TortsProf Blog

Personal Injury Roundup No. 70 (3/12/10)

Reform, Legislation, Policy

• IL:  Republican state legislator introduces a constitutional amendment which would allow the legislature to cap medical malpractice damages.  The measure could reach the voters in November.  (LegalNewsline)  However, the head of the IL Civil Justice League does not expect the issue to reach the voters this fall.  (LegalNewsline)
• The Pop Tort on punies.  (The Pop Tort)
• MI:  RAND study on auto insurance rates.
• Ron Miller on dram shop liabilty.  (The Maryland Injury Lawyer Blog)

New Lawsuits

• WV:  A McDowell County woman sued a local hospital and doctors for med mal over the death of her husband.  She alleges that after a tumor was discovered, surgery was needlessly delayed and, even after a pathology report determined the tumor was cancerous, one of the doctors refused to believe it.  (The West Virginia Record)
• VA:  A $1M defamation suit against a prominent advocate of child immunizations was dismissed by an Alexandria, VA federal district judge.  The judge ruled the defendant's statement "she lies," made about an anti-vaccination advocate, was not actionable.  (VLW Blog)

Appeals

• SCOTUS to decide if compensation law bars vaccine suits.  (ABA Journal)

Damages

• Appeal of verdict in excess of $105,000,000 for brain damages from med mal results in recovery of $5,357,000.  (Hochfelder/New York Injury Cases Blog)

Miscellaneous

• John Day offers a list to determine whether a person is an employee or independent contractor.  (Day on Torts)
• George Conk on the plaintiff-funded research debate.  (Otherwise) 
• Eric Turkewitz's "Linkworthy" edition.  (New York Personal Injury Law Blog)

Thanks to Mark Behrens and Bill for material this week.

--CJR

   

Introducing Guest Blogger James A. Henderson Jr.

Monday's guest blogger is James A. Henderson, Jr.   Henderson is the Frank B. Ingersoll Professor of Law at Cornell Law School, where he teaches Torts and Products Liability.

After he received both an LL.B and LL.M from Harvard Law School, Henderson clerked for the Hon. Warren L. Jones of the U.S. Court of Appeals for the Fifth Circuit. He then taught at Boston University Law School for twenty years before joining the Cornell Law School Faculty in 1984. His scholarship and teaching addresses theoretical, practical, and process concerns in the fields of products liability and torts. In addition to serving as the co-reporter of the American Law Institute's revision of the products liability portions of the Restatement of the Law of Torts from 1992-1998, Henderson has testified extensively on torts, products liability and insurance before the Senate and Congress, as well as before numerous state legislatures. He has published dozens of articles on torts and products liability.  He is also the author or co-author of several books including The Torts Process (Aspen 7th ed. 2007) and Products Liability: Problems and Process (Aspen 6th ed. 2008). He currently serves as a Special Master in the World Trade Center "first responders" litigation in the U.S. District Court for the Southern District of New York." 

- SBS

   

Pepperdine Torts Symposium

The Pepperdine Law Review is hosting a symposium on April 16^th, 2010 entitled Does the World Still Need United States Tort Law? Or Did it Ever?  The symposium will examine the present and future influence of United States tort law on other nations in light of globalization’s rise and United States tort law’s concurrent retrenchment on many fronts.

Some of the symposium speakers include Michael Bidart (Shernoff,  Bidart  & Echeverria), Ellen Bublick (University of Arizona), Richard L. Cupp (Pepperdine), John C.P. Goldberg (Harvard), Michael D. Green (Wake Forest), Ellen S. Pryor (SMU), Robert L. Rabin (Stanford), Michael L. Rustad (Suffolk), Victor E. Schwartz (Shook, Hardy & Bacon), Marshall S. Shapo (Northwestern), Stephen D. Sugarman (Boalt Hall), and Roger P. Alford (Pepperdine) . International scholars speaking at the symposium include Peter Cane (Australian National University), Bruce Feldthusen (University of Ottawa), Lewis N. Klar (University of Alberta), the Honorable Allen M. Linden (Pepperdine; former judge of the Federal Court of Appeal of Canada), and Jane Stapleton (University of Texas).

The Honorable Allen M. Linden will be honored at the symposium for his enormous contributions as a tort law scholar and teacher both in Canada and in the United States.

A limited number of stipends are available for law professors who wish to attend the symposium. Please contact Professor Richard Cupp at richard.cupp@pepperdine.edu regarding stipend applications.

More information regarding the symposium is available at: http://law.pepperdine.edu/news-events/events/tort-law/

Also see Al Brophy's post at The Faculty Lounge.

--CJR

Med Mal Reform in PA

Yesterday's Patriot-News (Harrisburg, PA) included an article entitled "State's malpractice data offers ammo for both sides" by David Wenner.  The article includes a link to a decade of statistics about med mal cases in PA.  Some of the findings include a post-tort reform (certificate of merit/anti-venue shopping) drop in med mal filings and a duplication of the national statistic that defendants win around 80% of tried cases.

