January 22, 2010
Personal Injury Roundup No. 63 (1/22/10)
Reform, Legislation, Policy
- Tobacco companies must disclose cigarette ingredients to FDA in June. (AP/ABC News)
- "FDA issues warning about BPA exposure." (CBS News)
- Iraqi government contemplating class action suit against private security firm Blackwater for injuries to Iraqi civilians. (AP/Business Week)
- NYC woman sues city after her 15-year-old daughter dies in foster care (NY Daily News)
- NY Civil Liberties Union brings federal class action lawsuit against city for alleged abuse by school cops. (WPIX, WNYC)
- Four Charleston firefighters sue Sofa Superstore alleging that a tragic 2007 fire at the store, which killed 9 Charleston firefighters, caused the survivors to suffer numerous ailments including post-traumatic stress and depression (Charleston City Paper)
- Florida federal court certifies yogurt class action for unfair trade practices claims. (Consumer Class Actions & Mass Torts)
Trials, Settlements and Other Ends
- Chicago-area med-mal case settles for $7.5M (Chicago Sun-Times)
- 2009 California Punitive Damages Year in Review. (Cal Punitive Damages)
- Punitive damages for cell phone use while driving? (TortTalk)
Thanks to Gil Lenz for material this week.
January 20, 2010
Monday's Guest Blogger: Mike Green
Mike Green is the Bess and Walter Williams Distinguished Chair at the Wake Forest University School of Law. He currently serves as a Co-Reporter for the Restatement (Third) of Torts: Liability for Physical Harm, a publication of the prestigious American Law Institute. Mike is a co-author of one of the best selling Torts casebook and of the most popular Products Liability texts. He was ranked as the 6th most cited law professor writing about torts and product liability in a recent survey. He is a co-author of the Reference Guide on Epidemiology in the Federal Judicial Center’s Reference Manual on Scientific Evidence, which serves as a reference on scientific disciplines for federal judges. He has a pilot’s license and enjoys flying around North Carolina and beyond. He and his wife, Carol, have two sons and a daughter.
Suit Against Exxon for Alleged Radiation Exposure Underway
Business Week has the details. The plaintiffs (nineteen among thousands of people with related claims) are former pipe workers and they allege that Exxon knew as early as the 1930s that their drilling pipes were contaminated but didn't inform regulatory agencies until 1988.
Exxon asserts that it did nothing wrong and contends that the radiation levels that were there are insufficient to cause harm. The story suggests that the plaintiffs are seeking medical monitoring and punitive damages -- it makes no reference of any current injuries. Three workers who do have cancer settled prior to trial; none of the current plaintiffs have cancer.
The owners of the property where the plaintiffs worked obtained a $1 billion punitive damages award against Exxon in 2001; that amount was reduced to $112 million and paid. In those appeals, a Louisiana appeals court called Exxon's conduct "inexcusable."
January 19, 2010
Partlett on Fischer
David Partlett (Emory) has posted to SSRN his symposium introduction celebrating the scholarship of David Fischer. Entitled David Fischer, the Fox (a), the abstract provides:
This essay recognizes the seminal scholarship of Professor David Fischer. The piece notes that scholars in modern tort theory are either splitters or lumpers. Referring to Isaiah Berlin’s dichotomy, they are either hedgehogs or foxes. Fischer is a fox (a splitter) in a world of hedgehogs (lumpers). Fischer does the hard analytical work on the interior of the law that uncovers problems and dilemmas for courts as they go about ascribing responsibility for wrongful acts. The piece shows this by reference to two interior tort problems: (1) liability for lost chances, and (2) causation in over-determined cases.
Of course, I am partial to Berlinian analyses of tort law.
Wajert, Beck & Gallo on "Reduced Legal Oversight For FDA Warning Letters Amplifies Compliance And Liability Risks"
The Washington Legal Foundation has published a "legal backgrounder" piece by Sean Wajert, Jim Beck and Vincent Gallo (all of Dechert) titled "Reduced Legal Oversight for FDA Warning Letters Amplifies Compliance and Liability Risks. (pdf)" The piece reviews the impact of the FDA's new policy eliminating legal review of regulatory letters.
