TortsProf Blog

Daubert Isn't Chicken Feed

or chicken litter, for that matter.

Or something.

Anyway, here I am in Fayetteville, Arkansas, visiting family.  There was an interesting trial earlier in 2006 relating to alleged harms from roxarsone, an ingredient in chicken litter.  It was the first of a number of suits contending that farm neighbors suffered from cancer and other ailments, and, after just 21 minutes of deliberation, the jury found for the defendants.  The case has challenging causation issues, and the judge took a fairly active role in evaluating the scientific evidence.

Today's story provides a nice example of the parties' efforts to figure out what to do while that case is on appeal. In essence, the plaintiffs seem to be asking that other cases in which those plaintiffs serve as lead plaintiffs be stayed while the appeal of their case is resolved, but that other cases -- without those plaintiffs in the lead role -- keep going.

Given the tremendous importance of poultry as an industry in this area and others, the line of cases could end up being important.

(I posted briefly about this case in September too.)

Preemption Case Seeking Cert.

A ways back, I noted a case in which state tort litigation arising out of a train crash (and accompanying spill) was held (by my judge, incidentally) preempted by state law.  Twenty states have now filed an amicus brief [PDF] supporting the grant of certiorari.  The press release doesn't exactly focus on preemption-related issues:

“This case has enormous implications for people injured by the negligent acts of railroads,” said [North Dakota Attorney General] Stenehjem in the press release. “These people, some of whom suffered devastating and life-threatening chemical burns from the derailment, deserve to have their day in court.

“This case illustrates what happens when lawyers get caught up in arguing legal technicalities — and forget about doing justice and addressing real-world injuries. State courts have a long history with these kinds of cases. Five years after the derailment, the argument is still over jurisdiction, not substance, with no end in sight. We are filing this brief to ask the Supreme Court to hear this case to ensure that state-law claims are heard in state courts and not subject to prolonged fights over jurisdiction and pre-emption that the victims of the Minot derailment have suffered in this case.”

The brief is substantially more focused on the issues at stake -- the proper placement of the line between complete preemption and substantive preemption, and how the well-pleaded complaint rule plays into it.  Essentially, the defendants contended that the lawsuit could be removed under  complete preemption removal jurisdiction, while the plaintiffs argued that their allegations avoided that doctrine's applicability and that the FRSA does not completely preempt state law claims like those alleged here.

Given the substantial increase in preemption claims (and assertions by regulatory agencies) in the past several years, it could be an important case if cert. is granted.

Pre-Trial Publicity

While we're talking about leaks of documents in contravention of protective orders, there's a new thesis, from a recent masters graduate of the London School of Economics, that sounds like it'd be worth reading: "In Search of the Impartial Juror: An Exploration of the Third Person Effect and Pre-Trial Publicity."

It's author?  Monica Lewinsky.

A quick glance through Google results doesn't immediately come up with the actual paper.  Anyone have it? Here is an overview (thanks to Ted Frank & AboveTheLaw), evidently written by a co-author.  Is that really the full report?

(Happy holidays, all.  I'll be traveling over the next couple of weeks and blogging may be spotty.)

Fake Dentists & Marmaduke

I've been looking for a torts hook for linking to Joe Mathlete Explains Today's Marmaduke, because it is the funniest site I've come across in the last several months.

The titular Joe has a dream.  And that dream is of being a fake dentist.  As he explains,

my life has become very complicated. Last week I enrolled in Imaginary Dental School, widely considered to be among the finest institutes of higher learning that were made up by me, and have since found myself up to my elbows in teeth (and books about teeth).

He's seeking donations.  And -- here's the torts hook! -- when he goes out into practice as a fake dentist, he will, of course, be held to the standard of care of a real dentist.  So he really, really needs those donations.  Or perhaps some really significant caps on damages for harm caused by unlicensed fake dentists.  (ATRA, could you get on that, please?  Thanks!  Hugs.)

The site is exactly what it sounds like.  Every day, he explains that day's Marmaduke.  Somehow, the mere act of explaining why Marmaduke is funny (when it is self-evidently not funny) makes it funny.

(Why, yes, now I'm avoiding grading.) (Actually I'm almost a fourth done, which isn't bad since I've only had the [99] exams for a day.)

Valdez Case Heard, For the 3,472nd time, By the Ninth Circuit

...and they've finally given up on telling the trial judge to come up with a number, instead setting the number for punitives at $2.5 billion (five times the actual harm determined by the trial court).  Of note, the trial court had previously set the figure at $4.5 billion, within the 9:1 ratio suggested by State Farm.

