January 19, 2008
USSC to Offer Guidance on Preemption
Yesterday, the Court granted cert in two products liability preemption cases. In Wyeth v. Levine, No. 06-1249, the Court will determine whether the FDA's labeling requirements for prescription drugs preempt state law or merely provide minimal protections that states are at liberty to exceed. In Itria Group v. Good, No. 07-562, the Court will determine whether statements authorized by the FTC preempt state law consumer fraud class actions in the context of so-called "low tar" or "light" cigarettes.
The resolution of these cases should go a long way toward clarifying preemption issues. The Court's decision to hear them has attracted a lot of attention. For more on the issue, see Point of Law/Frank, Mass Tort Litigation Blog/Lahav, Drug and Device Law, and Products Liability Prof Blog/Steenson. It appears Cathy Sharkey's paper that I recommended yesterday has increased relevance today.
January 18, 2008
More Torts at the Zoo
CNN is reporting a series of allegations about the victims of the Christmas Day tiger attack at the San Francisco Zoo. If true, the allegations undermine a potential physical injury suit against the zoo, and seriously undermine a threatened defamation suit. According to CNN, one of the surviving victims told the father of the deceased victim that all three victims yelled and waved at the tiger. One of the victims allegedly yelled and waved from on top of a railing of the big cat enclosure. However, the victims deny they threw anything into the tiger's pen. CNN also reports an allegation that toxicology results indicate all three victims had both alcohol and marijuana in their systems at the time of the incident. The story is here.
Sharkey on Products Liability Preemption
Yesterday, Cathy Sharkey posted Products Liability Preemption: An Institutional Perspective on SSRN. The article provides both a positive analysis of what the Court has been doing in preemption cases, and a normative proposal about how it should proceed. Preemption is an increasingly significant issue in tort law, and Sharkey has been doing interesting work in this area for some time.
Insurance Executives: Tort Trends Stable in 2008
At the Insurance Information Industry's annual Property/Casualty Insurance Joint Industry Forum, executives were polled regarding likely tort trends for 2008. Two-thirds of those executives polled thought that tort trends in 2008 would be similar to those in 2007. Twenty-eight percent thought tort trends would "deteriorate" (meaning, I assume, that insurance companies would be paying out more money). Six percent thought tort trends would "improve" (meaning, I assume, the opposite). The Insurance Journal has the full story.
January 17, 2008
Case Update: Mesman v. Crane Pro Services
The new edition of the David Owen et al. Products Liability casebook uses Mesman v. Crane Pro Services, 409 F.3d 846 (7th Cir. 2005) to discuss negligence in design (using Indiana's statutory products liability provisions). In case you're using that book (as I am now), the Seventh Circuit, again with Posner writing the opinion, heard it a second time and ruled a couple of weeks ago [PDF]. It has another interesting discussion of the Learned Hand formula, along with some relatively uninteresting jury instruction material -- though even that has a good bit about the interplay of "open and obvious dangers" with "incurred risk."
Vladeck on Regulatory Preemption
The ACS blog has a post (with video) and an issue brief [PDF] from David Vladeck (Georgetown) relating to regulatory preemption. He focuses less on the wisdom (or lack of wisdom) of preemption and more on the means by which agencies are announcing their views on preemption:
The concern here is not with agencies expressing their position on the preemptive effect
of their regulatory actions. That is unobjectionable, and, in many instances, unavoidable. What is objectionable is that agencies are making substantive preemption determinations in a way that is neither transparent nor democratic, and are doing so because the Administration has determined that insulating big business from tort litigation is right as a matter of federal policy. Invariably, in making these pro-preemption determinations, the agency is repudiating long-standing agency policy to the contrary.
MySpace Promises Age-Related Improvements
MySpace has agreed with the AGs of 49 states to make a number of changes to its software and policies in an effort to reduce the use of the social networking site by predators. (Press release from News Corp., press release from the Massachusetts AG, the formal statement [PDF].) PC World describes the key aspects of the agreement:
Called the Joint Statement on Key Principles of Social Networking Sites Safety, the document states among its goals the development of a truly effective tool that social-networking sites can use to verify the age of members and potential members.
As part of the agreement, MySpace also pledged to develop a registry to which parents can submit their children's e-mail addresses to have them barred from social-networking sites.
MySpace will also make profiles of members under 18 years of age private by default and make it harder for adults to contact children via the site. The minimum age to have a MySpace profile is 14 years old.
In conjunction with the participating state attorneys general, MySpace has also committed to organizing an industry-wide Internet Safety Technical Task Force.
MySpace will also improve its tools and methods to identify and delete inappropriate images, obtain and constantly update a list of pornographic Web sites and break links between them and its site.
As we've covered extensively, various families of alleged victims have brought suit against MySpace for failure to provide better protections; most (if not all) of those suits that have made it to dispositive motions have been dismissed for either lack of duty or lack of legal cause.
