November 3, 2007
Welcome to Chris Robinette
For the month of November, we're pleased to announce that Chris Robinette of Widener will be in the mix blogging here. We'll continue to include our initials on posts, of course, so you can identify who's writing what.
e. Coli Leads to Pizza Recall
Details (including SKUs and the like) here. With 414,000 cases of frozen pizzas out there potentially affected, it's a big deal, and sure enough, lawyers are advertising. Not advertising but from what I can tell clearly the authority is Bill Marler who's been in that area of law for a long time and, while I expect he'd be happy to get clients from it, his blog is also quite informative and detailed.
November 2, 2007
Embattled CPSC Head Took Gift Travel From Industry
The Post has details.
The chief of the Consumer Product Safety Commission and her predecessor have taken dozens of trips at the expense of the toy, appliance and children's furniture industries and others they regulate, according to internal records obtained by The Washington Post. Some of the trips were sponsored by lobbying groups and lawyers representing the makers of products linked to consumer hazards.
The records document nearly 30 trips since 2002 by the agency's acting chairman, Nancy Nord, and the previous chairman, Hal Stratton, that were paid for in full or in part by trade associations or manufacturers of products ranging from space heaters to disinfectants. The airfares, hotels and meals totaled nearly $60,000, and the destinations included China, Spain, San Francisco, New Orleans and a golf resort on Hilton Head Island, S.C.
For other recent stories about Nord, and her opposition to expanded powers for the CPSC, the Pump Handle has a number of posts.
Sherwin-Williams Is Not Happy With DuPont's Settlement in Rhode Island Lead Paint Case
LegalNewsLine is reporting that Sherwin-Williams is challenging portions of DuPont's pretrial settlement with Rhode Island over lead paint:
"In addition to valuing the overall DuPont settlement, Sherwin-Williams also moves to disgorge two monetary amounts from the settlement that were improperly diverted to two purely private purposes, to satisfy either the Attorney General [Patrick Lynch]'s or the State's counsel's private interest," attorneys for Sherwin-Williams wrote.
First is $2.5 million earmarked to pay Brigham and Women's Hospital in Boston. Sherwin-Williams says the money is used to satisfy a pledge made previously by Motley Rice, the plaintiffs firm hired by the State to pursue the case on a contingency fee basis.
* * *
The second is an allotment of $1 million to Brown University, Lynch's alma mater.
November 1, 2007
OT: Happy Halloween
Fear not, this will not become a what-I-had-for-breakfast blog. We're still all about the torts.
Except for this one time. Indulge me, won't you?
We had Jane Goodall:
My daughter appears to have a theme, costume-wise; last year, she was Amelia Earhart and she's talking about being Eleanor Roosevelt next year.
My son this year was a hairy eyeball:
If he's got a theme, it's being a little unusual; last year, he was a book about a walking skeleton.
Home Depot, Foam Insulation Manufacturer to Contribute to Settlement in Station Nightclub Fire
Home Depot and Polar Industries, the retailer and manufacturer, respectively, of flammable foam insulation that was part of the fire at The Station Nightclub in Rhode Island, have agreed to contribute $5 million towards settlements with the families of the victims. The plaintiffs allege that the product was insufficiently labeled, in part explaining the apparent fact that the insulation was not covered up when installed. The insulation was above the drummer; another foam insulation manufacturer has already settled.
The $5 million brings the settlement fund up to $18.5 million, which includes amounts from a fireworks manufacturer (whose products evidently set off the fire in the first place), the landlord, and an alarm company. Still in the mix include the band (whose insurance carrier has contributed $1 million in an effort to resolve claims), city and state governments, Anheuser-Busch (a sponsor of the show), and Clear Channel (whose local radio stations ran ads for the show). The Globe's coverage refers to Busch and Clear Channel as having the "deepest pockets."
The nightclub owners have already been criminally sentenced (and I believe at least one has served his sentence) for their part in the tragedy.
