Saturday, August 18, 2007
From the AP story:
The state has agreed to pay $925,000 to unwitting subjects of an infamous 1930s stuttering experiment — orphans who were badgered and belittled as children by University of Iowa researchers trying to induce speech impediments.
* * *
The 1939 experiment has come to be known as "The Monster Study" because of its methods and the theory researchers set out to prove — that stuttering is a learned behavior that can be induced in children.
Over a six-month period, Dr. Wendell Johnson, a nationally renowned pioneer in the field of speech pathology, and his staff tested his theory on 22 children who were in the care of the state-run Iowa Soldiers' Orphans' Home. Some were subjected to steady harassment, badgering and other negative therapy in an attempt to get them to stutter; the rest served as a control group.
According to the study, none became stutterers, but some became reluctant to speak or self-conscious about their speech.
Friday, August 17, 2007
Deborah La Fetra [PDF], a principal attorney at the Pacific Legal Foundation, just finished up a week of guest posting at Point of Law, including a number of posts about liability for private landowners. I don't particularly agree with a number of her views (I generally think that imposing a duty but taking summary judgment seriously on breach works okay for most of the situations in play), but it's well worth reading.
Some key posts: about the obligation to prevent crime on one's property, on passing liability costs on to tenants, on insurance relating to liability for third-party criminal conduct, on innkeeper liability for sexual assault (it's worth noting that the court did not rule that innkeepers are always liable for such assault, but rather that they owe a duty of reasonable care - different thing), on barriers around land, on negligent security for tenants, on bar bouncers, and on liability for allowing gang members into property.
The Massachusetts DPS today shut down all Sizzlers in the state until seatbelts are added (as recommended recently by the manufacturer). Any operator who doesn't add one after the manufacturer notice is sent out would be, of course, rather foolish.
At some point, I'll return to visiting the major campaigns' websites for their views on tort issues (if any). But I noticed this press release from Mitt Romney's campaign, including this:
Enacting National Tort Reform To Help Protect South Carolina Businesses:
Governor Romney Believes We Must Enact Common Sense Tort Reform At The Federal Level To Make The System Fairer And More Predictable For Both Companies And The General Public. These reforms will allow our companies to grow, while at the same time protecting those who deserve compensation for legitimate losses.
- Tort Costs Are Too High. According to a recent report, U.S. tort costs reached $260.8 billion in 2005, which translates to $880 per person. This is an amount greater than the Gross Domestic Product of all but 35 countries in the world. Frivolous lawsuits and outrageous damages awards create a "liability tax" or "tort tax," which are passed along to every consumer in the country.
- Governor Romney Believes We Should Limit Non-Economic Damages And Prevent Excessive Punitive Damages Award. Non-economic damages are inherently speculative, and a reasonable statutory cap makes sense. Governor Romney also believes we need a statutory prohibition on outrageous punitive damage awards.
- Governor Romney Believes We Should Require More Disclosure In Contingency Fee Arrangements. More disclosure will help clients make informed decisions, and it will help end abusive lawsuits and extortionate settlement demands by plaintiffs' lawyers.
- South Carolina Has Been A Leader In Reforming The Tort System. Despite passing numerous tort reforms, South Carolina still bears the burden of frivolous lawsuits and excessive damages because costs are passed across industries and states.
Second, Lee Harris (Memphis, visiting at GW) has posted a draft article proposing tying liability modifications in medical malpractice to indicators of quality performance. The abstract:
The debate over limits on the amount injured patients can recover in a medical malpractice action is shrill. The debaters are uncompromising. On one side of the debate, trial lawyers, patient advocates, and the injured argue that liability caps are a scourge that creates a second harm to those who need compensation the most, the injured, and gives a protection to those who deserve it the least, the negligent or, worse, the reckless. On the other, hospitals, physicians, and defense lawyers argue that liability caps are a panacea, a good way to stanch the flow of increased medical costs from medical malpractice lawsuits and young physicians from high-risk medical practices. Is there a way out of this simple binary in which the players are either for liability caps or against?
This Article proposes one way to link the debate about medical liability caps explicitly to the debate about healthcare quality. Specifically, the article draws on data from the Centers for Medicare and Medicaid regarding healthcare quality. To demonstrate application, the Article draws on a database of 21 quality measures of quality for four defined conditions, heart attack, heart failure, adult surgery, and pneumonia. The data is collected by most hospitals in the United States and maintained by the Centers for Medicare and Medicaid Services. The idea is straightforward. The Article proposes tying eligibility of medical malpractice caps to healthcare quality and performance based, initially, on these 21 measures.