Damage Caps and Physician Shortages
Considerable attention has been focused on Texas since its 2003 tort reforms, the most significant of which is a cap on pain and suffering damages in medical malpractice cases. Most commentators acknowledge that physicians have moved to Texas in increasing numbers since the reforms were enacted. Over at Day on Torts, John Day is continuing a series of posts providing empirical data about the tort system in Tennessee. He notes that, despite a lack of damage caps, Tennessee maintains a higher ratio of physicians to residents (24.1 for every 10,000 residents) than both the national average (23.8) and many states with caps (Texas, for example, has 19.4). The data comes from the CDC. Day's post is here.
Former DEA Agents Sue Over "American Gangster"
DEA agents have filed a class action defamation suit against NBC Universal alleging defamation in the Denzel Washington film American Gangster. The film (which I have not seen), while primarily a work of fiction, is admittedly based on actual events in the drug wars in New York. The movie's ending is primarily what the agents object to:
As the final credits roll on the flick starring Denzel Washington as Harlem drug thug Frank Lucas, a screen appears that states three-quarters of the drug enforcement agents assigned to New York were convicted as a result of Lucas' cooperation with "outcast cop" Richie Roberts, portrayed by Russell Crowe in the movie.
There were no such convictions, Drug Enforcement Administration officials told ABC News. But the agency had no immediate reaction when told of the lawsuit.
The lawsuit seeks an injunction against further distribution and monetary damages.
January 16, 2008
Criminal Conviction Over Mitsubishi Defects and Coverup
A former Mitsubishi president was convicted in Japan of professional malpractice relating to a death in a head-on collision and a long-term systematic coverup of defects.
Kawasoe, who became president in 1997, quit in disgrace in 2000 after acknowledging that the automaker had hidden defects for decades, many secretly repaired without recalls, despite reports of dozens of accidents.
The massive cover-up scandal stunned Japan when it surfaced in 2000. The sale of Mitsubishi Motors vehicles plunged, sending the Tokyo-based maker into losses for years.
For decades, Mitsubishi kept a two-tier record of driver complaints, tucking away defect reports in a locker that employees called "H," standing for the Japanese word for "secret."
Responsibilities were not defined and driver safety concerns were forgotten, according to a company report ordered in response to the scandal. When the concealed defects grew massive over the years, everyone was afraid to speak up, it said.
Mitsubishi apologized Wednesday to the family of the driver who died, and the company promised to do better.
FDA Approves Food From Cloned Animals
As reported by the New York Times, the FDA has concluded that food from cloned animals is safe to eat. The Agriculture Department, however, has asked farmers to continue withholding foods from cloned animals from the market, "saying the department wanted time to allay concerns among retailers and overseas trading partners."
“We are very cognizant we have a global environment as it pertains to movement of agricultural products,” said Bruce I. Knight, under secretary of agriculture for marketing and regulatory programs. He said it was his goal to have the transition last months, not years.
NJ Governor Vetoes Changes To Wrongful Death Statute
The New Jersey Law Journal (via law.com) reports that New Jersey Governor Jon Corzine vetoed the bill passed by the Assembly last week to expand the state's wrongful death statute. As posted earlier, the bill would have allowed claims for emotional harm. (Under the present statute, damages are recoverable only for pecuniary loss). Governor Corzine explained his veto:
"[U]nlimited damages … could have a significant impact on state and local budgets, since government entities are not infrequently named as defendants in wrongful death suits, and there are similar concerns as the State undertakes efforts to attract and grow businesses here."
"Unfortunately, I do not believe that this bill in its current form strikes a fair balance that would avoid using a strict monetary valuation of a person’s life while also addressing the adverse effect of allowing unlimited and unpredictable damages."
He urged the Legislature to consider alternatives "granting more flexibility for courts to reduce excessive non-pecuniary damage awards and defining non-pecuniary damages less expansively."
January 15, 2008
Of Shotguns and Changing Tires
So this fellow is changing his tire, and gets frustrated by one particularly stubborn lug nut. He tries and tries but can't loosen it. So, what does he do?
Why, he shoots it, of course.
No, he hasn't sued anyone, nor has he been sued. But the Woot blog links to it with this note:
Great, now shotguns will have to carry this warning label: "NOT TO BE USED AS A LUG WRENCH".
Is the Kentucky Kingdom Victim's Father Posting on an Amusement Park Enthusiast Forum?
I am not out "bashing" all parks, exept for the one who is hiring under educated children and putting them in positions of failure off the bat. Also, if MGMT is not doing their job, which is to lead and babysit, how can these places be safe? We are originally from Orlando Fl, and my daughter and I have been on coasters since she was 4 and have never once thought " Wow what if someone didn't check these rides". Why? Because Disney takes pride in their parks, they are not running around the world buying up a bunch of Real estate, they run Amusement Parks. And to be honest this is the first time I've posted in a forum about coasters. Just figured people like you enthusist deserved to know some right information. And as for the future, we are working with people and going to Congress to make sure this "ROLLER COASTER LOOPHOLE ACT" of 1981 is abolished completely. What an insane Gov't we have to allow something as a loophole to be involved with the safety of millions of your own people, let alone the huge amount of tourist that are in and out of these parks from around the world.
