April 19, 2008
Eggen on Toxic Torts at Ground Zero
[W]hile the tort system is the best mechanism for resolution of the Ground Zero toxic exposure claims, it is far from perfect, and...lawmakers must give serious consideration to developing a discrete and workable management plan for toxic claims in the future.
The Limitations of Law in Mass Torts
Ed Lazarus has an interesting Writ column discussing the limitations of tort law in remedying wrongdoing, especially mass wrongdoing, framed with the recent decertification of the "light" cigarette class action.
April 18, 2008
Widener's Crimtorts Symposium podcast is now available here.
The podcast is divided into three panels. The first, Introductory, panel consists of Tom Koenig (Northeastern-Sociology), Mike Rustad (Suffolk), and Ken Simons (Boston). The second, Applications, panel consists of Martha Chamallas (Ohio State), Jeffrey O'Connell (Virginia), Byron Stier (Southwestern), and Frank Vandall (Emory). The third, Punitive Damages, panel consists of Mark Geistfeld (NYU), Keith Hylton (Boston), Tony Sebok (Cardozo), and Cathy Sharkey (NYU).
The volume of the Widener Law Journal containing the symposium articles should be available in June.
PA: Med Mal Claims Remain Lower Post-Reform
In 2003, Pennsylvania, via both the Pennsylvania Supreme Court and the legislature, instituted several medical malpractice reforms. The court prohibited venue shopping and required lawyers to file a certificate of merit for their cases. The legislature created a fund to subsidize malpractice insurance. Since those reforms, claims have dropped significantly. There were 2,903 claims in 2002, as compared with only 1,693 in 2006 and 1,617 in 2007. The Pittsburgh Business Times has the story.
April 17, 2008
Simons on Negligence and Cost-Benefit Analysis
Kenneth Simons (Boston) has posted Tort Negligence, Cost-Benefit Analysis and Tradeoffs: A Closer Look at the Controversy on SSRN. Here's the abstract:
What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy.
For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution if but only if the marginal costs (or burden, B) of that precaution are less than its marginal benefits (in the form of reduced risks of injury, measured by multiplying the probability (P) of the injury times the magnitude (L) of the injury if it occurs). If B>PxL, it would be absurd to require the greater expenditure, B.
For many advocates of a fairness, corrective justice, rights-based, or contractualist perspective, the opposite answer is equally obvious. Permitting a person to impose risks of harm on others merely because he would thereby obtain a benefit (or would otherwise incur a burden) greater than the discounted value of the harm he might inflict, amounts to authorizing him to dump the costs of his risky activities on innocent victims. To permit this type of sacrifice of individuals on the altar of aggregate social welfare is morally abhorrent.
Both sets of criticism have important elements of truth. Neither an unqualified cost-benefit analysis nor an unqualified rights-based rejection of tradeoffs is defensible - either as a description of tort doctrine and practice or as a normative prescription. However, a qualified (sensitive) consequentialist approach can accommodate legitimate criticisms of cost-benefit analysis: the consequentialist can launder preferences, and can consider the distribution of risk both in the social welfare calculus and in determining whether to compensate. At the same time, a qualified (tough-minded) deontological approach can accommodate the legitimate need to recognize tradeoffs: the deontologist can permit intrapersonal but not interpersonal aggregation of risks and benefits, can apply the concept of threshold deontology to risky activity, and can consider individual rather than population risk. I conclude that the formulation of the Learned Hand test found in the Restatement Third of Torts is broad enough to encompass each of these qualified approaches.
(Via Solum/Legal Theory Blog)
A U.S. government agency agreed yesterday that Bisphenol A (BPA), a compound in polycarbonate plastics, has potential danger. BPA is used in a gazillion products, including sippy cups and the like. Of note, a Google search for "BPA lawyer" comes up with a handful of paid results, but none seem to be from the plaintiffs' side -- instead, the top result resolves to FactsOnPlastic.com, a site produced by the American Chemistry Council.
April 16, 2008
Six Flags Kinda Defends Maintenance Practices
The headline in the local paper is that Six Flags defended its maintenance practices, but it really doesn't -- it says its people acted appropriately, but doesn't do anything to actually distance itself from the revelations yesterday that the staff didn't follow the manual's instructions. Instead, it criticizes the family for releasing material from discovery -- material that's not under a protective order. It may only give part of the picture, of course, but, at least from the story, Six Flags made no effort to tell the rest of it...which is, of course, the standard approach for defendants.
N.J. Hockey Arena Not Liable for Stray Practice Puck
The New Jersey Law Journal (via law.com) reports on a decision last week by the New Jersey Supreme Court upholding the sports venue "limited duty rule," which applies to objects leaving the field (or ice as the case may be) and entering the stands. The court held that the limited duty rule applies to pre-game "warm up" activities, but that the arena did not have a separate duty to warn.
The majority only briefly addressed Lovett's separate argument that Global Spectrum should have provided written warnings to fans about the dangers of flying objects prior to the game's start. He said requiring a warning would create a two-tiered duty of care not contemplated by the New Jersey Baseball Spectator Safety Act of 2006, enacted after the Maisonave ruling. The statute extends the limited duty rule at baseball parks to pre-game activities.
Justices Virginia Long, Barry Albin and John Wallace Jr. dissented in an opinion written by Long. They said the limited duty rule requires arena owners and operators to warn fans of the potential dangers. "Indeed, it makes no sense to devolve on the arena owner a duty to provide protected seating while keeping patrons in the dark over their right to request it," Long wrote.
And so, if the arena provides screened seating to protect seats ordinarily at risk, there's no liability when say a puck flies off the ice during warm-ups and strikes you.
A copy of the decision is available here.
