TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, January 31, 2006

Bad Science

I came across while doing some work on my current piece about unintended consequences of Daubert, and it is an entertaining and insightful read.  It's written by a young British physician, Ben Goldacre (biography from The Scientist) who writes a weekly column for The Guardian; a sample (quoted in the Scientist piece):

Ok, hands up. I hate nutritionists and phony diet marketers. I hate them because they confuse evidence and theory. I hate them because they make sweeping assertions that something will work in the real world on the basis of tenuous laboratory data. And they either do not understand that, or they do and they are being dishonest. In either case, I hate them.

This piece about homeopathy and picking and choosing studies -- using individual studies that came out one way rather than the meta-analysis that comes out the other, for example -- is particularly interesting and rather relevant to a lot of what one hears in various mass tort litigation from various purported experts, but it's just one example. 

For anyone trying to understand the way science really works (and to find gaps in a theory), the site might be a good place to start.  And in any event, it's very entertaining, especially the comments.

January 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Conference: The Cultural Foundations of Tort Law

From the description of the conference:

This unique conference will assemble a group of preeminent legal scholars and social scientists to examine the cultural roots of tort law’s central concepts, including causation, person, injury, and compensation. Focusing on contemporary and historical American practices, and comparing such practices to those in Europe, Asia, and the United Kingdom, the conference will offer pioneering insights into the ways in which tort law institutions are shaped or contested by cultural understandings of risk and responsibility, by gender and race relations, and by communitarian and individualistic values.

Abstracts and such at the website (linked above).

January 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, January 30, 2006

An Addition to the Top Verdicts of 2005

I previously noted the Lawyers' Weekly top verdicts of 2005.  I received a note from Kevin Fox (who is, I note, a 1977 graduate of the WNEC School of Law) pointing out that his $212,580,000 verdict would have been number 4 on the list.  The case involved a serious brain injury to a newborn during an attempted VBAC (vaginal birth after Caesarean).

The verdict, which was omitted from the LW list, was in fact the largest verdict ever received on behalf of an individual plaintiff in New York State.  It is under appeal by the sole remaining defendant (the rest of the defendants settled pre-trial).  From the summary provided by Mr. Fox (see below), it appears that the non-settling defendant (a surgeon) was allocated 5% of the fault.

Here's the summary: Download VerdictSummary.pdf [PDF, obviously].

If this verdict were included, it would knock out a products case against Ford, leaving the total torts-related verdicts at six.

January 30, 2006 | Permalink | Comments (1) | TrackBack (0)

Needles in Soup Cans

I don't actually intend this to become a blog all about weird things in food (observe the glory that is Kentucky Fried Roaches and Blood-Topped Sundaes), but it seems nearly mandatory to link to the story that contains the sentence "The incident was the fourth report of needles or pins found in food purchased from area stores in the past two weeks."  (The area is Bethlehem, Pennsylvania.)  Pins or needles have also been found in bread, an onion ham, and ground beef.

The supermarket from which the soup can was purchased has declared, fairly sensibly, that it will be upping its security.

January 30, 2006 | Permalink | Comments (1) | TrackBack (0)

Continued (Legal) Use of a (Sort of) Banned Pesticide: Methyl Bromide

The Scientist (which is, for a while yet, free!) has an interesting article on the subject, describing the complications from banning a substance that works really well at what it does (destroy plant-inhibiting pathogens) but also has the unfortunate tendency to cause Bad Things:

The US Environmental Protection Agency (EPA) estimates that the chemical spreads so easily that up to 95% of the methyl bromide injected into soil eventually makes its way into the atmosphere. There, in high concentrations, it can cause a wide range of health effects, such as failure of the central nervous and respiratory systems. A 2003 study by the National Cancer Institute of male pesticide applicators found that those who handled methyl bromide had a higher risk of prostate cancer.

In 1997, the product was banned (mostly), with a phase-out date for developed countries of 2005 and developing countries of 2015.  And yet many farmers continue to use it (around 19,000 metric tons last year in the U.S. alone) under "Critical Use Exemptions" and, according to the story, it may be that more effort is being put into maintaining those exemptions than finding an effective and safer alternative.  Why are the exemptions granted?

