Saturday, November 1, 2008
Friday, October 31, 2008
Happy Halloween to you all (I have a skeleton and Eleanor Roosevelt in my house), and please go vote. But only after reading this week's updates:
Reform, Legislation, Policy
- Asbestos litigation: the gift that keeps on giving [ALI-ABA]
- Not quite the right way to describe medians, ABA Journal (but still interesting data) [Point of Law]
- "Last push to deregulate" [Washington Post]
Experts & Science
- The "Evidence Gap," tied into medical devices [NYT]
- Family of man who died after vertebrae broken on Coney Island Cyclone sues; park's lawyers, a tad amazingly, purportedly acknowledge a malfunction that caused the ride to drop too fast -- something that is more or less impossible, at least from my understanding of the ride [TortsProf, Newsday, Brooklyn Eagle].
- Sen. Norm Coleman sues Al Franken for defamation over ads calling him "fourth most corrupt" senator and contending he lives "almost rent-free" in D.C. [Star Tribune]
- Challenger Kay Hagan sues Sen. Elizabeth Dole for defamation for ad tying her to atheism [AP]
Trials, Settlements & Other Ends
- Texas A&M settles 1999 bonfire tragedy litigation [TortsProf].
- Big verdict in hazing lawsuit default [TortsProf]
- Late addition: The Drug & Device guys have some fun describing a serious case involving (insert scary music here) the theft of human tissue! [Drug & Device Law Blog]
- Illinois Supreme Court adopts risk/utility with consumer expectations component; useful teaching case [TortsProf].
- Wyeth commentary abounds with argument Monday; here's one good overview with links to opposing views - the FDA documents are particularly notable [NY Personal Injury Law Blog citing Pharmalot on the FDA documents; see also WSJ Law Blog on the issue and Drug & Device Law Blog responding to the FDA documents released by Rep. Waxman].
- No evidence of holiday bump in personal injury verdicts [Maryland Injury Attorney Blog]
- New blog from DRI [For the Defense]
- Not remotely tort related, but go listen to my daughter interview the Johns from They Might Be Giants [Spare the Rock, Spoil the Child]
Did I mention go vote? Go vote.
And just to put you in a Halloween mood, here's my daughter as Amelia Earhart a couple of years ago:
And my son as a hairy eyeball last year:
Thursday, October 30, 2008
Newsday has some details on the death, in which Keith Shirasawa fractured a vertebrae on the Brooklyn roller coaster (the NYPost's coverage from the time is here; I posted about it here). The Newsday story includes this odd bit:
Lawyers for the amusement park blamed the accident on a malfunction that caused the Cyclone to drop too fast, and that has since been corrected.
His vertebrae was apparently fractured at the bottom of the first drop. There are really only three things that affect the speed at that point -- the length of the drop, gravity, and the angle. The park could, I suppose, change the lift hill chain speed (starting out faster makes it get faster) or install a skid brake on the drop, but I don't think either of those things have occurred. (Update: the lift hill only makes a difference if the train is still engaged after the train gets past the crown of the hill; on most coasters, including, I am told, the Cyclone, it is not so engaged.)
Of note, the lawsuit is against the city for failure to inspect, rather than against the park itself.
On a fairly cursory look through PACER, I can't find the complaint.
A new issue of bepress's Journal of Tort Law is now available. It features three articles:
Operationalizing Deterrence: Claims Management (In Hospitals, a Large Retailer, and Prisons) by Margo Schlanger
A Watershed Moment: Reversals of Tort Theory in the Nineteenth Century by Jed Handelsman Shugerman
Three Models of Constitutional Torts by David Zaring
Wednesday, October 29, 2008
Nearly a decade ago, the annual Texas A&M bonfire collapsed, killing a dozen people. The school has now settled litigation arising from the tragedy, agreeing to pay $2.1 million and promising to have engineering oversight if the bonfire ever returns to campus. (Since the collapse, the bonfire has been held off-campus.)
The university had claimed immunity from suit, but an appellate court rejected that claim earlier this year.
In a great teaching case (pdf), the Illinois Supreme Court discussed, at length, the development of defective design standards. In particular, the court examined the use of the risk-utility test versus the consumer-expectation test. The court declined to adopt Section 2(b) of the Restatement (Third) of Torts: Products Liability, but found "its formulation of the risk-utility test to be instructive." (Slip Op. at 30). The court then adopted a formulation of the risk-utility test that incorporates consumer-expectation as a factor consistent with comment (f) to the Restatement.
Thanks to Mark Weber (DePaul) for bringing this case to our attention.
Tuesday, October 28, 2008
In a series of articles, the New York Times explores "the evidence gap." These articles examine "medical treatments used despite scant proof they work and will consider steps toward medicine based on evidence." In the latest piece, Reed Abelson looks at the FDA's process for reviewing medical technology, particularly the "fast track review" process.
ALI-ABA is sponsoring a conference on "Asbestos Litigation: Where Is It Going? When Will It End?" on December 4th-5th in San Antonio, Texas. The program description provides:
This advanced course of study examines the reevaluation of asbestos litigation that is taking place as a result of the backlash against screenings and developments in state tort law “reform.” The course comprises 12 hours of instruction, including one hour of ethics. There are a lot of asbestos conferences, but this one has the “first chair” players covering all aspects of this complex litigation. The faculty not only talks about ongoing developments, but also is in a position to suggest likely future developments in the litigation as well as in filings, medicine, bankruptcy, and insurance.
Monday, October 27, 2008
According to a press release issued by TASER, although it was found 15% responsible for the death of a man tasered by police, the judge, on post-trial motions, vacated the jury's grant of punitive damages. An earlier story on the verdict is available here [PDF], and this page has a lot of Taser-related stories (from a very anti-Taser standpoint).
Sunday, October 26, 2008
The family of a Marietta, Georgia, college student, Tyler Cross, who died in an alleged frat hazing at the University of Texas was awarded $16.2 million in a default judgment against the Sigma Alpha Epsilon fraternity.
Cross, a 2006 Lovett School graduate, fell from the fifth floor of a dormitory during freshman pledge week in the run-up to SAE’s renowned “Jungle Party.” Texas law-enforcement officials discovered that Cross and other pledges had been given half-gallon liquor bottles to drink the night before he died.
Cross’ blood-alcohol level registered 0.19 at the time of his death, more than double the legal driving limit in Texas, after a week of sleep deprivation from hazing, according to the lawsuit.
It's not entirely clear why there was a default judgment; the fraternity exists and blames the default on an administrative error. They are seeking to remove the default and defend the suit. A suit against the alumni advisory group and the housing corporation is pending as well.