August 9, 2008
Cavalier on Punitive Damages In France
Georges Cavalier has posted "Punitive Damages and French Public Policy" on SSRN. The abstract provides:
When asked whether French law admits punitive damages, Professor Durry, a prominent French academic, responded: "No, No, and No!; three times No! But..." These few words seem to pretty much illustrate where French law stood several years ago regarding punitive damages.
In French legal terminology, one generally opposes "punitive damages" to "compensatory damages." Compensatory damages repair the victim's injury, as if he or she had incurred no loss at all. They are sometimes just symbolic or token sums. In this school of thought, the indemnification must in no way be enrichment for the victim. Contrary to compensatory damages, punitive damages are outrageous sums awarded in excess of compensatory damages to punish a party for outrageous conduct.
For a long time now, punitive damages have been a common law specialty. The US Supreme Court repeats again and again that the US Constitution imposes certain limits, limits that forbid only "grossly excessive" punitive damages. Let us give you a recent example: in a case tried on February 20, 2007, the representative of a certain Jesse Williams, who died from smoking cigarettes manufactured by Phillip Morris, was awarded $821,000 in compensatory damages, and $79,5 million in punitive damages. One major question that could have been debated in court was whether this 100-to-1 ratio constituted a "grossly excessive" amount.
August 8, 2008
Personal Injury Roundup No. 2 (8/8/2008)
We hope to have a "Roundup" category in the near future. In the meantime, however, you can find previous editions of the Roundup by scrolling under the Current Affairs category (in the Topical Archive off to the lower right).
Now on to the week in torts:
Reform, Legislation, Policy
- Bills to overturn the Supreme Court's preemption decision in Riegel v. Medtronic have been introduced in both the House and Senate. [TortsProf, Point of Law, Drug&Device]
- FDA to advertise a fake blood pressure drug in order to study whether the visuals divert consumers from the warnings. [Pharmalot]
- NY Assembly Speaker makes personal loans to Counsel Financial, a company that finances plaintiffs' contingency fee litigation. [NY Times]
- State AGs, lawyers and lobbyists all attend Conference of Western Attorneys General. [Legal Newsline]
- Senate bill would create "Health Care Comparative Effectiveness Research Institute" to review clinical research on drugs, devices and surgical procedures. [Pharmalot]
- FDA announces new conflict-of-interest rules for advisory committees. [FDA, SanFran Chronicle]
- Debate on medical malpractice. [Overlawyered]
- Finally, a lawsuit in the salmonella outbreak [WSJ Law Blog].
- Class action against Ford over not-so-limited edition Mustang. [Reuters]
- Another mortgage meltdown suit: Connecticut sues Countrywide, alleging company violated state consumer protection laws by misleading borrowers to take on loans that they could not afford. CT joins California, Illinois, Florida and the City of San Diego in pursuing litigation against the financial lender. [Newsday/AP]
- Beat up because he's a Red Sox fan; suing the Yankees [MassLive.com].
- Second amended complaint in AutoAdmit lawsuit identifies one defendant. [ABA Journal, WSJ Law Blog, Overlawyered]
- Medblogs give outsiders chance to eavesdrop on break-room conversations and learn insiders thoughts on clinical studies. [LA Times, GruntDoc]
Trials, Settlements & Other Ends
- Judge tosses Don King's libel suit against ESPN. [American Lawyer via Law.com]
- 8 year old skier sued for collision with adult settles suit. [Overlawyered]
- Food manufacturers settle suit by the CA AG concerning carcinogen levels in potato products. [TortsProf].
- Trials galore, free to watch online [The Mac Lawyer].
- Mapractice suit against white collar defense lawyer Michele Roberts dismissed with prejudice. [BLT, Legal Times/law.com]
- Study finds settlement nets more cash than trial. [NY Times]
- Second Circuit certifies strict liability question on "when a seller of used machinery may be deemed a regular seller" to New York Court of Appeals. [Court's opinion (pdf), NY Law Journal/law.com]
- Fourth Circuit rejects defamation claim against Air American radio host. [AmLawyer/Law.com]
- In a case of first impression, Seventh Circuit affirms removal of 144 plaintiff Burlington Northern wood processing case to federal court under CAFA's provision for "mass actions." [Court's opinion (pdf), Business Insurance]
- Eighth Circuit affirms dismissal of switched-at-birth suit under Federal Tort Claims Act on SOL grounds. [OnPoint]
- Ninth Circuit considering meaning of "interception" in civil e-mail hacking lawsuit. [WaPo]
- Federal Circuit hears oral argument in Bikini Atoll nuclear case. [WSJ Law Blog]
- House passes bill authorizing unlimited punitive damages in pay discrimination cases. [Cal Punitive Damages]
- Bryan Cave starts FDA practice group. [BLT]
- Okay, this has nothing to do with torts or personal injury, but I just love those guys over at JibJab.
