Saturday, November 24, 2007
Speaking at an Iowa medical school on Tuesday, Republican presidential candidate Mitt Romney endorsed a federal cap on non-economic damages for medical malpractice. This is consistent with, although more specific than, Romney's view on limiting non-economic damages as reported by Bill in an August post here. What is new, and has received less attention in the media, is that Romney also said he would encourage states to create special "health courts" with judges experienced in handling malpractice cases. Local coverage of Romney's speech is available here.
Friday, November 23, 2007
Medical malpractice premiums in Michigan will decrease an average of 6.5% next year according to this article in Crain's Detroit Business. The decrease in Wayne County will average 13%. The Michigan State Medical Society credits Michigan's 1993 tort reforms for the improvement.
This morning, shortly after 4:00 a.m, I made my way to Kohl's for my first, and last, foray into Black Friday shopping. I wanted a particular item for my daughter, and Kohl's advertised a fantastic price on it. As an amateur, I had no idea what I was doing. But I was optimistic. How many people could possibly be at a Kohl's in suburban Harrisburg at 4:20 a.m.? Apparently, a lot.
The item I was seeking was no longer in stock. However, my instinct to avoid this carnival all of these years has been vindicated. On the bright side, it was a target-rich environment for a Torts exam, especially for those of us with a two-semester course emphasizing intentional torts in the fall. There are a lot of people in a crowded space, some of whom are desperate to get a particular item. The assault and battery/self defense opportunities are obvious. And it wouldn't take much of a stretch to see the animus from the original encounter create the desire for some intentional infliction of emotional distress. Finally, it's a department store, so it is easy to envision a shoplifting/detention scenario that can be used to test false imprisonment. The setting is perfect to analyze the common statutory "shopkeeper's privilege." Enjoy your day off--and avoid malls.
Thursday, November 22, 2007
Wednesday, November 21, 2007
In this week's Findlaw Writ column, Tony Sebok joined by Benjamin Zipursky address the recent Vioxx settlement. Sebok and Zipursky do not comment on the end result (a $4.85 billion settlement), but rather analyze various structural issues such as "the process by which the agreement was reached, the process by which the payment-and-release program will come into effect (if it does), and the process by which the settlement agreement and the program will be "enforced.""
The FDA will hold a hearing next Thursday, November 29th, on whether to establish food labeling requirements regarding salt and sodium. As CBS News (via AP) reports, the Center for Science in the Public Interest filed a petition triggering the hearing.
Consider the sodium in a typical Thanksgiving meal:
Thanksgiving dinner alone can easily reach those limits: Stuffing can harbor up to 600 mg of sodium a serving, plus 300 for gravy. If you bought the salt-added turkey, plan on 490 mg. A biscuit can mean 350, although a dinner roll might have half that. Pumpkin pie doesn't seem salty, but one popular brand has 300 mg a slice.
Ah, well, that won't stop me tomorrow! Have a good Thanksgiving all!
The Smoking Gun has posted a number of new documents in the tragic case of Megan Meier, who committed suicide in 2006 after being rejected by a friend she met via MySpace -- a friend who, it turns out, was actually the mother of a former friend pretending to be a young boy. On the last page, the mother (one Lori Drews) reports that she's anticipating civil litigation to be instigated by the girl's parents, which raises various issues of duty and legal cause, among other things (for any negligence claims).
Tuesday, November 20, 2007
The Pittsburgh Tribune-Review had a column yesterday that discussed the causes of poor economic performance in Pennsylvania (especially in western PA). Although several factors are considered, the liability climate is singled out for blame:
Where Pennsylvania ranks the lowest is on tort costs and reforms, on measures taken to correct the legal abuses under which individuals seek compensation for allegedly wrongful injuries or damages suffered.
Even if it is accepted as true that tort costs are the principal reason for suboptimal economic performance in Pennsylvania (and I'm a little skeptical), are these reforms, proposed by the Pennsylvania House Republicans, the proper solution?
Pharmalot has the details and the order (in Word form, with metadata indicating it originated from plaintiffs' firm Lieff Cabraser) finding no Daubert-worthy evidence of causation at the most common dose of 200 mg. You can also get the order in PDF form here: Download CelebrexDaubert.pdf.
See also the Reuters story.
(I have done some work in the Cox-2 litigation, but none in the Celebrex case and none of any sort for Pfizer.)