In 2000, the US Department of Agriculture (USDA) published a report estimating that if growers had to switch from methyl bromide to the available alternatives, it could cost americans as much as $450 million each year (see chart below). Since that report, the US government has filed for exemption after exemption from the methyl bromide phase-out, under the loophole that people can continue to use the chemical if no "technically and economically feasible" alternative exists.

The story suggests, however, that in fact reasonable alternatives have been developed and points out that Holland (which once was Europe's biggest methyl bromide consumer) phased it out entirely a decade ago...but then also cites credible folks who say the contrary.

Finally, there's a web extra with an interesting story about a fellow who claims to have developed an alternative made from mustard and pepper.

From a torts perspective, I note that Equal Justice has this 2002 report about exposure near fields, but it does not appear to have become a significant tort as yet.  More generally, the entire article presents a nice instance of risk-benefit balancing with no easy answers and might be interesting to discuss in either a Torts or Products Liability course.

January 30, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 29, 2006

Iraqi Tort Reform By Executive Order

This interesting piece by Anthony Sebok and Claire Kelly (both at Brooklyn) contends that President Bush's executive order 13303 went too far:

. . . EO 13303 is now receiving scrutiny from watchdog groups. They fear that it may be used to limit the accountability of corporations doing business in Iraq.

Their fears are reasonable, as we will explain. In particular, it is possible the Executive Order will be used to cut off tort victims' ability to sue corporations working in Iraq.

And that's not the only problem with the Executive Order; there are two others. First, EO 13303 sets a terrible precedent for the abuse of the executive's power over private litigation in the context of national security. Second, it is yet another example of what Professor Sebok has described on this [Findlaw] site as the Republican penchant for "sneaky tort reform."

After comparing this EO to previous EOs that merely suspended, rather than extinguished, claims (as the authors contend this one does), they conclude that the EO seeks to place the financial burden of rebuilding Iraq disproportionately on tort victims who ordinarily could seek compensation in U.S. courts -- in other words, it arguably blocks suit by U.S. citizens against U.S. companies in U.S. courts for torts committed in Iraq.

January 29, 2006 | Permalink | Comments (0) | TrackBack (0)

Saturday, January 28, 2006

Guilty Plea In Counterfeit Botox Case

The press release is here.  Apart from the evident negligence per se issues, the facts could make for an interesting torts claim:

According to the Second Superseding Indictment, the conspiracy count charged that defendants Livdahl, Karim, Toxin Research International, Inc., Powderz, Inc., The Cosmetic Pharmacy, Inc., and Z-Spa, Inc., conspired to purchase 3,081 vials, each containing five nanograms of Botulinum Toxin Type A and other ingredients, in a formulation designed to imitate Allergan’s Botox®Cosmetic, the only product made with Botulinum Toxin Type A that is approved by the FDA for use in human beings. The defendants then engaged in a scheme to defraud by marketing and selling to health care providers for use in human patients the fake Botox as a cheap alternative to Allergan’s Botox® Cosmetic, without the administering health care providers advising their human patients that the fake Botox was not Allergan’s Botox® Cosmetic and was not approved by the FDA for use in human beings. The Second Superseding Indictment charged that health care providers then used the defendants’ Botulinum Toxin Type A on their human patients, despite labeling that stated, “For research purposes only; not for human use.”

The defendants' sentences range from 180 days home detention to 70 months in prison.

January 28, 2006 | Permalink | Comments (1) | TrackBack (0)

Friday, January 27, 2006

Dead Man's Curve

The next issue of ATLA's magazine Trial (or, as they seem to insist, TRIAL) is transportation-oriented.  One article, written by Gary Pillersdorf, provides an interesting overview of issues in cases where cars run off the road.  An excerpt:

Studies show that 20 percent of all fatal accidents involve single automobiles running off the road.1 It is easy to write these cases off as examples of driver error, but in many instances, the government agency that designs and maintains the roads must share or shoulder the blame.

These cases are difficult. Not every off-road crash leads to government liability, and investigating a road’s engineering and accident history can be expensive. A connective-tissue case, for example, may not warrant the time and expense these cases require. The defendants’ recurring theme is driver error, and these cases rarely settle.

After an interesting anecdote about the road that inspired the Jan & Dean song "Dead Man's Curve," the piece addresses governmental immunity and various factual theories -- defective guardrails, failure to warn, and defective banking.