He continues to discuss the facts of the accident, including a discussion of the timeframe -- which, if he's right, suggests that one cable snapped while the ride was lifting, meaning that if the operator had been able to hit the emergency-stop button, the tragedy could have been avoided. In a later post, he describes seeing the cable that broke:
Let me just say that when I personally went to KK with our lawyer and specialist we hired I was blown away by the condition of the cable. There was no place on the cable that didn't have splintering going on. I mean if I were to run my hands down the cable it would have been a bloody pulp after 10 feet. There is no way this cable deteriorated that much since it's "yearly" inspection in April by the Dept. Of Agri. So my point is that there are atleast 10 people directly responsible at that park and the two idiot inspectors from Ky.
On a broader subject, it's not unlike Flea's blogging during his own trial, is it?
Torts at the Zoo: An Unexpected Twist
There is a planned lawsuit in the Christmas day tiger attack at the San Francisco Zoo. But it's not the one most people have been anticipating. According to a Times of India article, two survivors of the attack plan to sue for defamation, not physical injuries (at least not yet). Famed lawyer Mark Geragos said he would file suit against the zoo's public relations agency for suggesting his clients provoked the tiger. In particular, Geragos noted statements that his clients were armed with slingshots and had been drinking at an establishment outside the zoo.
Report: Minnesota Bridge Collapse Due to Design Error
The NTSB's investigation into the Minnesota bridge collapse has evidently concluded that it was caused by a design flaw, not due to a lack of maintenance or the like. Litigation has already begun, at least relative to seeking documents from the state government.
Chicago Law Review: Special Issue Commemorating 25 Years of Judge Posner
The University of Chicago Law Review has just issued a special issue, "Commemorating Twenty-Five Years of Judge Posner."
Of particular interest to TortsProfs:
- Saul Levmore, Judging Deception, 74 U. Chi. L. Rev. 1779 (2007). In this article, Professor Levmore discusses Judge Posner's contributions to the law of "deceit."
- Thomas J. Miles, Posner on Economic Loss in Tort: EVRA Corp v Swiss Bank, 74 U. Chi. L. Rev. 1813 (2007). Here, Professor Miles comments on the economic loss rule, which bars tort recover for purely economic harms unaccompanied by any personal or property damage.
- Alan O. Sykes, Strict Liability versus Negligence in Indiana Harbor, 74 U. Chi. L. Rev. 1911 (2007). Professor Sykes discusses Judge Posner's landmark opinion in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.
D.C. Bar Program - Practice Pointers for Tort Trials
The Tort Law Section of the DC Bar is hosting a luncheon program on Friday January 25th from 12pm to 2pm titled, "The New D.C. Jury - Practice Pointers for Tort Trials:"
This program addresses how recent changes in District of Columbia juries affect presentation of a tort case at trial. Perspectives will be provided from the Superior Court bench, Jury Commissioner's office, and practitioners who try cases involving medical negligence, vehicular negligence, and other torts. Discussion will include jury panel composition, voir dire, and jury note-taking, with observations and tips from attorneys experienced with DC juries, as well as "do's and dont's" from the bench.
CLE credit is NOT available. Registration information is available here.
Blogging Med Mal Defendant Interviewed
Last year, the anonymous author of the "Flea" blog was outed during his own med mal trial (about which he had in fact been blogging) as Dr. Robert Lindeman, a Boston-area pediatrician. Eric Turkewitz has a must-read interview about the process of Lindeman's being outed and some of his thoughts about blogging and medical malpractice litigation.
January 14, 2008
"Drug Approved. Is the Disease Real?"
That's the provocative title of Alex Berenson's article today covering the recent FDA approval of Lyrica's new indication for fibromyalgia. As the story notes, some researchers are not convinced that fibromyalgia in fact exists -- and suggest that calling it an official disease encourages additional complaints of pain by those diagnosed with it. Those researchers do not question whether the patients are actually in pain, but whether it can be classified as a separate disease.
The drug in question has some interesting regulatory history that could be relevant to any future litigation:
The F.D.A. reviewers who initially examined Pfizer’s application for Lyrica in 2004 for diabetic nerve pain found those results unimpressive, especially in comparison to Lyrica’s side effects. The reviewers recommended against approving the drug, citing its side effects.
In many patients, Lyrica causes weight gain and edema, or swelling, as well as dizziness and sleepiness. In 12-week trials, 9 percent of patients saw their weight rise more than 7 percent, and the weight gain appeared to continue over time. The potential for weight gain is a special concern because many fibromyalgia patients are already overweight: the average fibromyalgia patient in the 2007 survey reported weighing 180 pounds and standing 5 feet 4 inches.
But senior F.D.A. officials overruled the initial reviewers, noting that severe pain can be incapacitating. “While pregabalin does present a number of concerns related to its potential for toxicity, the overall risk-to-benefit ratio supports the approval of this product,” Dr. Bob Rappaport, the director of the F.D.A. division reviewing the drug, wrote in June 2004.
As of today, there don't appear to be any lawyers advertising via Google's sponsored ads, though there are a number of firms who seem to be looking for clients in connection with suicidality.