TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, September 29, 2006

Public Citizen's Blog

Public Citizen has launched a Consumer Law & Policy Blog, and it's worth a spot in your RSS newsreader.  Its authors include an interesting mix of practitioners (both private and those working for Public Citizen) and academics.  Among the recent posts, this one, addressing the state of FDA preemption, caught my eye.

September 29, 2006 in Current Affairs, Legislation, Reforms, & Political News, Products Liability, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Requiring Background Checks for Social Sites

A FindLaw column addresses the various challenges to and problems with any statutory or regulatory requirement that dating or other social networking websites perform background checks.  This -- and issues like the MySpace litigation I've discussed previously -- can be a good basis for a discussion of duty, breach, proximate/legal cause, etc.

September 29, 2006 in Teaching Torts | Permalink | Comments (0) | TrackBack (0)

But Will He Dish On Crazy American Enterprise Institute Parties?

Oh, wait.  There are none of those.

Anyway, Ted Frank is guest posting at Above The Law.

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

Thursday, September 28, 2006

Asbestos Litigation Shrinking?

The ABA Journal says maybe.  Or maybe not.

September 28, 2006 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (1)

Great White Litigation Post-Plea

After loud displeasure with the criminal pleas by the owners of the Station nightclub where 100 people were killed by a pyrotechnic display gone bad, survivors say they're hoping that the civil suit will do more to ensure accountability.

James Gahan, whose 21-year-old son, Jimmy, died in the fire, said he is hoping the civil case will assign responsibility to everyone who contributed to the tragedy.

"If the criminal system is not going to follow through and make them accountable, the only thing we have left is the civil system," Gahan said.

Once judgment is entered on the guilty pleas, the individuals will be compelled to answer questions without any Fifth Amendment concerns.

The Smoking Gun has Great White's contract rider, which makes no reference to pyrotechnics.

Addition: I forgot that I posted earlier about the civil litigation, including a copy of the docket and complaint.

September 28, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

"Oh, We Bought Guidant? I Thought We Were Buying The Rough Guide To Slovakia. Our Bad."

Sounds like Boston Scientific may end up regretting its purchase of Guidant (which they got by beating out J&J), due in part to the carried-over tort exposure due to recalled defibrillators and pacemakers.  Hey, that sounds familiar.

Of course, the suits are still, I think, relatively small in number.  But if Google AdSense is any indication, it might turn into a big case yet.

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

Wednesday, September 27, 2006

Speaking of Causation Problems...

“But for Posey’s use of these products. . . he would not have killed,” according to the complaint in the civil suit seeking to blame a manufacturer for the murder of a family by a son.

The "products" in question?  Perhaps, oh, readily-available handguns?  Medications causing psychosis?  Nope.  A videogame, which somehow, via use of a joystick (which, to my untrained eye, looks rather unlike a gun), "how to point and shoot a gun in a fashion making him an extraordinarily effective killer without teaching him any of the constraints or responsibilities needed to inhibit such a killing capacity."

The WSJ law blog points out that the plaintiffs' attorney, Jack Thompson, is rather prolific in suits seeking to blame media, videogames, etc., for crime.

September 27, 2006 in Products Liability | Permalink | Comments (1) | TrackBack (0)

Social Networking Sites & Murder

Slate ran an interesting/disturbing piece over the weekend about the online presences of various murderers.  The lede:

When 25-year-old Kimveer Gill went on a shooting spree last week at Montreal's Dawson College, killing one student and injuring 19 others before turning his shotgun on himself, reporters seeking to explain the man's homicidal snap mined a treasure trove on Gill's personal blog. "His name is Kimveer," he wrote of himself at "You will come to know him as Trench. You will come to know him as the Angel of Death. He is not a people person." His Web journal featured a photo of his hoped-for tombstone, featuring his name and an epitaph that read: "Lived fast, died young. Left a mangled corpse." Gill wrote, prophetically, that he wanted to die "like Romeo and Juliet—or in a hail of gunfire."

When 21-year-old Melinda Duckett, the Florida mother of a 2-year-old missing for almost four weeks now, shot herself two weeks ago, she left behind an elaborate personal journal on her Web page at, the massive online networking site. "I have had to fight to keep my son, whom I am extremely proud of," she wrote in one post. "Why can not anyone understand/ the burdens I hold within my hand/ Life can not be all fun for I/ so many issues that I have to hide," she posted in June. Police desperate for clues as to whether Duckett is involved in her baby's disappearance are poring over these journals.

