TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, October 20, 2007

You May Already Be Pacman Jones's Co-Defendant least, given the range of the people and entities on the wrong side of the "v." in the suit filed against the suspended Tennessee Titan/idiot.  John Day has some commentary on the suit, where a manager of a strip club in Vegas has sued Jones, the Titans, and the NFL for his injuries in a shooting outside the club.  But even the suit against Jones is tenuous at best, since he was not the shooter (at most he started the melee inside, it appears).  But the basis for the suit against the NFL and the Titans is, well, you be the judge:

"The fact that the NFL and the Titans did not punish Adam 'Pacman' Jones until after Tommy was paralyzed is a proximate cause of Tommy's injuries," attorney Matthew Dushoff said before a news conference in suburban Las Vegas.

Maybe a factual cause, sure.  But getting past duty and legal cause?  Good luck with that.


October 20, 2007 in Goofy Cases | Permalink | Comments (1) | TrackBack (0)

FDA Panel Recommends Banning Child Cold Medicine

The NY Times has coverage. I had a post about it earlier too.


October 20, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, October 19, 2007

Conviction in Tennessee Amusement Park Death Affirmed

I know, I know, it's TortsProf blog, not CrimProf blog, but it has a torts component...

Charles Martin's conviction in the death of Carol Sevier was affirmed by the Tennessee Court of Criminal Appeals (an intermediate court).  Sevier fell from a ride called the Hawk, manufactured from Zamperla, in mid-cycle.  The evidence suggested that the ride controls were tampered with to bypass a restraint confirmation system.

I have an extensive series of posts about the case, including information about the civil suit (which settled in 2005, though I don't know if the suit against the ride manufacturer is still pending) at my other site.


October 19, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, October 18, 2007

Retort to the Third Restatement

Ronen Perry (NYU, Haifa) has posted a provocative critique (forthcoming Alabama Law Review 2008) of what he describes as the Restatement (Third)'s adoption of the Learned Hand formula.  The abstract:

Tom Broadbent, George Bernard Shaw's memorable hero in John Bull's Other Island, forcefully avers in Act IV that “there are only two qualities in the world: efficiency and inefficiency, and only two sorts of people: the efficient and the inefficient.” Broadbent is an Englishman, but his commitment to the gospel of efficiency has made him representative of modern America in the eyes of many commentators. Peter Keegan, Broadbent's ideological adversary, mocks his simple-mindedness, and concludes his ironic reproach with an inspiring prediction: “For four wicked centuries the world has dreamed this foolish dream of efficiency; and the end is not yet. But the end will come.” Will it?

Broadbent's scorned vision seems to underlie the proposed definition of negligent-conduct in the draft Restatement (Third) of Torts. Section 3 embraces the renowned “Hand formula,” which defines negligence in economic, cost-benefit, terms. This Article endeavors to disprove the drafters' alleged normative choice from an internal-economic perspective, and buttress an external-deontological alternative. It is addressed to legal scholars, judges, practitioners, and law students, and attempts to rescue all who might be swept away by the recent triumph of the “foolish [but very vivid] dream of efficiency.” Admittedly, this will not be an easy task. The gatekeepers of legal scholarship, namely student editors, are trained to think about negligence in aggregative consequentialist terms. Consequently, my argument may be deemed somewhat subversive, if not outright heresy; but only at first glance.

Part I briefly presents Section 3 of the Third Restatement. It explains that despite some apparent discrepancies this Section embraces the Hand formula. It then shows that the Hand formula, at least as embodied in Section 3, is a purely aggregative consequentialist norm. Finally, it demonstrates that in embracing the Hand formula Section 3 fails to restate prevailing law. Instead, it promotes a certain normative commitment that does not truly dominate American tort doctrine. These conclusions lay down the infrastructure for the critical assessment of Section 3.

Part II shows that while it may be possible to formulate an economic definition of negligent-conduct, it is practically impossible to achieve efficiency through its application. Once this is acknowledged, the dream of efficiency is shattered. If Section 3 cannot achieve its purported goal, it must be reconsidered. Some of the arguments set forth in this Part are not in themselves novel, but their systematic compilation yields the most profound and comprehensive “internal” retort thus far.

Part III defends and develops the view that efficiency should not underlie the legal definition of negligent-conduct. An alternative, deontological, definition should be considered instead. The proposed definition has been mentioned in several positive accounts of tort law, but these are somewhat dubious. This Article, on the other hand, has no positive pretense. It advances a normative proposition, and attempts to refute possible criticisms that have not yet been addressed. This is a purely “external” retort.