Thursday, August 16, 2007
I've written before about the Wisdom Sizzler, a very popular carnival ride. There has been a series of injuries and fatalities on Sizzlers associated with patrons not staying in their seats. The deaths have included a nine-year-old girl riding with her younger brother at a carnival in Austin, Texas, which at least somewhat undercuts the "rider misconduct" argument.
Wisdom, the ride's manufacturer, has this month (finally?) issued an advisory urging the addition of seatbelts. It's available here: Download Sizzler_Bulletin_8_01_07.pdf. The introduction is carefully phrased but gives the main idea:
The update is presumably inadmissible to prove defect, but you may recall regardless that the nine-year-old's family is out of luck on any design defect claim due to Texas's statute of repose.
The Washington Post's Michael Wilbon, one of the best sports columnists working today, has a column today about the general state of sports and the law, including a discussion of the defamation suit being brought by a Rutgers player against Don Imus and of the potential defamation suits to come from Barry Bonds.
Okay, Bonds's suit against Schilling would be frivolous at best because Bonds is a public figure. And to prove Schilling made knowingly or recklessly false statements, Bonds would have to submit his life to a degree of discovery a man with his baggage doesn't want to undergo.
An even bigger waste of time, it would seem to me, would be Vaughn's lawsuit against Imus, who never said her name on air, never identified her in any way in his mean and stupid remarks about the Rutgers women's basketball team back in April. Nobody outside the Rutgers campus even knows Vaughn played for the team unless she tells them. You can't imagine this would have any real traction in court, unless Judge Al Sharpton was presiding.
That's pretty much the extent of the Torts-related discussion, but the column is worth reading regardless.
Last summer, Andrea Peacock guested here for a week (first batch (in reverse order), final post). Peacock is the author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation.
PBS's P.O.V. series is premiering a program about Libby in a couple of weeks. From the press release:
"Libby, Montana" tells the heartbreaking story of Libby - a quiet town nestled below the rugged peaks of the Northern Rockies in Montana -- home to the worst case of community-wide exposure to a toxic substance in U.S. history. Once the site of an active vermiculite mine, the town now suffers an extreme public health crisis as hundreds of ex-miners, their families and friends are sick or have already died from asbestos exposure. "Libby, Montana" takes a long working day's journey into a blue-collar community, and traces their struggle to clean up their town and bring government attention to their dire situation. "Libby, Montana" will premiere Tuesday, August 28th at 10PM on most PBS stations (be sure to check your local listings on our site).
And the preview:
Update: Overlawyered notes the show, links to posts relating to W.R. Grace's filings suggesting that the problems are less than alleged, referring to the posts as including "actual data," presumably in implicit contrast to the P.O.V. show. The show has screened as a documentary, so perhaps Ted's seen it, but I don't think so. The show's producers' website (linked to above) includes a link to the Grace PR website, and I hope (but do not know) that the producers sought Grace's perspective as well.
Wednesday, August 15, 2007
Another plug for the upcoming punitive damages symposium being held Friday, September 7th here in Charleston. Advance registration ends August 27th! You can find registration details in the symposium brochure.
We have an exceptional group of panelists, including Elizabeth J. Cabraser of Lieff Cabraser, Robin Conrad of the U.S. Chamber of Commerce, Theodore Eisenberg of Cornell University Law School, Andrew L. Frey of Mayer Brown (and counsel for Philip Morris in the USSC), John Y. Gotanda of Villanova Law, Laura J. Hines of University of Kansas Law, Keith Hylton of Boston University School of Law, Robert S. Peck of the Center for Constitutional Litigation (and counsel for Mayola Williams in the USSC), Michael Rustad of Suffolk University Law School, Victor Schwartz of Shook Hardy, Tony Sebok of Cardozo, Cathy Sharkey of NYU, and Neil Vidmar of Duke Law.
I hope you can join us.
In his Findlaw column this week, Tony Sebok writes on the class action filed in July by children of Holocaust survivors against Germany seeking payment for psychiatric treatment for psychological problems related to their childhood. (Prior post here).
Sebok notes a couple hurdles that the suit likely will face. First, Sebok notes that purely psychological harm usually is not compensable without any accompanying physical injury (or threat of physical injury). Second, Sebok identifies a causation problem: how do we link the psychological problems by the children to the atrocities suffered by their parents in Germany (as opposed to other potential causes)? In closing, Sebok poses an interesting analogy, comparing the Holocaust suit to the slavery litigation in the Seventh Circuit.
