Friday, March 8, 2013
Thursday, March 7, 2013
Thomas McGarity (Texas) & Sidney Shapiro (Wake Forest) have posted to SSRN Regulatory Science in Rulemaking and Tort: Unifying the Weight of the Evidence Approach. The abstract provides:
This article explores how a regulatory agency decides whether scientific evidence is sufficient to meet a risk trigger – the evidentiary burden that is a prerequisite to regulating a toxic substance, and how a court decides whether there is sufficient evidence to allow a jury to consider the issue of general causation in a toxic tort case. We argue both agencies and courts should apply a weight of the evidence approach because there is no meaningful distinction between the regulatory and tort contexts concerning these issues. The courts, however, have tended to use a corpuscular approach in which scientific evidence is evaluated study by study, rather than evaluating the totality of the evidence, which is the methodology of regulatory agencies. Given the nature of available scientific evidence, a corpuscular approach turns Daubert into a policy decision against compensating people who become ill from exposure to toxic chemicals.
Wednesday, March 6, 2013
Tuesday, March 5, 2013
In an interlocutory appeal, the Idaho Supreme Court declined to adopt the "baseball rule," limiting a stadium operator's liability for foul balls. The case, Rountree v. Boise Ball (pdf), involved a Boise Hawks minor league game. Bud Rountree was hit in the eye by a foul ball, and sued the stadium owners and the Boise Hawks for negligence. On interlocutory appeal, the Idaho Supreme Court held that "[w]hether watching baseball is inherently dangerous, and the degrees of fault to be apportioned to Rountree and Boise Baseball, are questions for the jury." A Retuers report has more.
Monday, March 4, 2013
An amicus brief by Pacific Legal Foundation alerted me to an interesting case in the Maryland appellate courts. In Georgia Pacific LLC v. Farrar, the family member of an employee who worked near other workers using asbestos sued an asbestos manufacturer for failure to warn of the risks of asbestos. The worker, the plaintiff's grandfather, did not himself work with asbestos. Thus, the case raises the question of whether the duty to warn extends to a bystander of a bystander. The Court of Special Appeals held that the manufacturer did have a duty to warn, and the case is now before the Maryland Court of Appeals.