Ghostwriting of Medical Studies
The New York Times examines the practice of ghost-writing medical research studies that are subsequently published in medical journals such as JAMA:
The drug maker Merck drafted dozens of research studies for a best-selling drug, then lined up prestigious doctors to put their names on the reports before publication, according to an article to be published Wednesday in a leading medical journal.
The lead author of Wednesday’s article, Dr. Joseph S. Ross of the Mount Sinai School of Medicine in New York, said a close look at the Merck documents raised broad questions about the validity of much of the drug industry’s published research, because the ghostwriting practice appears to be widespread. “It almost calls into question all legitimate research that’s been conducted by the pharmaceutical industry with the academic physician,” Dr. Ross said, whose article, written with colleagues, was published Wednesday in JAMA, the journal of the American Medical Assocation.
Merck on Tuesday acknowledged that is sometimes hires outside medical writers to draft research reports before handing them over to the doctors whose names eventually appear on the publication. But the company disputed the article’s conclusion that the authors do little of the actual research or analysis.
And at least one of the doctors whose published research was questioned in Wednesday’s article, Dr. Steven H. Ferris, a New York University psychiatry professor, said the notion that the article bearing his name was ghostwritten was “simply false.” He said it was “egregious” that Dr. Ross and his colleagues had done no research besides mining the Merck documents and reading the published medical journal articles.
April 15, 2008
Senate Hearing on FDA's 2009 Budget
FDA's advisers recommended boosting the agency's budget by $375 million in the next fiscal year, and the Senate recently passed a resolution supporting such an increase. The White House proposed a $54 million increase in its budget.
Democratic Sen. Herb Kohl, who chairs the subcommittee that sets FDA's budget, is expected to question whether the agency's plan to hire 200 additional safety inspectors is enough.
In related news, the FDA has linked certain brands of recalled puffed rice and puffed wheat cereal to salmonella outbreaks in thirteen states.
It's only tangentially torts-related, but still, this Talking Points Memo post is pretty interesting (and generally apolitical), exploring the alternative theory being pitched for the cause of the Titanic's sinking.
[T]he authors of What Really Sank the Titanic use a combination of physical evidence obtained from the wreckage (48 recovered rivets) and archival evidence from the archives of the ship's builder, Harland and Wolff, which is still in business, to make the case that the builders were building on such a vast scale and under so much time pressure that they simply couldn't come up with enough high quality rivets or riveters. So they cut corners. The result of which was that the ship's plates split open much more quickly than they might have with better materials. Better construction would have kept the ship afloat long enough for many more passengers and crew to be rescued.
TPM's Marshall notes that the manufacturer denies any fault, and seems surprised that they would be resistant to acknowledging even the possibility of defect in the rivets, observing, "somehow I would have imagined that some sort of emotional or moral statute of limitations had run out." But of course, unless there's a statute of repose in play, isn't it at least possible that a discovery rule could result in even the legal statute of limitations might not have ended? On the other hand, the post notes that some of the theory has been around for "a decade," so most likely any limitations period has in fact expired...but an interesting fact pattern, in any event.
(Note: I know next to nothing about admiralty law, assuming it would apply. Perhaps the LawBoat blog folks can chime in?)
Upcoming Summer Conference on Preemption
Jim Beck & Mark Herrmann (at Drug & Device Blog) will be co-hosting the American Conference Institute's Drug and Device Preemption Conference from July 14-15, 2008, in Philadelphia. The conference is followed by a one-day "junk science summit" on expert witness and scientific evidence on July 16th.
April 14, 2008
Virginia Weighs Upping Caps on State Liability
In reaction to the Virginia Tech shootings, the Washington Post reports, several Virginia legislators are considering increasing the cap on state damages, which has been set at $100,000 since 1993. The state has reached an agreement in principle to settle the potential litigation for a total of $11 million, and any change to the caps would not apply to the VT victims' families' lawsuits.
Kentucky Kingdom Maintenance Supervisor: Maintenance Ignored
The AP reports that the maintenance staff at Six Flags Kentucky Kingdom failed in several potentially material ways to properly maintain the cables on the drop ride that later severed a girl's feet. The revelation came in the deposition of the head of the maintenance staff:
John Schmidt, the park's ride-maintenance manager since 1999, said in a deposition in November that technicians for the theme park never performed a hands-on inspection before the accident on any of the 10 cables on the Superman Tower of Power ride.
Schmidt, 56, also said that park technicians did not lubricate the cables monthly, and that they applied cornstarch to reduce "cable slippage" from over-lubrication that they believed was coming from the ride's machinery.
It appears that the park also did not do at least one part of the recommended maintenance, using a rag to check for snags:
Schmidt said in his deposition that workers conducted twice-weekly visual inspections, "It was never brought to my attention to check those cables with a rag for snags."
The copy of the manual I have doesn't note the rag method.
April 13, 2008
Of Mice and Men, Er, Of Hamsters and Torts
In a torts exam come to life, a woman is suing PetSmart after her husband received a liver from a woman who had been infected by a hamster adopted from PetSmart.
Whew. Let's just follow the lines:
Hamster gets lymphocytic choriomeningitis. Sad for hamster. I suppose. Maybe it's just a carrier; I admit to ignorance about lymphocytic choriomeningitis.
Hamster sold by PetSmart to an unnamed woman. That woman dies of an unrelated stroke. Sad for woman. Her organs are donated.
Thomas Magee receives liver of unnamed woman. Good for Thomas!
Or not. Sad for Thomas: Thomas gets lymphocytic choriomeningitis and dies. Two other people who received organs from the unnamed woman have allegedly also been infected.
Lawsuit alleging PetSmart was negligent in, I assume, failing to test for lymphocytic choriomeningitis.