November 7, 2009
Judge Requests Mass Tort Status for New Jersey Birth Control Suits
New Jersey Judge Donald Volkert Jr. has requested mass tort status for the products liability suits involving the birth control pills Yaz, Yasmin and Ocella. In his request to the Administrative Director of the Courts, Judge Volkert noted the large number of these cases already pending in NJ state courts, as well as the consolidation of pending federal suits into a federal MDL in Illinois. The NJ Law Journal (via law.com) has more.
November 6, 2009
Personal Injury Roundup No. 57 (11/6/09)
Reform, Legislation, Policy
- San Franciso City Attorney does FDA's job? Kellogg's withdraws "immunity banner" from sugary cereals following letter demand from City Attorney. (TortsProf, The Atlantic).
- Senators Graham and Chambliss propose "loser pays" rule. (Torts Prof, Atlanta Journal Constitution, Pop Tort)
- Health care reform bills include sunshine provisions regarding relationships between doctors and drug companies. (NY Times)
- FDA issues draft guidance on what constitutes a tobacco product "ingredient." (FDA Law Blog)
- Robber can sue store he robbed for injuries sustained in robbery. (CBS Crimesider, MSNBC/AP)
- Family of Connecticut woman injured by neighbor's chimp seek permission to sue state. (BBC)
- Parents of deceased college sophomore sue for Clark Atlanta University for lack of security. (Atlanta Journal Constitution)
- Family of Texas student files suit against fraternity for hazing that allegedly caused son's death. (Fox Houston)
- Chicago deli sued over turkey sandwich. (Jonathan Turley)
Trials, Settlements and Other Ends
- Radio station liable in "Hold your Wee for a Wii" contest. (Injured)
- Jury awards $2.5 million in Baltimore lead paint case. (Bernabe)
- IL Supreme Court on subsequent remedial measures. (TortsProf)
- Texas Supreme Court on damages in legal malpractices actions. (Day on Torts)
- Florida appellate court reverses accutane verdict for lack of causation evidence. (Mass Tort Defense)
- A win and a loss for Pfizer on Preempro punitive damages. (Cal Punitive Damages)
- Oregon Supreme Court hears oral argument in tobacco punitive damages case. (Cal Punitive Damages)
- Texting while driving - NY Times interactive game shows how your reaction times slow.
November 4, 2009
Monday's Guest Blogger: John C.P. Goldberg
John Goldberg is Professor of Law at the Harvard Law School. From 1995 until 2008, he was a faculty member of Vanderbilt Law School, where he served as Associate Dean for Research (2006-08). Professor Goldberg is an author of a leading tort law casebook, Tort Law: Responsibilities and Redress, now in its second edition. He has also published more than 30 articles and essays. A member of the editorial board of Legal Theory and a senior editor of the Journal of Tort Law, he is serving in 2009 as Chair of the Torts and Compensation Section of the Association of American Law Schools.
After receiving his J.D. in 1991 from New York University School of Law, Professor Goldberg clerked for Judge Jack Weinstein of the Eastern District of New York and for Supreme Court Justice Byron White. He earned his B.A. with high honors from the College of Social Studies, Wesleyan University. He also holds an M. Phil. in Politics from Oxford University and an M.A. in Politics from Princeton University.
An expert in tort law, tort theory, and political philosophy, Professor Goldberg is probably best known for his creation and espousal, with Professor Benjamin Zipursky (guest blogging on November 23!), of the "civil recourse" theory of torts.
Senators Graham & Chambliss Introduce "Loser Pays" Legislation
United States Senators Lindsey Graham (R-SC) and Saxby Chambliss (R-GA) introduced legislation on Monday that would require the loser to pay the winner in some medical malpractice suits.
The Fair Resolution of Medical Liability Disputes Act of 2009 would require initial nonbinding arbitration for med mal claims prior to going to court. Either party could reject the arbiter's decision and proceed to trial. However, by so doing, the loser-pays mandate is activated. If the court judgment is less favorable than the arbiter's decision for the party rejecting the arbiter's decision, the rejecting party must pay the opponent's attorney's fees from the date of the arbiter's decision. There is an exception if the court finds such payment would be "unjust." The goal is to reduce the number of "frivolous" lawsuits. The story, courtesy of the Charleston Regional Business Journal, is here.