And three weeks ago, in Hillsborough, N.C., 19-year-old Alvaro Castillo killed his father before a shooting spree at Orange High School. Castillo's MySpace page lists "handguns, shotguns and rifles" among his "general interests." Among his "pics" is one of him brandishing a pair of scissors as he appears ready to stab an unidentified young male in the head. "Attempted Murder," the caption reads. "Are you scared? Ha ha." Castillo lists his heroes as God, his mom, his dad, and his younger sister. The people he would like to meet one day include John Hinckley Jr., Tom Hanks, Michael Moore, and God.

Will victims' families sue MySpace and the like?  Obviously, there are huge problems with virtually every element of a negligence claim, most notably breach and proximate cause (see also the existing MySpace suit), but it's an interesting set of facts, and the story is well worth reading.

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

Tuesday, September 26, 2006

OT: Torts Defeated

TortsProfs, I have failed you.

The Raspberry Tort(e)s, the official TortsProf fantasy football team, lost to Your Daddy in the third game of the Blawger Bowl fantasy league.  Even worse, nobody seems to know who Your Daddy is, so I can't even provide a link to the team's owner's blog.

Alas.  We're 2-1 and still doing pretty well.  For a pretty good overview of the day, fantasy-football-wise, read this; the "Bill" referenced there is me.

September 26, 2006 | Permalink | Comments (1) | TrackBack (0)

EPA Closes Libraries

The BioLaw blog has the story.

...EPA has already closed libraries or is closing libraries in Chicago, Dallas and Kansas City. Indeed, visitors to the Region 5 library are greeted with the message "The U.S. EPA Region 5 Library is permanently closed" and are advised to instead call the Environmental Hotline. On September 20, 2006 EPA published a Federal Register Notice announcing that as of October 1, its main library at its DC headquarters will be closed to the public and to agency staff. . . . While the government has made great strides in providing internet access to government documents, the vast majority of EPA documents are not digitized and there seems to be no plan to make them available in the near future.

There's a letter [PDF] objecting to the move.

September 26, 2006 in Current Affairs, Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

"...jury performance is remarkably good."

Philip Peters (Missouri) has a new article up on SSRN about jury performance in medical malpractice cases.  The abstract:

Legislation is pending in both houses of Congress to transfer medical malpractice cases from civil juries to administrative health courts. The Institute of Medicine also wants to take malpractice cases away from juries through a system of binding early settlement offers. Each of these proposals is premised on the assumption that juries lack the capacity to resolve medical malpractice disputes fairly. This Article evaluates that premise. It collects and synthesizes three decades of empirical research on jury decision-making, updating the seminal review done by Neil Vidmar over a decade ago.

Four important findings emerge from the data. First, negligence matters. Plaintiffs rarely win weak cases. They have more success in toss-up cases, and fare best in cases with strong evidence of medical negligence. Second, jury verdicts are most likely to square with the opinions of experts hired to evaluate the jury's performance when the evidence of provider negligence is weak. This is the very set of cases that most worries critics of malpractice litigation. Juries agree with expert reviewers in 80 to 90 percent of these cases - a better agreement rate than physicians typically have with each other. Third, jury verdicts are much more likely to deviate from the opinion of an expert reviewer when there is strong evidence of negligence. Doctors consistently win about 50 percent of the cases which experts believe the plaintiffs should win. Fourth, the poor success of malpractice plaintiffs in these cases strongly suggests the presence of factors that systematically favor medical defendants in the courtroom. The most promising explanations for that advantage are the defendant's superior resources, the social standing of physicians, social norms against "profiting" from an injury, and the jury's willingness to give physicians the "benefit of the doubt" when the evidence of negligence is conflicting. From the perspective of malpractice defendants at least, jury performance is remarkably good.

September 26, 2006 in Experts & Science, Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 25, 2006


The FDA's acting commissioner Andrew von Eschenbach issued on Friday a response to the Institute of Medicine report on drug safety.  It's a bit of a dancing act, avoiding endorsing the harshest criticisms while still trying to indicate a willingness to change:

As the IOM report recognizes, much progress and reform of FDA's safety oversight enterprise is already underway. Specifically, the FDA has led an aggressive effort, which includes developing new tools for communicating information to patients and new resources for drug safety, to improve the management of the process for how we uncover and communicate important drug safety issues. All drugs have risks. Our challenge is to uncover these risks as soon as possible. Through initiatives like Critical Path and Personalized Medicine, we are also working to improve the tools we use, to more effectively evaluate new products and processes.

