October 10, 2008
Personal Injury Roundup No. 10 (10/17/08)
It's a beautiful week here in New England and it was a great week for me (if you'll pardon the self-congratulation), as my colleagues have voted to grant me tenure starting next academic year. It was a lively week in TortLand, too...
Reform, Legislation, Policy
- Apologies in Canada [Sault This Week via Point of Law]
- Senate committee critical of EPA's role in Libby, Montana [Pump Handle]
- Six Flags wants to add more defendants in Kentucky Kingdom case; plaintiff undergoes another surgery [WLKY.com]
- Indianapolis Colts receiver Marvin Harrison apparently isn't facing criminal charges, but is getting sued for alleged role in a shooting [ProFootballTalk.com]
- Patients sue hospital for treatment by heroin-addicted doctor [Newsday]
Trials, Settlements & Other Ends
- Three years after filing, lawsuit over alleged wrong color hair dye dismissed [AP]
- Supreme Court sounds skeptical of FTC's role in "light" cigarette claims [SCOTUSblog, TortsProf]
- Georgia Supreme Court permits thimerosal claim against Wyeth, rejects vaccine preemption argument [Pharmalot]
- More about Levine and preemption more generally [Sebok @ Writ]
- Tort lawyer by day, referee by...Sundays. [TortsProf]
- Medical blogger subpoenaed over comment [NY Personal Injury Blog]
- "Yo-Yo" amusement ride (swinging chairs) recalled [CPSC]
- Another amusement ride incident: Carny ride starts without warning; parent and toddler hang on; toddler dropped...and caught. Man. [Local6.com, video]
- "For people like Oprah, lawsuits are a part of life." [Richard Roeper @ Sun-Times]
October 9, 2008
Congratulations to Frank McClellan
It has (belatedly) come to my attention that Frank McClellan (Temple) has retired after 28 years. Frank, who taught Torts and Medical Malpractice, is an expert in health law. I am indebted to Frank because he was kind enough to allow me to co-teach his Med Mal course while I was a Freedman Fellow at Temple. He will remain active in retirement. In addition to playing more tennis, he and Temple's Scott Burris (who was kind enough to allow me to co-teach his Torts course) are planning to collaborate on an interdisciplinary research center in health law and policy. Temple Esq. has the story.
Kidd and Krauss on the Collateral Source Rule
Jeremy Kidd (George Mason) and Michael Krauss (George Mason Law) have posted to SSRN Collateral Source and Tort's Soul. Here is the abstract:
Tort reformers have had a modicum of success in their efforts to eliminate or restrict the Common law's Collateral Source Rule. Interestingly, this rule has been largely neglected by tort theorists. The authors present a coherent and complete theory of collateral source, and develop twenty-three original thought experiments to operationalize this theory. They argue that, though other areas may merit tort reform, the collateral source rule is not among them. Modification of the collateral source rule endangers "Tort's soul", that is, imperils the integrity of tort law.
October 8, 2008
Sebok & Zipursky on Wyeth v. Levine (Part II)
In Part II of their look at Wyeth v. Levine, Tony Sebok and guest Benjamin Zipursky turn to the merits of the case: "whether there is a sound argument for preemption." Sebok and Zipursky quickly discard what they consider Wyeth's "more ambitious" preemption arguments such as the argument that Wyeth cannot change its label without FDA approval, as well as reliance on the 2006 Preamble. Turning to the implied preemption arguments, Sebok and Zipursky focus on the "frustration argument, because we suspect the impossibility argument is less likely to cover many cases, and because it is the weaker argument in Levine (if the Court reads plaintiff's complaint as a true failure-to-warn case)." After a concise explanation of the frustration argument, Sebok & Zipursky conclude:
As should be clear by now, we think that although Wyeth should have won as a matter of tort law, Levine has the stronger case on preemption, absent remand or an extremely strong pro-defendant reading of the record. What is most important, however, is what kind of preemption framework the Court chooses to create.
(Review Part I of the series here).