I unfortunately don't get to governmental immunity in my Torts class, but I could imagine a case like this being a nice quiz or exam question, or at least a good hypothetical for discussion.

January 27, 2006 | Permalink | Comments (0) | TrackBack (0)

Florida Nearing Elimination of Joint & Several Liability

Amid charges of intimidation and other excitement, a bill (as filed [PDF]) that would eliminate joint & several liability in Florida got out of committee.  Essentially, it would modify the comparative fault statute to read, in relevant part:

APPORTIONMENT OF DAMAGES.--In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party's percentage of fault  and not on the basis of the doctrine of joint and several liability.

Here's the (interesting, in my view) language that will be deleted, which sets forth the only scenarios in which joint and several liability applies under current law:

(a)  Where a plaintiff is found to be at fault, the following shall apply:

1.  Any defendant found 10 percent or less at fault shall not be subject to joint and several liability.

2.  For any defendant found more than 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $200,000.

3.  For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000.

4.  For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million.

For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and noneconomic damages already apportioned to that defendant based on that defendant's percentage of fault.

(b)  Where a plaintiff is found to be without fault, the following shall apply:

1.  Any defendant found less than 10 percent at fault shall not be subject to joint and several liability.

2.  For any defendant found at least 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000.

3.  For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million.

4.  For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $2 million.

For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and noneconomic damages already apportioned to that defendant based on that defendant's percentage of fault.

(c)  With respect to any defendant whose percentage of fault is less than the fault of a particular plaintiff, the doctrine of joint and several liability shall not apply to any damages imposed against the defendant.

In other words, Florida already has some fairly significant limitations on joint and several liability -- more significant, I think, than the average bear state.  The statute as it stands certainly mitigates the problem of the defendant who is minimally at fault but solvent.  So I wonder how much of a difference it will make.

I also wonder how much of a difference the elimination of joint and several liability has made in the places that have done so -- Arizona, I know, and I think a handful of other states.  Anyone know of some data?

January 27, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 26, 2006

Teflon Ingredient to be Phased Out

PFOA (perfluorooctanoic acid) will still be used, but the manufacturers of Teflon and such have agreed to ensure that it will not be released, with the implementation taking place by 2015.  DuPont is the company that has received the most attention (and is, I believe, the sole defendant in the Teflon MDL), but a half-dozen or so other companies are involved in the EPA settlement.

PFOA has been linked to cancer and birth defects in animals and is found in many consumer products.  It also is found in the blood of 95% of Americans.

January 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 25, 2006

Great New Food Cases

The first from KFC [reg. req.], involving a large number of roaches:

Watson said she drove up to a KFC drive-through window in Waxahachie and came home with the surprise.

"They were all in the sandwich [and] they were alive crawling in the napkin," she said.
Her daughter, Alicia Lewis, said she ate some of the food before she saw the roaches and what she ate made her sick.

And the second from McDonald's, with an unfortunate alleged extra ingredient (and the last paragraph of this is possibly my favorite quote yet this year):

A woman filed a lawsuit claiming that a hot fudge sundae she bought for her 12-year-old son was contaminated with human blood, but the owner of a fast-food franchise says the red substance was really just strawberry syrup.

* * *

Her son, now 13, dug into his sundae and "recognized the taste of blood and, upon careful inspection, noted a red substance on the side of the sundae cup as well as mixed into his ice cream," the lawsuit claims.

Jara then went into the store and spoke to a swing manager, who confirmed that it was blood, according to the lawsuit. The manager, Joshua Ferrell, said the employee who prepared the sundae had an injured, bleeding finger, and told Jara that he had advised the employee to keep a bandage on his finger, according to the lawsuit.

* * *

Michael Meoli, owner of the McDonald's franchise, said the claims are unfounded, and that strawberry syrup probably had clogged the sundae machine.

Ferrell, who no longer works at the restaurant, should not have said the substance was blood, Meoli said.

"What is he, a botanist? No, he's a 21-year-old assistant manager who saw her screaming in the lobby and said 'whatever you say lady.'"

A botanist?

[Both via the indispensible Consumerist.]

January 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Preemption All Over The Place

Last fall, NHTSA announced new roof crush rules that purport to preempt conflicting state laws.  Many state AGs and legislators are resisting.

Hey, that sounds sort of familiar.  Any other agencies out there declaring preemption?  And does this seem a little like the use of presidential signing statements?

