TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, August 11, 2007

Random Liebeck Appearance

This story -- about a man suing McDonald's for damages from a severe allergic reaction to cheese, when the restaurant served him a burger with cheese after his alleged repeated requests for one without cheese -- is interesting enough by itself.  But why add this to the end?

The fast-food giant has been sued before.

In one notorious instance in 1992, Stella Liebeck, a 79-year-old woman from Albuquerque, N.M., sued McDonald's after she suffered third-degree burns from spilling a hot cup of coffee in her lap.

A jury later awarded Liebeck $2.9 million.

Do reporters have a macro to add in that text every time there's McDonald's or coffee or maybe people named Stella in a story?  The allegations here, if true, seem to fit reasonably well in a definition of negligence (whether or not Liebeck's does), though $10 million seems like an enthusiastic punitives demand.  But to just add that on to the end seems, well, random.


August 11, 2007 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, August 10, 2007

Flavoring Lawsuits

I realized today I haven't previously noted the growing number of lawsuits brought by workers exposed to butter flavoring (typically for microwave popcorn).  The product (diacetyl) apparently causes severe lung obstruction via air exposure.  The Pump Handle has extensive coverage.


August 10, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Using Tort Law to Avoid Constitutional Challenges

There's a new SSRN posting for an article, "Privatizing Bans on Abortion: Eviscerating Constitutional Rights Through Tort Remedies," in Temple Law Review by Maya Manian (San Francisco) about the apparently growing use of the creation of private tort remedies for the provision of abortion to avoid constitutional challenges.  The abstract:

State governments have devised a new means to evade the Constitution. Their new means is to enact tort statutes that, in effect, ban constitutionally protected conduct. In particular, some states have made the provision of an abortion a tort for which there can be no defense and no cap on the amount of liability. These states have made performing an abortion essentially illegal. Yet, because tort statutes are enforced through private litigation, rather than public prosecution, a number of courts have held that they lack jurisdiction to review these laws. Federal courts have concluded that standing doctrine and state sovereign immunity bar judicial review of any privately enforced tort legislation. These courts have refused to recognize that this new breed of tort statute attempts to “privatize” the government's restriction of constitutional rights. States have taken a law that would clearly be unconstitutional were it properly treated as “public” law, and immunized it as “private” tort law. Courts have refused to disallow this manipulation of the public/private distinction embedded in our system of law. This Article proposes a novel method for analyzing tort legislation that violates fundamental rights. It provides a framework for understanding how state legislatures are attempting to privatize governmental regulation. It then proposes a new solution that satisfies the requirements for federal court jurisdiction, but also ensures that state legislatures do not cloak deprivations of fundamental rights under the veil of private rights of action.


August 10, 2007 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0) | TrackBack (1)

Thursday, August 9, 2007

Pfizer Seeks Dismissal of Nigerian Fraud Suit

As posted earlier, the government of Nigeria has sued the drug company Pfizer for fraud based on allegations that during a 1996 meningitis epidemic, Pfizer tested the experimental antibiotic Trovan without the consent of the families involved, and that this drug testing contributed to the deaths of several children.  The  Washington Post reports that Pfizer has now moved to dismiss the suit.  The Post reports:

Pfizer's lawyers assert in the filing that "all clinical evidence points to the fact that any deaths were the direct result of the meningitis itself."

"The defendants always acted in the best interest of the children involved, using the best medical knowledge available," the filing says. "The defendants believed Trovan could save lives."

Pfizer said the survival rate was 94.4 percent for children given Trovan and 93.8 for a comparison drug.

(Thanks to Bill Janssen for the tip).


August 9, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Big Dig Glue Maker Charged With Manslaughter

Today's New York Times reports that the glue maker responsible for the collapse of the Big Dig Tunnel in Boston has been charged with involuntary manslaughter.  Falling ceiling panels killed a woman driving through the tunnel on her way to the airport.  The Times reports:

Martha Coakley, the Massachusetts attorney general, said the charges stem from the fact that Powers [the glue manufacturer], based in Brewster, N.Y., produced two kinds of epoxy — standard set and fast set. The standard-set one would have been adequate for the ceiling, she said, but fast-set epoxy was incapable of suspending such heavy panels for a long time.

Ms. Coakley said that Powers “blurred the distinction” between the two epoxies, and that the fast-set one was used for that section of the tunnel, even though the company’s testing indicated it was inappropriate for such a job.

The charges are reminiscent of the British Corporate Manslaugher statute (discussed in a prior post).

(Thanks to Tony Sebok for the tip).