--CJR

Historians in Tobacco Litigation

Jon Wiener of The Nation has an interesting cover story, "Big Tobacco & the Historians: A Tale of Seduction and Intimidation," in last week's issue.  It's well worth a read, especially to see the view of the tort system from the academic historian's perspective.

Some quick observations:

• The piece addresses R.J. Reynolds's attempt to subpoena an unpublished work-in-progress by plaintiffs' expert Robert Proctor, describing the effort as "harassment-by-subpoena."  The subpoena was ultimately rejected, according to the story, but the story doesn't suggest (at least to me) that the attempt to obtain the material was facially frivolous, dealing as it did with fairly unusual issues of Constitutional dimension.  And of course, it seems fair to observe that Proctor's expert work is compensated, pretty well ($40,000 per year over a dozen years), so I expect he's not having to pay for his lawyers out of his academic salary.  That's not to say I think litigants should engage in discovery as a way to intimidate witnesses, nor that people should have to pay for lawyers to protect themselves from unwarranted harassment -- just that it's not self-evident that that's what happened here as opposed to discovery.
  
  As for the rest of the contention that the discovery process is overly demanding and constitutes harassment of experts, nothing in the story suggests that the depositions, etc., in the tobacco litigation are anything more than what is expected of experts on both sides of every high-stakes case.  Especially in mass tort cases, experts end up getting deposed many times, because those factual issues predominate and are specific to the particular plaintiffs.  Maybe that's a problem in its own right, but I don't see it as something unique to tobacco litigation or unique to plaintiffs' experts.

• More notably, there is, it seems to me, a bit of a disjunction between the types of historian testimony being offered.  (The article notes, with evident disapproval, that there are far more historians testifying for defendants in tobacco litigation than for plaintiffs.  I'm not sure numerical equivalence is or should be a goal, but set that aside.) 
  
  As a general matter, the defense experts testify, per Wiener, that "'everybody knew' smoking causes cancer.  So if you got cancer from smoking, it's your own fault."  If there is a factual dispute about the level of knowledge of the risk of cancer at a particular time, that seems to me to be a reasonable situation to use expert testimony, and like a reasonable thing for a historian to do.  To the extent that plaintiffs' witnesses rebut that testimony, again, that seems reasonable, and indeed, in at least some cases, that's what Proctor testifies about.  So far so good, since the knowledge of a plaintiff of a risk is clearly a relevant factual issue in most smoking cases, and one way to show that is through the general knowledge.  (It also presumably goes to the reasonableness of the defendant's conduct in light of the purported knowledge of consumers about risks -- if a knife is obviously sharp, one generally need not tell the buyer that the knife is sharp.)
  
  On the other hand, a mistrial was granted when Proctor started to testify about the history of racism in tobacco marketing, including highly offensive brands -- brands not, so far as I can tell, marketed by any extant company or defendant -- that included racial epithets in their names.  The mistrial motion is termed a "tactic[] practiced by tobacco lawyers," again with evident disapproval.  In an Engle progeny case, I cannot imagine the relevance of that testimony, no matter how abhorrent the underlying conduct (again, by entities not in the trial) is.  The trials -- again, especially in Engle progeny cases -- are about a single factual dispute between one plaintiff and one defendant.  While that history is disturbing and relevant to moral judgments (and perhaps to punitive damages if the defendant in that case marketed those products), I don't see how it would make anything at issue either more or less likely to be true.  Unless there is a connection between those brands and the defendants in that case, the mistrial motion seems pretty reasonable.

As with many cases of academics venturing into the world of high-stakes litigation (see also Pathophilia's recent post about my Nebraska Law Review article), much of the story suggests some shock that the litigation world is what it is.  And certainly it can be ugly, and perhaps ought to be changed.  But that doesn't mean its ugliness is directed specifically at any particular expert, or solely at experts for one side or another.  It does suggest that experts should be better educated early on about what is likely to happen in litigation.

Update: The Nation has posted an exchange between Weiner and a reader involved in the issues.

--BC

(In case it is of interest, I have never done work for the tobacco industry or tobacco plaintiffs, and have had no private clients of any sort for well over a year.  Maybe two.)

Big Name Food Products Drop Corn Syrup As Ingredient

The Wall Street Journal reports that several food manufacturers are replacing high fructose corn syrup with sugar in many big name products, such as Wheat Thins and Gatorade:

More big-name food and beverage products—including Kraft Foods Inc.'s Wheat Thins —have begun dropping the ingredient in favor of sugar, despite a big difference in cost, saying they are responding to consumer preferences for ingredients perceived as more natural. 

ConAgra Foods Inc. in May will start replacing the sweetener with sugar in its Hunt's tomato ketchup. "That's what consumers are looking for—simpler ingredient listings and ingredients they are familiar with," ConAgra spokeswoman Teresa Paulsen said. ConAgra said consumers preferred the taste of the new product in tests.

- SBS

Supreme Court Grants Cert in Vaccine Preemption Case

Civ Pro Profs have the details.

