TortsProf Blog

Personal Injury Roundup No. 12 (10/24/08)

On this day in history, the George Washington Bridge in New York City was dedicated, and the forty-hour work week went into effect in the United States.   No historical torts news, so on to recent events: 

Reform, Legislation, Policy

• Science Board to the Food and Drug Administration will meet on Oct. 31st to discuss the topic of BPA. (Mass Tort Defense)
• In the meantime, Canada becomes first country to ban BPA baby bottles. (WebMD)
• Republican candidates for AG in Ohio and West Virginia pledge "greater oversight of contingency fee-based contracts and disclosure of contracts with the attorneys general offices, including agreements for outside counsel."   (Legal Newsline)
• GAO issues report on FDA's foreign drug inspection program.  (Report (pdf), LifeSciences Legal Update, Pharmalot)
• Congressional Research Service evaluates constitutionality of federal tort reform legislation.  (Open CRS, Law Librarian Blog)

Experts & Science

• Court finds plaintiffs' expert causation opinions inadmissible under Daubert in the In re Human Tissue Products Liability Litigation MDL.  (NJ Law Journal/law.com, Drug & Device). 

New Lawsuits

• Xbox gamers file consumer class action against Microsoft.  (PC World)
• Passengers sue Lindsay Lohan for "fear and panic" during car chase.  (TortsProf, AP)
• David Duchovny files libel suit against British newspaper.  (SF Gate, Contact Music, NOW Mag)
• City of Tampa votes to sue engineer, builder, and construction manager over cracks that are limiting the capacity of the city's water reservoir.  (St. Pete Times)

Trials, Settlements & Other Ends

• Pfizer settles "substantially all" of the Bextra and Celebrex suits for $900 million.  (Pharmalot, Drug & Device, AP/law.com)
• Two diet-drug trials; two different results:  New Jersey jury awards $3M to the plaintiff in a fen-phen trial against Wyeth.  (Pharmalot).  While in Philadelphia, Wyeth gets a win. (Legal Intelligencer/law.com)
• Trial court applies Oregon's statutory damages cap to an employment discrimination case, finding it constituted a tort within the meaning of the Oregon Tort Claims Act.  (Curry County Reporter)
• Manhattan trial judge grants summary judgment for Lawyers Athletic League in suit by former college basketball player who was injured while playing on a team organized by Milberg Weiss.  (NY Law Journal/law.com)

Appeals

• California Court of Appeals upholds certification of a consumer class action against HP.  (Mass Tort Defense)
• D.C. Court of Appeals hears oral argument in the infamous $54M pants case.  (BLT, WSJ Law Blog, WSJ Law Blog #2, NewsChannel 8, Law.com/AP)
• Florida Supreme Court holds newspapers cannot be sued for putting people in a "false light."  (Court's opinion, How Appealing, Daily Bus Review/law.com)
• Ohio Supreme Court holds Ohio's 2004 asbestos reform statute applies to cases that were pending when the statute became effective.  (Court's opinion, Intl Business Times, AP/law.com, Mass Tort Defense)
• Professor Andrew Morris (U. Illinois) comments on the recent SCOTUS arguments in Altria v. Good.  (Mass Torts Profs)

Damages

• Squabbling over how to slice the money pie delays distribution of Exxon Valdez punitive damages award.   (TortsProf, AP/law.com, Cal Punitive Damages)

Miscellaneous

• Arthur Miller joins Milberg as Special Counsel.   (Mass Torts Prof, NY Law Journal/law.com)

- SBS

Two from the Widener Faculty

Two of my colleagues on the Delaware campus have recently uploaded torts-related pieces to SSRN.  Jean Eggen posted The Synergy of Toxic Tort Law and Public Health:  Lessons from a Century of Cigarettes (forthcoming Connecticut Law Review).  Meanwhile, Martin Kotler posted Shared Sovereign Immunity as an Alternative to Federal Preemption:  An Essay on the Attribution of Responsibility for Harm to Others (forthcoming Hofstra Law Review).

--CJR

Sebok on Judge Weinstein's Decision to Bar Race-Based Actuarial Data

In his latest Findlaw column, Tony Sebok addresses Judge Weinstein's recent decision barring the use of race-based actuarial tables in calculating the lifespan of a severely-injured African-American man who sought future medical expenses, and pain and suffering damages.   Sebok concisely summarizes Judge Weinstein's opinion (pdf), and then provides his critique of the decision.   

