March 8, 2008
Medical Malpractice, Tort Reform, and Insurance Reserves
A side-effect of Colorado's debate about raising the cap for noneconomic damages in med mal cases is a dispute over the size of the reserve of COPIC, the largest malpractice insurer in the state. The Denver Business Journal has the details.
March 7, 2008
Peters on Health Courts
The Boston University Law Review has Philip G. Peters, Jr.'s latest work on health courts (88 B.U. L. Rev. 227 (2008) [pdf]). In the piece, Peters critiques the most recent legislation proposing separating medical malpractice cases from the traditional civil court system.
Top 10 Recent SSRN Torts Downloads
|1||308||Choice of Law in the American Courts in 2007: Twenty-First Annual Survey |
Symeon C. Symeonides,
Willamette University - College of Law,
Date posted to database: January 2, 2008
Last Revised: January 14, 2008
|2||150||Products Liability Preemption: An Institutional Approach |
Catherine M. Sharkey,
New York University School of Law,
Date posted to database: January 17, 2008
Last Revised: March 5, 2008
|3||102||The Flawed Hedonic Damages Measure of Compensation for Wrongful Death and Personal Injury |
W. Kip Viscusi,
Vanderbilt University Law School,
Date posted to database: January 17, 2008
Last Revised: February 12, 2008
|4||93||Personal Inviolability and 'Private Law' |
Gregory C. Keating,
University of Southern California Law School,
Date posted to database: January 7, 2008
Last Revised: January 20, 2008
|5||93||Neither Saints Nor Devils: A Behavioral Analysis of Attorneys' Contingent Fees |
Eyal Zamir, Ilana Ritov,
Hebrew University of Jerusalem - Faculty of Law, Hebrew University of Jerusalem - School of Education,
Date posted to database: January 28, 2008
Last Revised: January 28, 2008
|6||88||Anonymous Blogging and Defamation: Balancing Interests of the Internet |
University of Cincinnati - College of Law,
Date posted to database: February 18, 2008
Last Revised: February 20, 2008
|7||46||FDA Preemption of State Tort Law in Drug Regulation: Finding the Sweet Spot |
Peter H. Schuck,
Yale University - Law School,
Date posted to database: January 17, 2008
Last Revised: January 17, 2008
|8||43||Expanding Restitution: Liability for Unrequested Benefits |
Tel Aviv University - Buchmann Faculty of Law,
Date posted to database: January 31, 2008
Last Revised: January 31, 2008
|9||40||Tomorrow's Tort Law in Europe; Selected Questions (Le Droit De La Responsabilité Civile De Demain En Europe. Questions Choisies) |
Willem H. van Boom, Andrea Pinna,
Erasmus University Rotterdam (EUR) - Erasmus School of Law, Institut du Droit des Affaires Internationales,
Date posted to database: January 4, 2008
Last Revised: January 27, 2008
|10||40||Privacy 3.0 - The Principle of Proportionality |
Andrew B. Serwin,
Author - Affiliation Unknown,
Date posted to database: February 6, 2008
Last Revised: February 17, 2008
March 6, 2008
Lawsuits Coming in Case of Vegas Clinic Allegations
The AP reports that up to 40,000 received word this week that they may be at risk of illness due to their visits to the Endoscopy Center of Southern Nevada (which has been ordered closed and an appeal denied). Among other things, investigations indicate that the clinic routinely reused syringes and vials, allegedly as a cost-savings measure.
As the AP article notes, suits have been filed already; a Google search for the clinic name comes up with a number of lawyer ads, including one identified as "Nevada Health Alert" (only once you follow the link do you find out that it's a lawyer advertisement).
OMG, I Just Hit a Car
After noticing that hundreds of people per week find their site while searching "texting while driving," Perlmutter & Schuelke compiled information concerning the topic in this post. They divided the sources into categories of mainstream news stories, studies, and legal resources/blogs. One study, perhaps unsurprisingly, found that drivers who were text messaging were 10 times more likely to leave their lane than regular drivers.
NEJM on Device Safety
Launching from the problems with Medtronic's implantable defibrillators, William Maisel (Beth Israel Deaconess Medical Center, Boston) advocates for increased consumer protection provisions in the medical device context.
March 5, 2008
Senate Debates Toy Safety Bill
Yesterday, the Senate began debate on S.2663, a bill to overhaul the Consumer Product Safety Commission and increase toy safety. The bill is a response to the numerous toy recalls from last summer.
As the Chicago Tribune reports,
The House bill would tighten lead standards, mandate new toy safety testing and boost the CPSC's annual budget to $100 million by 2011, an increase of more than 50 percent from 2007.
