The House passed a companion bill on Wednesday; the House version would increase CHIP spending by $50 billion.  Both bills use increased tobacco taxes as a source of funding; the Senate's bill would increase the current 39 cents/pack federal excise tax on cigarettes to $1/pack, while the House increase would be to 84 cents a pack.


August 3, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, August 2, 2007

Lawsuit Against Pharma for Selling Too Many Products with Components for Meth

I'm heading out to Arkansas tomorrow morning (and many thanks to Sheila for covering my usual days), so it's a good time to link to Pharmalot's post introducing us to a new suit against various pharmaceutical companies:

The litigation, which was filed last March against Pfizer, Johnson & Johnson, Perrigo and others, blames drugmakers for selling too many products containing ephedrine and pseudoephedrine. As a result, a bunch of Arkansas counties say the drugmakers should have known their meds were being used to produce methamphetamine.

Arkansas has a major, major meth problem.  Is this a way to solve it?  Err...


August 2, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (1)

A Spasm of Good Taste?

Obviously it's speculation to guess why, but I observe that the bridge collapse search that triggered ads before no longer does.  (Earlier post.)

But!  Adding "Minneapolis" provides two ads, one for lawyers ("The Schmidt Law Firms [sic] has 30 years experience") and one for religious advice.


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

What Texas Judges Say About Tort Reform

A new Baylor Law Review article addresses that question; a summary is here.

[F]or the last two years, the professors have conducted a survey of Texas District Court Judges to get their views on the "litigation crises." After receiving responses from an astounding 78% of Texas district court judges, the results of the survey were released in the Baylor Law Review in an article titled Straight From the Horse’s Mouth: Judicial Observations of Jury Behavior and the Need For Tort Reform.


August 2, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (1)

Dora the Explorer Explores the Wonderful World of Lead Paint

Fisher Price is recalling nearly a million Dora the Explorer and Sesame Street toys manufactured earlier this year.  You can probably sing along; you've heard the song before: Excessive lead paint, manufactured in China, etc., etc.

I suppose Mattel (the parent company) is a pretty huge manufacturer, but I was still a little struck at the number of recalls they've had.


August 2, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (1)

Quick Fingers on the AdSense Control Panel

As Overlawyered pointed out first, there's already one ad up (as of Thursday morning) for lawyers from yesterday's bridge collapse in Minneapolis, this one for Parker & Waichmann.  Given how quickly investigations move, representation is a pretty good idea, of course, and if lawyer ads are going to be legal, targeted ads are probably better...but still.

(And for those of you who know I'm more or less from Minnesota: nobody I know was involved, so far as I know so far anyway.)


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

Wednesday, August 1, 2007

Ohio Nuisance Reform Veto Invalid

The Ohio Supreme Court has invalidated the veto of liability modifications there targeting the use of nuisance suits against manufacturers.

A long-awaited 5-2 decision ruled Gov. Ted Strickland's January veto of Senate Bill 117 invalid, meaning public nuisance claims may not be used in cases of product liability. The decision should end Attorney General Marc Dann's nuisance lawsuit against companies that manufactured lead paint more than 30 years ago.

The opinion, authored by Justice Robert Cupp, settled a dispute between Strickland and the General Assembly, which passed the tort reform law in December while Bob Taft was still Governor. Strickland claimed he still had time to veto the bill, but the General Assembly said the 10-day window was up.


August 1, 2007 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

No U.S. Forum for British Vioxx Plaintiffs

The New Jersey Law Journal (via reports that the New Jersey appeals court has held that a group of British Vioxx plaintiffs cannot sue in New Jersey state courts. 

"The financial challenges of bringing mass tort litigation in the U.K. are not so insurmountable as to render that forum either inadequate or unavailable," said Appellate Division Judges Edith Payne, Harvey Weissbard and Howard Kestin.

The decision accords with a ruling by Judge Eldon Fallon, who is handling the pre-trial of all the federal Vioxx cases; nearly a year ago, he dismissed claims by foreign plainiffs on the same grounds.   


August 1, 2007 in MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Top 10 Torts Downloads on SSRN

