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Editor: Christopher J. Robinette
Widener Univ. School of Law

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Friday, January 14, 2011

Personal Injury Roundup No. 90 (1/14/11)

New Suits

  •  Drivers in car collisions with moose in Newfoundland, Canada blame the province for failure to control the moose population. (BBC via Olson/Overlawyered
  • Jilted bride sues groom for $100K for breach of promise to marry, IIED.  (Today Show via Olson/Overlawyered)

Appeals

  • IL:  Court affirms summary judgment for a defendant in trampoline injury case and provides a helpful "suggested checklist for summary-judgment practice."  Simmons v. Reichardt (PDF)
  • WV:  A couple attempts to have the state's med mal cap declared unconstitutional.  (J.D. Supra)

Reform, Legislation, Policy

Damages

  • NY:  Rotator cuff injury verdict:  $250K pain-and-suffering award; the case was complicated by legal malpractice and a preexisting shoulder injury.  (Hochfelder/New York Injury Cases Blog)

Miscellaneous

  • Ron Miller at The Maryland Injury Lawyer Blog has started his own roundup as part of a New Year's Resolution.  Here's a sample

Thanks to Gil Lenz for material this week.

--CJR

January 14, 2011 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, January 13, 2011

Vaccine-Autism Link Study a "Fraud," Motivated by Money

By now, most have heard about the three-part series BMJ is publishing about Andrew Wakefield's now-discredited Lancet study linking vaccines to autism.  Part 1 explored the [to describe it charitably] flawed data; an accompanying editorial described it as an "elaborate fraud."  Part 2, published yesterday, discusses the role money -- lots and lots of money -- played in the fraud.

Also, over the weekend, NPR's All Things Considered had an interview with Seth Mnookin, whose new book, The Panic Virus, explores the history of the vaccine-autism issue.

--BC

January 13, 2011 in Products Liability | Permalink | Comments (0) | TrackBack (0)

A Tortious Day in Western Mass

We subscribe to the Daily Hampshire Gazette, a paper that is not technically daily (since it has no Sunday edition) and that, until a few years ago, was an afternoon paper (confusing me to no end when we moved here).  Also, it's behind a paywall, so there's a lack of links to it.

In any event, it is rarely a big source for Torts news -- but yesterday's paper had two new and interesting suits.

  • First, a mother from Westfield sued Rite Aid over her son's oxycodone intoxication death two years ago.  "Lona St. Martin claims that Rite Aid's pharmacy...filled three separate prescriptions for her son, Scott A. St. Martin, from three different health care providers within a four-day period in early 2007."  Her son was found dead in his apartment a day later.  She contends that the pharmacists ought to have determined whether or not he was overusing the medication.
  • Second, a woman from Easthampton has sued Playtex, Babies "R" Us, and Dr. William Sears for injuries she allegedly suffered from her use of a breast pump.  Her suit states that she used the breast pump in question three times, and that the third time resulted in an injury that made expressing breast milk painful and caused her anxiety about being able to feed her baby.  Dr. Sears (whose books we relied on extensively) evidently collaborated on the design and marketing of the pump.

--BC (who is back on the regular posting rotation)

January 13, 2011 in Products Liability | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 12, 2011

Documents in Hammontree v. Jenner

Those of you using Franklin, Rabin, & Green encounter Hammontree v. Jenner as the first case in the book.  I happen to be teaching it today.  Used to illustrate the choice between negligence and strict liability for unintended injury, the case involves the defendant having an arguably unforeseeable seizure and injuring one of the plaintiffs in her bicycle shop.

TortsProf Kyle Graham (Santa Clara) copied a number of original documents from the case, and has made them available as PDF documents.

Complaint Download Hammontree Complaint; Answer Download Hammontree Answer; Discovery Download Hammontree Discovery; MSJ Opposition Download Hammontree MSJ Opposition; MSJ Minute Order Download MSJ Minute Order; Plaintiffs' Supplemental MSJ Brief Download Plaintiff's Supplemental MSJ Brief; Defendant's Supplemental MSJ Brief Download Defendant's Supplemental MSJ Brief; Jury Trial Minute Orders Download Hammontree Jury Trial Minute Orders; Jury Trial Exhibit List Download Hammontree Jury Trial Exhibit List; Selected Proposed and Given Jury Instructions Download Hammontree Selected Proposed and Given Jury Instructions; Verdict Download Hammotree Verdict; Judgment Download Hammontree Judgment; Defendant/Respondent's Appellate Brief Download 20100714114315758[1]

--CJR

January 12, 2011 in Documents | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 11, 2011

Congratulations to Alexandra Lahav!

Congratulations to Alexandra Lahav, our colleague over at Mass Tort Litigation Blog!   She has been named the recipient of the First Annual Fred Zacharias Scholarship Prize for her article Portraits of Resistance:  How Lawyers Respond to Unjust Proceedings, 57 UCLA L. Rev. 725 (2010). The abstract provides:

This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own.

The purpose of the Article is to paint a landscape of lawyer resistance to procedural injustice that can be used as a basis for further inquiry. The Article considers hard questions about lawyer participation in unjust tribunals such as whether lawyers who participate in unjust tribunals are complicit in injustice and what lawyers can do in the face of an unjust procedural regime. It presents a new way of understanding the forms of lawyer resistance to injustice. The Article demonstrates that complicity and resistance are not on opposite poles of human behavior within organizational systems. Rather, there is a dualistic interplay between complicity and resistance. Acts that appear to be resistance can be perceived as complicit, and acts that appear to be complicit can result in powerful forms of resistance. The Article also explores some questions raised by this analysis, such as what are the lawyer’s responsibilities to society and to his or her client and whether lawyers can know when a tribunal is so unjust as to merit resistance. It concludes by considering avenues for further research.

Thanks to Legal Ethics Forum for the info.

- SBS

January 11, 2011 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, January 10, 2011

Symeonides's 24th Annual Choice-of-Law Survey

Symeon Symeonides (Willamette) has posted his annual choice-of-law survey.   The abstract provides:

This is the Twenty-Fourth Annual Survey of American Choice-of-Law Cases. It is written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and students of conflicts law, both within and outside the United States.
The Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2010. Of the 1,271 appellate conflicts cases decided during this period, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law—and, particularly, choice of law.

This has been an unusually rich year in choice-of-law developments. Some of the highlights include:

*Four decisions by the U.S. Supreme Court (on extraterritoriality, sovereign immunity, class actions, and the Hague Convention on International Child Abduction, respectively), and several circuit court decisions on the extraterritorial reach of federal laws;

* A constitutional amendment in Oklahoma purporting to prohibit its courts from using international law, foreign law, and Sharia law;

* Three cases involving efforts to recover art lost during the Nazi era and also implicating federal affairs questions;

* Several cases affirming class certification in consumer protection cases and one case holding that the application of one state's consumer credit law to soliciting out-of-state lenders was unconstitutional under the dormant Commerce Clause;

* A major decision by the California Supreme Court refining its comparative impairment approach and a richer than usual assortment of cases involving tort, contract, product liability and insurance conflicts, as well as domestic relations conflicts; and

* Several opinions written by Judge Posner in his always interesting style, including one questioning the value of using foreign-law experts.

- SBS

January 10, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)