The opinion is here [PDF].  One significant issue involves the impact of payments made pre-judgment -- settlements, interest, and the like.  Exxon argued that it should be subtracted from the numerator such that the "actual harm" figure would be around $20 million rather than the $500+ million used by the trial court.  The Court of Appeals rejected that view, but also rejected the plaintiffs' argument that the ratio of 9:1 would be appropriate, concluding that the conduct was not so reprehensible as to justify going to that end of the range:

Thus, Exxon’s conduct is in the higher realm of reprehensibility, but not in the highest realm. In addition Exxon’s post-grounding efforts to mitigate the harm serve materially to reduce the reprehensibility of the original misconduct. They reduce the reprehensibility for purposes of our review to, at most, a mid range. 

Judge Browning dissents, and would affirm.

Chromium - More Coverage

The Scientist has a nice wrap-up of the chromium story as it stands now.

(Here's a prior post.  Short form: Paper retracted after journal concludes support was not disclosed when it should have been and that the paper was written by third-party litigation consultants.  Named author now contends that she, in fact, did write it (with another, now deceased, author), and that the third-party entity just provided trivial help.)

Inside Libel

A big local story is the libel suit brought by members of a Northampton family against Augusten Burroughs, contending that his book Running with Scissors (and the movie) defamed them.  (They have settled the suit related to the movie, but the suit based on the book continues.)  Presumably as part of the effort to get their case in a better spot in the media, the family was interviewed for a Vanity Fair piece, describing, among other things, their reactions to reading the book:

As she continued to read, Theresa says, she found it difficult to fathom the book's malice toward her and her family. It was filled with things that she believed were categorically false or had been wildly embellished. She also could not believe that Burroughs had revealed details about events in her life that had occurred 20 years earlier and had been horribly painful for her—so painful that she had spent years in therapy trying to overcome them and had never told her own daughter about them.

She continued to read that night, occasionally stopping because she simply could not bear to read anymore, she says, only to pick the book up again several minutes later. Sometimes she had to stop to run to the bathroom and vomit. "I have never vomited so much in my life," she says.

The piece also notes:

Burroughs claims he has roughly 20 notebooks in which he kept a journal of his experiences between the ages of 12 and 17 that back up his story, and he says he has continued to keep these journals with him. Family members confirm that Burroughs wrote constantly when they knew him. There is also an extensive public record regarding Dr. Turcotte, a highly controversial psychiatrist whose license to practice medicine was stripped in 1986 due to allegations of deeply disturbing behavior. Additionally, there is an author's note at the beginning of the book saying that "the names and other identifying characteristics of the persons included in this memoir have been changed."

* * *

During an interview with Vanity Fair last March, Burroughs stood by the veracity of the book, just as he stood by the right of every individual in a free society to tell his story. "This is my story," he said. "It's not my mother's story and it's not the family's story, and they may remember things differently and they may choose to not remember certain things, but I will never forget what happened to me, ever, and I have the scars from it and I wanted to rip those scars off of me."

Wii Lawsuit

Surprise!  There's a lawsuit over the flying Wii controllers.

There's a handy site, WiiHaveAProblem.com, to catch up on the problems, with a harm-by-harm breakdown.

JPML Realizes Florida is Nice in January

The JPML will meet [PDF] in Miami on January 25.  Items of note from the argument docket:

• MDL-1817 -- In re CertainTeed Corp. Roofing Shingle Products Liability Litigation (relates to alleged defects not resulting in physical injuries, so not as fun for us)
• MDL-1821 -- In re Lycoming Crankshaft Products Liability Litigation (not sure what this is about)
• MDL-1822 -- In re Bluetooth Headset Products Liability Litigation (perhaps a suit seeking damages for how silly people look talking on them?) (actually about hearing loss)

Free of charge and as a courtesy of the TortsProf blog to the MDL judges, can we suggest some entertainment?

• On January 24 at the Playhouse Theatre in Hollywood (a performer so cool he doesn't have a website performing at a venue so cool it doesn't have a website), see Magic Dick of the J. Geils Band.*  Alternatively, witness the magic of Bernadette Peters's hair at the Broward Center.
• On January 25, relax after a long day of multidistricting and see The Fray at the University of Miami.  Try not to wear any FIU attire.
• And on January 26, start a weekend off with Indigo Girls at the Pompano Beach Amphitheatre.  You can probably wear FIU attire there safely.

Why, yes, I am sitting in my office waiting for students to take my exam, why do you ask?

* Note: This show will probably be terrible.  It just amuses me that someone would advertise himself as being "of the J. Geils Band" as being a good thing.

More on Zyprexa

For a range of interesting and, at times, entertaining documents, visit this page on Gottstein's website.

