September 22, 2007
Briefing Continuing on Valdez Cert Petition
MarketWatch has details, including an interesting intersection of respondeat superior with punitive damages law:
In the court documents, Exxon Mobil argued the case hinges partly on whether punitive damages should be imposed under maritime law against a ship owner for the conduct of a ship's master at sea...even when the conduct was contrary to policies established and enforced by the owner.
September 21, 2007
Motion to Recuse...Denied.
Via Perlmutter & Schuelke, a report that the motion to recuse four Texas Supreme Court justices was denied without argument or comment.
Big Damages in Colorado
Colorado Confidential has a detailed post about a recent case against Qwest Communictions for injuries to a lineman who was left a paraplegic after a utility pole collapsed. Somewhat surprisingly, the trial judge increased an already-large punitive damage award (from $18 million to $45 million, if I'm doing my math in my head right).
Argument Approaching on Texas Motion to Recuse
Texas Lawyer has a story about a fascinating fight shaping up in Texas, all based on an article by David Anderson at the University of Texas School of Law (from whom I took Mass Media Law, by the way). In brief, his article indicated that defendants won a very high percentage of appeals brought in 2004 and 2005. The plaintiffs in the appeal have sought the recusal of four justices, contending that this article indicates they cannot be impartial.
...Anderson, who teaches torts and mass media law at UT, gives low odds to the plaintiffs' chance of winning recusal.
"It's always hard to get a judge recused. To try to get four judges recused just based on statistical evidence would be very unlikely," Anderson says. "I'm not sure recusal is the remedy in the situation that's revealed in the statistics. It's political. You have to elect judges who are less committed to a single side of the docket."
September 20, 2007
Kentucky Kingdom Accident: A Non-Update Update
When we last left the Kentucky Kingdom accident in which a teenager's feet were severed while on a drop ride, a lawsuit had been filed and the state department of agriculture (which regulates amusement rides) was investigating. I submitted an informal public records request last week asking for an update, and received a phone call reporting that they would not be releasing any interim documents and that the investigation was ongoing.
Perhaps relevantly, the park is done with the regular season but is continuing with Halloween-themed weekends.
Companion Animals & Tort Law
Rebecca Huss (Valparaiso) recently posted a number of older articles relating to the place of companion animals in the law. Given the recent pet food recalls and the discussion of the appropriate place for tort law in connection with them, they may of interest. Check them out on her author page at SSRN.
September 19, 2007
Pharmalot has a first look, and the bill itself [big PDF]. A very quick glance through shows no obvious statements either way about preemption. Pharmalot discusses the conflicts of interest provisions (reduces the number of participants who can be allowed with them), direct-to-consumer advertising (bumps up regulations), trial publication (requires results online within a year). Not sure yet what it does with the FDA's post-marketing authorities. I'll try to take a closer look and update.
Another Hearing on Toy Safety
...and Consumerist is live-blogging it again.
In related news, the Times has a story about some toy makers (e.g., Lego, Playmobil) playing up the fact that their toys are not manufactured in China.
Happy Talk Like a (Tort) Pirate Day
It is indeed Talk Like a Pirate Day. Today is the first one since I started teaching where I don't teach class, so I can't urge students to start every answer with "Aye!" or "Ahoy!" or "Yarr!" (Well, I suppose I could urge such responses on other days, but it would be (more) odd.)
So instead I will urge readers to celebrate. Some suggested terms:
- Res ipsa loquitARRRR!
- Matey, ye caused a batt'ry when ye sliced off me hand!
- Avast! Belay that sayin' I assaulted ye! Ye know ye didn't be apprehendin' a touchin'! In all my years, I never seen such an addled fool!
That's just a start, of course. Please add more in the comments.
September 18, 2007
Sebok on NJ Supreme Court's Vioxx Ruling
Tony Sebok's latest FindLaw column addresses the New Jersey Supreme Court's decertification of the Vioxx class action brought on behalf of unions and health plans against Merck. As Sebok explains, this particular suit sought economic damages under a consumer fraud statute, not personal injury damages. Sebok examines the trend of using such "financial damages suits" as an easier means of achieving class certification.
More 9/11 Suits Settle Week Before Trial
The New York Times reports that 14 more families have settled their suits against the airlines arising out of the 9/11 tragedy.
Settlement talks continue, and more settlements could result before the first trial ever takes place, Mr. Migliori [a lawyer for the plaintiffs] said. But he said he expected that some families would refuse to settle and insist on a trial because they felt strongly that only a trial would bring the answers they wanted about how terrorists had bypassed security and managed to hijack four planes.
Although the court has barred parties to the settlements from talking about them or revealing how much money they received, Mr. Migliori said they felt vindicated by their decision to forgo the compensation fund.
As noted earlier, Judge Hellerstein had set a 9/24 trial date, with damages being tried before liability. The settlement, however, "means that the first trial is now scheduled to begin Nov. 5." 21 cases remain pending.
Lawsuit Wants Brut to Warn that Flammable Things Stay Flammable
A Wisconsin camper is suing the makers of Brut cologne for failing to warn more precisely about the risks of fire from its product. The camper applied the cologne and then returned to his campsite to light a fire; he allegedly then caught fire himself.
The Brut products have a warning label that says they should not be used while smoking or near fire, flame or heat, [plaintiff's lawyer] Hanrahan said. The key, he said, is that Lewitzke wasn't doing those things when he ignited.
