Friday, February 17, 2006
Last year's federal legislation barring the use of the federal gun trace database in civil litigation has potentially doomed NYC's gun lawsuit, which had earlier survived a challenge under the Protection of Lawful Commerce in Arms Act, also passed last year. Judge Jack B. Weinstein issed an order Wednesday ordering the city to explain how its suit could survive the database law, based on the apparent fact that its suit does, in fact, rely on data from that database.
(Via WSJ Law blog)
The Post notes what I've noted before -- a trend of federal agencies asserting that their rules preempt state tort lawsuits. Both the WSJ blog and the Post assume something that's not self-evident to me -- that the agency's views on the preemptive power of their rules mean anything.
The Bush administration is using federal rulemaking to limit consumer rights to seek damages under state laws governing faulty products.
The Consumer Product Safety Commission will vote today on a rule that would restrict such suits in the case of mattresses that catch fire, the most recent rule changes undertaken by several agencies. Last month, the Food and Drug Administration limited consumers' ability to recover damages for injuries from agency-approved drugs.
Meanwhile, the National Highway Traffic and Safety Administration is seeking to give automakers similar legal immunity from lawsuits over defective roofs if their vehicles meet new roof-crush standards. It is also proposing to limit consumer lawsuits in a rule that would address seat-belt requirements.
I assume that courts are interested in hearing from the agencies in question (or at least willing to listen), just as they're interested in other amici (or at least willing to listen). Indeed, I'd guess the courts are more interested in the agencies' views than, say, mine.
But the question of implied preemption by Congress is a question for the courts -- and the agency saying so can't make it express preemption.
Or can it? Am I missing something? Comments are, as always, open.
Update: The CPSC yesterday approved new mattress guidelines and declared that the guidelines would have preemptive effect. As with the FDA, the declaration was in the preamble.
Also, PrawfsBlawg has more.
Thursday, February 16, 2006
We're approaching the food and drink section in my Products Liability class, so this Long Island Press story is a handy resource on various related incidents and lawsuits, including this one:
A few glasses of milk did a body bad after a man in Washington State reported that they gave him a stroke. Norman Mayo, 61, filed a lawsuit against Safeway supermarkets and the Dairy Farmers of Washington in 1997 because the milk Mayo claimed he was addicted to didn't have any warning label indicating that it would clog his arteries. Unfortunately for Mayo, a federal judge ended up throwing out his lawsuit. On a completely unrelated and untrue side note, Harold Milk claims he got a stroke after consuming a few jars of mayo.
Wednesday, February 15, 2006
I'm guessing I'm the first Torts prof in the country to get a quiz or exam completed based on the vice president's hunting accident. My evening section is taking the quiz at this very moment (8:05 EST).
Or did someone out there beat me to it? Say so in the comments...
Donut shop employees spitting and urinating in coffee cups in our fair commonwealth:
Police began asking questions on Jan. 29, after an anonymous tipster said the store manager was ''SPITTING and putting URINE in POLICE OFFICERS COFFEE,'' according to a police report filed in court.
* * *
At least one doughnut shop employee told police she heard DaSilva threaten to spit in a customer's coffee and heard Rodrigues encourage him.
On one occasion, the woman heard DaSilva ''make a spitting sound while the coffees were in front of him,'' then saw him serve the drinks to a customer, according to the police report.
Probably no vicarious liability, given how contrary it is to the purposes of the Dunkin Donuts, but still an interesting fact pattern.
Today's Post article, among other stories, notes a medical criteria proposal being advanced by Durbin, among others.
Sen. Richard J. Durbin (Ill.), the No. 2 Democrat in the Senate and a leading opponent of the trust fund, acknowledged that "significant changes in the existing tort system" are needed, and that all the principals -- including the trial lawyers who sought to defeat the proposed fund -- must give ground.
"We have to find a reasonable way to help those victims," Durbin said. He suggested reviving an approach, which Republicans had not advanced for years, to establish medical criteria for asbestos lawsuits within the current system. Trial lawyers opposed that approach, as did most Democrats, which is one reason the fund idea became popular.
Most stories also note, as does Point of Law, that the trust fund bill may not in fact be entirely dead.
Tuesday, February 14, 2006
Seems so, for now anyway.
Supporters fell one vote short of the required 60 votes to waive a budget rule barring legislation that increases government spending by $5 billion in any of four decades after 2016. Senate Majority Leader Bill Frist said before the roll call he would shelve the legislation for the remainder of the year if the procedural motion failed to get 60 votes.