Two Upcoming BNA Conferences: Punitive Damages and the Consumer Product Safety Act
BNA has two upcoming conferences of interest to blog readers:
1. Wed., Oct. 15th, The New Course of Punitive Damages After Exxon and Philip Morris (Audio Conference).
Punitive Damage Calculations - the Supreme Court in recent terms has been addressing the issue of how much is too much in the area of punitive damages. Earlier, the court took up the issue of punitive damages in the area of damages sought by a smoker’s widow from a cigarette company. In June, the court reduced the damage award in the Exxon Valdez oil spill litigation. Although it was a maritime law case, the opinion had some interesting language about punitive damages calculations. Key program topics: Examination of what the 2007 decision in Philip Morris USA v. Williams means and how that issue has played out in the courts since the decision. Review of what Exxon Shipping Co. v. Baker decided and its implications beyond maritime cases. How the U.S. Supreme Court views empirical studies cited in briefs. What is at issue in the return of the Philip Morris case to the U.S. Supreme Court? What might be the next punitive damage issue the Court could confront? Speakers include Bob Peck of the Center for Constitutional Litigation and Victor Schwartz of Shook, Hardy & Bacon.
2. Thurs, Oct. 30th, The New Consumer Product Safety Improvement Act of 2008 (Live Conference, DC).
Following a year and a half of unprecedented numbers of consumer product recalls, Congress recently passed and the President signed into law the Consumer Product Safety Improvement Act of 2008 . . . The program will outline: the rapid rollout of new federal standards on lead and phtalates; mandatory third-party testing of children's products; the adoption of new regulatory standards and mandatory rules; the role of states in enforcing product safety; product specific provisions. Speakers include Nancy Nord, Acting Chair of the CPSC, Eric Rubel, Arnold & Porter; and Peter Winik, Latham & Watkins.
October 7, 2008
Alito and Scalia Blame The FTC for Any Consumer Confusion About "Light" Cigarettes
Yesterday, the Supreme Court heard argument in the first case on its Oct. Term 2008 docket: Altria v. Good. In Altria v. Good, the plaintiffs allege that the use of the word "light" and "lower tar" on cigarette packaging misled consumers as to the dangers of those cigarettes. As SCOTUS Blog reports, Justices Samuel A. Alito, Jr., and Antonin Scalia suggested that blame for the alleged deception should fall on the Federal Trade Commission for its tacit approval of the packaging:
Justice Alito was the most blunt: “The FTC’s position seems to me incomprehensible,” he remarked to a lawyer for the Commission. “You’ve created this whole problem by, I think, passively approving the placement of these figures in the advertisements. And if they are misleading, then you have misled everybody who’s bought those cigarettes for a long time.” The lawyer speaking for the Commission and the Justice Department, Assistant to the Solicitor General Douglas Hallward-Dreimeier, tried to put the onus back on the tobacco industry, saying the companies knew as early as 1967 that its claims of low tar and nicotine in “light” smokes were not valid, yet failed to tell the FTC.
But that argument did not dissuade Justice Scalia. “When did the Commission know this stuff? I had a case when I sat on the Court of Appeals, so it had to be before 1984…It’s been general knowledge for a long time, and the FTC has done nothing about it.”
A copy of the oral argument transcript is available here (pdf).
Lawyers Circle California Metrolink Crash
The LA Times reports that plaintiffs' lawyers have aggressively pursued victims of the Metrolink crash:
In the weeks since Metrolink Train 111 crashed head-on with a Union Pacific freight train in Chatsworth, killing 25 and injuring at least 130 others, litigators have pursued clients so aggressively that the State Bar of California reminded lawyers of the professional sanctions they could face for initiating contact with accident victims.
. . .
The warning [from the Bar] came as attorneys took out newspaper and TV advertisements, solicited on the Internet and even tracked down the injured at hospitals, all seeking a piece of what is likely to be hundreds of millions of dollars in damage awards for the victims and their loved ones.
One victim's cousin, who did not want to be identified in order to protect the family's privacy, told The Times her family had been called by a Los Angeles firm with an offer to pay funeral expenses in exchange for representing the family against Metrolink.
. . .
The first legal action was filed just three days after the Chatsworth crash by the parents of 19-year-old Aida Magdaleno, a Cal State Northridge student who was killed.
(Via Mass Torts Profs).
October 6, 2008
Lawyer by Day, Ref by Sunday
A few weeks ago, the end of a Chargers/Broncos football game was decided by a clear mistake by referee Ed Hochuli. The call was reviewed, but the key mistake (incorrectly whistling the play dead) was unreviewable, essentially because it would be unfair to players who reasonably relied upon the whistle. (The review process in football, and I expect other sports, provides one nice way to discuss standards of review, incidentally.)
What I've been meaning to note is that Hochuli, a generally very well-regarded referee, is also a lawyer who includes among his specialties various areas of tort law, including toxic torts and products liability more generally.
Perhaps we can get an off-season guest post?