TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, June 30, 2006

Other Presumption Ideas

Blog 702 raises a good question, citing my MIPR article [PDF]and presumably by implication my Point of Law piece on the same issue:

Shouldn't those advocating such a presumption [for, for example, nondefectiveness for FDA-approved drugs] also advocate, with equal zeal, a parallel presumption in favor of federal agency findings that support a generic causal link between some substance or product and disease -- e.g., the recent Surgeon General's Report linking second-hand smoke to various adverse health outcomes, even at the lowest exposures?

Yep.  I think I would, assuming that the determination is qualified (as I discuss in the Point of Law post but not the MIPR piece) properly -- essentially a Daubert showing related to the government's determination.  I would like to think more about it, but at first blush, it makes sense (and will probably show up in the paper I'm working on).

(Incidentally, I don't think I would classify myself as a "tort reformer," and I'm not sure Peter does classify me as such.  I'm not in the same camp on many, many issues as most folks who self-classify that way.)

June 30, 2006 in Experts & Science, Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Another Disney Death

A number of readers have pointed out that another young rider died on a ride at Walt Disney World.  This time, the twelve-year-old rider was on the Rock 'n' Roller Coaster, which is by modern measures a relatively tame coaster. is reporting (in a surprisingly prominent "Breaking News" banner headline) that the boy's preliminary autopsy report indicated a congenital heart defect.  As I noted in the Mission: Lawsuit post and comments, a substantial percentage of deaths on rides relate to (usually unknown) medical conditions, typically brain or heart issues.  Typically, an expert explains later that if the ride hadn't triggered it, a bumpy road or a sneeze or something else might have.

And so we are again faced with the same question: where, if anywhere, is there liability?  The ride did what it was meant to do -- elevate heart rate, create excitement, and so on.  But that action will, in some small but non-zero number of riders, injure or cause death.

Just to identify the contrast, consider the other recent tragic case where a six-year-old fell to his death from a Ferris Wheel, apparently panicking while at the top of the ride.  I've posted about it here and here.  The first question many people ask is why a six-year-old was riding by himself -- and that's a good question, and should be considered (and I address it more in those posts).  But my bigger question, given the fact that people go to parks to escape and forget their responsibilities, is why the manufacturer or operator permits riders 42 inches tall or shorter to ride alone.  Based on average heights, that means four-year-olds could ride in a gondola-style ride vehicle with no restraints and no supervision.  The only surprise is that this doesn't happen more often.

June 30, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Final Post at PoL

Thursday, June 29, 2006

Greatest Lawsuit Ever?

Okay, probably not.  And not really a tort suit, as far as I can tell.  But any time you've got a bodybuilder suing Pat Robertson, I'm sold.  Plus, he's also sued Jon Stewart and a fellow named John Edwards (not that one) (or that other one, who, as it turns out, lacks the final s).  The bodybuilder is Phil Busch (warning: his website starts making noise without warning and is profanity laden).  The story:

At the center of the controversy is Robertson's formula for a weight-loss shake. The formula is distributed free through The 700 Club, CBN's flagship talk show. Using the shake, Busch's weight dropped from more than 400 to 212 pounds in 15 months. In the fall of 2004, Busch entered two drug-free bodybuilding competitions, Mr. Natural Olympia and Mr. Natural Universe, and scored two top-10 finishes.

When Busch shared his story with The 700 Club, the show's producers decided to use Busch's dramatic before-and-after photos to kick off the 2005 edition of "Pat's Weight Loss Challenge."

The recipe is distributed for free through the non-profit group CBN (which broadcasts The 700 Club) but also licensed to, among other places, GNC stores, by the for-profit Robertson Asset Management, through which Pat Robertson receives a commission.  Robertson's attorneys say the lines are kept clear to protect the CBN's tax-exempt status.

So here's the part that Busch is angry about: As noted, he appeared on The 700 Club, and the free distribution took off dramatically.  But the for-profit sales soared too, with a different body builder as the (one assumes paid) spokesman.  Busch thinks that his appearances were being used to sneakily promote the commercial product and wants to get paid.  So he sued, currently acting pro se.  So far, the non-Robertson defendants in that suit have settled for a total of $42,000.  Unfortunately, the Eastern District of Virginia doesn't scan its filings, so I don't have the complaint for you.

He's suing Stewart for using his image in a bit about the Robertson shake, and Edwards for allegedly backing out on an agreement to create a line of Busch-endorsed products.

And in case you are disbelieving the power of the Robertson Shake, here's a video of his leg-pressing abilities:


June 29, 2006 in Goofy Cases | Permalink | Comments (0) | TrackBack (1)

A Blow to the Asbestos Bill

Interesting Hill piece:

Douglas Holtz-Eakin delivered a significant blow against the effort to revive asbestos-reform legislation when he testified earlier this month that a cost assessment of the measure he had provided in November as director of the Congressional Budget Office (CBO) was unrealistic.

* * *

At the beginning of this year, Holtz-Eakin became the head of a think tank funded by a foundation set up by one of the biggest opponents of the asbestos-reform bill, American International Group, an insurance giant better known by its acronym AIG.

