TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, February 28, 2006

Punitives Arguments in Rhode Island

The lead paint manufacturers, not surprisingly, say they shouldn't be imposed, citing the enormous expenses they will incur in dealing with the public nuisance verdict.  Additionally:

They said the companies' behavior could not be compared to criminal conduct since they were making a selling a legal product that was in high demand among consumers and government agencies alike. Lead-based paint was banned in the United States in 1978 after studies showed that the substance could cause severe health problems to children exposed to it.

The state is presenting arguments today.

February 28, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Still More Med Mal Insurance Conclusions

It's beginning (or continuing) to feel a bit like a tennis match.  Today we've got a study saying that the medical malpractice insurance crisis is over, and tying that to stabilization of insurance investments rather than tort reform or anything similar.

Americans for Insurance Reform (AIR) released a new study today confirming the wholesale decline of medical malpractice insurance rates nationwide.  The AIR study also shows that this phenomenon is occurring whether or not states enacted restrictions on patients’ legal rights, such as “caps” on compensation.  The medical malpractice insurance “crisis” is over, according to the study.

AIR’s study is based on the most recent Council of Insurance Agents and Brokers survey of market conditions, showing that the average rate hike for doctors over the past six months has been 0 percent.  This is following similar results for the last quarter of 2004, which saw rates rising only 3 percent at the end of that year.  By comparison, rates jumped 63 percent during the same quarter of 2002.

* * *

According to Joanne Doroshow, AIR spokesperson and Executive Director of the Center for Justice & Democracy, “Consumer rights organizations have long maintained that the ‘crisis’ of skyrocketing insurance rates for doctors and other policyholders would end when the insurance investment cycle stabilized, and that this would occur whether or not so-called tort ‘reform’ laws were enacted.  Insurance industry data now unmistakably confirms this prediction.”

The full report is available here [PDF].

February 28, 2006 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Monday, 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.")

Notably, Dale & Pakenas is also one of the firms who sued based on the inaccuracies in A Million Little Pieces.

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:


February 27, 2006 in Current Affairs, Documents, Products Liability | Permalink | Comments (1) | TrackBack (0)

Lead Paint and Punitive Damages

The Rhode Island punitives argument will be today.  With most of the relevant conduct a long time ago (like many toxic tort cases), it's going to be challenging proof, I imagine, and hard to connect up the damages sought with anything that resembles the current defendants.  Such an old case puts into question the value of punishment (though the deterrent effect presumably has as much force as it ever does).  Much like the asbestos litigation, it's a good example (as was the underlying trial), too, of the difficulties of putting on an old case.

February 27, 2006 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

How Broad a Net for Adverse Events?

An FDA advisory panel earlier this month recommended a black box warning for ADHD drugs like Ritalin based on cardiovascular risks. 

Much like the concerns about SSRIs and suicidal thoughts, however, a number of people argue that these drugs increase risks of violence among those taking them.  From, for example:

The numbers cited by the Food and Drug Administration (FDA) for possible attention deficit drug-related deaths and injuries represent a gross understatement of statistics. The truth is that these drugs are responsible for and [sic] endless stream of deaths and injuries all over the country.

* * *

For instance, on November 20, 1986, after being on Ritalin since the third grade, fourteen-year-old Rod Mathews lured a classmate, Shawn Ouillette, into a wooded area near his home in Canton, Massachusetts, under the pretense of a plan to build a snow fort, and beat him to death with a baseball bat.

Now, this seems like a bit of a cheap shot at the FDA report, which was presumably prepared specifically about CV risks.  And it is difficult to attribute causation in any of the cases cited in the article (and there are a number) -- what else happened between third grade and 1986 in Mathews's life?  (The article notes that he had no history of violence, but that's hardly enough to connect up -- no history of violence before third grade is not unique, even, I reckon, among murderers.)

Even with all of that, it's an interesting question -- if these were submitted to the drugmakers and FDA in the MedWatch system, how were they evaluated by their various recipients?  How should they be evaluated?  Is there a structure for monitoring third-party risks?

February 27, 2006 in Current Affairs, Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

Saturday, February 25, 2006

Malpractice Insurance Rates and Tort Reform

The Natchez Democrat says the malpractice rates in Mississippi are dropping and attributes it to the 2003 tort reform measure.

The company that insurance [sic] a majority of physicians in the state just announced a 5 percent decrease in rates for the upcoming year — along with a 10 percent refund on premiums from the current year. What’s more, the insurance company is also accepting new applicants — which bodes well for recruiting doctors to our community.

