Saturday, June 28, 2008
Details are minimal as yet, but a boy was evidently decapitated at Six Flags Over Georgia. Reports indicate that a group of boys jumped a fence near the park's Batman coaster (an inverted coaster; see RCDB) and the boy was struck by the ride. The AJC report suggests that the decedent was attempting to jump up and grab the feet of a rider.
This is the second somewhat similar death at the Batman ride at Six Flags. In 2002, an employee was killed when he was in the restricted area below the ride. At around the same time, a boy was seriously injured on a similar ride at Alton Towers in England, again in the restricted area.
The Incredibles came out before I started doing this blog (but Overlaywered noted its lawsuits-putting-superheroes-out-of-business premise). But another bit of kids' entertainment made me wonder what else is out there.
I just completed a three-day drive to Arkansas; on the way, we listened to The Radio Adventures of Doctor Floyd, an excellent radio serial about the world's most brilliant scientist, Dr. Floyd, and his efforts to thwart the evil mastermind, Dr. Steve, as they travel through time and space. (Dr. Steve wants to steal historical artifacts to sell on eBay. It's complicated.)
Anyway, we were listening to the season premiere of season three when this exchange came up between Dr. Floyd and his mom:
The spilled coffee strikes again!
Where else have torts shown up in children's entertainment?
(If the Flash plugin doesn't work, the MP3 is here: Download floyd.mp3
Thomas Colby (George Washington) has posted on SSRN Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages (forthcoming Yale Law Journal). Here is the abstract:
In Philip Morris v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of this landmark decision. It argues that, although the Court's procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages - questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution's criminal procedural safeguards?
The Article argues that punitive damages are properly conceived of a form of punishment for private wrongs: judicially sanctioned private revenge. As such, the Article explains, it makes both theoretical and doctrinal sense to impose them without affording the defendant criminal procedural protections, which are necessitated only for the punishment of public wrongs on behalf of society. When, however, courts employ punitive damages as a form of punishment for public wrongs, they become a substitute for the criminal law and thus make an intolerable end run around the Bill of Rights. For that reason, Williams was ultimately correct that punitive damages must be limited to punishment for the harm done to the individual plaintiff, not the harm done to the general public.
The Article concludes by considering the future of punitive damages in light of the Williams decision. It concludes that, contrary to the emerging conventional wisdom, Williams does not stand in the way of the imposition of substantial extra-compensatory damages of the type favored by law and economics scholars as a means of forcing the defendant to internalize the costs of its behavior in order to achieve optimal deterrence. It is the fact that punitive damages punish, and that they do so in order to vindicate the interests of the state, that precludes their use to address third-party harms. Once the element of punishment is eliminated from the remedy, the constitutional infirmity at issue in Williams is ameliorated.
Friday, June 27, 2008
Our local paper, The Patriot-News, ran an article this morning about liability for volunteers on school field trips. Apparently every school district in our area has coverage for such volunteers, and there is at least one arbitration ruling lately that shows it's a good thing to have.
Thursday, June 26, 2008
Wednesday, June 25, 2008
In a 5-3 ruling, the Supreme Court decided the Exxon Valdez [pdf] punitive damages case today. (Justice Alito did not participate in the decision). The majority opinion was authored by Justice Souter. The Court found the punitive damages award excessive as a "matter of federal maritime law," and imposed a 1:1 ratio between punitive damages and compensatory damages. This holding reduced the punitive damages award to just over $500 million.
The NYTimes reports today that the city of New York is taking an aggressive approach to the 9/11 workers who allege health issues:
The city’s review, based on medical records submitted in federal court by the workers and their lawyers, found that as many as 30 percent of the workers reported nothing more than common symptoms like runny nose or cough. Their records, according to the review, did not indicate that doctors had ever diagnosed a specific disease.
In fact, more than 300 workers admitted in court documents that they were not ill at all.
The workers' attorneys, unsurprisingly, disagree. Well worth reading.
Tuesday, June 24, 2008
Beck & Herrmann have a thorough summary of Breen v. Synthes-Stratec, Inc., No. AC 28215, 2008 Conn. App. LEXIS 261 (Conn. Ct. App. May 27, 2008), in which the Connecticut Court of Appeals upheld the application of the learned intermediary doctrine to prescription medical devices.
NY Newsday reports on the latest political skirmishes in New York on efforts to reform New York's medical disciplinary system. According to Newsday, "state Republican lawmakers said they want to address not only disciplinary matters but also rising malpractice insurance premiums that have driven doctors out of business."
The NY Legislature adjourned yesterday, and a press release from the Governor's Office seems to suggest that the discipline bill passed without the malpractice reforms.
Monday, June 23, 2008
I don't think we've yet linked to David Michaels's book Doubt Is Their Product (reviews and such here, David's chat at FireDogLake here). I haven't yet read the book (coughcoughreviewcopy?coughcough), but it is on my summer list.
According to the DefendingScience.org page, "In this eye-opening exposé, David Michaels reveals how the tobacco industry's duplicitous tactics spawned a multimillion dollar industry that is dismantling public health safeguards. Product defense consultants, he argues, have increasingly skewed the scientific literature, manufactured and magnified scientific uncertainty, and influenced policy decisions to the advantage of polluters and the manufacturers of dangerous products. To keep the public confused about the hazards posed by global warming, second-hand smoke, asbestos, lead, plastics, and many other toxic materials, industry executives have hired unscrupulous scientists and lobbyists to dispute scientific evidence about health risks. In doing so, they have not only delayed action on specific hazards, but they have constructed barriers to make it harder for lawmakers, government agencies, and courts to respond to future threats."
I am curious about whether he addresses the place of litigation experts on both sides, or solely defense (it appears the latter). I'll look forward to finding out once it gets to the top of my list...