AIG is one of several entities that have poured tens if not hundreds of thousands of dollars into an effort to defeat the asbestos reform bill, according to internal industry documents.

* * *

Specter said at the hearing that there was “a 180-degree difference” between what Holtz-Eakin estimated the program would cost as CBO director and his subsequent comment that its cost was highly uncertain. The first time Holtz-Eakin testified it was at Specter’s invitation as CBO chief. The second time he was invited by an opponent of the bill, though it is unclear which member sought his testimony.

June 29, 2006 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (4) | TrackBack (0)

Apologies Writ Large

Interesting piece at Concurring Opinions by Elizabeth Nowicki (Richmond) about apologies in mass tort cases.

(See also this about apologies in smaller-scale litigation.)

June 29, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (1)

Peer Review Discovery & Memorial Damages

The fourth post is up at Point of Law.

June 29, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 28, 2006

Presumptions, Daubert, and Regulatory Compliance: Three Great Tastes that Taste Great Together

Tuesday, June 27, 2006

This, Too, Must Somehow Be MySpace's Fault

Thanks to Peter Nordberg of Daubert on the Web for pointing out this story of teenagers robbing a man they met through MySpace.

The man agreed to meet "Natalia" based entirely on her (fictional) profile with pictures and a statement that she was looking for "some fun."  He agreed to meet her at her supposed apartment  And then things went poorly...

That is when two girls who were 14 and 15-years-old, approached him saying they knew Natalia, the girl he thought he'd be meeting. They also said they knew where he worked at what car he drove.

"This was not the girl that the picture was of on MySpace," the victim said.

One of the girls put a gun to his head and demanded money, but let him go when it turned out he had none.  And the conclusion that ties it back to the earlier MySpace stories (here and here and here):

The so-called Natalia did tell the victim that she was 18, so he was shocked to learn he was actually talking to a 14-year-old. He says he has since removed personal information from his MySpace profile, like his salary and the kind of car that he drives.

Good call, that, removing your salary.

June 27, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Senators Ask Exxon to Pay Up, Please

A bipartisan group of two dozen senators have asked Exxon to expedite paying or negotiating a settlement of the $4.5 billion punitive damage award arising from the 1989 oil spill from the Valdez ship.

"Unfortunately your corporation has chosen a legal strategy of delay and appeal," the senators wrote. "Your lawyers have filed hundreds of motions and over a dozen appeals, while the fishermen and impacted communities continue to suffer from the aftermath of the tragedy."

* * *

An Exxon spokesman said the company isn't stalling, just pursuing the case in court as allowed by law.

Dave Gardner, Exxon's media relations adviser, said the company has already paid $3.5 billion in clean-up costs, compensation to spill victims and settlements.

"We believe that all damages have been paid. ... The ongoing case is about whether further punishment is warranted, not whether any plaintiff is entitled to money for losses that were incurred," he said in an e-mail from Exxon headquarters in Irving, Texas.

June 27, 2006 in Damages | Permalink | Comments (0) | TrackBack (0)

Some Comments on Law & Science

After seeing my posts at Point of Law, I got these comments from my dad, Ves Childs, a retired electrochemist.  I thought they were worth sharing:

After reading Day 2 and reflecting on Day 1 I think it incumbent upon society to redo our entire system of education.

I am not sure how to do it or even if it is possible.  But I think we have to try.  Hedrick Smith’s book Rethinking America would be a place to start.  I would also look at some of Tom Friedman’s ideas about globalization.

We can no longer treat the various disciplines and professions as nonoverlapping magesteria.  We must recognize that life is one big whole and that essentially all of us are stuck on this globe.

On day 2:

Why don’t [judges] have the tools to evaluate scientific evidence?

Or is it that they have the tools and don’t know how to use them?

How is scientific evidence different from other evidence?

I suggest that scientific evidence is no different from other evidence.

I further suggest that the teachers of science (not the scientists) have used that crutch known as the scientific method to deliver an impression of science that is not the true face of science.  These teachers of science know some words of science but they do not know the joy of science.  Absent that joy they don’t realize and cannot teach that all of life is science and that science is nothing more than learning.  And that science is not learning facts.  Science is learning to organize and to challenge in an organized fashion.

Good judges certainly know how to evaluate other testimony in a rational manner.  How do they learn to do that?  The teachers of law show them how.

Those same teachers of law should be able to teach lawyers/judges how to evaluate scientific testimony rationally.  They only need to recognize and teach that testimony is testimony is testimony.

This will likely involve restructuring the way science [and its relationships with the rest of life and learning] is taught and that is a whole different question.  Have you read The Scientist in the Crib?  I remember the first time I saw Ella with her head up looking around and soaking in her world.

(Ella is my daughter and his first grandchild.)

June 27, 2006 in Experts & Science | Permalink | Comments (0) | TrackBack (0)

Small Beer: Getting Judges Comfy with Science

My second post at Point of Law is up now, addressing some possible ways to improve the decision-making of judges in the context of scientific evidence.  Comments here are open and welcome.