Well worth a read. 

- SBS

Five-Year-Old Climbs Six-Foot Fence, Gets on Roller Coaster Tracks

...and, remarkably, is fine.  A five-year-old got over a six-foot fence and onto the tracks of the Pepsi Orange Streak coaster (formerly the Pepsi Ripsaw) at the Mall of America's amusement park.  He was seen by an employee and, after some struggle, removed from the tracks unharmed.

It's another case to put in the hopper when considering how much protection to provide around amusement rides (or, really, any heavy machinery), previously in play in the Six Flags Over Georgia death last summer.  Incidentally, despite rumblings of a lawsuit in that case, as far as I can tell, none has been filed yet.

--BC

Passengers Sue Lindsay Lohan for "Shock, Fear, and Panic" During Car Chase

Three male passengers have sued Lindsay Lohan based on the 2007 car chase that led to the actress's second DUI arrest.   According to People Magazine, the plaintiffs "'felt surprise, shock, fear and panic at Lohan's surprising and sudden act' of allegedly commandeering a car in which they happened to be sitting to chase her personal assistant through the streets of Santa Monica." Nobody was injured in the car chase. 

- SBS

Causation in Court: Working Principles for Toxic Tort Cases

The Washington Legal Foundation has published "Causation in Court:  Working Principles for Toxic Tort Cases" (pdf) authored by Antony Klapper, a partner in the DC office of Reed Smith.

The paper focuses on "toxic substances and disease causation," and proposes the following "six working principles that may render 'causation' a less mysterious element to understand and apply":

1. Causation in science is not synonymous with causation in law, but the gap has closed.
2. Proof of general causation requires, at a minimum, reliable epidemiology and a statistically significant estimated relative risk of more than 2.0.
3. Proving causation does not end with the general causation inquiry. Proof of specific causation is absolutely essential before any causal conclusions can be drawn.
4. Risk assessment is the best tool available to answer questions of causation.
5. Although risk assessment is the best tool available, regulatory rules for implementing risk assessments should not be used, and too often are abused.
6. Where there are multiple exposure sources for the same toxin, a more principled, objectively reliable methodology should be used to answer questions of causation. Concepts such as “substantial contributing” cause should be jettisoned.

(Thanks to Life Sciences Legal Update).

- SBS

Is Electricity a "Product"?

So asks William Ruskin over at Toxic Tort Litigation Blog.  (I missed this nugget back in September, and think it worth mentioning, albeit tardily).   Ruskin comments on a recent Connecticut decision holding that "once electricity entered the homeowner's residence, it constituted a 'product' rather than a 'service' and that plaintiff could  proceed under the Connecticut Product Liability Act."   Ruskin considers this to be the "emerging majority view nationally."

- SBS

The Nation on The Court

The Nation this week has a forum on the stakes in the November election in connection with potential Supreme Court nominees.  David Vladeck (Georgetown) writes a short preemption piece.

--BC

Confidentiality in Settlements

There's a new RAND paper at SSRN, written by James Anderson of that organization, discussing a situation in which not requiring (indeed, not permitting) confidentiality in settling mass tort cases may be beneficial to defendants.  His case study is of the Baycol litigation.  The abstract:

Settlement agreements that require a plaintiff not to disclose or publicize any information about her claim are both common and controversial. Under some conditions, however, a mass tort defendant will rationally choose to discourage such secrecy. A defendant can use publicity to act as a commitment device akin to a most-favored-nation agreement to increase its bargaining power with plaintiffs. The paper uses the real world example of Bayer's cerivastatin litigation as a case study to illustrate this theory in practice and to explore the public policy implications of this finding.

(I was a defense lawyer for Bayer in the Baycol litigation but had no involvement in this paper.)

--BC

Squabbling Over Exxon Punitive Damages

We don't usually get to hear a lot about what happens after money is released to satisfy (part of) judgments, but in the Exxon Valdez case, we do:

It took better than 19 years for Alaska commercial fishermen and other plaintiffs to win sizeable punitive damages from Exxon Mobil Corp. for the disastrous 1989 oil spill in Prince William Sound.

Now that some money is in hand -- about $383 million -- it still could be months away from distribution.

Why?

Because of new legal squabbling among the plaintiffs about how to slice the pie.

--BC