February 25, 2006 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (1)

Hurricane Sludge Safety

It'll be interesting to see what happens, lawsuit-wise, from the developing information about post-Katrina safety.

Floodwaters from Hurricane Katrina deposited arsenic, lead and petrochemical compounds across greater New Orleans in amounts that are potentially dangerous to human health despite federal and state assurances that the sludge is safe, according to a new study based on Environmental Protection Agency data.

* * *

Tom Harris, administrator of the department's Environment Technology Division, said the NRDC and others have been "grossly misusing" state screening standards and presenting them as thresholds that would trigger government cleanups. He added that these toxicity guidelines would prompt further investigation rather than an automatic cleanup, and would have to be greatly exceeded before young children are harmed.

February 25, 2006 in Current Affairs, Experts & Science, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, February 24, 2006

The Week in Recalls: All Hail Chicken Limbo Party Game

Looking for a hypothetical dangerous product?  Look no further, for The Consumerist has you covered, with this marvelous excerpt (though not, presumably, marvelous to the users of the product):

Incidents/Injuries: In a case of inanity raising its loathsome head, Milton Bradley has received 46 reports of the Chicken Limbo party game collapsing unexpectedly. This includes 23 reports of injuries including bumps, bruises, welts and red marks, four reports of cuts, one chipped tooth and one fractured foot.

This is what you get for over-technologizing what should be two people and a stick.

I will send something entertaining and free to the first reader (prof or otherwise) to send me a verifiable quiz, exam, or other law school assignment using the phrase "Chicken Limbo party game" in the fact pattern.  This extends to students: Figure out a way to use that phrase in an exam and you'll get a very special something-or-other.  (It needs to make sense; you can't just write "Plaintiff, hereafter 'Chicken Limbo party game.'"  Though that would be pretty funny, too.) 

I used to get promotional swag from Fox Network, so it may be related to a mid-'90s TV show you never heard of.

(Recall notice on the CPSC site.)

February 24, 2006 in Goofy Cases, Products Liability | Permalink | Comments (0) | TrackBack (0)

Arbitration Panel's Punitives Verdict Reinstated Against Orkin

Conventional wisdom has been (so far as I can tell) that companies like mandatory arbitration because, among other things, the exposure to punitive damages is lessened -- indeed, some people think they're never available.  I assume without knowing that in fact punitives are less likely to be awarded in arbitration than in litigation...but sometimes not.

In a case involving unsuccessful pest control, the Eleventh Circuit reinstated, in an unpublished opinion [PDF] an arbitration panel's award against Orkin of $2.25 million in punitive damages (on $750,000 in compensatory damages) after the district court knocked it out; Orkin will also be paying interest and fees. 

In a useful reminder to be clear what claims can legally support a punitives verdict, the arbitration panel appears to have been a bit confused about which claims could support a punitives award, originally tying them to a statutory consumer protection provision, but then making more explicit that they were based on gross negligence and fraud.

From the Atlanta Business Journal story:

Black entered Orkin's arbitration process after years of problems, including repeated and severe termite invasions -- more than 25 swarms in seven years -- and Orkin's failure to obtain both the proper legally required permits and inspections for repair work, the original suit said.

The Orlando Sentinel has more about potential effects in the pest control industry and also notes that the civil case evidently triggered a racketeering investigation into the industry in Florida.

February 24, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, February 23, 2006

Swimming with Sharks Radio

A local lawyer and I had the first broadcast of our new radio show, "Swimming with Sharks," on Valley Free Radio, WXOJ-LP 103.3 FM in Northampton.  Today we talked about punitive damages, among other things.  It included excerpts from the State Farm argument at the Supreme Court.

The podcast is at  To subscribe to the podcast, put the following URL in your podcasting client:

The show is on every other week on Thursdays from noon to 1.  The station does not presently have a web stream or a functional website.

February 23, 2006 in Current Affairs, Legislation, Reforms, & Political News, Teaching Torts, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Lead Paint in Rhode Island

Various members of the paint industry were found liable for creating a public nuisance by manufacturing and selling lead paint.  The damages phase of the trial is yet to come.  (DuPont settled out by way of paying several million dollars to various lead mitigation projects.)