(from the Bloomberg story.)
...so says the Post.
Estrogen does not increase the risk of heart disease for women in their fifties and may even be protective, according to a new analysis that reassures women it is safe to use the hormone for short-term relief of hot flashes and other symptoms of menopause.
* * *
The findings are the latest development in a long, often confusing history of hormone use during and after menopause. Millions of women stopped taking estrogen after earlier research concluded it was dangerous. The new findings should ease their concerns about heart disease, experts said.
[Disclosure: My old firm, which still employs me in a consulting role, has involvement in the defense of the litigation. I did not and do not have any involvement in that litigation.]
In a unanimous decision written by Chief Justice Leah Ward Sears, the Supreme Court has affirmed a DeKalb County State Court judge in EHCA Cartersville, LLC v. Turner, S05A1560, and partly reversed a Fulton County State Court judge in Garland v. Earle et al., S05A2066. All the Justices and Judge Daniel M. Coursey, Jr., concurred; Justice Harold D. Melton did not participate.
The Court found that “the plaintiffs in both of the present cases filed their medical malpractice actions in a county of residence of a joint tortfeasor”; that “[t]he counties where the plaintiffs filed the actions, however, were not the counties where the torts occurred”; and that “[i]n each case, a defendant who resided in the county where the tort occurred moved to have the case transferred to that county pursuant to OCGA § 9-10-31 (c).”
The Supreme Court has ruled that Georgia’s Constitution “vests the power to change venue in the courts, whereas OCGA § 9-10-31 (c) vests the power, not in the courts, but in nonresident defendants who reside in the county where the tort occurred.” As a result, the Court has ruled “that § 9-10-31 (c) violates the joint tortfeasor venue provision of our Constitution.” However, with regard to OCGA § 9-10-31 (a), the Court has ruled that this provision of the Tort Reform Act of 2005 “vests the power to change venue in the court, and not in a defendant, as does § 9-10-31 (c),” and consequently “OCGA § 9-10-31.1 (a) is a proper exercise of authority under Art. VI, Sec. II, Para. VIII of the Constitution, and thus does not violate Art. VI, Sec. II, Para. IV of the Constitution.”
Both provisions were challenged under this provision of the Constitution:
Paragraph IV. Suits against joint obligors, copartners, etc. Suits against joint obligors, joint tort-feasors, joint promisors, copartners, or joint trespassers residing in different counties may be tried in either county.
The provision in 9-10-31(c) provides that a defendant in a medical malpractice case can transfer venue to his or her home county if that county is where the alleged tort took place, notwithstanding the residency of the plaintiff or plaintiffs. The Supreme Court held [PDF] that this venue transfer provision violated the state Constitution's venue provision.
The other provision, 9-10-31(a), essentially adds forum non conveniens to the state civil procedure, an addition the court found consistent with the Constitution.
The core distinction, as suggested in the summary, is that (c) places venue transfer power with the parties, while (a) leaves it to the courts.
Five UGA profs provided a useful summary of the legislation back when it was adopted; the venue provision was accurately described as "constitutionally suspect" by C. Ronald Ellington. That summary provides a good overview of the rest of the measures as well.
Monday, February 13, 2006
The Robert Wood Johnson Foundation issued a "synthesis report" [PDF] with what certainly appears to be a careful, balanced approach to explaining the basics of medical malpractice insurance, the factors that go into setting premiums, how much we spend on medical malpractice insurance, what constitutes a medical malpractice insurance "crisis," and how such crises affect premiums.
A key (if unsurprising) observation in the report is the fact that interest groups tend to focus on one of two "genesis stories" to the exclusion of the other. In other words, tort reform advocates focus on litigation costs, while plaintiffs' attorneys and consumer groups focus on the insurance cycle and investment outcomes, and neither group recognizes alternative sources as being a factor. The report suggests that both factors are involved and are interrelated.
This year the American Law Institute has embarked upon a new project to draft the Third Restatement of Economic Torts. These torts can include established causes of action such as fraud, misrepresentation, professional malpractice, bad faith, breach of fiduciary duty, intentional and negligent interference with contract and opportunity, unfair competition, misappropriation of trade secrets, and disparagement, as well as emerging torts such as conversion of intangibles.
At this pivotal time, the Economic Torts Conference, organized under the direction of Ellen Bublick, Professor of Law at the University of Arizona Rogers College of Law, gathers together more than thirty distinguished academics, judges and practitioners to address the appropriate scope and definition of economic torts. Are economic tort suits desirable? Are they really increasing in number? When should parties be confined to contract alternatives to remedy claims of economic loss?
