December 10, 2010
Personal Injury Roundup No. 88 (12/10/2010)
My exam's written and now I'm just counting down the days to get to start reading 70 answers. But we've got the Roundup to keep us warm, right?
- Suit brought in connection with metal bats in Little League (Sun Times). (Here's a page summarizing the data as of 2006 on the increased speed of hits from metal bats.)
- Parents allege that Four Loko (energy/alcohol drink) led to son's accidentally shooting himself (ABC News).
- $20 million sought in suit against transit authority for running over two pedestrians (one of whom died) (OregonLive.com).
- Excessive force defense verdict upheld in case where police officer shot at suspect 14 times (Reuters).
- Cert. granted in climate change nuisance suit against utilities (ABA Journal).
Reform, Legislation, Policy
- FDA loses appeal, so can't regulate electronic cigarettes (Business Week)
- Interesting look at settlement mills (Drug & Device Law Blog discussing Engstrom piece available here)
- $1 in punitive damages against parish for sex abuse case ($30 million in punitives against the individual defendant) (Philadelphia Inquirer)
- $66 million verdict against exercise equipment manufacturer in case where machine fell on physical therapy assistant (Boston Herald)
Trials, Settlements and Other Ends
- First Levaquin trial ends in $1.82 million verdict against J&J (NY Times).
- Class certification denied in McDonald's obesity litigation (Mass Tort Defense).
Have a great break, and happy grading!
December 9, 2010
House To Take Up Food Safety Bill, But Does It Matter To Consumers?
From The Hill:
The House this week will consider legislation to modernize the nation's food-safety protections, a top Democrat indicated Tuesday.
Although the Senate passed a food-safety bill last week, it contained tax provisions that, according to the Constitution, must originate in the House.
House Majority Leader Steny Hoyer (D-Md.) told reporters Tuesday that the lower chamber this week will take up a new House bill, in hopes of sending it back to the Senate before the weekend.
But would more recalls matter to consumers? No, says a recent New York Times article:
Consumers also seem to be tuning out information on recalls. Researchers at the Food Policy Institute at Rutgers found only 6 in 10 people take the time to look for problem products at home.
December 8, 2010
Twerski & Cohen on "Resolving the Dilemma of Non-Justiciable Causation in Failure-to-Warn Litigation"
Aaron Twerski (Brooklyn) and Neil Cohen (Brooklyn) have posted "Resolving the Dilemma of Non-Justiciable Causation in Failure-to-Warn Litigation." The abstract provides:
Failure-to-warn cases represent a significant portion of product liability law, yet the core concepts of this body of law are poorly developed. In particular, the standard tort requirement that the injured party demonstrate a causal connection between the defendant’s violation of duty and the injury simply does not work in the vast majority of failure-to-warn cases. A substantial body of social science literature demonstrates that, in all but extreme cases, it is impossible for an injured party to demonstrate by a preponderance of the evidence, and thus for a court to credibly conclude, that she would have acted differently had a warning been provided. Thus, a rigorous application of the causation requirement would result in defeat for most injured parties. Yet, some injuries certainly could be saved by effective warnings, even if those beneficiaries cannot be easily be identified. A legal system that would deny recovery to virtually all injured parties because it cannot be ascertained which parties’ injuries would have been prevented under-compensates victims and under-deters dangerous practices by product manufacturers and distributors and, thus, does not fulfill the goals of the tort system. Some courts and commentators have recognized this problem, and have put forth a variety of mechanisms to resolve it. Those mechanisms - such as “heeding presumptions” and enterprise liability - suffer from the opposite problem. They compensate injured parties without regard to whether there is a causal connection between the injuries and the lack of a warning. The result is over-compensation of plaintiffs, over-deterrence of manufacturers, and under-deterrence of risky consumer conduct. This, too, fails to fulfill the goals of tort law. In this article, the authors propose eliminating causation as a separate requirement in most failure-to-warn cases and instead determine an injured party’s recovery by allowing proportional recovery, taking into account both the severity of the manufacturer’s fault in failing to warn of the dangers associated with its product and the likelihood that injuries would have been saved by a warning. Such a system would recognize that some failures to warn are more egregious than others and would generate a closer match between aggregate compensation and aggregate injuries caused by a failure to warn.
December 7, 2010
Goldberg on Liability for Economic Loss in Connection with the Deepwater Horizon Spill
At the request of Ken Feinberg, the administrator of BP's compensation fund for the Deepwater Horizon Spill, John Goldberg (Harvard) prepared an analysis of BP's potential liability for economic loss claims under the Oil Pollution Act (OPA). Goldberg concludes:
Under OPA, a person may obtain compensation for economic loss from a party responsible for a spill if she can prove that her loss is "due to" harm to property or resources that "result[s] from" the spill, irrespective of whether she owns that property or those resources. This statutory language is best understood to allow recovery only by those economic loss claimants who can prove that they have suffered economic loss because a spill has damaged, destroyed, or otherwise rendered physically unavailable to them property or resources that they have a right to put to commercial use. Thus, if a spill were to deprive commercial fisherman of expected profits by killing fish they ordinarily would catch and sell, or by causing authorities to bar the fishermen from accessing those fish for a period of time, the fishermen would be entitled to recover. By contrast, operators of beach resorts in areas physically unaffected by the spill, but that nonetheless suffer economic loss because of a general downturn in tourism resulting from the spill, are among those who are not entitled to recover under OPA.
(Page 6). Economic loss claims under state law are also discussed briefly.
You can download the full report here: Download Goldberg Report on Economic Loss Liability 11 22 10
December 6, 2010
Possible Tort Reform in FL?
Florida Governor-elect Rick Scott suggested various tort reform measures as part of his campaign, including changes to the state's bad faith laws, immunity for doctors treating Medicaid patients, and changes to the expert witness standards. The St. Augustine Record has more on the tort reform possibilities in Florida.