Friday, December 21, 2007
Wonkette notes the Boston.com AP story about the tale of a sixty-year-old lawyer for Reader's Digest suing a seven-year-old for injuries incurred on the ski slope. The boy's parents say that all 48 pounds of him were skiing at perhaps 10 miles per hour.
Anthony Franze and I have posted our forthcoming article on SSRN, "Instructing Juries on Punitive Damages: Due Process Revisted After Philip Morris USA v. Williams." From the abstract:
In this article, the authors consider the due process implications on punitive damages jury instructions in the wake of the U.S. Supreme Court's 2007 decision in Philip Morris USA v. Williams. In particular, the authors survey and categorize the model punitive damages jury instructions in every state and explain how most model instructions fail to reflect the substantive due process limits on punitive damages, and indeed, often direct juries to consider unconstitutional factors in imposing awards. The authors then navigate the complex waters of the Supreme Court's recent punitive damages jurisprudence and identify how juries should be instructed to properly perform the difficult and controversial task of punishing and deterring defendants through the imposition of monetary awards.
AEI and the Federalist Society are co-sponsoring a panel discussion on the recent Vioxx settlement on Monday January 7th:
In 2004, Merck withdrew its pain reliever Vioxx from the market because of new studies showing increased cardiovascular risk. Merck announced that it would not settle any of the tens of thousands of Vioxx lawsuits filed, and set aside over a billion dollars to litigate cases without reserving a penny for damages. After a $254 million verdict in the first Vioxx trial in 2005, some observers predicted over $25 billion in liability for the company. Fifteen trials later, Merck and the plaintiffs’ attorneys announced a settlement of the outstanding personal injury litigation—for under $5 billion. Merck stock rose after the announcement, and is now higher than before it withdrew Vioxx from the market. But some law professors are arguing that a new and unusual provision in the settlement raises ethical concerns.
Why did Merck settle? And why was the settlement for so much less than originally anticipated? Is the Merck settlement different from the Wyeth fen-phen settlement, which was originally announced as a $3.75 billion settlement, but has so far cost more than $20 billion? Will the settlement stand up under legal challenge, and what will remain of the Vioxx litigation if it does?
At this event cosponsored by AEI and the Federalist Society, a panel of experts will explore these and other questions. Speakers include Vanderbilt law professor Richard Nagareda, author of Mass Torts in a World of Settlement; Virginia legal ethics professor George Cohen; author and leading pharmaceutical mass torts defense attorney Mark Herrmann; Andy Birchfield, a member of the Vioxx Plaintiffs’ Steering Committee; and Ted Frank, director of the AEI Legal Center for the Public Interest. AEI resident scholar John E. Calfee will moderate.
Registration details are available here.
Thursday, December 20, 2007
Overlawyered today did a post about stories that shouldn't get away, and noted my discussion about the data regarding what has happened since Texas implemented changes in malpractice liability law in 2003. That reminded me that I had in fact let that issue get away, even though I have some more data to share.
As a refresher, the NYT had an article noting a correlation between the 2003 changes and an increase in doctor supply in Texas. It raises various interesting questions about cause-and-effect (and Tony Sebok argues that it's more fundamentally flawed). One response was to note, as Eric Turkewitz did, that disciplinary proceedings are up fairly significantly in the same time period, suggesting that perhaps that the changes brought more doctors to the state, but not the ones you want. It's also possible that the increase in discipline resulted from more intense scrutiny by the state regulators.
At the time, I did a quick look at the most recent quality of care violations and found no disproportionate number of new doctors in the mix (which, if the 2003 changes were to blame, you'd expect). Since then, my research assistant went through all of the August 2007 disciplinary actions (not just those for quality of care, as I did before). The spreadsheet is here: Download TexasDoctors.xls
Of the 87 or so (there are a couple of ambiguous ones) actions against physicians with licenses, five are from the period from 2003 to 2007 (six if you count the "temporary permit, which I wouldn't since one would expect someone coming to take advantage of the new law to stick around). That's about 6%.
If I'm reading the various stats on the medical board's website right, there are about 58,000 Texas-licensed doctors (some out of state). In the years 2003 through 2007, there were just over 13,000 doctors licensed in Texas. So about 22% of doctors licensed in Texas were licensed from 2003 to 2007. 22 > 6.
Now, there may be some apples and oranges there, and the sample is still small -- and I still hope to get my assistant to do a more comprehensive look -- but it does not, at this point, look like the doctors licensed since the liability modifications represent a greater than expected proportion of disciplinary actions. Indeed, thus far, in one month's sample, it looks like the contrary may be the case.
Wednesday, December 19, 2007
BP says they've now exhausted the $1.6 billion they set aside for the litigation and still face over a thousand cases, though no more wrongful death and few serious injury cases.
In this case -- brought by Mark Lanier, who made noises about seeking a billion dollars in punitives, pointing to an alleged violation in conflicts of interest in the permitting process -- the trial judge had ruled earlier that a discovery violation could bust Texas's punitive damages cap. BP settled the case that started a couple of weeks ago.
Prior discussion of the BP litigation and the $1.6 billion litigation reserves is here.
The American Tort Reform Association has released the 2007 edition of Judicial Hellholes. The full report is here. The group's hellholes this year are: (1) South Florida, (2) Rio Grande Valley and Gulf Coast, Texas, (3) Cook County, Illinois, (4) West Virginia, (5) Clark County, Nevada, and (6) Atlantic County, New Jersey.