"Our view is there is no warning that after you apply it, you remain flammable for some period of time," he said. "You aren't thinking, 'I'm still flammable.' "
Blackwater Case Moved to Arbitration (a few months ago); Blackwater Sues Estate Administrator for $10M (more months ago)
Turns out that, back in May, it was sent to arbitration per Reuters:
Lawyers for both sides declined comment on the move but Blackwater spokeswoman Anne Tyrrell confirmed that hearings would begin soon under the rules of the American Arbitration Association, a private group whose proceedings are confidential and its rulings binding.
“This is a very important decision,” said Jeffrey Addicott, a retired Special Forces lawyer and director of the Center for Terrorism Law at St. Mary’s University in San Antonio. “It is a recognition that the contract is iron-clad and that its terms absolve the company of liability. In future cases, this will be cited as a precedent.”
But some legal experts see the removal of the Fallujah case from the judicial process as an ominous development.
“This may be a victory for the Blackwater legal team but it is a defeat for the principle of transparency,” said Eugene Fidell, an expert on military law and president of the non-profit National Institute of Military Justice.
“This means that the shadow army (of contractors) will slip even further into the shadows.”
Contemporaneous with the motion to compel arbitration, Blackwater evidently filed a claim against the estates' administrator for $10 million for breach of contract. (BlackwaterVictims.com, Washington Post).
All very messy.
September 17, 2007
Wrongful Death Suit Against U-Haul
The LA Times reports an interesting case brought against U-Haul by the survivors of a rental customer:
When the parking brake [on the truck he rented] malfunctioned repeatedly, Demetrio T. Nagtalon drove the truck back to the U-Haul rental center in San Francisco to exchange it for another.
After pulling into the check-in area, Nagtalon watched as a U-Haul employee slid under the dashboard with a pliers to tug on the brake cable. The worker left the engine running and the truck on an incline, neglecting to block the wheels.
Suddenly, the truck began rolling downhill. Nagtalon rushed toward it, trying to help. He became pinned between the 4-ton truck and a steel pillar and suffered a crushed pelvis and massive internal bleeding.
Nagtalon, 63, of Daly City, Calif., died at a hospital two hours later.
U-Haul contends that Nagtalon was told to stand clear and was to blame for his own injuries. The Times story notes an earlier series of stories in the paper alleging what it terms "persistent" safety problems with the company's enormous and aging fleet of vehicles.
Tort Liability for Software Vendors
Michael D. Scott (Southwestern) has an interesting new article on SSRN, "Tort Liability for Vendors of Insecure Software: Has the Time Finally Come?" The abstract states:
Since 9/11, increased attention has been given to the security of critical national infrastructures, including transportation, finance, electric power, water supply, military, homeland security, and disaster recovery, to name but a few. These sectors are all dependent on the evolving information infrastructure, which in turn is dependent on the availability of secure software. Yet, government and industry are plagued by operating system and applications software containing myriad security vulnerabilities through which hackers and cyberterrorists can (and do) gain access to, and in many cases, take control of computer systems containing sensitive information – personal financial and medical information, corporate trade secrets and even top secret national security information.
To date courts have generally refused to find software vendors responsible for these vulnerabilities, allowing them to disclaim any liability through contractual provisions contained in software licenses. This article looks at the evolution of the software industry over the last 30 years, and the development of tort concepts during that same time period. While it may not be appropriate to apply tort law to general software, such as word processors and videogames, strong arguments can be made that current tort law can (and should) be applied to software intended to provide system and network security.
The federal government enacted the Sarbanes-Oxley Act in 2002 to deal with corporate fraud. The Act requires executives of publicly traded companies to certify that their company's computer systems are secure – under penalty of substantial fines and jail terms. Yet, the vendors who provide the software for those systems are under no obligation to certify that their software is secure.
Unless and until the government enacts legislation placing a burden on software companies to improve their software security, tort law can provide an ideal mechanism for enforcing the reasonable expectations of software licensees and users, particularly in the area of software intended to secure computer systems and networks.
Here We Are Now,
Entertain Regulate Us
The NYT has a story today about industry seeking, rather than fighting, new regulation. In addition to possibly heading off tougher (and/or inconsistent) state and local regulations, this is, of course, potentially helpful due to the Bush administration's ongoing preemption efforts. If you want a particular subject matter preempted, there needs to in fact be a regulation to do the preemption heavy lifting...and industry might rather the industry be written by this administration than an unknown future administration.
(The Pump Handle's post echoes this idea.)
September 16, 2007
Toys 'R' Us Toy Safety Email
As a Toys 'R' Us customer, I received the following email last week explaining the new measures that the company has put in place including:
- A new Safety microsite at www.Toysrus.com/Safety to help you find all product safety and recall information;
- The introduction of an email notification system for product recalls;
- The addition of bilingual recall notices should there be future recalls; and
- The introduction of new Safety Boards in all of our stores, which will contain important product safety information, including recall notices.
Notably, the email went out the same day that Gerald Storch, CEO of Toys 'R' Us, testified before the Senate Appropriations Subcommittee on Financial Services and General Government on "Enhancing the Safety of Our Toys: Lead Paint, the Consumer Product Safety Commission, and Toy Safety Standards." The new Toys 'R' Us safety procedures were described in Mr. Storch's testimony.