At the end, Sebok leaves us with an interesting big picture question: What are "the limits of redress for psychic harm transmitted over generations"? Is this something the tort system can handle? Should handle?
Tuesday, August 14, 2007
Now that Barry Bonds has passed Henry Aaron to become baseball's all-time home run king, he's threatening to sue anyone who makes false or misleading statements about him, two Bay Area attorneys said Monday.
Attorneys John Burris of Oakland and Todd Schneider of San Francisco said Bonds has retained them "in connection with legal issues arising from the myriad of false statements attributed to him by players, the media and others."
Mattel is not having a good couple of weeks; they've announced another recall of toys, this time nine million of 'em. Some of the toys are being recalled due to lead paint, some due to magnetic part risks, some due to particularly piercing electronic noises. (Okay, I made up that last one.)
Mattel has announced a new testing program where every batch of paint will be tested, and has blamed the lead paint on an unauthorized third-party supplier used by a Chinese manufacturer.
Me, I'm starting to think my kids will only get to play with rocks. Maybe dull, organic sticks.
As reported yesterday on The Today Show (and others), Leroy Greer has sued 1-800-Flowers for damages and "mental anguish" because the florist inadvertently disclosed Greer's extramarital affair to his wife. According to The Today Show, the florist sent a thank-you for the order to Greer's home address. When his wife received the thank-you - the couple was divorcing and Greer was not living at the house at the time - she called the florist to find out more. The company then sent her "a receipt and a copy of the note he sent with the flowers."
According to the ABC story,
The receipt revealed that Greer had sent another woman a dozen long-stemmed red roses, along with a note that read, "Just wanted to say that I love you and you mean the world to me!" according to court documents.
The couple was already going through what Greer's attorney described as an amicable divorce.
After learning of the affair, Greer's wife asked for a $300,000 divorce settlement in addition to child support, said Kennitra Foote, Greer's attorney.
Greer is suing for $1.5 million in federal court in Texas.
CNN reports that the FDA has charged Pfizer with false advertising for its anti-schizophrenia drug Geodon. The FDA alleges that a medical journal advertisement by Pfizer is "is false or misleading because it omits important risk information and contains unsubstantiated superiority claims." The FDA issued a warning letter to Pfizer back in July, and just posted the letter on its website yesterday.
Monday, August 13, 2007
I know it's technically criminal law, but it's one of those at-the-border things that affects tort law too, so: Massachusetts lawmakers are considering significantly increasing the potential penalties for involuntary manslaughter charges against corporations. A few days ago, Sheila posted about the charges brought against an epoxy provider in the "Big Dig" tunnel collapse.
The St. Louis Post-Dispatch reports that the parents of a man who died at a drug party are suing the party's hostess.
Craig and Kelly Dodson are suing Kacie Kissell and two other defendants, Liana Kim and Jesse Ashley, in the death of Joshua Dodson, 20. The case was filed recently in circuit court in St. Charles County, a little more than a year after a criminal case against Kissell ended.
Kissell, 25, was sentenced in July of last year to eight years in prison for involuntary manslaughter and drug possession. Prosecutors said she repeatedly injected herself, Dodson and other guests with cocaine and heroin at a party in 2005 at her parents' home.
The suit brings negligence and battery claims against the defendants.
The New York Times reports that the Children's Health Insurance Program (CHIP) bill, passed earlier this month (posts here and here) does more than provide health insurance coverage to low-income, uninsured children. The Times found that the CHIP bill "would also direct millions of dollars a year to about 40 favored hospitals, by increasing their Medicare payments." Instead of naming the hospitals, however, the bill buried the beneficiaries with "cryptic" geographical descriptions.
Sunday, August 12, 2007
In the comments to my earlier post about the suit against McDonald's for the inclusion of cheese on a burger ordered by a (very) allergic customer, Peter Nordberg notes a post on Volokh arguing rather vociferously for the applicability of comparative fault.
Why the case would counsel in favor of a return to the complete bar of contributory fault, I've no idea. Certainly I assume McDonald's will raise the failure to look inside the bun (if proved) as comparative fault to reduce or potentially eliminate recovery...
I have to think the person registering PeanutButterClassAction.com must have felt a little silly, but it is, no doubt, effective. For more on suits relating to the massive Peter Pan recall and lawsuits, check out Daily Report coverage.