OJ Sued Again, Or Else We're All Having a Flashback

Fred Goldman, father of Ron Goldman, again sued OJ Simpson, this time asserting fraud relating to Simpson's recent not-quite-published book If I Did It.

The new lawsuit alleges that Mr. Simpson was paid for the book and TV deal through a shell corporation, Lorraine Brooke, a name taken from his two children’s middle names, “the purpose of which is to enable Simpson to avoid paying creditors.”

Deeper pockets are on the horizon:

Lawyers for Mr. Goldman said their suit would ultimately include HarperCollins, News Corporation and Ms. Regan as defendants. “Our theory is that Judith Regan knew of the judgment, therefore News Corp. had knowledge of it, and that the only way they could get O. J. to do the deal is if it put money in O. J.’s pocket,” Mr. Polak said. “So they sat down and figured out a deal how to get the money to O. J. and the Goldmans wouldn’t get any of the benefit.”

Surprising nobody at all, The Smoking Gun has more, including the complaint.

Updated: Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed

(Hi, NYT readers.  I've got more about Zyprexa here and post about torts every day.)

"Hey!" says Judge Weinstein Cogan, "Stop distributing documents in contravention of the PTO!"  The order:

Download ZyprexaInjunction.pdf.

Of note, the motion for injunction is a joint one, brought by both the PSC and the defendants:

(See my earlier post on not-so-protective protective orders.)

Update: I hadn't seen the NYT piece on it before (h/t PoL).  Of note, Gottstein isn't actually a lawyer in the Zyprexa litigation:

The documents, the basis for front-page articles on Sunday and Monday, were provided to a Times reporter and to organizations and individuals interested in mental health issues by James B. Gottstein. Mr. Gottstein, who is not involved in the Lilly lawsuits, is a lawyer representing mentally ill patients. He has sued the State of Alaska, accusing it of forcing patients to take psychiatric medicines against their will.

Gottstein apparently subpoenaed the documents from Egilman, who was, as an expert in the litigation, presumably subject to the PTO.

Gottstein, on his website, is not shy about flagging his involvement in the Zyprexa documents.

Maybe Just Deal With Your Headache

...that's sort of what FDA seems to be suggesting.

Aspirin, ibuprofen, acetaminophen and the other related over-the-counter drugs remain safe and effective when used as directed, the Food and Drug Administration said.

However, overdoses of acetaminophen can cause serious liver damage, even death, the FDA said. For aspirin, ibuprofen and other nonsteroidal anti-inflammatory drugs, there is a risk of gastrointestinal bleeding and kidney injury even when patients take the correct dose. Those risks too are linked to deaths, in this case thousands each year. The FDA cautioned the risk is rare when compared to the number of patients who take the drugs.

In the official press release (and while I'm here, can I note that I'm charmed by the "BBS" in the FDA's URLs? Brings me back to running one on an Apple //e), FDA provides more details:

To help ensure safe use of OTC products, and to provide consumers with the  labeling necessary for them to make more informed medical decisions, FDA is  proposing the following label changes:

For Products Containing Acetaminophen

•     To require new warnings which would highlight the potential for liver toxicity,  particularly when using acetaminophen in high doses, when taking more than  one product with acetaminophen, and when taken with moderate amounts of alcohol;

•     To require that the ingredient acetaminophen be prominently identified  on the product's principal display panel (PDP) of the immediate container,  and the outer carton (if applicable).

For Products Containing NSAIDs

•     To require new warnings for products that contain an NSAID which would highlight the potential for stomach bleeding in persons over age 60, in persons who have had prior ulcers or bleeding, in persons who take a blood thinner, when taking more than one product containing an NSAID, when taken with moderate amounts of alcohol, and when taking for longer time than directed; and

•     To  require that the name of the NSAID ingredient and the term "NSAID" be  prominently identified on the product's PDP of the immediate container  and the outer carton (if applicable).

I don't have any NSAIDs at hand, but my recollection is that much of that is already there, though probably not in as strong of language as FDA would like.  The drug interaction is probably the most useful addition, since, as the press release also notes, people may not recognize that ibuprofen and aspirin (for instance) are both NSAIDs and so can increase the relevant risks.

...but will they indemnify you if you get in an accident?

In Japan at least, you can get a steering-wheel-mounted...um.  How to describe it?  It's a "steering rapper."  So you can practice rapping while driving.

Assume you can use it while going at any speed (which I believe is true).  Defective design?  Is it negligent to use it while driving?

(Via Gizmodo, whose pictures load faster than the link above.)

Protective Orders Not So Protective?

