Saturday, September 15, 2007
The Examiner.com is running a five-part series on "Lawyers Gone Wild," a "continuing series of special reports on class action lawsuit abuse in America. The series will examine the costs, the leading personalities and their tactics, and the consequences of the litigation explosion that many experts contend is crippling American enterprise."
Friday, September 14, 2007
Susan F. Wood (GWU and SKAPP) has posted a discussion of the ongoing FDA reform measures, focusing on questions about conflicts of interest.
(Things may be slow this weekend; I'm at the Austin City Limits Festival and don't have completely reliable internet access. If you're in Austin and have kids, you should come to the Family Music Meltdown at Ruta Maya tomorrow. The flyer:
Thursday, September 13, 2007
That's the title of NYU's Mark Geistfeld's new SSRN posting (forthcoming Southern California Law Review), which argues for less of a connection between compensatory damages and punitive damages in the context of wrongful death or other settings where compensatory damages are inherently insufficient. The abstract:
Tort law provides awards of punitive damages for reasons of retribution and deterrence. In light of a recent decision by the U.S. Supreme Court in Phillip Morris USA v. Williams, the retributive rationale for punitive damages will inevitably come under heightened scrutiny. The case involves a punitive award of $79.5 million that is 97 times greater than the compensatory damages, making it presumptively unconstitutional under the Court's punitive damages jurisprudence. The Court, though, has never addressed the constitutional issue in a case involving serious bodily injury or death, and so Williams poses a number of new questions. How can compensatory damages provide an appropriate baseline for evaluating punitive damages in a case of wrongful death, given that monetary damages provide no compensation to a dead person? What is the appropriate baseline? Any future deterrence provided by a punitive award cannot protect the decedent's tort right, and so the award must be justified exclusively in terms of retribution. Is retribution inherently subjective and arbitrary, unless constrained by some objective measure such as the single-digit ratio between the punitive and compensatory damages? Or is there some way to translate retribution into dollars? These questions are not limited to wrongful-death cases and must be resolved by any court trying to determine whether a punitive award is unconstitutional for exceeding the presumptively required single-digit ratio between punitive and compensatory damages. These questions can all be answered once retribution is tied to the inherent limitations of compensatory damages, which yields a method for quantifying this form of punitive damages. Based upon government data and methodology involving the monetization of fatal risks, this method shows why vindication of the decedent's tort right in Williams justifies the $79.5 million punitive award. When formulated in this manner, vindictive damages satisfy the requirements of both substantive and procedural due process and provide a baseline for reviewing courts to determine whether any given punitive award, like one based on general deterrence, is excessive in violation of substantive due process. This method fully accounts for the reprehensibility factors that determine the constitutionality of a punitive award, while also explaining why the Court could defensibly rely upon procedural due process to reverse and remand Williams back to state court.
Our damages archive includes many posts about Williams and other damages issues.
The Times has its wrapup here. Sounds like both the toy industry and the CPSC took their share of blame, and significant new regulations may be on the way:
[Senators] proposed a long list of legislative changes that go much further — including increased fines for selling or failing to report dangerous goods, and a prohibition, backed by possible criminal prosecution, against retailers selling recalled products.
* * *
Senators also called for a revamping of the Consumer Product Safety Commission, including giving it the power to ban lead in all children’s toys, funds to increase the number of inspectors at ports and compliance officers in the field, and providing better equipment and better staff for the testing laboratory.
The manufacturers represented support a mandate requiring independent testing of all toys.
As noted yesterday, Consumerist's live blog of the hearing is here.
And Slate has a story as well, understandably skeptical of the industry's new desire for regulation.
Wednesday, September 12, 2007
Newsday reports that U.S. District Judge Richard J. Howell has struck down the New York City law that required fast-food restaurants to post calorie content on menus:
In his ruling, the judge said the city rule conflicted with federal law because federal law already described how restaurants should post nutritional information if they choose to do so.
He said the city rule would not seem to conflict with federal law if it were mandatory for restaurants. He noted that the city chose to limit the regulation to restaurants that had already disclosed calorie information so the rule would not be burdensome on restaurants that had never analyzed their menus for nutritional data.
The judge called the city's reason for limiting the applicability of the rule laudable, but he said it did not change the fact that it caused the rule to conflict with federal law.