October 18, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Lindsay Lohan Does Her Part to Contribute to Law Blogging giving me a chance to introduce our new-ish neighbor blog, the Evidence Prof Blog, and its post about the evidentiary issues in the lawsuit resulting from Lohan's car accident involving paparazzi.


October 18, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Rye Playland Audited

The NY Journal News has posted [PDF, also here: Download RyeAudit.pdf] the report from an audit of the Playland amusement park in Rye, New York, which has had a tragic run of fatalities in recent years.  The audit is quite interesting in parts and raises -- from a non-legal perspective -- some interesting issues relating to warnings.

Probably the most striking discussion is in the section relating to the Old Mill dark ride, where a young  boy, riding along, apparently panicked and got out of the boat a couple of years ago, ultimately dying in the ride under unclear circumstances.  (I don't mean the "unclear" to suggest a cover-up or anything like that -- it's just impossible to know exactly what happened.)  Here's the section from the audit (note the encouragement to consult counsel at the end):

The "overall observations" section at the end is worth reading.  All in all, it seems that Rye's operational problems (that may have contributed to at least some past accidents) have improved.  Even if you're not interested in amusement safety as such, the audit may make for interesting reading and/or a good basis for a Torts hypothetical.


October 18, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Conflicts in Acadmic Medical Centers

The JAMA study quantifying the extent of industry ties among the heads of academic medical center has been getting a lot of attention; Respectful Insolence has a thorough evaluation.


October 18, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Cop Slips, Falls, Sues

Many of you have probably seen this already, but just in case, it's worth reading.

In January, 1-year-old Joey Cosmillo wandered into the backyard and fell into the family pool. When his mother hauled him out, he wasn't breathing. Rescuers were able to bring him back to life, but he suffered severe brain damage and cannot walk, talk or even swallow.

Now, his family faces another burden: One of the rescuers, Casselberry police Sgt. Andrea Eichhorn, is suing, alleging the family left a puddle of water on the floor that afternoon, causing her to slip and fall.

Almost immediately upon the suit getting some press, Sgt. Eichhorn dropped her suit.

--BC (h/t PSM)

October 18, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 17, 2007

Another Floral Lawsuit - Lawyer Bride Sues Over Pastel Hydrangeas

Yesterday's New York Times reports on a lawsuit filed by a lawyer-bride against her wedding florist.  The suit alleges that the florist used "pastel pink" hydrangeas instead of the requested "dark rust" in the table centerpieces.   

Their pastel colors clashed with the linens, favor boxes, wedding cake and décor at Cipriani 42nd Street, the luxurious restaurant where she and her husband, David, held their reception, Ms. Glatt said.

“The use of predominantly pastel centerpieces had a significant impact on the look of the room and was entirely inconsistent with the vision the plaintiffs had bargained for,” Ms. Glatt, a lawyer who practices under the name Elana Elbogen, said in the lawsuit, which she filed on behalf of herself, her husband and her mother-in-law, Tobi Glatt, who paid for the flowers.

The New York Post also covered the story.   After spending around $30,000 on the pretty pink flowers, the couple now seeks $400,000 in damages.



October 17, 2007 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Is Your iPhone Hazardous To Your Health?

The Center for Environmental Health, a California public interest group, has announced that it plans to sue Apple under the state's Proposition 65 law based on data in a Greenpeace report revealing that the company's iPhone contains phthalates.   Under Proposition 65, manufacturers must notify consumers if a product contains certain chemicals known to cause cancer or birth defects. 

Stay tuned. 


October 17, 2007 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 16, 2007

Cheating Husband's Suit Against Florist Dismissed

OnPoint reports that Judge Nancy F. Atlas of the S.D. of Texas has dismissed the suit filed by Leroy Greer against 1-800-Flowers for damages and "mental anguish" because the florist inadvertently disclosed Greer's extramarital affair to his wife.   (Prior post here).    Judge Atlas found that the company's terms of use included a valid forum selection clause designating New York courts as the proper forum.   A copy of the decision is available here.  According to OnPoint, Greer's attorney, Kennitra Foote, stated that they will re-file in New York "in the next couple weeks."

Stay tuned.

Thanks to Ted Frank at Overlawyered for the update.