Shameless Self-Promotion (favorite posts of this week)
- Bill: Q: What'd you do today, Daddy? A: Um, dug around domain registrations and corporate filings. Good times!
- Sheila: Animal Law Conversation at Slippery Slope.
If you enjoy the Roundup, please send us suggested links; our e-mail addresses are to the left.
Sebok on "Loss of Chance" Doctrine
In this week's Findlaw column, Tony Sebok discusses the Massachusetts Supreme Court's decision holding that the "loss of chance" doctrine is part of that state's common law. Sebok predicts that "the Massachusetts decision will influence other state supreme courts."
August 7, 2008
Updated (3X): ISO Defendant
The new website plans to help consumers determine whether they actually have a case and help them find an attorney from a list of lawyers who advertise their expertise on the website. The attorneys will pay an annual fee of $1,000 to appear on the site, plus an additional amount of their own choosing that will determine how prominently they appear in the listings on the site.
Update (by BC): TortDeform has a post, itself linking to an InjuryBoard post, which itself links to a no-longer-existing post (whew) that supposedly linked WhoCanISue to defense firm Jorden Burt. I'm not sure how they came up with the link, but the suggestion is that it's a scam to make plaintiffs' attorneys look bad.
Let's do some digging, shall we?
WhoCanISue.com is registered to mRevolution at 110 E. Atlantic St. in Delray Beach. Looking at Google Maps and its StreetView, that address looks rather unlikely to be part of a big firm, but does look like the sort of place that might house a "sales leads" generating entity, which is what mRevolution is. And, sure enough, right on the front page, mRevolution notes WhoCanISue as one of its properties (click on it to see):
mRevolution is run by one Curtis Wolfe, who is indeed an attorney, but one without any visible connection to Jorden Burt, though he was evidently with Steel Hector prior to that firm's merger with Squire Sanders. The only connection I can see to Jorden Burt is that a partner from there is quoted in the Time piece saying that it is a bad idea.
Short version: Nope, I don't think this is an elaborate scam to make trial lawyers look bad. I do think it's a bad idea, for the reasons Eric described in connection with SueEasy.com.
Update #2: First, be sure to read the comments for a bit more on some other rabbit trails, all of which end with the same entities and people (none of them defense lawyers or insurers). Second, evidently TV ads will start soon, judging from these screenshots, they'll be, um, interesting. PDF of the page here, in case it gets taken down: Download twoparrot.pdf.
Update #3: We received an e-mail from a Miami PR firm doing work for WhoCanISue in connection with its launch. The author of the e-mail, Michael Tangeman, says fairly convincingly that the website is what it purports to be, and attached a couple of PDFs relating to the site and Wolf (Download wcis_backgrounder.pdf, Download curtis_wolfe_bio.pdf). He also linked to a couple of articles (Miami Herald, Advertising Age).
Incidentally, I'd forgotten that, last fall, a different person on InjuryBoard had thought SueEasy.com was a hoax, too; I disagreed and I think it's clear that it was (and is) not a hoax. Same reasons there as here -- it would be a stupid hoax and the evidence all points to legitimacy.
Finally, the author of the original (inaccessible) post has now posted it at Tort Deform in the comments, and it doesn't do anything like suggest that Jorden Burt is involved, as claimed by Jeremy Thurman in his post. Hinson, instead, noted that Jorden Burt was quoted and, unsurprisingly, complained about frivolous lawsuits. He's also not fond of WhoCanISue, and that's his main point.
Whew. That was a lot of hoopla that could have been avoided with a modicum of careful reading in the first place.
- SBS (everything after "Update" by BC)
Goldberg Moves to Harvard
Speaking of Funding Bias...
David Michaels of SKAPP forwarded me an interesting order I missed the first time around in the welding rod litigation in the Northern District of Ohio. In it, the judge ordered (Welding_rod_funding_order.pdf [PDF]) that both sides disclose the extent of funding provided to the authors of articles, treatises, etc., relied upon in litigation. In total, in this particular sample, the defendants' funding totaled something over $10 million, while the plaintiffs' around $500,000. A Mother Jones article describes the case more.
I'm not sure, incidentally, that the proportionate amounts spent means as much as it might -- i.e., it's not self-evident that spending 20 times more necessarily means more 20 times more wicked conduct or 20 times more intent to buy the science. I would hope that industry is spending a lot more money studying the dangers of their products than plaintiffs' lawyers are.