It's hard for me to see just how much weight courts are going to give to regulatory agencies' views of the preemptive effects of their rules -- is there anything about the FDA or NHTSA that makes them particularly expert in terms of whether a regulatory scheme should be held to preempt state law?  I suppose the best argument is in the area of implied conflict preemption, where the agencies could reasonably say that state tort law would be an obstacle to the "accomplishment and execution" of the Congressional mandate.  (Hines v. Davidowitz, 312 U.S. 52, 67 (1941).) 

Even there, I doubt the courts will be all that interested unless the agencies can have a fairly compelling factual argument about the conflict -- and I don't think the arguments that have been presented thus far add much to what defendants have been saying for years.

[NHTSA story via Point of Law]

January 25, 2006 | Permalink | Comments (0) | TrackBack (0)

If He Wins What He Wants, He'll Definitely Be A Billionaire

Adding to my reasons I wish I could get to defamation in my (four-hour) (sigh) Torts class, Donald Trump has filed suit over a biography by NYT reporter Timothy O'Brien that has the gall to suggest he's not as rich as he claims -- perhaps only worth $150 to $250 million rather than $2.7 billion.  The complaint asks for $5 billion (yes, that's with a 'b').  I haven't come across the actual complaint online; if you've seen it, let me know.

The story (or any of the many other stories) do a fine job with the basics.  I especially enjoyed this quote from the AP story explaining the choice of venue:

Although Trump lives in New York City, and owns three casinos in Atlantic City, and O'Brien lives in northern New Jersey, Trump lawyer Marc Kasowitz called Camden is a logical venue for the suit.

"(TrumpNation) was available in a number of different places and a town library in Camden," Kasowitz said. "Mr. Trump has business operations throughout the state of New Jersey. We thought the citizens of Camden are entitled to know the truth about how wrong this book is."

Who knew Camden was such a critical place for Trump's reputation?  Between the RiverSharks baseball team and the only home Walt Whitman ever owned, I'd have thought the residents (Camdenites? Camdonians?) would have enough on their minds.

January 25, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 24, 2006

Good Source of Interesting Documents

All sorts of interesting torts-related documents are at the AEI's Liability Project site, including gun litigation, drug litigation, Daubert rulings, and so on.

January 24, 2006 | Permalink | Comments (0) | TrackBack (0)

What Would Learned Hand Do?

(Maybe I'll start up a whole "WWLHD" shop with t-shirts, bracelets, etc.)  (If that doesn't make sense to you, don't worry.)

Yesterday's NPR story (some discussion in this SLC Tribune piece too) on the Senate Appropriations Committee hearing on mine safety included some interesting bits that were good discussion points in my Torts class last night and might be interesting for others too:

There was a lot of discussion in the hearings about technological solutions, including a Blackberry-like device that would allow wireless text communications with miners, providing updates, instructions as to how to get out, etc.  The system costs about $750 per miner; it apparently contributed to saving the lives of 45 miners in Utah -- see this MSHA chronology for a fascinating narrative of that fire as well as pictures of the devices.  A tracking system runs about $20 per miner (according to the SLC Tribune piece above).  How do you end up doing the B<PL math on those devices, keeping in mind that at least some people say they lack reliability?

14 mines (out of I think 700 nationwide, though I may have that number wrong) have adopted the text messaging devices.  Hello, TJ Hooper!

Changing tracks a bit, consider the plight of the family members who were first told their loved ones were alive only to learn hours later the tragic truth.  While they may have some redress for their loved ones' deaths in survival and wrongful death actions, their emotional distress (which was almost certainly exacerbated by the false hope) provides a good starting point for a discussion of emotional harm without physical impact. 

By coincidence, we're now discussing Armstrong v. Paoli Memorial Hospital, 649 A.2d 666 (Pa. 1994), in which the Pennsylvania Supreme Court denied negligent infliction of emotional distress recovery to a woman who was wrongfully informed that her husband had suffered a critical head injury.  I think it's fair to say that the students in my class were at least somewhat uncomfortable with there being no potential for liability against the people responsible for the misinformation. 

And what about intentional infliction of emotional distress, given its reckless disregard standard?  How does the mental state here compare to that of the physician in Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979), who inaccurately told a sports columnist that a football player had a life-threatening condition (rather than the much more mundane condition he actually had)?