Our conference examines questions like these, probing the contours and limits of these disparate but often overlapping causes of action.
The Economic Torts Conference will be held March 3rd and 4th, on the campus of the University of Arizona Rogers College of Law in Tucson, Arizona.
More information at http://www.law.arizona.edu/Events/tortsconference.cfm.
Sunday, February 12, 2006
The Times has a nice overview of challenges to policies such as eliminating whole milk in schools.
"I don't want to say there is no such remedy that will ever work," said Dr. Jeffrey Friedman, an obesity researcher at Rockefeller University. "But the burden should be on those who want to impose them to show they work. To my knowledge, no one has ever done this."
Saturday, February 11, 2006
An interesting piece by Michael Perelman:
Given the absence of criminal penalties for corporate misbehavior, society needs an alternative means to protect itself against corporate abuses. Ideally, effective regulation might help to keep corporations in line, but the regulatory structure in the United States is embarrassingly weak.
Of course, it's not accurate to say there are no criminal penalties for corporate misbehavior, but the rest of the piece pulls together some useful data and includes a recognition of the resources that are wasted through litigation.
Friday, February 10, 2006
[Updated and moved to the top Friday 2/10 at 5 pm]
Like the SOTU post, I'll try to update this periodically. The Post had this good story about the early back-and-forth on the bill, which provides decent background on both the bill and the battle to come. "Under the measure, companies and their insurers would contribute $140 billion to a trust fund that would compensate victims of asbestos exposure. The measure would stop all asbestos-related court cases and spare defendants crippling jury awards."
- Alliance for Justice (letter to the Senate [PDF]): "S. 852 will leave a substantial number of seriously ill victims of asbestos-induced diseases -- many of whom are dying -- uncompensated and worse off than they are under current law. The Asbestos Trust Fund that S. 852 creates is unfair, unworkable and inadequately funded. According to testimony presented to the Senate Judiciary Committee, the fund will rely on very substantial borrowing early on to pay hundreds of thousands of initial claims resulting in debt service costs over the life of the fund that could reduce the $140 billion intended to pay claims by as much as 40 percent or more. Moreover S. 852 terminates the right of victims to seek redress in the civil justice system, which for all its challenges, has evolved to manage asbestos litigation with increasing efficiency. An asbestos fund that fails to offer victims equal or better protection and relief than they enjoy under the current civil justice system is completely unacceptable."
- Manufacturers' Blog (NAM): "We find that too many people really don't understand the crux of the disagreement on this issue. We find all too often when talking to people about it, they begin with the assumption that we somehow doubt that asbestos is a harmful substance. We don't doubt it. This issue isn't about whether asbestos is safe or not -- this has long since been established. The issue is how people injured by exposure to asbestos will be compensated. We want to make sure that all the money doesn't go to trial lawyers and healthy people." [After some stats about percentage of recovery to lawyers, etc.] "This, in short, is a national disgrace. There are sick people out there who deserve to be compensated. Only trouble is, there's a line of healthy people -- and trial lawyers -- in front of them." See also their update today.
- People Over Profits (ATLA): "The Specter-Leahy bill asks asbestos victims to bear the risk of an inadequately funded, unfairly structured and untested new compensation program that is not even a "no fault" system. In fact, victims must surpass huge new hurdles to prove their asbestos exposure and that it is the cause of their illness. Based on the current version of the bill, it will be impossible for them to do so." (Also lists "ten worst hurdles" established by the bill.)
- TownHall.com (via NAM): This one has a point-counterpoint which does a reasonable job of summarizing the views on either side.
- WSJ's LawBlog links to a WSJ article (paid sub. req.) saying that the legislation appears DOA.
- The American Enterprise Institute hosted an event a couple of weeks ago discussing the bill; a video of the event is available as is a summary. I think it is fair to summarize the summary (yikes) as ambivalent -- everyone wants something legislatively but nobody's certain this is good enough.
- The New York Times [free sub. req.] editorialized in favor of the legislation yesterday. "No one can be sure that $140 billion would cover all current and future claims. But the bill would give victims the option of going to court should the trust fund run out. It would be a vast improvement over the present method of dealing with the claims of asbestos victims, which is to clog the courts and bankrupt companies while still depriving many victims a measure of justice."