- SBS 



August 9, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Insurer Says Illinois Reforms Made it Attractive

There's more competition for medical malpractice insurance in Illinois, and at least one company says it's because of tort reform.  There's now more than a dozen med mal insurance companies operating in Illinois, double what it was a few years ago.


August 9, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

CPSC Investigating Fisher-Price; Lawyers Have Noticed

I admit I can't stop picturing a courtroom scene performed entirely in the Fisher-Price little people.  Perhaps this guy can provide the puppetry for the eventual made-for-TV movie.  But, in any event...

Via Consumerist and a bunch of other places, the CPSC is investigating Mattel (which owns Fisher-Price) for the speed of reporting injuries.  This, of course, is related to the massive recall of Fisher-Price toys for the presence of lead paint.

An aside on the lawyering/advertising front: One of the places that came up in Google News when I was trying to find a not-behind-a-wall link for the AP story was something called News Inferno, which links to for a list of the recalled toys (rather than, say, to the CPSC's announcement). is a site for NY-based firm Parker Waichmann Alonso, which may sound familiar to readers, as it was the first firm out of the gate advertising for Minneapolis bridge collapse victims.  And, going back a step, to whom is registered?  Why, that'd be the named partner Jerry Parker of Parker Waichmann Alonso, though that's identified nowhere on the site.  The disclosure is particularly notable given this on the "Partnerships" page:

We believe the public must always have access to complete, honest, and objective news coverage of important issues which special interest groups and others would rather see under-reported or ignored by mainstream news services. The exchange of information between all types of reporting organizations can help ensure that the public will not be kept in the dark.

I'm not sure what's left of the New York advertising regulations...Eric?


August 9, 2007 in Products Liability | Permalink | Comments (4) | TrackBack (0)

Wednesday, August 8, 2007

Airlines Seek to Depose FBI, CIA in 9/11 Litigation

CNN reports (via DowJones) that Boeing, American, United, USAirways and others filed suits in the U.S. District Court for the Southern District of New York yesterday against the FBI and CIA, seeking to depose various current and former employees as part of the ongoing 9/11 negligence litigation faced by the airlines. 


August 8, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

ABA To Honor Professor Twerski

The Brooklyn Daily Eagle reports that the ABA Tort Trial & Insurance Practice Section will honor Professor Aaron Twerski on Sunday with the 2007 Robert B. McKay Law Professor Award.   The story reports that the award "recognizes law professors who are committed to the advancement of justice, scholarship and the legal profession in the fields of tort and insurance law."  Prior recipients of the award have include Judge Richard A. Posner, and the late Charles Alan Wright


August 8, 2007 in Scholarship, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 7, 2007

Think There Are Too Many Frivolous Tort Suits? One Legislator's Solution: Cut Off Funding For Law School

As the National Law Journal (via reports, a Wisconsin state legislator has a unique idea about how to change the legal system.  Frank Lasee, a Republican Wisconsin assemblyman, has introduced a bill to cut funding to the University of Wisconsin Law School.  The bill "would cut the law school's funding by $1 million this year and completely by 2010 -- or about 10 percent of the school's total funding."   

On his blog, Lasee states:

When a plague of locusts descends on your field, what do you do? Do you help them multiply? Subsidize them? That is UW system's policy.  When we have a known shortage of dentists, nurses and physical therapists and an overabundance of attorneys and never enough hard-earned tax dollars to go around, how would you prioritize?

Lasee's bill  passed the Wisconsin State Assembly, and the state's complete budget package is now in conference being reconciled with the state Senate's proposals.  Thomas Basting, president of the Wisconsin State Bar, believes that the bill "will be ignored by the conference committee, and life will go on as usual."   

Ann Althouse (who teaches at the University of Wisconsin Law School) has posted on the bill here and here


August 7, 2007 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Judge Unseals Katrina Qui Tam Suit

As Forbes (via AP) reports, on Monday, a federal magistrate judge unsealed the Katrina qui tam suit filed against State Farm.  The suit was filed by Dickie Scruggs on behalf of Cori and Keri Rigsby - two sisters who worked for a company that helped State Farm handle claims following Katrina.  The sisters quit the company after providing Scruggs with "reams of internal State Farm claims records."   (As posted here, Scruggs, meanwhile, faces criminal contempt charges for his handling of those documents). 

The suit, which represents only one side of a legal argument, accuses insurance companies of pressuring engineers to falsify reports so storm damage could be blamed on flood water instead of wind, which would shift the financial burden to the National Flood Insurance Program.

The suit was under seal pending a decision by the U.S. Attorney on whether to intervene.  Back in May, the U.S. Attorney decided not to intervene in a similar lawsuit filed by a group of former insurance adjusters.