A European Symposium on Guido Calabresi
Larry Solum at Legal Theory Blog is reporting about a symposium dedicated to the work of Guido Calabresi. Here are the papers:
Roger van den Bergh (Erasmus University Rotterdam (EUR) - Erasmus School of Law), Introduction: The Impact of Guido Calabresi on Law and Economics Scholarship (Erasmus Law Review, Vol. 1, No. 4, 2008)
Roberto Pardolesi and Bruno Tassone (Libera Università degli Studi Sociali (LUISS) Guido Carli), Guido Calabresi on Torts: Italian Courts and the Cheapest Cost Avoider (Erasmus Law Review, Vol. 1, No. 4, 2008)
Claus Ott and H-B. Schafer, The Dichotomy between Property Rules and Liability Rules: Experiences from German Law (Erasmus Law Review, Vol. 1, No. 4, 2008)
Ben Depoorter (University of Miami - School of Law), Property Rules, Liability Rules and Patent Market Failure (Erasmus Law Review, Vol. 1, No. 4, 2008)
Michael G. Faure (University of Maastricht - Faculty of Law, Metro), Calabresi and Behavioural Tort Law and Economics (Erasmus Law Review, Vol. 1, No. 4, 2008)
November 3, 2009
Iowa Supreme Court on Subsequent Remedial Measures
The Iowa Supreme Court recently addressed the subsequent remedial measures doctrine. Under this evidentiary rule (adopted in Iowa and other states), evidence of subsequent remedial measures cannot be used to prove negligence but can be used to prove strict liability. The court held "that evidence of subsequent remedial measures, which a party seeks to introduce in an action based on a design defect claim, a failure to warn claim, or a breach of warranty claim brought under either theory, is not categorically exempt from exclusion . . . because these claims are not strict liability claims. Instead, trial courts must analyze the reason a party seeks to admit such evidence. . . . "
San Francisco vs. Snap, Crackle & Pop
San Francisco's City Attorney has sent a warning letter to the Kellogg Food Company about the big "Now Helps Support Your Child's Immunity" banner on its Rice Krispie's cereals. The City Attorney expresses concern that the "Immunity Claims may mislead parents into believing that serving this sugary cereal will actually boost their child's immunity," and asks Kellogg's to provide evidence substantiating the claims.
Thanks to Tony Sebok for the heads-up on this one.
November 2, 2009
Solicitor General's Views Sought in Alien Tort Statute Case
The SCOTUSBlog has the relevant links. The issue:
Whether Alien Tort Statute (ATS) jurisdiction can extend to a private actor based on alleged state action by a foreign government where there is no allegation that the government knew of or participated in the specific acts by the private actor claimed to have violated international law. Whether, absent state action, a complaint that a private actor has conducted a clinical trial of a medication without adequately informed consent can surmount the “high bar to new private causes of action” under the ATS.
(Note: I initially titled this as a cert. grant. It wasn't.)
Sex Offenders, Disclosure, and Tort Law
Shelley Ross Saxer (Pepperdine) has posted to SSRN 'Am I My Brother's Keeper?': Requiring Landowner Disclosure of the Presence of Sex Offenders and Other Criminal Activity. Here is the abstract:
Under common law principles, landowners do not have a duty to protect or warn others against the criminal activities of others that occur on their premises. However, the modern trend in tort law has been to hold landowners liable for injuries occurring on their premises if the criminal activity is reasonably foreseeable and, in some jurisdictions, also imminent. While quite a bit of case law has developed over recent years as to a landowner’s liability for criminal acts that have occurred on the premises, a landowner’s liability for failing to disclose potential harm from criminal activity to prospective tenants or property buyers has not been established. It has also not been established whether a landlord has the duty to screen prospective tenants to protect other tenants from criminal behavior or a duty to work other tenants of known criminal propensities of an existing tenant. Finally, it is not clear whether a landlord or landowner may refuse to rent or sell to a particular individual or disclose concerns about the criminal propensity of certain individuals to other tenants or property owners without being subject to tort liability or violations of fair housing act statutes.
This Article explores the landowner liability issues of whether to disclose or warn others about future criminal activity that might occur on the premises in the future. Part II describes the historical development and recent trends in tort law of premises liability for the criminal acts of others. Part III addresses the issue of whether landowners have a duty to disclose or warn of premises susceptibility to criminal acts. Megan’s Law legislation, dealing with community notification about the presence of convicted sex offenders, raises a particular troublesome disclosure issue. Part IV examines landowner liability for refusing to rent or sell to individuals with criminal backgrounds or for disclosing to others the criminal propensity of a third party. The Article concluded by suggesting that landowners who are aware of reasonably foreseeable criminal activity against occupiers of their premises should have a duty to disclose this information to either prospective or existing occupiers, particularly when there is a potential danger of harm to children.