Monday, November 19, 2007
Congress is in coming weeks considering legislation [PDF from a couple of years ago, but I think it's current] that would include fixed-site amusement parks in the CPSC's regulatory authority. There are a number of resources addressing the issue:
- Congressman Ed Markey is sponsoring the legislation and has materials on his website.
- SaferParks.org has a page describing the current federal structure (oversight of traveling rides but not fixed-site parks) as well as a list of "myths" about the potential for CPSC oversight.
- IAAPA (the international group representing parks, ride manufacturers, etc.) has posted about the issue on its sorta-strangely-formatted blog; they also have a statement [PDF] on their website making many of the same points. (In case it's important, I have presented at IAAPA conferences in the past; other than admission, I don't think they paid for anything for me, including travel, etc.)
- Chad Emerson (Faulkner), who works closely with IAAPA on various issues, has an article [PDF] on the topic, Chad D. Emerson, The Continuing Showdown Over Who Should Regulate Amusement Attraction Safety: A Critical Analysis of Why Fixed-Site Amusement Attraction Safety Should Remain State-Governed, 28 SETON HALL LEGIS. J. 1 (2003).
Most of the criticisms of CPSC oversight tend to create some strawmen that are easy to knock down, largely focused on how the CPSC couldn't possibly go and inspect every ride and that states do a fine job of that already. Nobody (to my knowledge) suggests that the CPSC should be out inspecting rides every season; they're much more about being a clearinghouse of information and about figuring out what happened after an accident has occurred, ensuring that fixes get distributed everywhere.
As for the federalism argument, CPSC oversight would complement, not replace, what state oversight exists (which is, in some places, terrific, and in others, nonexistent). The bill simply removes the exception for fixed-site rides. State regulators already work along with federal regulators for portable rides, so I'm not sure where the notion that adding CPSC oversight to fixed-site rides would take away any state authority comes from. Of course, the CPSC could preempt state regulations in specific instances, but I'm aware of no times that's occurred with traveling rides or any reasons to believe it would happen with fixed-site rides.
On balance, I think CPSC oversight is a good idea -- though I think it should be accompanied by substantial increases in resources so that they can do the work appropriately. Markey's bill would fund the CPSC with $500,000 for the work. Maybe that's enough. (And I wouldn't mind some more resources for CPSC for its other responsibilities, either...)
The WSJ Law Blog has details of the fascinating story, mixing tort law, procedural law, and politics all in one:
In the defamation lawsuit, [plaintiff and fellow Virginia lawyer] Spencer alleges that [judicial nominee] Getchell and a law partner, William Allcott, made a costly error in the 2005 appeal of an $8.3 million personal-injury verdict and then publicly shifted the blame for the error to Spencer in order to save his judicial nomination.
It hasn't (yet?) resulted in litigation, but this story could suggest a new direction -- if a tricky (and almost certainly unsuccessful) one -- for litigation against MySpace and the like.
It's been more than a year since their daughter's suicide, but a St. Charles County family hopes talking about it now could prevent a similar case in the future.
Tina and Ron Meier say their 13-year-old daughter, Megan, was driven to take her own life, because of a cyber bully.
* * *
Megan was especially excited about making a connection on MySpace.com with a boy who called himself Josh Evans, a 16 year old who claimed to live nearby. . . .
Josh showered Megan with compliments online. . . .
Around October 15, 2006, Megan began receiving insulting messages from Josh. "I don't know if I want to be friends with you, you're not a very nice friend and Megan looked at me and said what is that about," Tina Meier said.
The messages got more and more cruel, and the young girl hung herself not long afterwards.
It turns out that "Josh" was not just fictitious, but was in fact created by the mother of one of the girl's former classmates (classy). The girl's parents are calling for more (unspecified) regulation of the web and say they "will get justice for Megan."
As a student pointed out, the facts certainly could support an IIED claim against the creator of the profile; I cannot imagine how one could connect it to MySpace itself.
Happy one-year anniversary to SKAPP's The Pump Handle blog. It's rapidly become a good resource for news about workplace safety and general regulatory issues, even if you don't agree with their take all of the time. They're pretty thorough in links, views, etc.
Sunday, November 18, 2007
Congratulations to Eric Turkewitz on his first anniversary doing his terrific NY Personal Injury Attorney Blog. Alas, it comes with the announcement that he's ceasing his remarkable series of round-ups. I note, however, that the good folks at the blog for Perlmutter & Schuelke are planning to pick it up, at least for a while.