June 19, 2006
Red Hot MDL Action
The JPML has issued [PDF] its schedule for the July 27 hearing in Chicago; as usual, some interesting items.
The panel will hear argument on consolidation of the McDonald's french fry litigation (see this entry on the subject). This is not obesity litigation; it's the presence of gluten or wheat in french fries. If you want to see a complaint from the underlying litigation: Download McGluten.pdf
[PDF]. At least that complaint does allege injury:
The Bausch & Lomb products litigation is also on the docket, as is Fosamax and Actonel.
June 05, 2006
9/11 Workers & Air Masks
The NYT today has a lengthy and detailed piece keying off of a federal suit brought on behalf of 8,000 rescue workers who were part of the response to Ground Zero:
With mounting evidence that exposure to the toxic smoke and ash at ground zero during the nine-month cleanup has made many people sick, attention is now focusing on the role of air-filtering masks, or respirators, that cost less than $50 and could have shielded workers from some of the toxins.
More than 150,000 such masks were distributed and only 40,000 people worked on the pile, but most workers either did not have the masks or did not use them.
* * *
From legal documents presented in the case, a tale emerges of heroic but ineffective efforts to protect workers, with botched opportunities, confused policies and contradictions that failed to ensure their safety.
* * *
The city, which is the principal government defendant, has moved to have the lawsuit dismissed. It argues that it and the private contractors it hired to help in the cleanup did their best to provide adequate equipment and to get workers to use it, but many workers ignored the warnings. Many workers cited reasons for not keeping the masks on, like the stifling heat and the difficulty of communicating while wearing them.
Even if the response to an unprecedented emergency was flawed, the city's lawyers argue, a firmly established legal immunity under the State Defense Emergency Act and other laws protects New York from legal liability.
Farther down in the story is an interesting tidbit about then-EPA chief Christine Todd Whitman:
David M. Newman, an industrial hygienist with the labor committee, said that when federal environmental officials announced that it was safe for people to return to Lower Manhattan so that Wall Street could reopen a week after the towers collapsed, employers suddenly "had a green light to say, 'We don't need to use respirators because the E.P.A. says the air is OK.' "
He was referring to a statement made on Sept. 18, 2001, by Christie Whitman, the Environmental Protection Agency administrator, that air sampling done by her agency showed that the air was safe to breathe. The agency's inspector general concluded in 2003 that Ms. Whitman's statement was far too broad and could not be scientifically supported at the time she made it.
I got a sample complaint from PACER: View it here [PDF].
While looking around for a copy of the complaint, I came across Perry Binder's site at Georgia State, which has a wide array of resources relating to 9/11 litigation.
May 28, 2006
News Coverage After an Accident
The amusement industry happens to be my particular interest (see my other blog, MassTort.org, for more rambling about it), but this story from the Minneapolis Star-Tribune is certainly representative of a more general category of media coverage -- the industry overview after a high-profile accident. The recent mining tragedies triggered a similar series of stories. It's worth a look in that context.
The CPSC has no oversight over fixed-site amusement parks, only over traveling carnivals, and state regulation varies widely, ranging from state inspections of every ride to no state oversight at all (SaferParks.org has a generally accurate overview). In Minnesota, ride safety is left to the parks and their insurers (except, I assume, if a worker is injured, in which case OSHA or the state equivalent could get involved, or if there is a criminal offense). This exchange seems to summarize the ongoing debate about regulation of rides -- but really it could be about regulation of nearly everything:
When there's an accident in a system like Minnesota's, "there's no one there who doesn't have a serious vested financial interest," said Kathy Fackler, who started an advocacy group in La Jolla, Calif., called Saferparks, after her son lost toes on a ride at Disneyland eight years ago.
But that financial interest keeps parks from being reckless about safety, said Tip Harrison, physical plant director at Valleyfair.
The financial incentive argument, of course, has its limitations, especially at the undercapitalized end of the spectrum (typically but not exclusively non-fixed-site entities like traveling carnivals). Valleyfair is owned by Cedar Fair LP, with net revenues over $500 million a year (about to jump dramatically after its purchase of the Paramount Parks chain); there is no shallow pocket problem.
The one thing the story doesn't quite make clear -- and stories rarely do -- is that the proposal to remove the exception for fixed-site parks (sometimes called the "rollercoaster loophole") is not preemptive of state regulation. The CPSC does not have an inspection system, nor does anyone, I think, expect them to create one.
What the CPSC may be good at is serving as an information clearinghouse -- so that if, as in the case of Valleyfair, there's a problem with a particular part on a particular kind of coaster made by a particular manufacturer, the CPSC can facilitate information-sharing among competing chains and independent parks. See these documents relating to a death on a Sizzler ride at a fair in Massachusetts to get a sense of what the CPSC does now in connection with non-fixed-site rides.
May 16, 2006
Great White Litigation
In February of 2003, 100 people were killed and scores more injured in a fire at The Station nightclub in Rhode Island, at a concert featuring hair metal band Great White.
Last week, the band's manager was sentenced to four years in prison for involuntary manslaughter:
Biechele was the tour manager for Great White when on Feb. 20, 2003, he lit a pyrotechnics display that ignited highly flammable foam that lined the walls and ceiling of the Station nightclub in West Warwick. The foam was used as soundproofing and was placed there by the owners after neighbors complained about noise from the club.
Not surprisingly, extensive civil litigation has ensued as well. Some interesting items:
- An early op-ed piece criticizing the potential for suit against Clear Channel and its local radio station (who promoted the show and lost a DJ in the blaze) and Anheuser-Busch (a sponsor who held a promotion at the show);
- An early story with some surprisingly decent analysis (for MTV anyway) on the decisions whether to include the band in lawsuits;
- A story on an early federal suit;
- A 2004 piece noting the filing of a broad suit by 200 plaintiffs, with defendants including the band, Lloyd's of London, Anheuser-Bush and its local distributor, Clear Channel and its local station, the foam manufacturer, state and local building inspectors, the bus company whose bus carried the band to Rhode Island, and others;
- Coverage of the judge's refusal to dismiss the case against the city (but dismissing the state);
- Coverage of the judge's refusal to dismiss the case against the radio station.
This is not an attempt to be exhaustive. The recent sentencing got a lot of local media play and it made me curious about where the civil litigation stands. The sheer breadth of the defendants is genuinely astonishing.
February 27, 2006
McDonald's Gluten Complaint
I tracked down the complaint filed by Dale & Pakenas against McDonald's based on the previously undisclosed gluten; you can download it here [PDF]. Of note, the suit is a class action, and not one limited to people with celiac disease (which the named plaintiff has):
(You can mentally insert the "[sic]" after the "it's.")
Update: While looking around a bit for a copy of the complaint, I noticed that in Cook County, Illinois alone, three class suits have been filed over the Frey book. I note, happily, that the named plaintiff in the McDonald's suit is not also the named plaintiff in the Frey suit: