September 29, 2007
Sometime this weekend, this blog will hit its 100,000th visit (we hit 150,000 page views earlier this week). My sincere thanks to everyone reading, to the network managers, and to Sheila for joining in the TortsProf adventure a few months back. It's been a good time, and hopefully will continue to be fun.
Misrepresentation Suit Filed Against Patriots
Like we New Englanders don't have enough annoyance with the videotaping of opposing teams' signs by the New England Patriots. Now we have Jets fans filing lawsuits.
The lawsuit states that because other teams found illegal videotaping by the Patriots, Jets ticket holders should be compensated for all Jets-Pats games in Giants Stadium since Belichick became coach in 2000.
The two calculated that because customers paid $61.6 million to watch eight “fraudulent” games, they’re entitled to triple that amount - or $184.8 million - in compensation under the federal Racketeer Influenced and Corrupt Organization Act and the New Jersey Consumer Fraud Act.
Good luck with that.
September 28, 2007
Ohio Ride Safety Bill Maybe Not Quite Law After All
I've posted before about the case of Greyson Yoe, a young boy electrocuted while standing in line for the bumper cars at a carnival in Ohio. (I've also written an article about it, available at 34 Cap. U. L. Rev. 581 (2006).) Here's how I described the case previously:
The ride had been inspected the day before, when state inspectors passed it, expressly checking on the inspection form that they had checked the grounding. In fact, they had not and now disavow any knowledge of how to check grounding. (I hear that testimony may suggest that they received more electrical training than they now claim.) The inspectors pleaded guilty a year or two ago to dereliction of duty. Of note, after the criminal charges, the relevant regulatory agency (which in Ohio is the Ohio Department of Agriculture) removed electrical inspection entirely from their inspectors' forms. The Ohio legislature directed the ODA to reverse that decision.
The civil trial took place earlier this year; the case appears to still be under consideration, two months after post-trial briefing took place. (It was a bench trial.)
But here's the funny (not so much funny ha-ha) part -- that place where I say that the Ohio legislature reversed the ODA's decision? Not so much. At least not to the extent it was pitched.
5 On Your Side dug into inspection reports, court records and hundreds of pages detailing the case and found the much-publicized law not only never got passed, it never even got debated.
It means that life-saving measures like double grounding of all electrical equipment and hefty $5,000 fines never became law.
Former Ohio legislator Tim Cassell sponsored the bill.
He told Regan, "We were basically told by the chairman of the committee that you're not going to make a zoo out of my committee. And I asked him 'What do you mean, make a zoo out of your committee?' And he said, 'you're not going to drag people through here, news cameras in here, and embarrass us.' "
Instead, the law became a tiny footnote tacked onto to the state budget.
Only rides "hooked to electric company power lines" would now be required to have circuit breakers certified by licensed electricians.
It was discovered that the vast majority of rides were powered by generators checked by state inspectors.
The story is a bit confusing, and if I have some time later on I'll dig around a bit more, but it sounds like essentially one key part got adopted (and a part that would have prevented this injury), but not the much broader set of requirements that would have increased regulatory oversight of electrical matters more generally.
September 27, 2007
A PR Take on Egilman & Zyprexa & the NYT
Incidentally, I have a very-very-rough draft of my article on the subject, focusing on protective orders in mass tort litigation. If anyone's interested, drop me a line. It's a little ways away from even being ready for SSRN, but it's coming along.
September 26, 2007
NEJM Clears (Mostly) Thimerosol
In what is a relatively uncommon event in the last few years, the New England Journal of Medicine has good news this week for pharma, or at least vaccine manufacturers. A new study published there largely clears the the mercury in thimerosol in vaccines from causing autism:
Our study does not support a causal association between early exposure to mercury from thimerosal-containing vaccines and immune globulins and deficits in neuropsychological functioning at the age of 7 to 10 years.
"King of Torts" Pleads Guilty To Fraud
The South Florida Sun-Sentinel reports that Louis Robles, once known as the "King of Torts" for his plaintiff's personal injury work, plead guilty last week to federal mail fraud charges. U.S. District Judge Alan Gold set sentencing for Dec. 4th. Robles faces a possible 15 year sentence. (Judge Gold had earlier rejected a plea that set a maximum 10 year sentence).
Between 1989 and 2002, Robles collected more than $164 million on behalf of roughly 7,000 asbestos clients, according to court records. Some were World War II veterans. Some were retirees living on Social Security checks. Some died of asbestos-related diseases, leaving spouses and children to recover settlement funds.
Initially, the settlement checks were promptly dispersed — with Robles' firm deducting up to 40 percent in attorneys' fees. But around 1994, Robles began dipping directly into settlement proceeds without his clients' knowledge to fund his extravagant lifestyle, prosecutors said.
. . .
By September 2002, Robles had embezzled $13,522,160 from his clients and had only $25,000 remaining in trust accounts.
His victims stand to collect roughly 8 cents for every dollar they are owed.
(Thanks to Overlawyered for the tip.)
House Passes CHIP Bill - But Without Enough Votes To Override Expected Veto
The New York Times reports that the House passed the compromise Children's Health Insurance Plan (CHIP) bill yesterday. (Prior posts here). The bill passed by a vote of 265 to 159 - short of the 2/3s majority needed to override President Bush's expected veto. The Senate is expected to vote on the bill later this week.