Jiafeng Sun (Ph.D. cand.) and Joan T. Schmit (University of Wisconsin-Madison, Professor & Chair, Department of Actuarial Science) have published "How Do the State Medical Malpractice Laws Affect the Access to Health Care?" on SSRN. The abstract states:
With 15 percent of the population in the United States lacking health insurance, significant effort is being made to identify solutions. A variety of responses have been implemented, ranging from changes to the insurance regulatory requirements to tax code revisions to legal system modifications. While a large body of literature addresses the effect of legal system modifications on medical malpractice claims and insurance as well as physician availability, we know of no prior research to investigate the effect on rates of uninsured. We test this relationship and discover that caps on non-economic damages are associated with decreasing rates of uninsured.
The Senate Judiciary Committee is holding a hearing today at 11:00 am (in Dirksen-226 if you want to stop by) on "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?"
The witness list includes Representative Donna Stone (R-Delaware Assembly), President of the National Conference of State Legislatures, Alan Untereiner, a partner with Robbins, Russell, Englert, Orseck & Untereiner LLP, Collyn Peddie, a partner with Williams Kherkher, Viet Dinh, Professor of Law at Georgetown, and David Vladeck, Professor of Law at Georgetown.
Tuesday, September 11, 2007
Bill posted recently on "popcorn lung," a disease caused by exposure to the chemical diacetyl in artificial popcorn flavoring. Now, Senator Edward Kennedy (D-MA) and Senator Patty Murray (D-WA) have sent a joint letter to the Centers for Disease Control, the Food and Drug Administration, and the Department of Labor asking these agencies "to examine immediately the risks of consumer exposure to diacetyl, and the safety of proposed substitutes for this flavoring."
The New York Times reports on "Why Lead in Toy Paint?" The answer? Lead paint is cheaper:
Why is lead paint — or lead, for that matter — turning up in so many recalls involving Chinese-made goods?
The simplest answer, experts and toy companies in China say, is price. Paint with higher levels of lead often sells for a third of the cost of paint with low levels. So Chinese factory owners, trying to eke out profits in an intensely competitive and poorly regulated market, sometimes cut corners and use the cheaper leaded paint.
The New York Post has a story (with the typically restrained title "Cyclone Rider's 'Killer' Thriller") relating the story of one Keith Shirasawa.
Shirasawa, a California musician, was visiting Coney Island with his girlfriend and rode the famous Cyclone roller coaster. According to his family, during the ride's first drop (which is, I can confirm from many rides, quite a drop) he felt pain in his neck. After the ride, he started to lose sensation, and, after some time, went to a local hospital, where he learned he had fractured three vertebrae. The surgery apparently went well -- he was "walking around -- but due to a complication not explained in the story, he died the next day.
His family has retained counsel but has not filed sued as yet; the park says they don't have any record of the injury and is clearly walking cautiously.
The story raises interesting potential questions of risk assumption, both general (what injury risks do you assume when boarding any coaster?) and specific (what what injury risks do you assume when boarding the Cyclone, which the Post describes as "famously rickety"?).
Monday, September 10, 2007
. . . then you missed the punitive damages symposium at the Charleston School of Law.
What a fun day! We had an exceptionally distinguished group of panelists and moderators 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), Chris Robinette of Widener, Michael Rustad of Suffolk University Law School, Victor Schwartz of Shook Hardy, Tony Sebok of Cardozo, Cathy Sharkey of NYU, Byron Stier of Southwestern, Neil Vidmar of Duke Law and the Hon. William Wilkins of the Fourth Circuit.
My thanks to all our panelists and moderators for an exceptionally lively and engaging day. I should have some photos and audio of the panels later this week.
On Wednesday, the Senate Appropriations Subcommittee on Financial Services and General Government will hold a hearing on "Enhancing the Safety of Our Toys: Lead Paint, the Consumer Product Safety Commission, and Toy Safety Standards." Witnesses include Nancy Nord, Acting Chair of the CPSC, Robert Eckert, CEO of Mattel, and Gerald Storch, CEO of Toys'R'Us. The Salt Lake Tribune (via Bloomberg) has more.
Sunday, September 9, 2007
David Egilman has posted a comment at Pharmalot. He says he released all of the documents "he had" (which does not state whether he previously had more documents or requested other documents), that he did not admit to anything illegal (see my earlier post), and that, while he recognizes that Lilly has a different story, he does not believe that story.
- The NYT has a story (with no individual byline) that includes a quote from their own editor about the coverage;
- The Indianapolis Star has a piece;
- The AP has a story too;
- and another one (this one addressing a bit about the dispute over how to parse the agreement, this time about whether "regretting" actions is the same as an apology);
- And Reuters has a story.