May 31, 2008
Medical Malpractice Payment Disclosure in NC
The Raleigh News & Observer reports a controversy between the state medical board, which wants to provide limited information about medical malpractice payments online, and many physicians, who oppose the idea.
May 30, 2008
Kentucky Agriculture Department Issues Report on Tower Ride
Nearly a year after the original incident, the Kentucky Department of Agriculture has released a report [PDF] summarizing its investigation. Some quick initial reactions:
The overall conclusion is that the agency can't pinpoint a single cause, but they focus on the cable condition (necessarily implicating the park's inspection program and, less clearly in this report, the Department's own inspections) and on the ride operator's failure to hit the emergency stop immediately upon hearing the problem noises. (The operator's explanation for that decision is below.) The park will be fined a whopping $1,000 for failure to maintain the ride; the agency is not seeking criminal sanctions.
The ride had been inspected earlier in 2007 (apologies for weird formatting):
For the 2007 inspection, the KDA inspector spot checked the cables on sections II, III,
IV, and V. The cables on section I had been replaced with new cables prior to the
inspection. Because t he STP was presented to the inspector in operational condit ion, the
spot checks on sections IIV were conducted with a leather glove, due to the volume of
grease on the cables. The inspector determined a rag test would not be useful during this
particular inspect ion because the grease on the cables would quickly fill the rag with
grease, making broken wire detection impossible. The spot checks were performed wit h
the drums and sieves operating at low speed in maintenance mode. Even with the drums
and motors running at low speed, this inspection is extremely dangerous for anybody who
places his hands on the cable because of the possibility that the person’s hand may get
caught in the drum. The inspector did not find cable breaks on any section of the ride.
The report later notes that the Department of Agriculture did not have the same inspection directions from Intamin that Six Flags did.
Upon inspection after the incident, the Department of Agriculture inspector concluded that the cable looked different than when the same inspector had examined the cable a couple of months earlier -- it was significantly deteriorated. (As a potentially incidental aside, ride inspectors in Ohio were criminally charged a couple of years ago when they failed to check electrical grounding but indicated on their report that they did so.)
The report also includes synopses of the interviews with the ride operators. The main ride operator evidently first called the park emergency phone number rather than hitting the emergency stop button when things looked like they were going wrong. Why? Her explanation:
When asked by the KDA why she did not hit the Estop before being prompted to do so,
the MainRide Operator stated that she made a deliberate decision not to hit the Estop.
She said the cable was swinging, and she thought if she hit the Estop the cable might cut
persons on the ride.
(Incidentally, both ride operators were under 18. Kentucky has now adopted a requirement that operators be 18; perhaps someone with a little more experience would have hit the e-stop first. That at least seems plausible and may put to rest some of the criticism of that legislation.)
The cable was eventually analyzed by an outside lab; the Agri Department retained an expert to interpret that report. The bottom line is that the cables failed due to garden-variety fatigue. Here's the money quote, in response to an inquiry about whether the problems could have been prevented:
The extent of progressive (fatigue) cracking would have made it possible for the
park personnel to detect the deteriorating condit ion of the rope had they been
following the inspect ion instructions given in the maintenance manual.
The initial report from the Courier Journal is here. More to come next week, I'd imagine.
Blackwater's Suit Against Wiley Rein Dismissed
Torts in the 100 Most Creative Moments in American Law
Robert F. Blomquist (Valparaiso) has posted Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law. For the methodology and the entire list, the paper (pdf) is here. Some of the moments on the list affect torts along with other areas, but the moments in which torts is the focus are few:
Section 520 of the Restatement (Second) of Torts (1965) (six factors for "abnormally dangerous activities" for purposes of strict liability) [#56]
Warren & Brandeis article on Privacy in the Harvard Law Review (1890) [#75]
N.Y. Times v. Sullivan (1964) [#95]
(Via ABA Journal).
How Tort Reform Affects Insurance Markets
Martin Grace (Georgia State-Insurance) & J. Tyler Leverty (Iowa-Business) have conducted a study entitled How Tort Reform Affects Insurance Markets (pdf). Here is the abstract:
A critique of tort reform is that promised declines in insurance prices do not follow the enactment of significant tort reforms. This study examines whether insurance prices reflect the uncertainty of the reform since they are subject to judicial challenge. We undertake a two stage approach to investigate the effect of tort reform on insurance prices. In the first stage, we investigate the likelihood tort reforms will be found unconstitutional and the expected duration of reforms. We then use the estimated survival probability as an explanatory variable in a regression which estimates the effect of tort reform on state liability insurance markets. Our results indicate that as the estimated survival probability of tort reform increases, the premiums and volatility of losses in the insurance market decrease.
(Via Point of Law/Frank).
May 29, 2008
Chris posts below about his regular-stop blogs, something I've been meaning to do for a while. So here's my list, not separated into torts and other subjects because, well, I'm lazy. They're roughly in the order I added them to my RSS reader, though site relaunches and such sometimes change that order.
Day on Torts
Leiter's Law School Reports
Title IX Blog
WSJ Law Blog
CAFA Law Blog
Blog 702 (long silent but still on the RSS feed)
Overlawyered (doing this made me realize that the URL I'd used for the RSS feed for years -- http://www.overlawyered.com/index.xml -- died a few weeks back, which explains why I didn't have anything from there for a while. The RSS feed is now http://overlawyered.com/feed/, it appears.)