January 24, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, January 23, 2006

Maritime Blogs

I'm dealing with many inches of snow today, so it's short posts today.  The Paris Hilton deposition excerpts should keep you busy.

In any event, a practicing lawyer pointed out a couple of interesting resources on maritime law, including maritime torts -- the Boating Law Safety Blog and the associated podcast.

Of course, many of the best proximate cause (or, as the casebook I use prefers, legal cause) cases are in admiralty, and the cases do tend to present interesting and complex fact patterns that tend to be litigated and decided by fairly sophisticated parties, lawyers, and judges.  In other words, the blogs may be generally useful, even to those of us who almost never see water bigger than our fish pond.

January 23, 2006 | Permalink | Comments (0) | TrackBack (0)

Experts, Be Cautious

This Virginia opinion [PDF, via Day] points out a perhaps-rare but real danger to physicians involved in examinations of litigants: a malpractice suit brought based on the conduct of that examination.

January 23, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 22, 2006

Slander, Libel, and Paris Hilton; Fun Deposition Excerpts

Julie Hilden, who practiced law at my old firm (prior to my time there), has a nice overview of defamation law in the context of the current suit brought against Paris Hilton by one Zeta Graff (identified in an IMDB news story  as (take a deep breath) "the ex-girlfriend of Hilton's former boyfriend Paris Latsis") for allegedly planting inaccurate stories in the New York Post.

For more fun -- and hey, this can be part 2 of my documents series -- TMZ, which is apparently part of AOL, has obtained Hilton's deposition from the case, and -- I'm shocked, shocked! -- she's apparently not very smart.  The actual deposition is available (part 1 and part 2 [both PDFs]), as is this exhibit [PDF].  Some fun bits, making me wish I had enough time to get to defamation in Torts:

Funniest moment I've seen in a depo in a long time (put out of order because I like it so much):


And a nice opening:


Discussing the start of her interaction with Graff:


And describing her conversation with Graff:


Demonstrating her strong grasp of geography:


A little history on what Hilton had heard about Graff:


After describing an interaction between the two Parises and Graff at Elton John's post-Oscar party, we learn of the relative difficulty of getting into the Vanity Fair party versus Sir Elton's party:


Some memory issues:


Discussing an interaction at an LA Fashion Week event:


...and the actual interaction they had at that event:


We learn some utterly unsurprising information about Hilton's musical tastes, and more than perhaps we wanted about the attorney's:


We develop sympathy for the attorney:


Hilton describes the incident to her sister:


After suggesting that Hilton may have sent her publicist an e-mail saying they should lie about their involvement in the story's development, some excitement:


January 22, 2006 | Permalink | Comments (0) | TrackBack (0)

Saturday, January 21, 2006

FDA Preemption and Retroactivity

On an earlier post, DW asked about retroactive effects of the rulemaking.

A relevant excerpt:


So the FDA thinks this is already the law -- no surprise given the amicus briefs mentioned.  So to some extent, this is a lot of hullabaloo (gosh, I like getting to use that word!) over something that's not really that big a deal.  But it's a nice explicit and non-case-specific articulation of their view.  Indeed, Dan Troy, former counsel at FDA (now at Sidley Austin Brown & Wood) made that position fairly clear, as I recall, at a DRI Drug & Medical Device conference I attended several years ago, and my sense is that the position has stayed consistent throughout the current administration.

So I think the answer is that if the FDA is right, it's not really even a question of retroactivity -- it's been that way all along, just that nobody really knew it.  The fact that the position has generally been unsuccessful in the past may suggest that it won't be in the future, but who knows?

January 21, 2006 | Permalink | Comments (0) | TrackBack (0)

Factual Causation Beyond DES

I'm a little puzzled about how I missed it last fall, but the Wisconsin Supreme Court extended "risk contribution" [big PDF] beyond the DES context, permitting plaintiffs injured by lead paint pigment to sue even without proof of the specific manufacturer of a generic product.  The opinion has the usual justifications -- who's better able to internalize costs, who's more culpable, etc.  Other than a case or two in the blood factor litigation, it's the only recent case I'm aware of -- though since I missed this one for half a year, maybe there are others out there.

In any event, I'll certainly be incorporating it into my factual causation discussions.

January 21, 2006 | Permalink | Comments (0) | TrackBack (0)