A couple of plaintiffs' experts and scholars have done an interesting website related to their book, deceit and denial.  The site focuses on vinyl chloride litigation but it's a nice look at a particular effort to use historians in this sort of litigation.  (Note: I don't know if they were involved in the Rhode Island case, or indeed if they're litigation experts in the lead paint cases at all.Update: According to the experts' website, they are indeed involved in this case:

We have become embroiled as expert witnesses in these legal disputes because the historical record is critical in determining whether the lead and vinyl industries should be held accountable for harm to individuals and communities. One case has been brought by the Attorney General of the State of Rhode Island against the lead industry. Here, the State is suing for recovery of costs associated with the damage to children caused by lead paint on the walls of houses in the state and for the costs of removing the lead from the walls of up to 80 percent of the homes in Rhode Island.

February 23, 2006 in Current Affairs, Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 22, 2006

Science for Hire?

A fascinating find in PFOA documents discussed at EffectMeasure; the full article is at Environmental Science and Technology, a publication of the American Chemical Society:

Tucked away inside the U.S. EPA’s docket on PFOA, a chemical manufactured by DuPont, is a 5-page letter written in April 2003 by the Weinberg Group, an international scientific consulting firm based in Washington, D.C. The letter is addressed to DuPont’s vice president of special initiatives, Jane Brooks, and lays out a proposal for how the Weinberg Group can help the company deal with a growing regulatory and legal crisis over PFOA (perfluorooctanoic acid).

* * *

Passages from the letter describe how the firm will develop a defense strategy based on science. “[W]e will harness, focus and involve the scientific and intellectual capital of our company with one goal in mind—creating the outcome our client desires.” Another sentence reads, “This would include facilitating the publication of papers and articles dispelling the alleged nexus between PFOA and teratogenicity as well as other claimed harm.”

* * *

[BU's David] Ozonoff, who sat on EPA’s Science Advisory Board review panel for PFOA, points to a passage in the memo that details how to identify the likely health benefits of the chemical “by analyzing existing data, and/or constructing a study to establish” that PFOA is safe and “offers real health benefits.” The next sentence mentions the oxygen-carrying capacity of blood and the prevention of coronary artery disease.

“That blew me away,” says Ozonoff, adding that data on PFOA seem to show an effect on lipid metabolism; this raises concerns that the chemical may actually increase the risk of cardiovascular disease. “This [proposal] is a ‘manufacturing doubt’ strategy. If you say, ‘Gee, this might cause heart disease,’ then they’ll come back with another story that says it’s good for your heart.” Constructing this sort of narrative, he says, sets a research agenda that any independent scientist wandering into the field must address.

In other words -- the article asserts -- the group is offering to produce science to support a potential litigation position.  Litigation-driven scholarship is a very interesting area, and part of my current research.  Hopefully I'll have a draft article available for comments in the next month or so.

(Via Blog 702.)

February 22, 2006 in Experts & Science, Products Liability | Permalink | Comments (1) | TrackBack (0)

Law Student Torts Writing Competition

Full details at the ABA site.  The short version is that the best student-written torts-related paper gets a trip to Hawaii and some cash.

February 22, 2006 in Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Compromise on Med Mal Reform in Washington State

From the Post-Intelligencer you can get more on the politics, while Point of Law summarizes it well.  The actual bill started off last year and has gone through various changes.  It's pretty far-reaching and if I have time this afternoon I'll look at the bill in a bit more detail.

February 22, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 21, 2006

The Politics of Preemption

The LA Times [free sub. req.] had a lengthy story yesterday about the various federal agencies recently seeking to preempt state law and whether those efforts are coincidental or part of a broader White House strategy.

In a letter to President Bush on Thursday, Rep. Jan Schakowsky (D-Ill.) said, "It appears that there may have been an administration-wide directive for agencies … to limit corporate liability through the rule-making process and without the consent of Congress."

Administration officials said the initiatives had not been centrally coordinated.

"Under the constitution, federal laws take priority over inconsistent state laws," said Scott Milburn, spokesman for the White House Office of Management and Budget. "Decisions about … whether particular rules should preempt state laws are made agency by agency and rule by rule."

My prior post questioning the impact (if any) of agencies' declaring their actions is here; it links to prior preemption posts as well.  The LA Times piece, as others, doesn't address that issue.

February 21, 2006 in Current Affairs, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

Red Red Meat

Turns out some meat producers treat their product with carbon monoxide to keep that pretty pink color for longer, and competitors and some consumer groups think the FDA should ban the practice, or at least treat carbon monoxide as a colorant subject to full review.  The FDA has previously agreed that the practice is "generally recognized as safe" (or "GRAS"), though the practice is not allowed in Europe at all.