Point of Law
Products Liability Prof Blog
Tort Law Journal of Ohio
Science & Law Blog
Mass Tort Litigation Blog
Above the Law
Maryland Injury Lawyer Blog
Consumer Law & Policy (Public Citizen)
Fortune Legal Pad
Drug & Device Blog
Liptak's NYT feed
Perlmutter & Schuelke
Dorf on Law
The Pop Tort
Heavens, that's kind of a lot.
I recently noticed that I have a pattern of checking the same blogs (both torts and general-interest law). I'm sure most people do the same thing, and I enjoy those I read semi-regularly. However, I wonder if you can recommend additional blogs for me (and others) to peruse.
Here's my general list, again in no particular order: Point of Law & Overlawyered (Walter Olson & Ted Frank), Legal Theory Blog (Solum), Concurring Opinions, Prawfsblawg, Above the Law (Lat), and PropertyProf Blog (Barros).
Sometime in the last week or so, we hit our 150,000th visitor (we're over 220,000 page views) since January 2006, when the blog was launched. Thanks to all of you for visiting and to Sheila and Chris for joining the site last year!
As usual, summer posting may be a bit sporadic or, sometimes, more frequent. Stick around, though; there will be some good stuff.
Sunshine in Litigation: Heritage Foundation's View
The Heritage Foundation (which has a pretty clunky logo, don't you think?) has posted a position paper on the "Sunshine in Litigation Act," which would make most settlement agreements public along with evidence obtained in discovery. The paper, not surprisingly, opposes it, noting its value for the plaintiffs' bar (though it also would remove one item used for leverage in settling cases -- the ability to keep bad documents non-public).
My Review of Litigation piece is inching ever nearer publication and addresses related issues, though not, due to timing, the Act itself.
(Via Point of Law.)
May 28, 2008
No Cert Decision Yet In Philip Morris v. Williams II
No word yet in Philip Morris v. Williams, the Oregon punitive damages case upholding a 100 to 1 ratio despite remand from the U.S. Supreme Court. The petition for certiorari was distributed for discussion at the Justice's conference on May 22d, but was not mentioned on the orders list [pdf] released yesterday.
Notably, as former Chief Justice Rehnquist explained in his book (and elsewhere), petitions of interest to any Justice are placed on the "discuss list" for the conference; petitions not listed on the discuss list are denied. So presumably Philip Morris made the discuss list for the May 22d conference. It's possible that the Court is holding the Philip Morris petition pending its decision in Exxon v. Baker. SCOTUS Blog has listed Philip Morris as a "petition to watch," which means that Akim Gump partner Tom Goldstein has deemed it "to have a reasonable chance of being granted."
Frank Analyzes Obama's Tort Reform Record
In yesterday's Examiner, Ted Frank discussed Barack Obama's record on tort reform issues. Frank catalogs Obama's specific votes on tort reform legislation including CAFA, a medical malpractice reform bill, and an asbestos reform bill.
May 27, 2008
Sebok on Rhode Island Lead Paint Case
In his latest Findlaw column, Tony Sebok discusses the lead paint nuisance suits filed by the State of Rhode Island against the lead paint industry. Sebok explains how the theory of public nuisance has been applied to lead paint contamination in Rhode Island homes:
The theory is that by creating and selling lead pigment, the paint industry interfered with the public right to a healthy residential environment. Accordingly, whether or not the industry was negligent, it -- like the owner of the fallen tree in the example drawn from Blackstone -- should be required to remove the paint, so that the public can enjoy its right to live without being exposed to a toxin.
A negligence suit would have asked for damages. But as noted above, a public nuisance claim, by its nature, asks not for money damages but a court injunction. Here, the desired type of injunction would have directed the industry to pay the cost of removing ("abating") the lead paint from any home where it may be. This would be a massive endeavor whose real cost, if done nationwide, no one really knows. Yet it is clear that, even in a small state like Rhode Island, having to pay abatement costs could bankrupt the entire paint industry.
Sebok's next column will address how the Rhode Island Supreme Court should rule on the defendants' appeal.
Proposed Tainted Pet Food Settlement
About a year ago, the largest pet-food recall in history was prompted by the illness and death of thousands of cats and dogs. The illness was traced to tainted wheat gluten in the pet food. The Philadelphia Inquirer now reports that a proposed $32 million settlement has been reached in the tainted-pet food cases. The settlement would "resolve more than 100 lawsuits filed last year by anguished pet owners in the United States and Canada against companies that made or distributed the poisonous food."
Pet owners could receive $900 for "reasonable economic damages submitted without documentation." The document filed last night said such damages could include travel expenses, property damage (to carpets, for example), lost wages, "or any other expense related to the pet's illness or death."
One lawyer in the case said the undocumented expenses also were meant to help compensate people for their emotional distress without referring to them in those explicit terms. "They're not called emotional damages," said the lawyer, who spoke on condition of anonymity. "Getting the defendants to agree to give more than just compensatory damages, which was essential to us, was not an easy thing."
U.S. District Judge Noel L. Hillman has scheduled a hearing on the settlement for this Friday May 30th.