August 7, 2007 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (1)

Fen-Phen Plaintiffs Win $62 Million -- From Their Former Lawyers

In a suit filed in 2004, 400 Fen-Phen plaintiffs allege that their own lawyers defrauded them by failing to disclose information about the settlement and by failing to properly distribute client funds.  The Washington Post (via AP) reports that, last week, the judge ordered three of the former lawyers to repay $42 million taken from the settlement and $20.1 million in interest.   As noted in a prior post, two of these lawyers own a 20% stake in a horse named Curlin - the winner of the Preakness and its $1million purse.  No word on whether Curlin is part of the judgment. 


August 7, 2007 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2007

Sebok on British Corporate Manslaugher Statute

In his Findlaw column, Anthony Sebok (newly arrived at Cardozo) discusses the new "Corporate Manslaughter" statute introduced in Britain last week.  In simplest terms, the law allows the British government to prosecute a corporation for manslaughter where the corporation caused the death of a person due to its "gross" negligence.  As penalties, the court may impose "unlimited monetary fines" on the corporation as well as order remedial steps to correct the conditions that led to the negligence. 

Sebok analogizes the new statute to American punitive damages with the significant distinction that the British statute is a quintessential public law, while punitive damages operate in the arguably private law realm of the tort system.  (You can hear more from Sebok regarding his views on punitive damages by attending the upcoming punitive damages symposium on Friday, Sept. 7th here in Charleston.)   


August 6, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

DC Pants-Suit Plaintiff May Lose Administrative Law Judgeship

Roy Pearson, the administrative law judge who sued his dry cleaners for $54 million over a pair of lost pants (prior posts here, here and here) may next lose his job.   Pearson's initial ten-year term expired in April, in the midst of the pants law suit.  (Since that time, Pearson has not been sitting as a judge, but rather working as an "attorney adviser" at the Office of Administrative Hearings).  The Washington Post reports that the DC Commission on Selection and Tenure of Administrative Law Judges has "doubts" about granting Pearson another 10-year term on the bench, and plans to issue a letter to Pearson explaining their concerns next week.  According to the Post,

The panel's discussion about Pearson's future has focused on what role a judge's behavior outside the courtroom should play in assessing his qualifications. Was Pearson's extraordinary zeal in pursuing the case against the Chungs so embarrassing that it amounts to evidence of poor judicial temperament?

The commission is expected to address the Chung case in its letter to Pearson, pointing out that his no-holds-barred pursuit of mega-millions in a case stemming from a $10.50 alteration on a pair of suit pants raised public doubts about the court system. After receipt of the letter, Pearson would have the right to a hearing before the commission. Only after that hearing would the commission formally move to end Pearson's tenure as a judge.


August 6, 2007 in Current Affairs, Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, August 5, 2007

Some Sunday Reading: Stapleton on Goldberg and Zipursky - Thoughts on a Unified Theory of Torts

On Legal Theory Blog, Larry Solum notes that Jane Stapleton has just posted an article to SSRN:  "Evaluating Goldberg and Zipursky's Civil Recourse Theory." 

From the abstract:

Professors John Goldberg and Benjamin Zipursky claim that they have formulated (the beginnings of) a descriptive theory that captures the distinctive character of tort law. In this article I critically evaluate their theory and find it fundamentally flawed. . . . The[ir] final claim is that civil recourse theory provides an account of what is distinct about the law of torts. Yet there is nothing in that theory that might not also be claimed about other areas of the private law of obligations. As I demonstrate, distinctive features of tort law can be stated but these cannot be reduced to some unitary theory.

In the article, Professor Stapleton states: "We can see what is distinctive about a tree, but we cannot reduce this to a unitary notion.  Indeed, why would we want to?  The common law of torts is like a distinctive sculptured garden that is being built up by usually incremental contributions from generations of cases.  It cannot be reduced to a unitary idea; but this should not prevent us capturing its distinctiveness with a nuanced plural account."  (pp. 1560-61).   

Professor Stapleton's rejection of a unitary theory of tort law reminded me of an article by Chris Robinette: "Can There Be a Unified Theory of Torts?  A Pluralist Suggestion From History and Doctrine."  From the abstract:

In this article, I discuss the tendency of tort theorists to attempt to unify all of tort law. In other words, many scholars have sought to explain torts by the use of a single idea. Originally, scholars attempted a unity of doctrine, such as Holmes' focus on negligence. In the last several decades, scholars have sought to unify torts by rationale. . . I argue that both history and doctrine suggest that the attempt to unify all of torts is futile.

- SBS 

August 5, 2007 in Scholarship | Permalink | Comments (1) | TrackBack (0)