- [New] WSJ LawBlog has a good update today (Thursday), including this entertaining snippet: "[N]oted plaintiffs’ class action lawyer Richard Scruggs apparently supports the bill: 'This bill stops companies from going bankrupt and prevents trial lawyers from going after these companies and bringing them down,' he told the paper. In response, a spokeswoman for the American Trial Lawyers Association 'noted that Mr. Scruggs appeared to be the only trial lawyer in the country who supported the legislation.'"
- [New] The Heritage Foundation: "Regrettably, the Senate bill as written may end up replacing one failed system with another. Lawmak ers can still remedy the problem if they focus on rules that will aid those truly wronged and nothing more. If they can do this, asbestos litigation reform could establish a positive precedent rather than another—albeit different—type of failure." [via our neighbors at the Law Librarian Blog]
- [New] The Washington Post editorializes in favor: "The bill will be debated and amended, and it may face a second attempted filibuster before it gets a vote. Some amendment may be reasonable at the margins, but the bill's central idea -- to replace litigation with a $140 billion compensation fund to be financed by defendant companies and their insurers -- must be preserved. Democrats complain that the fund won't have enough money to compensate asbestos victims; Republicans complain that the fund will have too much money, the raising of which will constitute a burden on small and medium-size firms. The fact that the bill is being attacked from both directions suggests that its authors, Sens. Arlen Specter (R-Pa.) and Patrick J. Leahy (D-Vt.), have balanced competing interests in a reasonable manner."
- [New] 14 Republicans have rewritten the bill entirely: "A group of Republican senators on Thursday proposed completely rewriting an asbestos bill to allow lawsuits under strict medical criteria rather than create a $140 billion fund to pay victims of the mineral. . . . Cornyn said his proposed amendment would establish a 'national floor' with respect to medical criteria. It would require physical impairment, to which exposure to asbestos was a substantial contributing factor, to bring an asbestos claim to court. Several states have passed similar legislation. His proposal would also extend the statute of limitations for filing claims, so people who are not yet sick from asbestos can still have their cases heard if they fall ill in the future, Cornyn said. Further, the plan would attempt to limit fraud by medical screeners that vouch for claims." Note: Comments reflect that this bill failed.
I did a little (mind-numbing) asbestos insurance litigation when I was in practice and have read a fair amount about various proposals. I don't pretend to have a good solution in mind, though I do tend to think that legislation -- fair and cautious legislation -- is probably necessary, even if (as seems likely) the court system is getting better at dealing with the litigation.
While obviously it wasn't about the current bill (or any particular bill), Souter seemed pretty sensible here, writing for the Court: "The 'elephantine mass of asbestos cases' lodged in state and federal courts, we again recognize, 'defies customary judicial administration and calls for national legislation.'"
Please point me to any other posts you think should be included.
The KC Star piece has some interesting bits.
With its cap on noneconomic damages in medical malpractice cases, the legislation has discouraged pursuit of otherwise worthy cases, particularly on behalf of the very young and the very old, plaintiffs’ lawyers say.
Because they’re not wage earners and typically haven’t lost income as a result of an accident, often the sole compensation of the very old and the very young when they’re injured is noneconomic damages — or damages for pain and suffering.
The law also substantially modified joint and several liability in Missouri:
Now plaintiffs can pursue a defendant for 100 percent of their damages only if the defendant was found to be more than 50 percent at fault. Defendants found less than 51 percent at fault are liable only for their percentage of blame.
* * *
The old law undoubtedly influenced the decision of drug makers Eli Lilly and Co. and Bristol-Myers Squibb Co. to settle out of court hundreds of cases filed against them several years ago in Kansas City after pharmacist Robert Courtney pleaded guilty to diluting their cancer medications. The suits alleged that the companies knew or should have known that Courtney was watering down their drugs but failed to stop him.
Eli Lilly and Bristol-Myers Squibb had to decide whether to risk being found even 1 percent at fault. Given that the jury assessed $2.2 billion in damages against Courtney in the one case that went to trial, it was a chance the companies decided they could not take. Ultimately they settled with the plaintiffs for $72.1 million.
In today's Post editorial (and most coverage), the main opponents of the asbestos bill are identified as trial lawyers: "But the truth is that the bill's main opponents are trial lawyers, who profit mightily from asbestos lawsuits and who constitute a powerful lobby in their own right."
While I'm certain that it's true that much public opposition comes from the plaintiffs' bar (see ATLA, for example), there's another interest group that may (quietly) oppose it: defense firms that make their money on these suits.