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

Rank Downloads Paper Title
1 100 Defense Costs in Medical Malpractice and Other Personal Injury Cases: Evidence from Texas, 1988-2004
Bernard S. Black, David A. Hyman, Charles Silver, William M. Sage,
University of Texas at Austin - School of Law, University of Illinois College of Law, University of Texas at Austin, University of Texas at Austin,
Date posted to database: June 4, 2007
Last Revised: July 12, 2007
2 61 Tort Liability Litigation Costs
Joni Hersch, W. Kip Viscusi,
Vanderbilt University Law School, Vanderbilt University Law School,
Date posted to database: June 10, 2007
Last Revised: June 27, 2007
3 55 Negligence in the Air: The Duty of Care in Climate Change Litigation
James Salzman, David B. Hunter,
Duke University - School of Law, American University - Washington College of Law,
Date posted to database: June 8, 2007
Last Revised: June 22, 2007
4 48 Culture and Identity-Protective Cognition: Explaining the White Male Effect in Risk Perception
Dan M. Kahan, Donald Braman, John Gastil, Paul Slovic, C. K. Mertz,
Yale University - Law School, George Washington University - Law School, University of Washington, Decision Research, Decision Research - General,
Date posted to database: June 28, 2007
Last Revised: July 17, 2007
5 43 Liability Insurance, Moral Luck, and Auto Accidents
Tom Baker,
University of Connecticut School of Law,
Date posted to database: July 5, 2007
Last Revised: July 5, 2007
6 42 Impact of Tort Reform on Private Health Insurance Coverage
Ronen Avraham, Max M. Schanzenbach,
Northwestern University - School of Law, Northwestern University - School of Law,
Date posted to database: June 26, 2007
Last Revised: July 9, 2007
7 41 Malpractice Payouts and Malpractice Insurance: Evidence from Texas Closed Claims, 1990-2003
Charles Silver, Kathryn Zeiler, Bernard S. Black, David A. Hyman, William M. Sage,
University of Texas at Austin, Georgetown University Law Center, University of Texas at Austin - School of Law, University of Illinois College of Law, University of Texas at Austin,
Date posted to database: June 2, 2007
Last Revised: July 30, 2007
8 41 Reasonableness, Justice and the No-Duty-To-Rescue Rule of Torts
Alan Calnan,
Southwestern Law School,
Date posted to database: June 16, 2007
Last Revised: June 16, 2007
9 39 'Super Size Me' and the Conundrum of Race/Ethnicity, Gender, and Class for the Contemporary Law-Genre Documentary Filmmaker
Regina Austin,
University of Pennsylvania Law School,
Date posted to database: June 10, 2007
Last Revised: June 18, 2007
10 39 The Autonomy of Technology: Do Courts Control Technology or Do They Just Legitimize its Social Acceptance?
Jennifer A. Chandler,
University of Ottawa - Faculty of Law - Common Law Section,
Date posted to database: June 16, 2007
Last Revised: July 11, 2007


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

Washington Update: FDA Law Unlikely Before Recess

An update on what's happening - or not happening as the case may be - in Washington.  Earlier, Bill posted on the pending FDA bills.  The Wall Street Journal's Washington Wire reports that the bill is unlikely to pass Congress - the House and Senate need to reconcile their competing bills - before the August recess.   As the WSJ reports:

The bill is unusually time-sensitive because it renews the FDA’s ability to collect fees from drug makers and device manufacturers that are needed to keep important agency operations running. The fee authority runs out at the end of the government’s fiscal year, Sept. 30. Lawmakers didn’t want to play it too close and force the agency to send out warnings to employees about possible layoffs.

But, it looks like that is what may happen.  Congress will have to deal quickly with the bill when it returns in September. 

- SBS 

August 1, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 31, 2007

Avandia Roundup

  • Our neighbors summarize.  So do our other neighbors.
  • In The Pipeline comments.
  • DrugWonks cheers, and cheers, and discusses.
  • A new-to-me blog, but one I'm liking more just about every day, Life Sciences Daily, discusses and goes after DrugWonks.  In so doing, Ogan Gurel identifies for me what it is that sometimes bugs me about DrugWonks, and it's similar to what sometimes bugs me about a lot of the sites funded by particular groups or industries (not at all limited to DrugWonks - just a convenient example) -- they often don't act like adults, instead seeming more like teenagers arguing over the best Scary Movie sequel.


(Usual disclosure: I do a small amount of work for pharma clients.  GSK is not, nor has it ever been, a client.)

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

Which Comes First - Negligence or Intentional Torts?

With the start of a new school year almost upon us, the question arose:  how do you structure your Torts course?  Do you begin with intentional torts or negligence? 

Readers, please post a comment.  As new torts professors consider how to design their course, we'd love to gather comments on what has worked for you, and why you chose your approach. 


July 31, 2007 in Teaching Torts | Permalink | Comments (3) | TrackBack (0)

Update: Family of Drunk Driver Dismisses Lawsuit Against Restaurant

As posted earlier, the father of Josh Hancock, a St. Louis Cardinals pitcher killed in a drunk driving accident, filed suit last May against 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.  The St. Louis Post-Dispatch reports that the family dismissed the suit yesterday just before a hearing on the defendants' motion to dismiss.  The dismissal, however, was without prejudice.  (Howard Wasserman at Sports Law Blog has a thorough post examining the dismissal.)

The Post-Dispatch reports that the family released the following statement: 

    "The subject of my son's death has been widely reported and discussed, as has my motivation to file the wrongful death lawsuit. Often, legal action has more to do with performing responsibilities and gaining control. This lawsuit was not filed for personal gain. Few know that Josh died without a Will, leaving multiple heirs in two separate families in different states. When I became the court appointed Administrator of his estate, I agreed to perform fiduciary responsibilities to protect the interests of his estate and all beneficiaries.

    "Information from the intense news coverage of Josh's tragic death, facts about the accident and varying public statements from witnesses indicated that certain individuals and entities shared some degree of comparative negligence in the cause of Josh's death.

    "The final investigation report recently issued by the Missouri Division of Alcohol and Tobacco Control ("ATC") provided some insight into the events leading to Josh's death. Considering all factual issues, combined with the prolonged legal battles which we would have to fight if this lawsuit were to continue, I have instructed that the defendants be dismissed from the lawsuit.