September 25, 2007
Cert. Granted in Preemption Case
ScotusBlog notes it as having to do with preemption of claims of fraud on a federal agency, and Warner-Lambert is a party. PLAC's amicus brief [PDF] explains the details; it arose from a preemption claim relating to Michigan's partial immunity for FDA-approved drugs. The immunity is lifted if the plaintiffs can show (roughly) fraud on the FDA, which Warner-Lambert (now part of Pfizer), in Rezulin litigation, alleged was a preempted question under Buckman.
Should be interesting.
--BC (who does work for some pharma companies, but not Pfizer or Warner-Lambert to date)
Washington State May Sue Over CHIP Funding
The Seattle Times reports that Washington State Governor Christine Gregoire has announced that the Washington may sue the federal government over the Bush Administration's recent income limits on the Children's Health Insurance Program (CHIP).
Gregoire said she's baffled by the president's refusal to expand the program, and upset at the administration's new restrictions on the states. She said she's asked the state attorney general to prepare a possible lawsuit.
In late August, New York Governor Eliot Spitzer also announced that New York might sue the federal government over the the CHIP limits.
Congress Readies Compromise CHIP Bill And Gears Up for Veto Fight
The New York Times reports that Congress is set to pass a compromise bill that would renew and expand the Children's Health Insurance Program (CHIP). As previously noted, the House and Senate passed different versions of the bill back in early August.
The compromise worked out by negotiators would renew the child health program for five years, with a total of $60 billion, which is $35 billion more than the current level of spending. The additional cost would be financed by increasing the federal excise tax on cigarettes by 61 cents, to $1 a pack.
President Bush is expected to veto the bill, and supporters are trying to marshal the necessary two-thirds needed to override the anticipated veto. Current authorization for CHIP expires on Sept. 30th.
September 24, 2007
Goldberg & Zipursky on "Tort Law and Moral Luck"
Tort liability often turns to a substantial degree on an actor's good or bad luck. For example, a driver may be lucky to be more skilled than average, or unlucky to be less. Alternatively, she may be lucky to avoid hitting a pedestrian, or unlucky to hit him, or very unlucky to hit a person with an ‘eggshell skull.' Whether a person's conduct falls below the relevant standard of conduct, whether it causes injury, and how much liability results -- these matters determine whether someone is a tortfeasor and, if so, how much she will have to pay in damages. And yet each of these factors lies outside of her control. Because tort liability is sensitive to luck in these ways, scholars such as Christopher Schroeder and Jeremy Waldron have condemned tort law as morally arbitrary. Others, such as Justice Holmes and Judge Posner, have seized on tort law's luck-sensitivity to argue that tort - which seems on its face to be a law of wrongs - really has nothing to do with wrongs. Assessments of conduct as right and wrong, they suppose, cannot possibly attribute so much significance to dumb luck.
In this Article we are argue that the role of luck in torts does not undermine the case for understanding tort as a law of wrongs, nor does it make the case for dismissing tort law as morally arbitrary. Drawing upon the canonical articles on “moral luck” by Bernard Williams and Thomas Nagel, we argue that is false to suppose that an actor cannot be held responsible for having committed a wrong unless all the relevant features of the situation in which she acted were in principle subject to her control.
The Article proceeds by distinguishing and explaining two aspects of tort law's luck-sensitivity: (1) luck regarding whether one's tortious conduct causes damage, and, if so, how much (“causal luck”); and (2) luck regarding whether one's efforts to comply with tort law's objective standards are successful (“compliance luck”). Causal luck, we argue, does not introduce objectionable arbitrariness into tort law. On the contrary, it is a natural and necessary feature of a body of law that is concerned to permit those who have been wronged to redress the wrongs done to them. As to the problem of compliance luck, we explain why it is sensible for courts and legislatures to fashion tort norms of conduct with external measures of compliance, and why such norms can properly count as norms that define “wrongs.” We conclude by suggesting that careful attention to the particular senses in which torts are wrongs not only entails the rejection of familiar critiques of tort, but also sheds light on values that tort law can serve within in our legal system, as well as the content and operation of legal and extra-legal notions of wrongdoing and responsibility.
Nagareda on Mass Torts
The traditional definition of torts involves bizarre, idiosyncratic events where a single plaintiff with a physical impairment sues the specific defendant he believes to have wrongfully caused that malady. Yet public attention has focused increasingly on mass personal-injury lawsuits over asbestos, cigarettes, guns, the diet drug fen-phen, breast implants, and, most recently, Vioxx. Richard A. Nagareda’s Mass Torts in a World of Settlement is the first attempt to analyze the lawyer’s role in this world of high-stakes, multibillion-dollar litigation.
These mass settlements, Nagareda argues, have transformed the legal system so acutely that rival teams of lawyers operate as sophisticated governing powers rather than litigators. His controversial solution is the replacement of the existing tort system with a private administrative framework to address both current and future claims. This book is a must-read for concerned citizens, policymakers, lawyers, investors, and executives grappling with the changing face of mass torts.
It sounds fascinating. Pre-order now for the October 1st release!
September 23, 2007
"It was...yuck. It was really yuck."
Yeah, I'd tend to agree; finding a snake head in your green beans is yuck. Not sure it tops the classic toe in chewing tobacco, but it's right up there.
(If you're not familiar with the toe case, it contains one of my favorite lines from any case ever: "We can imagine no reason why, with ordinary care, human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that somebody has been very careless." Pillars v. R.J. Reynolds Co., 78 So. 365, 366 (Miss. 1918).)