It might be an interesting exercise to see how students would allocate fault among the various actors and compare that allocation to the financial distribution of the settlement so far. I doubt anyone would put Home Depot at over 25%...
See here for more posts about the litigation relating to the fire.
$10.9M Verdict Against Funeral-Protesting Church
CNN reports that a jury has awarded nearly $11 million to the family of a deceased Marine whose funeral was picketed by the Westboro Baptist Church (which somehow blames the deaths of American soldiers on the United States becoming more accepting of gay people). The suit included claims for defamation, invasion of privacy, and intentional infliction of emotional distress. Among the signs at the funeral were "Thank God for dead soldiers" and the like. CNN also has the complaint [PDF]. The church will appeal.
In case you want to hear a little bit more about the church, a local-to-me radio show did a lengthy interview with Jonathan Phelps, who's related in some way to the church founder Fred Phelps.
Update: NYT's Opinionator has a bunch of links to reactions.
October 31, 2007
Senate Committee Approves Improved Safety Standards
Also from the NYT, the Senate Committee on Commerce, Science & Transportation has approved a bill that would expand the authority of the Consumer Product Safety Commission:
The bill would increase the maximum penalties for safety violations and make it easier for the government to make public reports of faulty products, protect industry whistle-blowers and prosecute executives of companies that willfully violate safety laws. It would ban lead in toys and give state prosecutors the authority to enforce federal consumer safety rules.
Childrens' Health Insurance Money To Run Out In March
From the New York Times: A new federal study issued by the Congressional Research Service reports that 21 states will run out of money for the Children's Health Insurance Program (CHIP) in the coming year, and of those states, 9 will exhaust their funding by March, including Alaska, Georgia, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey and Rhode Island. Bipartisan talks continue on the bill vetoed by President Bush earlier this month (prior posts here and here):
Their goal is to revise a bill, vetoed by President Bush, to pick up Republican support in the House and gain enough votes to override another veto threatened by the president.
October 30, 2007
CBS News is reporting that a professor at Ashland University has found very high levels of lead in a variety of Halloween-themed products, including "ugly teeth" which, as you might suspect, are made to go in a child's mouth. A later report indicates that the distributor and retailers are trying to get them pulled from shelves, and Amscan (the distributor) has announced a recall (though it's not on its press releases page).
In only very slightly related news (i.e., I discovered it while looking for Halloween-themed material), it is with no small amount of pride that I observe that the Google search for "Halloween torts" has as its very first result my very first Torts exam [PDF]. I am particularly fond of this part:
Spooky Scary World was an event that ran for four weeks in the fall every year. It was operated as a benefit by the Center to Cure Mild Irritability and Crankiness (“CCMIC”). The CCMIC hired over two hundred short-term employees to staff the half-dozen haunted houses as scare actors and operators of the various technologies involved in the attractions.
(I also rather like the description of a particular "scare zone": "an almost entirely vacant warehouse “spook zone” entitled “Britney’s Brain” (featuring one actor performing as a “thought” roughly every twenty minutes).")
And perhaps the funniest line I've ever gotten from a student was in response to my use in the exam of a scare actor dressed as then-Red-Sox-player Johnny Damon: "Everyone knows that Johnny Damon is only scary with runners in scoring position."
Happy Birthday to the Drug & Device Blog
Their post about it is here and, even if you disagree with them on policy or legal issues, you have to agree that they're pretty funny.
N.J. Supreme Court Hears Arugments In Vioxx Med Monitoring Claims
The New Jersey Law Journal (via law.com) reports on the oral arguments before the New Jersey Supreme Court on whether Merck can be held liable for medical monitoring for individuals who may have suffered "silent heart attacks" from use of the drug Vioxx. John Beisner of O'Melveny & Myers argued on behalf of Merck, while Elizabeth Cabraser of Lieff Cabraser argued for the putative class.