Medical Malpractice And the Health Reform Bills
In today's Los Angeles Times, Tom Hamburger and James Oliphant report on the lobbying efforts to keep medical malpractice reform out of the health care reform bills:
....With Democratic strategists looking for ways to woo Republican support for the overall healthcare bill, changes in so-called tort law seemed likely. Even President Obama in a speech to the American Medical Assn. said he recognized the issue as a problem.
But after a massive lobbying campaign and party-line votes in Congress, the malpractice system is largely untouched by the Democrats' healthcare overhaul. Drug makers and the insurance industry, in contrast, were forced to make costly concessions....
January 18, 2010
Buzbee's Introduction and Conclusion in "Preemption Choice: The Theory, Law and Reality of Federalism's Core Question"
William W. Buzbee (Emory) has posted the Introduction and Conclusion chapters from "Preemption Choice: The Theory, Law and Reality of Fedralism's Core Question" on SSRN. The abtract provides:
This posting provides the covers and introductory pages, Introduction and Conclusion from the Preemption Choice book published by Cambridge University Press. The book takes a different approach to preemption than the usual focus on judicial preemption doctrine. Instead, prompted by increasingly aggressive executive branch assertions of preemptive power in recent years and a burgeoning body of preemption decisions in the courts, the book’s chapters analyze preemption as fundamentally a question of regulatory design choice by numerous actors and institutions. Each chapter offers its own focus and analytical frame, but a theme explored throughout the book is that judges, policymakers and scholars assessing preemption choices should pay greater attention to the benefits of regulatory overlap and interaction, especially opportunities for regulatory learning. A place undoubtedly remains for preemptive regulation, but preemptive regimes also have costs.
The book starts in Part I with three chapters examining underlying federalism theory, history, and variables influencing policymakers’ choice of whether to make federal law preemptive of state regulatory or common law. After Professors Robert Verchick and Nina Mendelson lay out central concepts and debates over preemption, especially in light of federalism theories, Professor Robert Schapiro explores the concept and benefits of “polyphonic federalism.” Professor David Vladeck looks at the effects of preemptive regimes, especially on common law claims, in light of prevalent forms of regulatory failure. Part II offers two chapters exploring the “layered government norm,” focusing on the politically prevalent choice to retain concurrent and overlapping federal and state regulation. Professor Trevor Morrison argues that the role of state attorneys general should be specially protected from preemption claims. Professor William Buzbee explores the distinctions between federal regulatory floors and ceilings, showing how floors preserve the benefits of institutional diversity. Part III focuses on judicial preemption doctrine and interpretive choices, including Professor Christopher Schroeder’s succinct canvassing of Supreme Court preemption doctrine, Professor Sandi Zellmer’s analysis of the frequent judicial failure to give weight to savings clauses, and Professor Robert Glicksman’s chapter examining federal preemption arguments even in the face of federal inaction. This Part also includes a chapter by Professor Bradford Clark, who argues that due to the U.S. Constitution’s procedural hurdles to creation of ‘supreme” federal law, preemption debates require close attention to the process generating claims of preemptive effect. Professor William Funk’s chapter explores the preemptive effects of agency actions. The closing Part IV starts with Professor Thomas McGarity’s chapter analyzing the “regulation-common law feedback loop” and the resulting mutual learning that is facilitated by non-preemptive regimes, while Professor Andreen offers insights from the experience of delegated program federalism under the Clean Water Act. The part’s last chapter, co-authored by Professors David Adelman and Kirsten Engel, draws insights from biological adaptation and modern ecosystem theory for preemption choice, favoring regulatory regimes allowing for dynamism and adaptation. The book’s closing chapter by Professor William Buzbee distills insights from the chapters to derive a menu of preemption choice variables.