The concern identified by opponents is that it disguises when meat is going bad (while competitors also acknowledge a potential loss for their alternative approaches).  The people using the carbon monoxide, unsurprisingly, disagree:

"When a product reaches the point of spoilage, there will be other signs that will be evidenced -- for example odor, slime formation and a bulging package -- so the product will not smell or look right," said Ann Boeckman, a lawyer with the Washington law firm Hogan & Hartson. It represents Precept Foods LLC, a joint venture between Cargill Meat Solutions Corp. and Hormel Foods Corp. that helped pioneer the technology.

* * *

Bucky Gwartney, executive director for research and knowledge management for the National Cattlemen's Beef Association, chafes at the idea that the industry is trying to fool consumers.

"It would be ludicrous for a company to adopt a process that would undermine what we all want, which is to assure that food is safe," Gwartney said. "Maybe it needs to be more transparent and public," he acknowledged. "If that's what we need to do, we'll probably do that as an industry."

Interesting express warranty (and other questions) abound...

February 21, 2006 in Current Affairs, Products Liability | Permalink | Comments (1) | TrackBack (0)

Monday, February 20, 2006

Can I Super-Bloody Those Fries?

Suggesting perhaps an entire meal with bloody extras, a woman is suing McDonald's over blood on her French Fries.  Recall the sundae with alleged blood case (and if you haven't read that story, please do so, at least to check out the final paragraph).  In this case, it seems that there is indeed pretty solid evidence that there was in fact blood on the fries and that it did come from an employee.

(Via Consumerist.)

February 20, 2006 in Goofy Cases, Products Liability | Permalink | Comments (0) | TrackBack (0) on Asbestos Bill

Yes, it's a little late (nearly a year old), but this piece has a nice blow-by-blow of some of the assertions raised on both sides of the debate, in particular focusing on the source of the trust fund's money and the potential impact of lobbying.

February 20, 2006 in Current Affairs, Legislation, Reforms, & Political News, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Sunday, February 19, 2006

Liability for Undisclosed Ingredients -- McDonald's Fries

This isn't just another obesity suit (and there haven't been all that many of those, after all).  This one has to do with undisclosed milk and wheat ingredients in its fries.

McDonald's Corp. faces at least three lawsuits claiming the fast-food giant misled the public after it acknowledged earlier this week its french fries contain milk and wheat ingredients.

Debra Moffatt of Lombard, Ill., seeks unspecified damages in a suit filed Friday in Chicago. Her attorney, Thomas Pakenas, said his client has celiac disease, which causes gastrointestinal symptoms set off by eating gluten, a protein found in wheat.

McDonald's is testing the fries now to see if they in fact contain gluten (surprises me that they don't already know).  What surprises me even more is that it apparently took as long as it did to add the wheat and milk acknowledgment to the ingredient list.  (Compare to the archive of the same page from March 2005.)  (And revel in the world that is McDonald's ingredient lists.)

February 19, 2006 in Current Affairs, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Saturday, February 18, 2006

Bird Flu Vaccine Antibiotic, Dangers, and Science

I've previously pointed to and do so again, this time to an interesting piece on the Tamiflu product and, more generally, the anti-vaccine groups.  As he points out, the fundamental basis for many of the criticisms is incorrect -- Tamiflu is not, in fact, a vaccine -- it's an antibiotic.

She tells us of the evils of the measles vaccine (”which caused untold paralysis, damage and death”), and then she tells us how, because vaccines are only able to make your body recognise the appearance of certain strains, and the bird flu virus will change with time, so the drug will become useless: “Why flu drugs don’t work: all flu viruses change antigenically to evade recognition by the host’s immune system.” But Tamiflu, as you know, is not a vaccine.

* * *

[T]his time she has people dying from a vaccine that doesn’t actually exist: “Indeed, the flu shots are worse than useless. Japan has already reported that eight people have died - not from the virus, but from the avian flu jab itself.” Lordy. Good luck jabbing a Tamiflu capsule into your arm. Even better is where they call a virus with a 50% kill rate a pussycat: “At its worst, the avian flu has killed fewer than half the number of poultry workers who have been infected…however, if it truly is as lethal as we have been warned, it surely should have eventually killed everyone it infects.”

One might come up with interesting torts hypotheticals (or perhaps there are actual cases; I haven't checked) on parents who choose not to vaccinate their children and a disease is spread further as a result.

February 18, 2006 in Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)