TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, September 26, 2008

Personal Injury Roundup No. 9 (9/26/08)

We welcomed the first day of fall this past week, as well as the following news from the world of torts:

Reform, Legislation, Policy

  • The House Energy and Commerce Committee approved seven health-policy related bills.  Life Sciences Legal Update provides a concise summary of each bill. 
  • FDA gets tough on unapproved meds (specifically eye washes and skin ointments).  [Pharmalot, Reuters, US News, Boston Globe]
  • Grace-Leverty study finds tort reform reduces insurance premiums.   [TortsProf]
  • Senate panel hears testimony on food marketing to children.  [WaPo/AP]

Experts & Science

  • Eli Lilly and Merck will start reporting fees paid to outside doctors, beginning in 2009. [NY Times, Indiana Star, Pharmalot]
  • Oregon Supreme Court addresses expert testimony in med-mal cases.  [Day on Torts]

New Lawsuits

  • Failure to warn about caffeine in energy drinks?  Not yet, but it may be next.  [WebMD, WCVB Boston]
  • Philip Morris sues San Francisco over city ban on pharmacies selling tobacco products. Walgreens filed a similar suit earlier this month.  [SF Chronicle]

Trials, Settlements & Other Ends

  • Federal judge dismisses suit alleging casinos had duty to stop plaintiff's compulsive gambling.  [ABA Journal, (AP), Court's opinion]
  • NY judge dismisses invasion of privacy suit against Sean Combs based on photos of nude "mermaid" at his infamous White Party.   [TortsProf, Court Opinion]
  • Federal district judge in Chicago denies class certification in fraud and unjust enrichment suit against gas producers.  [Am Law Daily, Court Opinion]
  • New study finds settling cases is more lucrative for plaintiffs than trial.  [National LJ (via]


  • The New York Appellate Division has ruled that the intentional running down of a pedestrian is an "accident" for insurance purposes.  [No Fault Paradise, Court Opinion]
  • West Virginia Supreme Court agrees to hear $196.2 million punitive damages award against DuPont.  [Cal Punitive Damages]
  • Maryland Supreme Court rejects "duty to world" in products liability case against Eli Lilly. [Mass Tort Defense]
  • The Ninth Circuit concludes that Ivory Coast plantation workers who allege that they were sterilized by a U.S.-made pesticide can't sue the pesticide's manufacturers and distributors under the Alien Tort Statute.  [SF Chronicle, LA Times, Court Opinion]



  • Does Splenda cause obesity?  So says new Duke Study (funded by the Splenda's competitor, the Sugar Association) [NY Times]


September 26, 2008 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2008

Obama and McCain on Health Care Reform

Yesterday's New England Journal of Medicine published essays by both presidential candidates on their plans for reforming health care in the U.S.   McCain's piece: "Access to Quality and Affordable Health Care for Every American."   Obama's piece: "Modern Healthcare for All Americans."

As MedPage Today summarizes,

Obama demonstrated some affinity for an issue that Democrats have often shunned -- tort reform -- by writing that he was committed to addressing medical malpractice, but he stopped short of endorsing reforms that would legislate caps on damage awards.  Instead, he said his central goal would be "preventing medical errors in the first place."

But he added that he would "support legislation dictating that if you practice care in line with your medical societies' recommendations, you cannot be sued," and said he was open to "additional measures to curb malpractice suits and reduce the cost of malpractice insurance."

For his part, McCain took several opportunities to promote preventive care as a model for reform. "One of the challenges we must face in reforming our healthcare system is that of finding ways to keep the American people healthier."

McCain said he wanted to create a "next generation of efforts to prevent chronic disease, early intervention programs, new treatment models, and public health infrastructure."

In addition to the essays, the NEJM and the Harvard School of Public Health cosponsored a roundtable discussion entitled "Health Care in the Next Administration" featuring senior health policy advisors David Cutler for Senator Obama and Gail Wilensky for Senator McCain. 

You can watch a video of the roundtable on-line. 


September 25, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Judge Dismisses Mermaid Suit Against P. Diddy

In an opinion filed last week, a NY state court judge has dismissed the lawsuit filed against Sean Combs based on the "Mermaids Gone Wild" photos that appeared in Vibe magazine in 2006.   In the suit, Maria Dominguez alleged that the photos showed her and two other woman who attended Combs' "White Party"  topless dressed as mermaids.   Plaintiff claimed that the publication of the photos violated her statutory right to privacy under NY law.   The judge, however, rejected this argument because the photographs related to an article on Combs and therefore were a matter of "public interest to many people."     The New York Law Journal (via has more.


September 25, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2008

Sebok & Zipursky on Wyeth v. Levine

In this week's Findlaw column, Tony Sebok and guest Benjamin Zipursky consider Wyeth v. Levine and the "preemption temptation."    Sebok and Zipursky provide a concise summary of the facts and arguments in Levine.   They then focus on why the case is not the best vehicle for the Court to resolve the preemption questions:

Our aim in this column is quite simple: to indicate how poorly-suited Levine is to be the focus for the Court's inquiry into this extraordinarily important question of federalism and tort law.  The problem with Levine is that the jury and the judges in Vermont handed Wyeth a loss it clearly did not deserve, because they stretched tort law to its limit (and perhaps beyond) to respond to the gripping facts before them. For any number of basic reasons, the result in Levine is pathological as a matter of products liability law.

The next part in the series will consider the merits of the preemption questions raised in Levine.


September 24, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Ups and Downs for Drug Stocks

The WSJ Health Blog reports on how more transparency at the FDA could cause volatility in drug stocks.   Under a law passed last year, the FDA is just beginning to post quarterly lists of drugs "that could, possibly, carry previously unreported side effects."    The Health Blog notes the lists are just preliminary, but could cause market swings.


September 24, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 23, 2008

Study Find Tort Reform Lowers Insurance Premiums

A recent study by Martin F. Grace, the James S. Kemper Professor of Risk Management at Georgia State, and Assistant Professor Ty Leverty (University of Iowa Tippie College of Business) has concluded that insurance premiums are related to the likelihood that tort reform will survive judicial review.   As the Iowa Press-Citizen reports, Grace and Leverty conclude that "insurance companies do lower their premiums, depending on the circumstances of the law. The decision ... turns on the likelihood of each law surviving a legal challenge because tort reform laws have a checkered history in the courts."

A copy of the Grace-Leverty study is available here. 


September 23, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (1)

Defamed on the Wildwood Boardwalk

Ah, the Jersey shore with its seaside boardwalks filled with games, rides, and fun foods.   And apparently tortious behavior.

In Senna v. Florimant (pdf), the owner of a Wildwood boardwalk game of chance sued a competitor for defamation and tortious interference with business.   The defendant's employees told boardwalk customers (over a loudspeaker system) that the plaintiff was a "crook," and "dishonest," and that the plaintiff would not honor prize tickets.  In a decision released yesterday, the New Jersey Supreme Court held that the defendant was not entitled to the heightened actual-malice standard applied to speech involving public figures.   

(Via Legal Profession Blog).


September 23, 2008 in Current Affairs, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Sunday, September 21, 2008

Station Settlements: "I Don't Think There's Any Logic to It At All"

That's the view of the mother of one victim of the Station nightclub fire in a big picture story in today's Globe (which was inexplicably delivered to our house today, despite the fact that we don't subscribe).

(And yes, typing -- even with capital letters -- is slowly getting better.)


September 21, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)