October 16, 2007 | Permalink | Comments (1) | TrackBack (0)

Hylton on Punitive Damages

Keith Hylton has posted "Due Process and Punitive Damages:  An Economic Approach" on SSRN.  The abstract states:

This paper sets out a public choice (rent-seeking) theory of the Due Process Clause, which implies that the function of the clause is to prevent takings through the legislative or common law process. This view of the clause's function supports a preference for expanding rather than contracting the set of entitlements protected by the clause. The Supreme Court's application of due process reasoning in the punitive damages case law is in some respects consistent and in other respects inconsistent with this theory. For the most part, the Court has failed to develop a set of doctrines that would enable lower courts to distinguish takings from punishment consistent with reasonable regulation. This paper suggests general guidelines for developing such doctrines.

- SBS 

October 16, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 15, 2007

Gottstein's Appeal Withdrawn (Without Prejudice)

I missed this the first time around, but the Second Circuit docket reflects (and James Gottstein has posted (click on the "Zyprexa Papers" link)) that, last month, contemporaneously with David Egilman's settlement with Lilly, Mr. Gottstein has withdrawn (without prejudice) his appeal from Judge Weinstein's order, presumably to continue settlement discussions.

The document is here: Download 20070907WithdrawAppeals.pdf.


October 15, 2007 in Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

"Paying By the Click" - Lawyers Ads on Google Searches

Our own Bill Childs was quoted in a column by Adam Liptak on "Competing for Clients - Paying By The Click" in today's New York Times.  The article explores lawyer ads that run as "sponsored links" next to the results on a Google search:

Ted Frank, the director of the Legal Center for the Public Interest at the American Enterprise Institute, said the fact that some personal injury lawyers were willing to pay $60 a click was telling, particularly given that relatively few of those clicks would bring in actual business.   “These lawyers don’t really litigate cases — they settle cases,” Mr. Frank said. “And they need a big inventory of cases. The only job of the attorney is to come up with the clients.”   “There is nothing wrong with what Google is doing,” he added. “There is nothing wrong with advertising for clients. It’s just fascinating that clients are worth so much.”

And there is no client more lucrative than one with mesothelioma. That word has hovered near the top of the CyberWyre list since 2003, Mr. Elhag [a writer for CyberWyre] said.

William G. Childs, an assistant professor at Western New England College School of Law, explained why, as he put it, “mesothelioma is clearly the highest-dollar value.”   “It doesn’t happen except through asbestos, with vanishingly small exceptions,” Professor Childs said. “The vast majority of cases settle and settle rather easily. And they’re not hard to work up.”


October 15, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Fulbright & Jaworski's 2007 Litigation Trends Survey

Fulbright & Jaworski have released their fourth annual Litigation Trends Survey.  (Available for download here upon completion of on-line form).   The survey is based on interviews of in-house counsel at over 300 corporations (both here and in the U.K.).   

The survey reports a slight decrease in the total number of lawsuits against corporations, although suits involving $20+ million remained at the same level as last year.    Notably, 60% of American companies face at least one pending class action. 


October 15, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, October 14, 2007

Gottstein in the Pioneer Valley

Unfortunately, it's at the same time as I teach Torts, but James Gottstein, the Alaska lawyer who subpoenaed the Zyprexa documents from David Egilman, is speaking at Hampshire College in a week.  As far as I know, his appeal remains pending, as does the possibility of contempt charges (unlike Egilman's, who settled with Lilly).


October 14, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Food Poisoning Resources

If you're looking for updates on the various food-borne illness issues of late, this plaintiff's lawyer's blog seems pretty comprehensive.  It certainly has a distinct perspective, but has links to major and minor stories from around the country.


October 14, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Call for Papers: Yale Pocket Part

Of possible interest...

Call for Papers: State Law

The Yale Law Journal Pocket Part is soliciting commentaries for two end-of-year issues: one issue will focus on new developments in state courts, and the other will focus on new developments in state legislatures. Our goal is to bring critical focus to an area of lawmaking that deserves greater attention in the legal literature, and we invite you to submit a commentary on a state law topic of your choosing.

Commentaries may explore a legal development at the state level that has not been extensively reviewed in legal scholarship and the popular press, or present a novel argument on a timely issue that has received attention.

Submissions should be no more than 1,500 words. We encourage authors to write in a style accessible to policy-makers and practitioners. For a detailed style guide and instructions for submitting your piece, please visit our website,, and follow the link for "Submissions."

The deadline for submissions for both issues is Friday, November 2, 2007.


October 14, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)