I spoke recently with a (non-asbestos) defense lawyer who mostly practices in various southern states typically identified as "judicial hellholes," and he said that in his region, the defense firms were possibly more upset about the reform bill than the plaintiffs' bar. The plaintiffs' attorneys have already made a pile of money from asbestos, he suggested, and are perhaps better able to find a new area (as many of them did after the addition of arbitration provisions in credit agreements, for example), while the defense firms rely on the hourly defense work and may be less able to shift gears. And, not incidentally, it's a lot of work to start a new area of law -- just like there are asbestos plaintiffs' "trials in a box," defense firms have no doubt put together stock discovery answers, examinations, etc., that make the work not that difficult. It takes time -- and it might not be billable time.
Even if true, of course, the defense firms aren't going to go out and publicly lobby against their clients' interests (and it seems evident that this bill would generally benefit defendants). And so perhaps pockets of opposition from defense firms don't make that big of a difference. But it may at least be oversimplifying to say that the opposition is entirely from the plaintiffs' bar.
...and it's $500. (Per car.)
[CEO Thomas] LaSorda said the cost of lawsuits - including legal costs and insurance - adds 500 usd to every car and truck sold in the US.
'Perhaps a little 'blue-collar' grounding and manufacturing common sense could go a long way in making sense of the US legal system,' LaSorda told Agence France-Presse at the Chicago Auto Show.
'We need to set some reasonable and fair limits on damages. For every dollar awarded in tort liability, the typical injured party receives only about 46 cents to compensate them for injuries. That means the majority of every dollar goes elsewhere.'
He maintained that the US now spends about 2.23 pct of its gross domestic product on legal fees and other costs associated with litigation while countries such as France, Japan and Canada spend less than one pct of the GDP on litigation.
Thursday, February 9, 2006
Defense Verdict for Benihana; Chefs Still Free To Distract From Overpriced Food By Tossing Seafood Products Around Table
Seattle University School of Law invites applications for a visitor position to teach Torts in the fall and spring of 2006-2007. We are seeking an experienced professor to teach this 5-credit first year course (2 credits in the fall, 3 in the spring); the other fall and spring course to be taught subject to mutual agreement between the visitor and the Law School.
Seattle University School of Law, with 1,100 students and a current student-faculty ratio of 16-1, educates ethical lawyers who distinguish themselves through their outstanding professional skills and their dedication to law in the service of justice. Faculty, students, and staff form a vibrant, diverse, and collaborative community that promotes leadership for a just and humane world. The Law School's commitment to academic distinction is grounded in its Jesuit Catholic tradition – one that encourages open inquiry, thoughtful reflection and concern for personal growth. Innovation, creativity and technological sophistication characterize our rigorous educational program, which prepares lawyers for a wide range of successful and rewarding careers in law, business and public service.
Seattle University, founded in 1891, continues a 450-year tradition of Jesuit Catholic higher education. The University’s Jesuit Catholic ideals underscore its commitment to the centrality of teaching, learning and scholarship, of values-based education grounded in the Jesuit and Catholic traditions, of service and social justice, of lifelong learning, and of educating the whole person. Located in the heart of dynamic Seattle, the University enrolls approximately 6,000 undergraduate and graduate students in eight colleges and schools. Students enjoy a university ethos characterized by individualized faculty attention, a strong sense of community, a commitment to diversity, and an outstanding faculty.
Seattle University is an equal opportunity, affirmative action employer. Finding prejudicial discrimination inconsistent with the mission of the University and the spirit of free academic inquiry, Seattle University does not discriminate in hiring on the basis of age, sex, race, religion, national origin, familial status, sexual orientation, or disability. This policy complies with the spirit and the letter of applicable federal, state, and local laws.
Please send cover letter and curriculum vitae to: Annette E. Clark, Associate Dean for Academic Affairs and Associate Professor of Law, Seattle University School of Law, 901 12th Ave, Box 222000, Seattle, WA 98122. Telephone: (206) 398-4069; E-mail: firstname.lastname@example.org. Email applications are welcome.
Wednesday, February 8, 2006
Benihana attorney Charles Connick suggested during his closing arguments to the jury in the civil trial Wednesday that it was inappropriate to hold the restaurant at fault.
"I scratch my head and I wonder, is it conceivable to you?" Connick asked.
Update: The NYT (free sub. req.) has coverage too, with coverage of the plaintiff's argument, taking causation issues head-on:
Andre L. Ferenzo, a lawyer in Roslyn representing the Colaitis estate, told the jury yesterday that "a flying piece of hot grilled shrimp" thrown by an irresponsible chef "set into motion an unbroken chain of interrelated events" leading to Mr. Colaitis's death 10 months later.