December 19, 2008
Personal Injury Roundup No. 19 (12/19/08)
Note: There will be no roundup for the next two weeks. We'll return with the roundups on January 9. Posting will otherwise continue, though perhaps sporadically, over the break.
Last week, Chris wrote from amidst Blue Books. This week, I'm in the same situation...
Reform, Legislation, Policy
- ATRA releases its annual (and trademarked!) Judicial Hellhole report [ATRA.org, Overlawyered (with other links)].
- Eric Turkewitz is underwhelmed [NY PI Lawyer Blog].
- So is Ron Miller [Maryland Injury Attorney Blog].
- Manhattan Institute's Trial Lawyers Inc. looks at Louisiana [Trial Lawyers Inc.].
- Amusement parks keep opening coasters in California despite asserted end due to application of common carrier status [TortsProf].
- Ongoing discussion of possible required disclosures of tort liability in securities filings [ABA Journal, Drug & Device Law Blog].
- New Manhattan Institute paper pro-loser-pays [Manhattan Institute].
- Brawl -- literally -- over class action [NoLa.com].
- Strange things afoot at the IHOP: suit against NFL players for fight in pancake place's parking lot [Deadspin].
- ...and a domestic violence tort suit against a Padres outfielder [SignOnSanDiego, Deadspin].
- Overserving allegedly caused husband to beat wife [Chicago Tribune].
Trials, Settlements & Other Ends
- Exam-like facts: University of Vermont settled a lawsuit for wrongful death brought by widow of man killed in car crash with driver who fell asleep; driver had been (allegedly negligently) allowed to drive home after receiving clinical trial drugs [Burlington Free Press].
- Tennessee excessive force tort suit settled; same cop had earlier suit settled in different Tennessee town [MSNBC].
- Dennis Quaid & wife settle suit against hospital over kids' overdose [Injury Board].
- Makers of Airborne settle deceptive advertising suit [MSNBC].
- New York cigarette suit rejected by Court of Appeals [Legal News Line].
- Supreme Court rejects preemption on "light" cigarette claims [Supreme Court, Tort Deform].
- NYT on that case [NY Times].
- California Supreme Court reads Good Samaritan protection narrowly [Law.com].
- Feel free to become a Facebook fan of The Tippling Badger, a fictional bar that was featured in my Torts exam this semester.
Thanks to Ron Miller for tips.
Happy holidays, everyone!
December 18, 2008
No full posts today
I'm on jury duty today, so no full posts today most likely.
I will note briefly that there is something odd about seeing lawyer ads on the TV while in the jury pool room.
Noah on "Product Stewardship" in Torts
Lars Noah (Florida) has posted Platitudes about "Product Stewardship" in Torts: Continuing Drug Research and Education on SSRN. Here's the abstract:
This paper focuses on one emerging aspect of tort litigation against pharmaceutical manufacturers that, if it gained traction, portends a dramatic (and potentially counterproductive) expansion in the prescription drug industry's exposure to liability. A growing chorus of commentators would impose on pharmaceutical manufacturers a broader duty to test and educate (aspects of what they call an obligation of "product stewardship" or "informed choice"). This paper explains the serious flaws in such proposals, but it also suggests one novel basis for imposing liability (distribution restrictions) that might make some sense. Genuine product stewardship, at least if understood as an effort to make the most of a scarce resource, strikes me as far more defensible than the approaches suggested by other commentators.
(Via Solum/Legal Theory Blog)
December 17, 2008
Australia Redefines Old Tort of "Breach of Confidence"
The Australian reports that the Victorian Court of Appeal in Australia has expanded the old tort of "breach of confidence" to allow liability even if the publisher of material created in confidence was "unaware the material in question is covered by the relationship of confidence."
Before last week's ruling, damages were only payable for a breach of confidence in Australia if the plaintiff had suffered a psychological or psychiatric injury. But the Court of Appeal liberalised this test so damages can be claimed in Victoria by those who are merely distressed by publication of material created during a relationship of confidence. Because the decision affects material generated during a relationship of confidence, it has a narrower effect than the proposed statutory tort for breach of privacy that the Federal Government is considering.