June 27, 2006 in Experts & Science | Permalink | Comments (2) | TrackBack (0)

Monday, June 26, 2006

Guest Posting at Point of Law

I'm guest posting at Point of Law this week.  My first entry, An Introduction to Tort Reform for Liberals, is up now.  Comments here are welcome.

June 26, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Sunday, June 25, 2006

Um, Ouch.

Hooray for the TaxProf Blog, run by the LPB Power That Be Caron, for finally giving something I can link to.

But, again: ouch.

June 25, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

More Mission: Lawsuit

An interesting story in today's Orlando Sentinel, discussing something known as "simulator sickness."

One thing that caught my eye is that it suggests that the people feeling ill -- even to the extent of calling 911 -- are a separate category than the two patrons who have died:

Who is at risk?

Daudi Bamuwamye, 4, died June 13, 2005. His autopsy found a rare heart disease. Two weeks ago, his family sued, charging Disney knew the ride is hazardous.

Hiltrud Blumel, 49, of Germany, died April 12. An autopsy report is due any day. A preliminary report said she had severe high blood pressure and died of a stroke.

Simulator experts don't blame the deaths on simulator sickness, saying people with such serious health problems are at risk anywhere, anytime.

Also interesting is the fact that the G-forces do not directly cause many of the problems; it's the "fooling" riders' inner ears.

(See here for an earlier post and interesting discussion in the comments.)

June 25, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Chocolate with a Chewy Salmonella Center

Cadbury is accused of knowing of salmonella in one of its chocolate production lines as early as January, but just recalled over a million products last week in the UK.  The company also didn't notify UK health authorities until recently.  The company asserts (see also the company press release) that its obligation to report is triggered only by a health risk, and continues to believe that the health risk is minimal. 

June 25, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, June 23, 2006

Updated: A MySpace Follow-on Suit

Thanks to Matt in the comments to today's earlier post for pointing out that the alleged third-party criminal/torfeasor is himself considering a suit against MySpace.  (Note that though the Time story refers to it as a "countersuit," it appears to in fact by a suit against MySpace; at this point, Solis (who is under criminal charges) is not a civil defendant.) would be better described as a cross-claim.  Solis is indeed a defendant; thanks to KipEsq for correcting me.  That'll teach me to post while mediating the kids' argument.

Edit: While I'm somewhat skeptical of the original case (due to some feasibility and causation questions), I'm more puzzled by Solis's potential claim.  The aserted lie by the original plaintiff was that she was 15 rather than 14 (which follows from the complaint's acknowledgment that she claimed to be 14 when she registered at age 13). 

At a glance, the Texas penal code defines for purposes of sexual and assault charges that "child" is anyone under 17.  Is there some other legal significance to her potentially being 14 rather than 15?  Perhaps a sentencing enhancement of some sort?  I don't see one at a pretty brief look, but maybe it's there...any Texas lawyers want to chime in?

June 23, 2006 in Current Affairs | Permalink | Comments (6) | TrackBack (2)

More MySpace

I had an interesting discussion of the MySpace case with around 30 Massachusetts judges yesterday (I was teaching a refresher Torts course), so I thought one more post for the short term might be worth it.  So, here's a story about additional efforts MySpace is doing, including a picture of Pete Solis, the not-actually-high-school-student who assaulted the 14-year-old plaintiff in the case discussed in the last couple of days.

"If you're 14 or 15, for example, on our site you can no longer be contacted by anyone who's over the age of 18 unless they know who you are. Knowing who you are means they know your first name and your last name or know your e-mail address," said Hemanshu Nigam, Vice President of MySpace security.

Plus this interesting assertion from Solis:

Just this week MySpace got slammed with a $30 million lawsuit after a 14-year-old girl said she was assaulted by 19-year-old Pete Solis. They hooked up on MySpace and met in person a few weeks later. Solis says he's just as much a victim because the girl allegedly lied about her age in her MySpace profile.

"It was just a complete shock," Solis said. "I mean, I hadn't seen … I mean I didn't expect anything 'cause I didn't hurt her in any way, and if I did I was sorry."

The complaint acknowledges that the 14-year-old registered when underage (and thus presumably lied then):


...but also asserts that she told him she was 14:


June 23, 2006 in Current Affairs, Documents | Permalink | Comments (2) | TrackBack (0)

Thursday, June 22, 2006

MySpace Complaint Exhibits

Just to make the MySpace record complete to date, here are the attachments to the complaint: Download MySpaceExhibits.pdf.  Thanks to the plaintiff's counsel for providing them.

The complaint, and a number of very interesting comments, are in this post, while this one has some other interesting comments.

June 22, 2006 in Documents | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 21, 2006

Bill: More FDA Funding, Responsibilities

The Boston Globe has more on the Kennedy (D-MA)/Enzi (R-WY) bill:

The Food and Drug Administration would get needed funding to shore up drug safety and patients and doctors would learn more about the risks of new drugs under the most sweeping overhaul of the FDA proposed in 30 years.

The proposal, which would fund many of the changes by increasing fees charged to drug makers , would also give companies better guidance about what would be expected of them if safety problems arose after drugs reached the market.

June 21, 2006 in Experts & Science, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)