Saturday, November 8, 2008
I'm now on Twitter.
Note that I am not just posting there about torts-related matters; it'll include some of that, but also just the day to day minutiae that seems to be the coin of that realm. So far (one day!) it's included some torts stuff, but also a heads-up as to what I was doing last night (went to see Brother Ali) and so on.
Friday, November 7, 2008
The first week of November included a historical election, and the following news from the world of torts:
Reform, Legislation, Policy
- NYT Magazine article exploring the safety of drugs manufactured in China, and the FDA's overseas inspection program. [NYT]
- Speculation begins on new head of FDA. (WSJ Health Blog, WSJ Health Blog #2, Legal Times/law.com, WSJ, Drug & Device, Pharmalot)
- FDA sends in U.S. marshals to seize tainted heparin. (USA Today)
- Biopure Corp. filed a defamation suit against a senior NIH official who co-authored a JAMA article about Biopure's product, Hemopure. (Pharmalot)
- Minnesota sued Eli Lilly over Zyprexa marketing. (Pharmalot, CNN)
Trials, Settlements & Other Ends
- Whoa: Keanu Reeves not liable in paparazzi suit (Reuters, E! Online)
- Pennsylvania judge dismisses complaint alleging that the plaintiff's breast cancer was caused by hormone replacement therapy. Dismissed case joins others consolidated on appeal in the Pennsylvania Superior Court. (Legal Intelligencer/law.com)
- US Airways settles de-icing products liability suit for $1.8 million. (Phoenix Biz Journal)
- Wyeth coverage abounds. (Drug & Device, FDA Law Blog, WSJ, Pharmalot, MassTort Defense)
- New Jersey appellate court allows wrongful death claim against two passengers who failed to stop and help victim. (Newsday)
- United States Court of Appeals for the Second Circuit reverses summary judgment in Bhopal/ Union Carbide pollution case on procedural grounds. (Court Opinion (pdf), ABA Journal)
- SCOTUS grants cert in another maritime punitive damages case. (Cal Punitive Damages)
- Victor Schwartz, Cary Silverman and Christopher Appel on the Consumer Product Safety Improvement Act of 2008. (Shopfloor/NAM)
Thursday, November 6, 2008
The WSJ published a piece on election day describing various attorney's perceptions of where the civil justice system is likely to head under President-Elect Obama. High on the list for the plaintiffs' bar is legislatively reducing the scope of preemption.
Wednesday, November 5, 2008
The AP (via law.com) reports that the Department of Justice has started an investigation into whether Merck and Schering-Plough's marketing of Vytorin caused "false claims" to be filed with "federal health care programs."
Empirical researchers have begun to explore the influence of apologies on litigant decision making. This research has found that the effects of apologies on decision making are complex, but that apologies generally influence claimants' perceptions, judgments, and decisions in ways that are likely to make settlement more likely - for example, altering perceptions of the dispute and the disputants, decreasing negative emotion, improving expectations about the future conduct and relationship of the parties, changing negotiation aspirations and fairness judgments, and increasing willingness to accept an offer of settlement.
Legal negotiation, however, is often characterized by the involvement of attorneys in the negotiation process. There are reasons to anticipate that attorneys may respond differently to apologies than do their clients. Attorneys as agents occupy qualitatively different roles in the process than do their clients and may have an orientation toward analytical thinking and legal rules that influences their understanding of the implications of apologies. This paper empirically explores how attorneys respond to apologies offered in litigation as they advise claimants about settlement, and compares the reactions of attorneys to those of claimants. While attorneys understand the information conveyed by apologies in ways that are strikingly similar to claimants, attorneys' judgments about settlement when apologies are offered diverge from those of claimants.
Tuesday, November 4, 2008
Lance McMillian (John Marshall- Atlanta) has posted "The Nuisance Settlement 'Problem': The Elusive Truth and A Clarifying Proposal" on SSRN. The abstract provides:
Many analysts have studied nuisance-value settlements and the disruption they pose to the administration of civil justice in the United States. Concerns about litigation extortion have been expressed. Economic models for why nuisance litigation occurs have been offered. Solutions to the crisis have been proposed. Despite this attention, the surprising truth is that actual proof of a nuisance settlement problem simply does not exist. For reasons such as settlement confidentiality, this lack of empirical evidence is not likely to change any time soon. The absence of reliable data has consequences for legal reform. Without an accurate measurement of the impact of nuisance litigation, crafting solutions proportionate to the problem becomes all the more difficult. Because the perception of a litigation crisis stands far ahead of the proof, there is a significant danger that proposals aimed at curbing nuisance litigation will overreach, causing unintended effects.
Still, there is progress to be made. Ultimately, whether a particular plaintiff intends to abuse the legal system by filing a meritless claim comes down to this inquiry: what did the plaintiff know and when did the plaintiff know it? To aid in answering this question, this Article proposes a five-part test for determining nuisance intent. The test focuses the nuisance analysis on how a plaintiff acts to determine what that plaintiff actually believes. It is not enough to look at the face of a complaint and try to divine conclusions about the plaintiff's state of mind. Something more is needed. The test I propose aims to provide that something more. On the deterrence side, I then propose the Nuisance Litigation Sanctions Act, which combines the nuisance intent test with a number of small but important procedural changes designed to heighten the ability of defendants to seek relief against nuisance filings.
Monday, November 3, 2008
Sunday, November 2, 2008
The plaintiff's attorney in the case I discussed here sent along the complaint and exhibits to it: Download Cyclone.pdf [PDF]. Readers who aren't interested in the minutiae of roller coaster operations should probably move along now.
There are a couple of interesting things in the complaint.
First, although the news coverage seems to suggest otherwise, the lawsuit is not just against the city; it also names Cyclone Coasters, Inc., the entity that operates the ride (which is owned by the city). The complaint includes as an exhibit the license agreement between Cyclone Coasters and the city, and it's interesting in its own right, just to see how such an attraction operates.
Second, and probably more interesting, the complaint does seem to allege that the ride was supposed to have a trim brake at the top of the first hill. The decedent's neck allegedly snapped on the first (85-foot) drop. The complaint directly ties that to the alleged failure to replace the "top hill trim brake." There's not really anywhere else that a brake could be that would have had an effect on the rate of speed. That term also appears in the license agreement (at page 62 of the PDF) as something that was supposed to be "replaced" in "Year 1" of the license agreement (which commenced in 2006).
I've ridden the Cyclone at least a dozen times and looked at a lot of photos, and see nothing that I could identify as a brake of any sort at the top of the lift hill. I do believe there is a brake on one of the turnarounds, used primarily for train blocking (i.e., if there are two trains operating, that's part of the system to prevent the possibility of a collision). But I have trouble squaring that with the specific phrase "top hill trim brake."
So either there's a brake I haven't noticed (possible) or they're in fact referring to the turnaround trim brake. That, I think, is plausible. Go look at the picture here. The trim brake is on the far left turnaround (I think you can see some of the mechanics in this picture too). If you then look at this picture you can see that the track in fact goes under itself -- i.e., that at that part of the ride, there's a top layer of track and a lower layer of track. Perhaps the "top hill" reference is to the fact that the brakes are on the top of that part of the ride? Update: To clarify, if this is the case, it causes some trouble for the factual theory laid out in the complaint, since the trim brake midway through the ride (rather obviously) couldn't slow down the ride on the first drop. There are other theories in the complaint -- that, for instance, the ride should have been stopped due to the decedent's injuries and so on.
You can see the trim brake fairly clearly here (if you can watch without throwing up):
I don't know. I've got inquiries into some people who might be able to help, and hopefully I'll have more information.