The Senate version would give the agency more money and would go further in other ways. It would require even stricter toy testing, mandating industry standards that are now voluntary. It would extend whistle-blower protections to any company or government employees who expose unsafe products.
It calls for the creation of a new publicly searchable database of product safety information and complaints. It would set stricter lead standards and would give states more power to enforce product safety laws.
A Senate vote on the bill is expected this week. The Senate version will then need to be reconciled with the bill passed by the House last year.
Important News During Cold Season: Airborne Settles False Advertising Class Action
CNN reports that Airborne, the herbal supplement company, has settled a false advertising class action suit for $23.3 million.
The Center for Science in the Public Interest, a non-profit advocacy group, said the company will refund money to consumers who bought Airborne's product. It will pay for advertisements in major publications instructing consumers on how to get their money refunded.
"There's no credible evidence that what's in Airborne can prevent colds or protect you from a germy environment," said CSPI Senior nutritionist David Schardt. "Airborne is basically on overpriced, run-of-the-mill vitamin pill that's been cleverly, but deceptively, marketed."
March 4, 2008
Avoiding Recusal-Based Ties at USSC
In light of yesterday's per curiam decision in Kent, Howard Bashman's "On Appeal" column at law.com should be of interest. Bashman discusses recusal-based ties at the Supreme Court, and proposes allowing federal circuit judges to sit by designation in cases where a Supreme Court Justice recuses.
44,000 Sign Up for Vioxx Settlement
MSNBC (via AP) reports that 44,000 people have submitted all of the necessary paperwork to participate in the $4.85 billion Vioxx settlement. 85% of eligible claimants had to participate to keep the deal alive.
"We are very pleased with the large number of enrollments we are seeing and are confident that when the enrollments are verified, all 85 percent thresholds will be met and exceeded within the timeframes in the agreement," Ted Mayer, a lawyer for Merck, said in a statement.
March 3, 2008
Updated: On Being Risk Averse
Ted Frank contemplates self-operated amusement park rides overseas, suggesting they're hard to imagine here. Of course, many rides have a significant amount of risk controlled by the rider, especially in the water park context (consider also skiing, roller- and ice-skating, and so on). Rider control was also a theme at New Jersey's Action Park, as I discussed a while back.
But it is certainly true that the care taken to protect patrons from themselves is greater here than in many places. German carnival midways have far less intimidating fencing than their U.S. equivalents, and so far as I know, patrons don't go wandering into the rides' paths with any frequency, while in most years, we hear about at least one death in the U.S. of someone who goes into a ride area to retrieve (for instance) a baseball cap.
Risk averse because of litigation, or vice versa? Good question.
Some more thoughts:
U.S. parks have, for a variety of reasons mostly involving low-cost season passes, a large number of unaccompanied kids, perhaps more than overseas (I've no idea). It may be that the risks of patrons acting foolishly are lower elsewhere at least partially for reasons not related to general societal silliness, but instead due to simple age demographics. That's a rather industry-specific observation, though.
Another industry-specific observation has to do with oversight: there is no federal oversight of fixed-site amusement parks in the U.S., and state regulatory oversight varies a lot (from none to extensive, with most somewhere in the middle). That leaves the decisions about most safety issues to private insurers and attorneys, which presumably means more (too much?) caution. I don't know a lot about regulatory schemes overseas, though I have an inquiry in to someone who will, but I believe there is more reliance on the regulatory side than the civil justice system to encourage safety.
Finally, I think Ted's ultimate suggestion -- that risk averse actions are a luxury item, more or less -- may be right. Amusement parks are all about escapism and feeling carefree; presumably feeling carefree includes feeling that one doesn't have to worry about safety, even to the point of foolishness.
Well, Thanks for All That Guidance, Supremes -- Kent Decided
Here [PDF] is the Supreme Court opinion affirming the Second Circuit in Warner-Lambert v. Kent.
Take a moment to digest it.
And that's all you'll need. It's per curiam.
For now, anyway, then, Buckman is limited. And preemption is that much more complicated. And the Drug & Device guys were thisclose to getting it right.
Defamation and the Internet
The NY Times has an article today discussing the potential influence of anonymous blog postings on the suicide of an advertising executive and, more generally, the responsibility that bloggers and their commenters might have in such a context. For one view, check out the recently-posted-to-SSRN article byBetsy Malloy (Cincinnati), ""Anonymous Blogging and Defamation: Balancing Interests of the Internet" (published in the Washington University Law Review).