December 16, 2008
British Group Claims Child Food Ads Are "Misleading"
The BBC reports that the British Heart Foundation has called for tougher regulation of child food advertisements in Britain:
It suggested that companies used a variety of "misleading" techniques to make them seem healthier than they actually are. One example it gave was Kellogg's "Coco Pops" Cereal Bars, which are marketed as the "best choice for a lunchbox treat".
Manufacturers, however, noted that the advertisements comply with current British and EU regulations.
"Judicial Hellholes 2008"
- West Virginia
- South Florida
- Cook County, Illinois
- Atlantic County, New Jersey
- Montgomery and Macon Counties, Alabama
- Los Angeles County, California
- Clark County, Nevada
Rio Grande Valley and the Gulf Coast of Texas, Madison County, Illinois, Baltimore, Maryland, and the City and County of St. Louis make the "watch list." An executive summary is available on-line.
December 15, 2008
Altria Group v. Good decided
Chicken Little, Tort Law, & Roller Coasters Revisited
The nature of blogging is such that it's easy to lose a long-term view of things (at least for me); an event occurs, predictions are made, and we forget about it.
But this time of year, where amusement parks tend to start announcing new attractions, always reminds me about one California Supreme Court ruling that happened a few years ago, and reminds me to check in on the predictions that ensued. (The start of summer triggers a similar thought process, as you can see from a post I did in 2006.)
The case (Gomez v. Superior Court, 35 Cal. 4th 1125 (2005)) involved the Indiana Jones ride at Disneyland, and the issue was whether amusement rides should be classified as common carriers. The Supreme Court concluded that they would be. I thought the Court was probably right, even if I'd draft a common carrier statute differently (I wrote here about the lower court's decision, and a little here after the Supreme Court decision; Tony Sebok disagreed here. A note, California's Extension of Common Carrier Liability to Roller Coasters and Similar Devices: An Examination of Gomez v. Superior Court of Los Angeles, 34 W. St. U. L. Rev. 29 (2006), by Mark Franklin, agreed with the majority.)
"It puts roller coasters out of business."
As I noted here, the odds of that happening were vanishingly small, for a variety of reasons.
The statute remains unamended, parks continue to operate, and, while they're obviously not immune to the economic situation, so far as I can find, no theme park company has seen fit to mention the California Supreme Court decision in their SEC filings (and I'm fairly sure that the end of roller coasters in California would count as a material risk). To the extent parks are having trouble, none of them blame common carrier status in California.
And indeed, since then, about ten coasters (depending on when you start counting from) have either opened or been announced in California. Another common carrier state, Missouri, has a half dozen. Minnesota has four.
Sky: still there. Wolf: hasn't shown up. Roller coasters: still opening.
New Hampshire Med Mal Screening Under Scrutiny
A few years ago, New Hampshire adopted med mal screening panels -- requiring plaintiffs to submit their cases to a panel. While the panel (made up of a doctor, a lawyer, and a judge) (must resist a "...walk into a bar" joke) can't stop a case from going forward, if they vote unanimously in favor or against the plaintiff, the jury is informed of that vote.
Now, according to InsuranceJournal.com, people are trying to see if there's an impact. As the story lays out, the initial indications are unclear; it hasn't made a huge change in costs or speed, but some participants suggest that it just needs to be tweaked.
December 14, 2008
Baker on Liability Insurance at the Tort-Crime Boundary
Tom Baker (Penn) has posted Liability Insurance at the Tort-Crime Boundary on SSRN. Here's the abstract:
This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state's accusations. The crime-tort separation in liability insurance cannot be explained by economic incentives, alone. Morality matters, too. The fact that liability insurance sometimes provides coverage for criminal defense costs suggests that liability insurance institutions could cover a broader swath of crime torts than they do, providing further support for the claim that consequentialist reasoning, alone, cannot explain the observed relationship between liability insurance, torts, and crime. The tort-crime separation reflects and reinforces a concept of liability insurance as protection for defendants, rather than as a fund for victims. In turn, this concept of insurance reflects and reinforces an understanding of tort claims as encounters between particular plaintiffs and defendants, rather than as a price setting or loss spreading insurance mechanism.
(Via Solum/Legal Theory Blog)