Now, I'd prefer it to be consistently good work (and the article notes some pretty sketchy sounding stuff), but the fact of spending money doesn't necessarily mean bad work or bad science.
In any event, the outcome of the order -- disclosure all around -- is sound.
August 6, 2008
More on the "Pharma-Free" Expert List
Shannon Brownlee has written a post for Pharmalot describing her views on the list she helped put together of (mostly) pharma-free experts (see various links in last week's roundup). Her bottom line seems fairly reasonable to me: they agree that pay for testimony can constitute a relevant bias, and that conflict is disclosed to journalists when they obtain the full list. I certainly don't dispute that industry money is relevant.
My only quibble: I'm not sure, and she doesn't explain, why they don't plan to add even a modest note on the list on HealthNewsReview.org (why not something like "Some experts may have other relevant conflicts" so that the casual reader knows?). Its absence is probably not critical -- i.e., it will only have the potential to mislead relatively few people, and not journalists using the list for sources -- but it seems like an easy thing to add without any real downside.
Animal Law Conversation at Slippery Slope
Over at The Slippery Slope, Meredith Miller (Touro) discusses animal law with Adam Karp, a Washington (State) animal law lawyer and adjunct professor of animal law at both the University of Washington and Seattle University. Around the half-way point (12 minutes or thereabouts), the conversation includes an interesting discussion on the recoverable damages when suing for harm to a pet (including valuing the life of a deceased pet).
Becker & Posner on Government Regulation of Fast Food
Over at the Becker-Posner Blog, Gary Becker (Chicago) and Judge Richard Posner debate the wisdom of government regulation of fast food, such as New York City's requirement that calories be posted on menus (prior posts here and here).
Professor Becker argues against these regulations:
Requiring restaurants to post calorie content of foods will have a negligible effect on demand for these foods because, as I argue above, consumers are buying these foods not mainly because they are ignorant of the effects on weight, but because of cheapness, convenience, and taste.... Given all the ineptitude in government regulation, as reflected for example in the regulation of Freddie Mac and Freddie Mae, and in other housing problems, I believe it is better to tolerate some mistakes by consumers in their choice of foods. Such additional regulation of fast foods will make people worse off in the long run as well as in the short run.
Judge Posner, on the other hand, defends such regulations:
The argument for the New York City ordinance thus comes down to the argument for social experimentation generally: that it will yield valuable information about the effects of public interventions designed to alter life styles. I therefore favor the ordinance, though without great optimism that it will contribute significantly to a reduction in obesity.
August 5, 2008
Depoorter & DeMot on Technology and Torts
"Highly recommended" by Larry Solum - Technology & Torts: A Theory of Memory Costs, Nondurable Precautions and Interference Effects by Ben Depoorter (U Miami) and Jef De Mot (Ghent). The abstract provides:
This Article amends an important theory by Mark Grady on nondurable precaution (Grady, 1988). We present the first formal model on durable precaution, and add three insights to the literature. First, we argue that, under current tort doctrine, the interaction between nondurable precautions and mental costs create a self-sustaining expansion of tort law. Because the risk of liability creates additional interference effects, tort law perpetuates the expansion of awards. Second, we demonstrate that socially excessive suits are more likely to be filed in the event of nondurable technology. This is because a plaintiff does not consider the increase of interference costs as a private cost, when initiating a lawsuit. Third, while new harm-reducing technology likely increases accident rates, it also raises the ratio of trial costs to harm, thus leaving undetermined the overall effect of new technology on the rate of litigation.
Less Cancer Causing Chemicals in Your Tater Tots
Four food manufacturers - Heinz, Frito Lay, Lance and Kettle Foods - have settled a suit by California's attorney general alleging that they violated the Safe Drinking Water and Toxic Enforcement Act by failing to post warnings of the cancer-causing chemical "acrylamide" in their products. According to the news release, "[a]crylamide is a by-product of frying, roasting and baking foods--particularly potatoes--that contain certain amino acids." Under the settlement, the companies will reduce acrylamide levels in their potato products, namely chips, frozen fries, and the delightful tater-tots. Oh, and the companies will pay California around $2.5 million.
August 4, 2008
Anti-Preemption Bill Introduced
Point of Law has the relevant links.
More Scruggs Allegations
LegalNewsline.com has excerpts from a deposition taken of Dickie Scruggs in which he asserts his Fifth Amendment right not to answer repeatedly. From the questions, taken by an attorney for State Farm, it appears that the company is focusing on a wide range of alleged actions, from a pattern of leaking sealed documents to pressuring state officials to put Scruggs in charge of a massive fund.
August 3, 2008
More on that Allstate Case
At Overlaywered, Ted has more details arguing against the judgment.