TortsProf Blog

Washington Absestos Duty to Warn Companion Cases

On Thursday, the Washington Supreme Court, by a 6-3 vote in companion cases, held that makers of nonhazardous component parts, such as pumps or valves, have no duty to warn about asbestos products (like insulation or replacement gaskets) made by others and attached to the components post-sale, such as by the Navy.

Simonetta v. Viad Corp. [pdf] is here: Download simonetta1.pdf; Braaten v. Saberhagen Holdings [pdf] is here: Download braaten1.pdf.

Oral argument in a similar appeal before the California First District Court of Appeal (Taylor v. A.W. Chesterton) is scheduled for December 18th in San Francisco.

Thanks to Mark Behrens (Shook, Hardy & Bacon) for the tip.

--CJR

Shapo: Experimenting with the Consumer

Marshall Shapo (Northwestern) has a new book available from Greenwood Publishers:  Experimenting with the Consumer:  The Mass Testing of Risky Products on the Public.  Here's the abstract:

Experimenting With The Consumer exposes the hazards of the mass-market experimentation in which every American consumer and worker is unwittingly tapped for product risk data by manufacturers, scientists, and regulators. Vioxx, Heparin, Avandia, Paxil, fen-phen, estrogens, silicone implants, pacemakers, formaldehyde in FEMA trailers, C]60 buckyballs in coatings ... the headlines are increasingly filled with hidden risks coming to light in popular products years after federal agencies approve them for the American public. Shapo shows readers how to get past unreasonable trust or fear and make the best risk-management choices for themselves and their families. He walks them through what questions to ask before consenting to be in a clinical trial; how to evaluate the implied bold-print claims against the small-print disclosures in advertisements for medical products; how to uncover product and environmental risks in their homes, workplaces, supermarkets, and neighborhoods; how to assess and control product risk while maximizing consumer choice and benefit; how to pressure government to tighten consumer protection; and how to seek legal redress.

Through a diverse selection of dramatic case studies, Shapo lays bare the incentives of companies and entrepreneurial scientists to fake or obscure experimental data before and after government approval; the fights between interested and disinterested scientists over data; the fights between scientists and doctors over patient rights; the campaigns of activists against government agencies to release experimental drugs; the impact of the journalistic and promotional media on public knowledge and perception of product risk; and the marketing tricks that manufacturers use to harness sexual desire to product launches and to shape the prescription choices of physicians.

--CJR

Personal Injury Roundup No. 18 (12/12/08)

As I sit amid the bluebooks, here's what's new in torts...

Reform, Legislation, Policy

• New Trucking Regulations Aim to Increase Safety (Day on Torts)
• Is CAFA Unconstitutional in Some Applications?  Mark Moller (DePaul) says yes  (Wolfman/Consumer Law & Policy Blog, Solum/Legal Theory Blog, Olson/Point of Law)
• Failure to Clearly Define "Serious Injury" Blamed for Problems in NY's No-Fault Law (Turkewitz)
• Arizona Legislator to Re-introduce Bill to Raise the Burden of Proof for Negligence in Emergency Rooms (AZCentral.com)  (I commented on this bill in a post last year)

New Lawsuits

• Woman Falls on Uneven Sidewalk, Sues Nez Perce County in Idaho (Lewiston Tribune)
• A Los Angeles Federal Judge Ruled that Offering Safer Replacements After a Recall Does Not Shield Retailers from a Class Action (San Francisco Chronicle via Tort Deform)

Trials, Settlements & Other Ends

• NYPD Tort Settlements (WNYC)
• Austin settles police shooting lawsuit for $1 million (Statesman)

Appeals

• Dunkin' Donuts Owner Argues that Online Forum Host Must Reveal Identities of Those Posting Allegedly Defamatory Remarks about His Restaurant (Olson/Overlawyered)
• Illinois Supreme Court Excludes Settling Defendants From Jury's Allocation of Responsibility When Case Goes to Trial Against Remaining Defendants (Opinion [pdf])
• Maryland Decides Snow and Ice Slip and Fall Case Based on Assumption of Risk; Extensive Coverage from Ron Miller at The Maryland Injury Lawyer Blog

Miscellaneous

• Stier on Freedom and Menthol Cigarettes (Mass Tort Lit Blog)
• New Hampshire Suspends Jury Trials and Leaves Judgeships Vacant (ABA Journal, Turkewitz)
• Products Liability Prof has a helpful post entitled "Recent Developments in Safety Law For Foreign-Sourced Products"

Thanks to Bill and Mark Weber for material this week.

--CJR

Canadian Class Action Invokes Rylands, Alternative Theories

A group of neighbors in Ontario have filed a class action against multiple parties for loss of property values due to water contamination.  The Timmins Daily Press reports plaintiffs allege defendants are “liable in negligence, nuisance, trespass and pursuant to the doctrine of strict liability cited in Rylands versus Fletcher, a court case where a landowner was found liable for damages to another.”  The article actually discusses Rylands for several paragraphs.  The full story is here.

--CJR

Liptak on Williams v. Philip Morris

Here.

--BC

AALS Torts & Compensation Newsletter

With permission, it's here: Download 2008_torts_section_newsletter.pdf [PDF].

--BC

Waxman Proposes Limited Ban on Direct-to-Consumer Drug Advertising

Representative Henry Waxman (D-CA) would like to give the FDA the authority to ban direct-to-consumer advertising for new medicines. Reuters has the full story. 

- SBS

Med Mal & Punitive Damages

An article posted on law.com drew a response on LitigationAndTrial.com, pointing out some misconceptions about punitive damages and medical malpractice.

(h/t Eric Turkewitz)

--BC

Too Much Drug Safety Information?

Today's Wall Street Journal reports on whether the large amount of drug safety information available to the public could be harming consumers:

Too much information about drug safety -- disseminated through media, online alerts from consumer watchdog groups and even by the Food and Drug Administration itself -- might overwhelm patients and raise undue alarm, some medical professionals caution. Consumers may forget about the benefits of a medication if they focus only on risk. And the health consequences associated with stopping a medication, particularly for a chronic condition, may be far worse than the possibility of a side effect.

A Pfizer Inc. survey of 300 medical professionals in March found that 89% of respondents were at least somewhat concerned that patients might stop their medications if potentially negative safety information was released to the public too early.

- SBS

Why Bad Hospitals Stay Open

In the latest article in its "Evidence Gap" series, The New York Times examines why bad hospitals stay open, pointing to a lack of national oversight as a culprit:

Unlike some other nations, including France, the United States has no federal agency charged with hospital oversight. Instead, it relies on a patchwork of state health departments and a nonprofit group called the Joint Commission that sets basic quality standards for the nation. Hospitals are rarely closed or hit with significant financial penalties for hurting patients.

- SBS

Pools Race to Reconfigure Drains

The local paper has an article about public pools' efforts to get into compliance with the impending federal requirement for safer drains. 

The Virginia Graeme Baker Pool and Spa Safety Act is administered by the U.S. Consumer Product Safety Commission, and it specifies that all drains sold after the deadline must meet the new specifications. The regulation mandates that all public pools with a single main drain, other than an unblockable drain, have additional systems designed to prevent suction entrapment.

Of course, injuries in pools of all sorts frequently results in tort litigation, probably most famously by former Senator John Edwards, who sued in connection with a pool drain injury, a suit that settled for $25 million.

--BC