November 22, 2008
Barker Files Suit in Airplane Crash
Rocker Travis Barker is blaming pilot error and faulty equipment for the September crash in which he was severely injured and four others were killed. The suit focuses on the pilots' decision to abort the takeoff and the condition of the plane's tires, among other equipment. People has the story (and if you scroll to the bottom, you can find out "Who Looked Hot This Week").
November 21, 2008
Updated: Six Flags Kentucky Kingdom Settles Case
Six Flags has reached a settlement with the Lassiter family, whose daughter Kaitlyn had her feet severed when riding the Superman: Tower of Power ride in 2007. Kentucky.com has the almost non-existent details; Biz Journals says that, unsurprisingly, the terms are not being released.
The length of time it took to settle the case is remarkable, and a number of bad facts came out in the interim -- it may well be that those facts, in context, were not as bad as they seemed, but in the amusement industry, it would seem that this was a case that should have been settled a lot earlier.
Update: The local press has some more details; see the Courier-Journal,which notes that the plaintiffs' lawyer claims he didn't want to take the offer.
November 20, 2008
Personal Injury Roundup No. 16 (11/21/08)
One scheduling note: there will be no Roundup next Friday; happy Thanksgiving!
Reform, Legislation, Policy
- Massachusetts doctors say they're practicing defensive medicine out of fear of lawsuits [MassLive.com]
- Allegations of misconduct against FDA scientists [NYT]
Trials, Settlements & Other Ends
- A look back, ten years after the tobacco settlement [NPR, Point of Law]
- Arkansas prof's defamation suit against his students dropped [TaxProf]
- $14.9 million award affirmed in unfenced gas well explosion; punitives 10x compensatories [LegalNewsline.com]
- Epstein on Levine [Forbes, via Overlawyered]
- Levine on Levine [FireDogLake]
- Part of Oklahoma tort reform statute struck down [Journal Record]
- Murtha defamation case heard [TortsProf]
- $12.9 million Accutane verdict [Press release]
- $2.5 million against Imperial Klans of America [Tort Deform]
- Someone who apparently stars in an MTV show liable for $5,000 in compensatory damages and $15,000 in punitive damages for an incident with a tow truck driver [E! Online]
- Scalia's going hunting with, among others, a partner from a big plaintiffs-side firm in Texas [WSJ Law Blog]
- Not in civil litigation presently (though the defendant expects it), but the MySpace case is proceeding criminally [WSJ Law Blog, 2,000 other stories]
Thanks for reading, and again, happy Thanksgiving!
Simons on Consequentialism
As expected, Ken Simons (Boston) has brought a lively discussion to Prawfsblawg. His posts on "Creeping Consequentialism and Insidious Economics" are here and here. Make sure to read the comments too. TortsProf John Oberdiek (Rutgers-Camden) and others have posted their thoughts.
Solomon on Tort Theory
Jason Solomon (Georgia) has posted on SSRN Equal Accountability Through Tort Law. Here's the abstract:
The traditional conception of tort law as individual justice has been revived in recent years, particularly through the idea of "corrective justice." But as corrective justice has had problems gaining traction among scholars and judges, a promising challenger in the individual-justice camp has emerged: civil recourse theory, which sees tort law as a means for empowering individuals to seek redress against those who have wronged them. Civil recourse theory has an advantage over corrective justice in its fit with the structure, concepts and doctrine of American tort law. But it seems to lack a morally appealing norm at its core. Indeed, critics such as John Finnis have charged that it seems to smack of vengeance, and treat such an impulse as morally worthy. Though the civil recourse theorists have pointed to reasons justifying a law of civil recourse, they have thus far stopped short of providing a robust normative justification. This paper seeks to provide such a normative justification. I do so by breaking down the normative case for civil recourse into three parts: first, in cases of accidental harm, why is the victim entitled to feel resentful towards the defendant such that second, she is morally justified in "acting against" the defendant in some fashion; and third, the victim is given access to a state-sponsored mechanism (tort law) for doing so. Though my focus is on civil-recourse theory, I think this discussion can illuminate the normative appeal of a broader set of individual-justice theories of tort law. I also aim to provide a response to those who would eliminate tort law through preemption, or significantly curtail it through "reform" efforts. In response to the question "What is tort law for?," my answer is: helping constitute a community of equals who are answerable to one another, and expected to treat one another with equal respect. Whether or not such an institution is worth having, in light of its costs and effect on other social goals, is for Congress, state legislatures, and citizens to decide. But that is what is at stake.