USSC Grants Cert in Exxon Valdez Case
The New York Times reports that the U.S. Supreme Court has granted cert in the Exxon punitive damages case arising out of the Exxon Valdez oil spill in Alaska back in 1989:
A jury in Federal District Court in Alaska had awarded $5 billion, which the United States Court of Appeals for the Ninth Circuit cut in half in a decision issued last December. It was the biggest punitive damages award ever ordered by a federal appeals court, and was five times the economic damage of $500 million suffered by the class of 32,000 plaintiffs.
Exxon argued in its appeal to the Supreme Court that given the nearly $3.5 billion the company had already paid in environmental cleanup costs, fines and settlements of private claims, the $2.5 billion was outside the boundary of constitutional due process that the court has drawn in recent decisions overturning other punitive damage awards.
In accepting the appeal, however, the justices granted review only on three statutory questions focused on maritime law. As a result, while the case will be of interest to the shipping industry, the decision will shed little light on the constitutional framework that the Supreme Court intends to apply to the question of punitive damages. The case is scheduled to be argued in February and decided by early summer.
SCOTUSblog has a thorough post analyzing the cert grant with links to the briefs.
October 29, 2007
Sunstein & Meadow on Statistical Evidence of Causation
Cass Sunstein and William Meadow have posted a new article to SSRN, "Causation in Tort: General Population vs. Individual Cases." From the abstract:
To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff's harm by reference to the ordinary standards of causation.
New Mexico AG Supports Consumer Fraud Case Against Dell
The Houston Chronicle reports that the New Mexico Attorney General has filed a brief with the New Mexico Supreme Court in support of a class action against Dell. The case alleges that Dell's computers do not have as much storage as promised, and brings claims under New Mexico's consumer fraud statute.
October 28, 2007
Litigation Networks Instead of Class Certification
In a piece that explores the alternatives to class certification in mass products cases (where such certifications are almost never appropriate), Byron Steir (Southwestern) suggests in a recent SSRN posting of a 2005 Utah Law Review article the rise of informal and formal litigation networks as a potential means for resolution:
In the last few decades, mass tort litigation has wrestled with widespread, multijurisdictional problems that have greatly stressed the caseloads of courts. Certifying for trial multiple-incident, product-liability class actions for personal injuries has promised the resolution of expansive problems. But as appellate courts have increasingly held, these actions are not appropriate for class treatment because they involve numerous individualized issues that require unmanageable individualized adjudication. Without a perceived workable alternative, many trial courts have continued to try radical class action trial plans that violate state substantive law and federal constitutional law, but which bring tremendous pressure to settle upon defendants who fear they may not be able to obtain appellate review. Attempting to defuse this crisis, Congress recently passed the Class Action Fairness Act of 2005, greatly expanding federal jurisdiction for class actions. Once class actions are removed to federal court, however, the Act still provides no alternative for federal courts to the Hobson's choice framed by plaintiffs' counsel: certify a class, or be inundated with thousands of unmanageable, wasteful, and repetitive individual cases.
But that is a false dichotomy. This article argues that the alternative to mass tort class actions is not such isolated repetitive litigation, but instead an expansive set of litigation networks of counsel, judges, and clients, using recent advances in information technology, that provide much of the efficiency promised by class actions without violating state substantive or federal constitutional law. As an example, the article discusses the functioning of litigation networks in the ongoing litigation concerning phenylpropanolamine (PPA), an ingredient in cough and cold remedies and appetite suppressants that has been alleged to cause stroke. By sharing information, pooling resources, developing specialized expertise, and coordinating strategy, these networks not only reduce the costs and improve the representation of individual litigation, but also develop accurate claim values for settlement of numerous cases and allow for improved case management over time through pragmatic experimentation. The article concludes that mass tort litigation networks provide a fruitful alternative to impermissible product-liability class actions for personal injuries, and that judges should deny requests to certify such class actions and instead encourage and assist in the creation and functioning of litigation networks.