- SBS

McCann on “Game Presentation” and Torts: The Unappreciated Dangers of Flying Hotdogs

   Courts generally turn to industry standards for determining the duty owed by owners and operators of professional sports facilities to their customers.  They also find that people attending sporting events assume many risks of injury posed by on-field activities.

The classic example of those points can be found in Major League Baseball, and specifically through application of the “baseball rule” to injuries caused by foul balls.  This not-so-creatively worded rule provides that ballpark operators need only provide ordinary screening for the area around home plate and other areas where fans may be uniquely susceptible to injury.  

 

Even if those operators fail to provide such screening, they can still argue the affirmative defense of assumption risk—namely, that fans are aware that balls and even bats can fly into the stands during a game.  Not only should common sense encourage fans to pay attention—so the thinking goes—but the public address announcer frequently reminds them to do so.  Also, their tickets usually contain a waiver, albeit in tiny font and in legalese, on the back.

 

Although the baseball rule and assumption of risk doctrine do not always preclude liability for ballpark operators, they often do.  Fans injured by foul balls have a poor record suing teams and stadium operators.  For liability to arise, there normally has to be an unusual set of facts, such as view-obstructing stadium construction, that contributed to the fan’s injury.

 

But what about injuries caused by on-field activities that, though sponsored by the team/stadium operators, are not actually “part of the game”?  More specifically, what about injuries caused by promotional activities and entertainment that occur between play and that sometimes involve fans trying to catch an item, such as a T-shirt, launched by a stadium employee? 

 

If you’ve been to an NBA game recently, you know what I’m talking about it.  The NBA has a name for it: game presentation.  The basic gist of game presentation, which has become a key marketing strategy, is to entertain fans at all times during a game, including when the game isn’t being played (e.g., timeouts; stoppages in play).  For younger fans, or those with short attention spans, game presentation can be great fun; for others, it can seem distracting and stupid.  There are dance routines.  Tricks by mascots.  Circus performers who try to integrate basketball into their routine.  As someone who has been to many Boston Celtics games over the last 25 years, I can’t emphasize how different games are today from those during the Larry Bird era.  

 

Frequently game presentation provides opportunities for fans to receive “stuff” hoisted at them by on-field personnel.  Take the mascot.  Some teams will use its mascot to point at people seated in a particular section and then, using a slingshot or air gun, shoot an item up to those people, who will jockey for position to catch it.  It’s a seemingly harmless and fun affair, though fans sometimes push each other for the thrill of catching an item worth, at most, 10 bucks hoisted at them.  Also, there’s no real opportunity for fans sitting there to “opt out”, other than, perhaps, oddly requesting (and being able to purchase) a seat that mascots cannot reach. 

 

Game presentation is not unique to the NBA.  It’s also found in Major League Baseball.  And as of last week, it’s generated a torts lawsuit.  In Coomer v. Kansas City Royals, John Coomer, who was sitting six rows up from the third base dugout during a Royals game last September, became the victim of a flying hotdog.  Literally.  According to Coomer’s complaint, the Royals’ mascot, Slugger, used an air gun to shoot hotdogs into the crowd during a break in the game.  Slugger, who was standing atop the third base dugout, then put down the gun and started throwing hotdogs from behind his back, so he apparently did not know where they were going.

 

We all know the expression, “It’s all fun and games till someone loses an eye.”  Who would imagine that a hotdog could cause such an injury?  According to Coomer, a hotdog indeed caused him a serious eye injury.  He claims that he was a mere “few feet away” from Slugger when Slugger’s errant, behind-the-back throw led to Coomer’s left eye getting hit by a hot dog.  Coomer suffered a detached retina and other eye damage.  Coomer’s complaint doesn’t address how he could have been seated six rows up from third base yet only a “few feet” from Slugger, who was atop the third base dugout (maybe Slugger ventured up into the crowd or Coomer took a stroll down to field level, though the complaint doesn’t state so).

 

Coomer claims that as an invitee, he was owed the highest protection of safety, and that the Royals, through their employee—the unnamed artist performing as Slugger—failed to exhibit the requisite care.  Coomer has also filed a battery claim.

 

The baseball rule, which was premised on dangers from actual baseball play, arguably should not apply to game presentation, which is about entertaining when play does not occur. 

 

As to assumption of risk, it would seem that Coomer had some awareness of Slugger’s antics; Slugger began with an air gun and then turned to throwing.  If Coomer was indeed seated six rows up, it would seem that had he been paying attention, there was a good chance he could have reacted. 

 

But should fans be obligated to pay attention when the game isn’t being played?  Coomer may have bought a game ticket to watch a game, not to watch Slugger or deal with Slugger’s hot dog firing/throwing.  Put another way, should games be viewed as one event—from the first pitch to the last, from tipoff to the final buzzer—or are they really two events, one being what takes place during the actual plays, the other being what happens between plays?

 

- Michael McCann

Associate Professor of Law

Vermont Law School