Mass Tort Litigation Blog

Ted Frank on Exxon v. Baker

Ted Frank, director of the AEI Legal Center for the Public Interest, discusses the recent punitive-damages Supreme Court decision, Exxon v. Baker, as part of a Federalist Society SCOTUScast.

BGS

Lead Pain Reversal in RI

The Supreme Court of Rhode Island reversed in State of Rhode Island v. Lead Industries Association.  The opinion below had imposed liability on lead paint manufacturers under a public nuisance theory.  The RI Supreme Court rejected that theory of liability.  I heard  the story on NPR's Marketplace.  You can find the RI Supreme Court opinion here.  Some commentary from the folks at the Drug and Device Law Blog (who, given that one of them represents defendants in lead paint cases, are very pleased) here. 

The problem with cases against lead paint manufacturers is that its impossible to prove that the lead paint present in buildings today comes from a particular company.  The problem from the defendant's perspective is that perhaps their lead paint didn't cause this damage.  The problem from the plaintiff's perspective is that they were damaged by some lead paint, they just can't prove whose lead paint.  Its really an issue of cost shifting in instances of uncertainty - who should pay for the cost of widespread distribution of substances like lead paint that cause damage, individuals or manufacturers?   The system generally imposes those costs on individuals because our system of torts is particularistic and doesn't recognize the concept of risk very well.  So as a general matter, a tort plaintiff has to prove that this defendant caused this particular harm, rather than this defendant participated in increasing the risk of the harm occuring.

I think the only state that imposes this type of global liability on lead paint manufacturers is Wisconsin, which as I recall was based on a slightly different theory.   There are cases pending in California and Ohio.

ADL 

Continuing Salmonella Investigation Moves Beyond Tomatoes

Article in the Wall Street Journal -- Salmonella Probe Looks Beyond Tomatoes, by Jane Zhang and Julie Jargon.  Here's an excerpt:

With the number of salmonella victims still climbing, federal regulators are widening their investigation to include other fresh produce commonly consumed with tomatoes.

David Acheson, the Food and Drug Administration's associate commissioner for foods, said the agency is enlisting help from state and local labs to test a wider range of foods for the rare, virulent salmonella strain dubbed Saintpaul. He declined to specify which new products the FDA is focusing on.

The agency's move comes as the FDA is under growing pressure to step up efforts to trace the source of the contamination. Last week, the agency said it might not be able to pinpoint the source given the complexity of the nation's food-supply chain, frustrating industry groups representing the produce, supermarket and restaurant industries.

BGS

Melbourn Mills Cleared in Kentucky Fen-Phen Settlement

Yesterday a federal jury acquitted Melbourne Mills, one of the three attorneys accused of defrauding clients in the Kentucky fen-phen settlement. The Associated Press story can be found here.

ECB

Sebok on the Exxon Punitive Damages Case

Anthony Sebok (Cardozo) has an excellent Findlaw colum (click here) on Exxon v. Baker.  There are lots of interesting points in this column.  Sebok's discussion of the history -- and of the importance of the theory of punitive damages in light of that history -- is very illuminating.

ADL