I am committed to taking additional steps and will look to the initiatives recommended by the Institute of Medicine, to ensure we continue to fulfill our mission. Over the next months you will be hearing extensively from us about these new endeavors, including a number of initiatives aimed at improving the opportunities for employees of FDA to shape a more effective work environment.

September 25, 2006 in Products Liability | Permalink | Comments (1) | TrackBack (0)

A Mostly Unrelated Plug

My colleagues Erin Buzuvius and Sudha Setty, along with Kristine Newhall, Ph.D., have launched the Title IX Blog, addressing, well, Title IX.  It's interesting even if Title IX is not your area.  Give it a visit.

September 25, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Light Cigarette Class Certified

Judge Weinstein has certified a racketeering class action against Philip Morris and most other actors in the tobacco industry asserting that consumers were defrauded by suggestions that "light" cigarettes were safer than the alternatives.  I assume that the opinion will be placed in the "Rulings of Interest" section of the SDNY website; it's not there presently.

Duh.  He's not in the SDNY.  There's a link in the comments to the opinion.

September 25, 2006 in Products Liability | Permalink | Comments (1) | TrackBack (0)

Pretend Courts in NY

It's only tangentially torts-related, but today's NYT story about the state's laughably problematic system of justices (who mostly handle traffic tickets, but also get some small civil matters and things like domestic protective orders) is well worth reading.

September 25, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (1)

Sunday, September 24, 2006

Toy Workbench Recalled, Meets Federal Standards

Playskool is recalling (official notice from CPSC) its toy toolbench after two children got the fake nails caught in their throats and died.

The toy was in compliance with all relevant federal regulations, according to news stories and the CPSC report.  The nails are not considered "small parts" based on their measurements and the toy was aimed at children three and older.  The children who died were 19 months old and two years old.  At least the latter death is the subject of a lawsuit.

September 24, 2006 in Products Liability | Permalink | Comments (4) | TrackBack (0)

Saturday, September 23, 2006

New Drug Safety Study

The NYT summarizes the Institute of Medicine study:

The nation’s system for ensuring the safety of medicines needs major changes, advertising of new drugs should be restricted, and consumers should be wary of drugs that have only recently been approved, according to a long-anticipated study of drug safety.

The actual report can be found here.  More specific proposals (again from the NYT):

The report made these recommendations, most of which would require Congressional authorization:

¶Newly approved drugs should display a black triangle on their labels for two years to warn consumers that their safety is more uncertain than that of older drugs.

¶Drug advertisements should be restricted during this initial period.

¶The F.D.A. should be given the authority to issue fines, injunctions and withdrawals when drug makers fail — as they often do — to complete required safety studies.

¶The F.D.A. should thoroughly review the safety of drugs at least once every five years.

¶The F.D.A. commissioner should be appointed to a six-year term.

¶Drug makers should be required to post publicly the results of nearly all human drug trials.

(My usual disclosure: I did pharmaceutical tort defense in practice and remain a consultant to pharmaceutical companies in mass tort litigation.)

September 23, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, September 22, 2006

My Sensitive Ears!

A good friend of ours in Minnesota traditionally says, derisively, "Bark," when he's confronted by something silly and/or pointless.  And to the plaintiffs suing Wal-Mart (complaint [PDF]) because they bought a Tool CD and were shocked -- shocked! -- to find naughty language, I say: Bark.

(Click on the image to see it bigger.)

(via WSJ Law Blog via Plaintiffs' Lawyer Blog.)

September 22, 2006 in Goofy Cases | Permalink | Comments (0) | TrackBack (1)

Chicken Litter & Leukemia

The Fayetteville (AR) paper provides a good summary of a suit being brought against Alpharma alleging that the spreading of arsenic-containing chicken litter near the plaintiff's Arkansas town (Prairie Grove) caused him to suffer from leukemia.  The plaintiffs have now rested and the judge dismissed the claim for punitive damages; one assumes that compensatory damges in a leukemia case are still fairly substantial. Alpharma is now in the midst of its case.

The case has had a number of interesting evidentiary questions; if I can figure out where I put my printouts of some of them, I'll try to post them later.

September 22, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, September 21, 2006

OT: Torts Beat Patents

You will no doubt be relieved to learn that, in the second game of the Blawger Bowl season, the Raspberry Tort(e)s fantasy football team -- representing TortsProfs everywhere -- defeated KnowTime, the team of, well, KnowTime, an interesting new blog about global patent law.

The score was 130-96.  Up next is the 2-0 "Your Daddy."  The owner of YD appears to be a closely-guarded secret.  My guess: the Chief Justice.

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