Saturday, September 13, 2008
There's another editorial and article asserting various savings and improvements in Texas from the reforms of a half-decade ago; a Texas Hospital Association press release adds in some discussion of what health care providers say they are doing with the money they're saving.
On LawProf, Andrew Beckerman-Rodau (Suffolk) asked the following question:
I was just denied a personal umbrella liability insurance policy
because I am a professor who has published. According to the insurance
company anyone who has published presents a risk of potential liability
for defamation. Has anyone else ever run into this problem?
(Thanks to Rick Peltz (Arkansas-Little Rock) for passing it on.) I obtained an umbrella policy about a year ago and publishing was not an issue. However, I have since questioned whether I would be covered under any of my personal insurance policies for blogging. The answer was no, so I made sure I was covered under the university's policy. Has anyone else had experience on either issue?
Friday, September 12, 2008
In a world that lost Don LaFontaine, the guy who said "In a world that..." more often than probably else in the world, what can we turn to? Torts!
Reform, Legislation, Policy
- Trial lawyer John Coale thinks McCain won't really push tort reform, endorses him [New York Sun].
- Lots of money related to torts issues in the Missouri governor's race [STLToday.com].
- Australia to protect police from lawsuits [TheAge.com.au]
- Class certified and documents unsealed in Zyprexa litigation [TortsProf]
- Another microwave popcorn lawsuit from a consumer (the second one) [Pump Handle]
- Another Crocs/escalator lawsuit [WRAL.com]
- New suit against a doctor by third party injured by patient [Boston.com]; earlier on TortsProf.
Trials, Settlements & Other Ends
- Vaccine Act preempts tort claims [Mass Tort Litigation Blog]
- $8 million in suit against San Diego police (30% at fault will reduce) [SignOnSanDiego.com]
- Second-hand asbestos suit can proceed [CNN Money].
- Maryland court says no pharma duty to third party injured by someone taking the drug [Drug & Device Law Blog].
Experts & Science
- This video was well-received in my class this week [Break.com] (also read the comments.
- This video represented probably the end of my fantasy football season, but also could help with a discussion of consent [Deadspin].
- What lawyers involved with Halloween attractions think about (a few years too late -- my first Torts exam was set in part in a haunted house!) [Bloloop].
- Health concerns remain, seven years later [Mass Tort Litigation Blog].
Thursday, September 11, 2008
A couple of years back, PropertyProf Ben Barros posted about how September 11th should be handled in the classroom. I believe I remember a torts-flavored discussion from about the same time. I'm faced with the issue for only the second time (it has usually been a non-teaching day for me). Two years ago, on the fifth anniversary, 9/11 was receiving a lot of attention. I chose to start class with a moment of silence. What are you doing today? Is there a time limit for attention to this anniversary?
This Article considers the broad range of tort experiments states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called federalism revolution of the 1990s to limit Congressional authority in the name of states' rights, it was simultaneously cutting back on the ability of states to provide their citizens with tort rights and remedies through preemption doctrine and due process limits on punitive damages. This Article explores these trends in the states, Congress, and the Supreme Court and concludes that part of the problem in federal-state relations in the area of tort law is that Congress and the Supreme Court have shifted from a private law to a public law view of tort that does not give sufficient attention to the important private law goals tort law still serves. This has allowed Congress and the Court to more easily displace state tort law without considering the need for any substitute federal remedy. Once the private law aspects of torts are recognized, it becomes easier to identify and value the role tort law plays in our federalist system.
(Via Solum/Legal Theory Blog)
Wednesday, September 10, 2008
As a counterpart to Sheila's post noting a comparison of the top-of-the-ticket candidates, the conservative-leaning LegalNewsLine.com has a story comparing the litigation-related records of the VP candidates.
Engle v. Liggett Group involved a class action of approximately 700,000 Florida residents against various tobacco manufacturers. In 1999, a jury found in favor of the class and entered specific findings of fact. In 2006, however, the Florida Supreme Court decertified the class, but held that the jury's findings on causation should be given "res judicata effect" in future suits against tobacco manufacturers. As the Daily Business Review (via law.com) reports, "[a]bout 8,000 smokers met a January deadline set by the state's high court to file individual lawsuits with the benefit of the ... jury findings."
Now, in an order (pdf) issued August 28th, U.S. District Judge Howard Schlesinger (M.D. Fla.) has held that the jury's findings in Engle cannot be given preclusive effect. Judge Schlesinger based his decision on two grounds: (1) the jury's findings do not satisfy the standard for issue preclusion under Florida law, and (2) applying the jury's findings in subsequent suits would violate the defendants' due process rights.
Judge Schlesinger has certified his order to the United States Court of Appeals for the Eleventh Circuit. In the meantime, U.S. District Judge Steven D. Merryday (M.D. Fla.) has adopted Judge Schlesinger's order in another Engle progeny suit. Stay tuned!
Tuesday, September 9, 2008
ALI-ABA is sponsoring a course on Asbestos Litigation on December 4th-5th in San Antonio, Texas. You also can attend via live webcast.
Some of the topics include
- Where Are We Headed? Facts, Figures, Trends
- The Revival of the State of the Art Defense
- The Federal MDL
- Asbestos Ethics
- The Bankruptcy Trusts
- Products and Equipment
- The Mesothelioma Case
- Are the Days of Texas as a Major Asbestos Jurisdiction Over?
Monday, September 8, 2008
The NYT piece is here; the opinion (long! PDF!) is here. The vast bulk of the opinion relates to certification of a class for institutional payors and denial of a class for individual payors; only at the end are the documents noted. (The documents, of course, have been readily available online after they were released in violation of Judge Weinstein's protective order by David Egilman.)
My piece in the Review of Litigation relating to document leaks in the internet era, which includes feedback from various players in the Zyprexa litigation including Judge Weinstein himself, is available, and I have a boatload of reprints. Feel free to holler for one.