Larry Solum has more from the text and a recommendation at Legal Theory Blog.
November 19, 2008
The Levine Chat
You can see a chat with Diana Levine, the plaintiff whose case frames the preemption issue in Wyeth v. Levine, here.
November 18, 2008
DC Circuit Hears Defamation Case Against Congressman Murtha
Yesterday, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in the defamation case against Representative John Murtha (D-Pa) for statements he made concerning Staff Sgt. Frank Wuterich's role in the deaths of Iraqi civilians. Wuterich sued Murtha for defamation and sought to depose Murtha regarding the statements. Although Murtha asserted congressional immunity, the district court rejected his argument and ordered Murtha's deposition. Murtha, however, sought interlocutory review by the DC Circuit. The three-judge panel included Judges Judith Rogers, Karen LeCraft Henderson and Harry Edwards.
Mike Scarcella at The BLT reports that Judge Edwards appeared leery of the court's jurisdiction in the case:
Edwards said the court does not generally take interlocutory review on discovery matters “especially when they are in a preliminary posture like this.” The government, Edwards said, has a “real problem” in trying to block discovery.
According to Susan Crabtree at the Hill, Judge Henderson questioned how congressional immunity would apply in this case:
“Who is his master?” Henderson asked. “Do you ever serve the interests of your constituents by making a derogatory comment to the media?”
Congress Investigating FDA Medical Device Review Process
Ed Silverman reports that the House Energy and Commerce Committee is investigating allegations that managers at the FDA Center for Devices and Radiological Health have "corrupted and interfered with the scientific review of medical devices."
In a statement, John Dingell, who chairs the committee, and Bart Stupak, who chairs the Subcommittee on Oversight and Investigations, say they are probing allegations that the FDA “approved or cleared medical device applications in gross violation of laws and regulations….such activity could allow potentially unsafe and ineffective medical devices into the US market.”
More on the story at Pharmalot.
A Flurry of iPhone Class Actions
The Complex Litigator reports on a new class action regarding the iPhone. This new suit alleges that the casing of the iPhone 3G is "defective and prone to cracking." This latest class action joins ones filed back in September regarding the performance of the iPhone 3G on AT&T's network.
November 17, 2008
Chat with Levine of Wyeth v. Levine
FireDogLake will be hosting a chat with Diane Levine and the Alliance for Justice regarding the pending case Wyeth v. Levine. The chat will be tomorrow (Tuesday) at 3:00 eastern, and I am told that you have to be a registered user to submit comments or questions.
Restatement Anniversary Observed
What does one get a Restatement for its tenth birthday? A symposium, evidently. Read about it at our neighbors the Products Liability Prof Blog.
Paxil Test Case Dismissed on Statute of Limitations Grounds
A judge in Philadelphia has dismissed, on statute of limitations grounds, a case against Paxil for failure to warn against an increased risk of suicide. The case was seen as a test case, but, based on the very narrow holding, should have little or no effect on subsequent cases. The story is here.
Thanks to Alberto Bernabe for the tip.
November 16, 2008
The Tobacco Settlement - A Look Back
It's been ten years since the landmark settlement between tobacco companies and the attorneys general of various states. All week, NPR is taking a look back at what has and hasn't changed, with segments airing on both Morning Edition and All Things Considered. The agreement can be seen here [PDF].
Exxon Damages Inching Ever Closer to, You Know, Plaintiffs
The federal judge overseeing the eternal Exxon Valdez litigation rejected a request to modify the plan for distribution of punitive damages, a portion of which will -- maybe, perhaps, soon -- be distributed to plaintiffs while the parties continue to fight over some remaining parts.