    "Josh was often quoted saying, 'everything happens for the good.' The ATC report confirms that since his death, bars and restaurants are now becoming even more focused on their responsibilities. I am certain that his death has caused many individuals to become more aware of personal responsibility. Additionally, a number of employers and groups are also examining and changing their alcohol policies.

    "It is my hope that public opinion will eventually have an even greater effect on public policy to emphasize the responsibilities of both those who consume alcohol and those who serve it."

As I queried in my earlier post, was this a classic example of a frivolous lawsuit?  Certainly sounds like the family had a good faith belief that another party was negligent when they filed the suit.  But assuming no discovery has taken place in the past two months (which given the posture of the case seems correct), no new information has been discovered that could not have been learned with greater pre-filing investigation on the part of the plaintiff's attorneys, or in the case of the ATC's final report, some patience in rushing to the courthouse.   Overall, this one seems to exemplify "sue first, ask questions later."


July 31, 2007 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2007

Suing a Chinese Company? Good Luck.

That's the message of a Post story today.


July 30, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Judge Holds Ruling On Merck's Request To Appeal Vioxx Preemption Ruling

Newsday reports that U.S. District Judge Eldon E. Fallon - the federal judge assigned to handle pretrial in all federal Vioxx lawsuits - held a hearing on Friday.  Merck, the manufacturer of Vioxx, has asked permission to immediately appeal the judge's ruling that FDA approval of drug labels does not preempt state law claims for failure-to-warn. (Prior post on the judge's ruling here).  Judge Fallon said his ruling on Merck's request "may wait on testimony from the governors of Mississippi and Indiana about their consultations with the U.S. Food and Drug Administration as new drug label rules took effect."  The governors' testimony could be available by September. 


July 30, 2007 in MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

U.S. Attorney Declines To Prosecute Dickie Scruggs For Contempt; Judge Names Special Prosecutors

As reported on (via AP), last week, the U.S. Attorney's Office in Birmingham, AL, refused to prosecute plaintiffs' lawyer Dickie Scruggs and the Scruggs Law Firm for criminal contempt in a Hurricane Katrina insurance dispute.   Scruggs (brother-in-law of Senator Trent Lott (R-MI)) is suing State Farm on behalf of Mississippi residents.  (More on the underlying case here).   Back in June, U.S. District Judge William M. Acker Jr. recommended the criminal prosecution based on Scruggs's violation of a court order that "required him to deliver "all documents" about State Farm Insurance Co. that whistleblowers Cori and Kerri Rigsby secretly copied after Katrina."  (Copies of the judge's original memorandum and order are available here via WSJ Law Blog).  In a letter to Judge Acker, the U.S. Attorney declined to prosecute Scruggs. 

In the latest twist, WSJ Law Blog reports that last Thursday Judge Acker appointed two Birmingham lawyers as special prosecutors to pursue the criminal contempt charge against Scruggs.  Stay tuned!


July 30, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, July 29, 2007

Documents: Investigation Report in "Air Glory" Ride Death

A couple of weeks ago, a sixteen-year-old girl fell to her death while riding an "Air Glory" ride at a Christian festival in Wisconsin.  This ride is somewhat similar conceptually to the popular SkyCoaster rides, but is very different in setup.  It appears that the Air Glory ride uses a construction crane adapted to use for the ride's purposes.

The state has now released its inspection report: Download AirGloryReport.pdf [PDF]

The report concludes that the ride itself, though violating code in many ways, had no defect that caused the death.  It does not quite reach a conclusion about what did cause it, but hints strongly at operator error:

Mr. Armelin was working on the right side of the platform, and Mr. Ross was working on the left side. Mr. Ross said that Mr. Armelin was a new employee having worked for Mr. Ross only about two weeks. Mr. Ross also said Mr. Armelin also had a tendency not to lock the carabineer after attaching the rider to the ride. Mr. Ross said he always worked on the left side when working with Mr. Armelin so that he (Mr. Ross) could check the carabineer before attaching the safety rope. Mr. Ross stated if the carabineer was locked, there would be no way it could come loose when a person was attached to it. Mr. Ross also said that if the carabineer was locked and if the safety rope was properly attached it would not be possible for anyone to come loose from the ride. This is consistent with the statements that Mr. Ross provided to the Oshkosh Police and with Commerce’s independent investigation.

The state has imposed new restrictions on rides owned by the Air Glory's owner and announced its intention to implement an emergency rule regarding similar rides, and to re-evaluate the ride safety program in Wisconsin.  There's been no lawsuit filed (yet).

Incidentally, I am guest posting this week at ThemeLaw, a blog focused on amusement industry legal issues by Chad Emerson (Faulkner).


July 29, 2007 in Documents | Permalink | Comments (0) | TrackBack (0)

Mmmm...Botulism: Recalled Canned Goods Still on Shelves

That's the story from the New York Times today, addressing the recall of millions of cans of food from an Augusta, Georgia, plant, dating back two years.

And, yes, lawyers are advertising.


July 29, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)