Lawrence Savell (Chadbourne & Parke) sent along a couple of entertaining links relevant to exam season -- one because it is about exams, and one because it might distract from the chore of grading and/or taking exams.
In the former category is his short story Dear Professor Rosenstein [PDF], published in Washington Lawyer magazine.
In the latter is his LawTunes website (warning! starts playing music!), featuring what he describes as "Unique CDs of 'Appealing' Allegedly-Humorous, Lawyer-Created, Law-Related Rock-and-Roll Songs."
Depositions have evidently begun in the case against Six Flags for the injuries caused on its Superman: Tower of Power ride at Six Flags Kentucky Kingdom (in which a girl's feet were severed). The factual theory of defect appears to be shaping up:
An amusement park ride where a girl's legs were severed last summer was not designed to stop automatically in case a cable broke, the park's maintenance chief said in a deposition.
John Schmidt, ride maintenance manager for Six Flags Kentucky Kingdom, said the Superman Tower of Power should have been designed differently.
"Do you think that this ride ought to shut down when a cable breaks?" attorney Larry Franklin asked Schmidt in the Nov. 30 deposition.
"Yes," Schmidt answered.
The ride -- manufactured by Intamin -- is fairly common, and I doubt any of them have such a feature. (I actually doubt that similar rides do either.)
Tuesday, December 18, 2007
The Juneau Empire has a story about plaintiffs' lawyers in the Exxon Valdez case starting to prepare their clients for wise investment choices and the like. The work is leading up to the possibility that a payout is forthcoming after the Supreme Court rules this spring on the much-litigated case and its punitive damages. The story also notes that Senator Lisa Murkowski of Alaska got Senate approval of legislation that would encourage investing the money in retirement accounts and ease the potential tax burden.
As I noted in a previous post, one of my former students loaned me his grandfather's Torts notebook from academic calendar year 1938-39 at the University of Minnesota. The professor was William Prosser. My student's grandfather is Leroy S. Merrifield, who went on to be a law professor (and teach Torts) at GW.
Several people have requested pictures, and I'm happy to oblige.
Monday, December 17, 2007
The judge overseeing the civil suit by the family of Katie Lassiter against Six Flags for the severing of the teenage girl's feet will decide what company will test the cable, a local company or a Chicago company. The Lassiters' attorney prefers the local company, while Six Flags proposes the Chicago lab. The results will go to the Kentucky Department of Agriculture (which oversees amusement rides in Kentucky) and will be, no doubt, central to the civil litigation as well.
Friend of TortsProf Andrew McClurg (Memphis) has a fun site of legal humor; its three-pack of classics from his time writing the Harmless Error column for the ABA Journal right now has two faux complaints, including one for the Children of the World v. Santa Claus, and a later claim by Santa against the kids. From the former:
Count III – Infliction of Emotional Distress. On the relevant night, defendant knew or should have known that plaintiffs were snug in their beds with visions of hand-held video games and name-brand athletic apparel dancing in their heads. Despite such knowledge, defendant willfully and maliciously concealed off-brand goods and inherently worthless property such as sweaters and umbrellas in packages that misrepresented their true contents. Plaintiffs suffered severe emotional shock and fright upon opening such packages.
He also has a page featuring an outstanding hypothetical product label for a ladder. Among the multiple items:
Always follow these basic safety precautions: Step 1: Spray two tons of foam insulation around base of ladder. Step 2: Encase yourself securely in plastic bubble wrap (DO NOT POP BUBBLES. THIS IS SERIOUS.). Step 3: Wear a helmet approved by the National Football League, but not the one Troy Aikman uses. Step 4: Hire an independent contractor to climb up the ladder and get the hell out of the way.
Worth spending some time, especially if you're in the midst of grading...
I (and I imagine others) use ski slope injuries a lot in discussing assumption of risk, especially thanks to the frequent statutory overlay. A recent lawsuit in Canada presents some interesting facts:
According to the statement of claim, Ward was snowboarding at Snow Valley on Jan. 2, 2006, when he struck his head on a hydrant used to make artificial snow.
The collision resulted in the then-19-year-old suffering a severe traumatic brain injury and breaking his neck in three places, leaving him permanently disabled, both cognitively and physically, says the statement of claim.
* * *
According to the statement of claim, the Snow Valley Ski Club is negligent for failing to put the hydrant in a place where it would not be a danger, failing to adequately provide a warning about the hydrant and failing to put proper padding around the hydrant to prevent injuries.
Sunday, December 16, 2007
A recent Chicago trial over the admittedly wrongful shooting of a young man by the Chicago police, frames damages discussions well. The case involved no issue of liability -- the city acknowledged that the shooting was unjustified once a security camera tape undermined its original theory and the officer admitted he did not fear for his safety -- and focused solely on the amount of damages:
In her closing argument, city attorney Patricia Kendall urged jurors to not view their verdict as a measure of how much Pamela Pleasance loved her son.
Under the law, the key issue was how much Michael Pleasance would have contributed to the family if he lived, Kendall argued.
Pleasance had a learning disability, both sides agreed. He had never held a job for more than a few months and spent time in prison on a drug conviction.
"Emotion is not supposed to be part of the decision-making process here," Kendall said. "Do your duty as fair and impartial jurors."
But Pleasance's lawyers bristled at the suggestion that the family should receive a lower jury award because of Pleasance's problems.
"They want you to think that this was just some worthless South Side kid whose life isn't worth as much as the rest of us," Schwartz said. "That is a path we must never travel."
The jury ultimately awarded $12.5 million and, in interviews, said that it focused on love and companionship.