So suggest the folks at the new defense-oriented Drug & Device Law blog, which includes this suggestion:

We'd like to see an academic (who might have the time to pursue this) research the mass tort cases (since about 1985 or so, when modern mass torts sprung into being) to determine the percentage of cases in which protective orders have been violated and the number of times courts have tracked down and punished the violator. If, as we suspect, protective orders are routinely ignored, but violators are rarely punished, that fact should influence how courts conduct future cases. If courts can't honestly tell defendants that protective orders will be enforced, what should follow from that? Should particularly sensitive documents not be produced at all? Should document depositories be protected more carefully? Are there other implications for future cases?

Hey...I'm an academic.  Sounds interesting to me.  Anyone want to give me a head start?  E-mail me (wchilds AT law DOT wnec DOT edu) any briefing and orders you've got from mass torts in that time frame.

Space Flight Regs & Waivers

The FAA has released its first-ever regulations for commercial space tourism, including broad waivers of liability and detailed descriptions of those risks of which customers must be informed.  One of several complete waivers provided in full in the regs:

Appendix C to Part 440--Agreement for Waiver of Claims and Assumption of Responsibility for Permitted Activities

THIS AGREEMENT is entered into this ---- day of --------, by and among [Permittee] (the ``Permittee''), [Customer] (the ``Customer'') and the Federal Aviation Administration of the Department of Transportation, on behalf of the United States Government (collectively, the ``Parties''), to implement the provisions of section 440.17(c) of the Commercial Space Transportation Licensing Regulations, 14 CFR Ch. III (the ``Regulations''). This agreement applies to [describe permitted activity]. In consideration of the mutual releases and promises contained herein, the Parties hereby agree as follows:

1. Definitions

Customer means the above-named Customer on behalf of the Customer and any person described in Sec. 440.3 of the Regulations.

Permit means Permit No. ----issued on --------, by the Associate Administrator for Commercial Space Transportation, Federal Aviation Administration, Department of Transportation, to the Permittee, including all permit orders issued in connection with the Permit.

Permittee means the holder of the Permit issued under 49 U.S.C. Subtitle IX, ch. 701.

United States means the United States and its agencies involved in Permitted Activities.

Except as otherwise defined herein, terms used in this Agreement and defined in 49 U.S.C. Subtitle IX, ch. 701--Commercial Space Launch Activities, or in the Regulations, shall have the same meaning as contained in 49 U.S.C. Subtitle IX, ch. 701, or the Regulations, respectively.

2. Waiver and Release of Claims

(a) Permittee hereby waives and releases claims it may have against Customer and the United States, and against their respective Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault. (b) Customer hereby waives and releases claims it may have against Permittee and the United States, and against their respective Contractors and Subcontractors, for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.

(c) The United States hereby waives and releases claims it may have against Permittee and Customer, and against their respective Contractors and Subcontractors, for Property Damage it sustains resulting from Permitted Activities, regardless of fault, to the extent that claims it would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations.

3. Assumption of Responsibility

(a) Permittee and Customer shall each be responsible for Property Damage it sustains and for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault. Permittee and Customer shall each hold harmless and indemnify each other, the United States, and the Contractors and Subcontractors of each Party, for Bodily Injury or Property Damage sustained by its own employees, resulting from Permitted Activities, regardless of fault.

(b) The United States shall be responsible for Property Damage it sustains, resulting from Permitted Activities, regardless of fault, to the extent that claims it would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations.

4. Extension of Assumption of Responsibility and Waiver and Release of Claims

(a) Permittee shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(a) and 3(a), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Customer and the United States, and against the respective Contractors and Subcontractors of each, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Customer and the United States, and the respective Contractors and Subcontractors of each, for Bodily Injury or Property Damage sustained by their own employees, resulting from Permitted Activities, regardless of fault.

(b) Customer shall extend the requirements of the waiver and release of claims, and the assumption of responsibility, hold harmless, and indemnification, as set forth in paragraphs 2(b) and 3(a), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Permittee and the United States, and against the respective Contractors and Subcontractors of each, and to agree to be responsible, for Property Damage they sustain and to be responsible, hold harmless and indemnify Permittee and the United States, and the respective Contractors and Subcontractors of each, for Bodily Injury or Property Damage sustained by their own employees, resulting from Permitted Activities, regardless of fault.

(c) The United States shall extend the requirements of the waiver and release of claims, and the assumption of responsibility as set forth in paragraphs 2(c) and 3(b), respectively, to its Contractors and Subcontractors by requiring them to waive and release all claims they may have against Permittee and Customer, and against the respective Contractors and Subcontractors of each, and to agree to be responsible, for any Property Damage they sustain, resulting from Permitted Activities, regardless of fault, to the extent that claims they would otherwise have for such damage exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations.

5. Indemnification

(a) Permittee shall hold harmless and indemnify Customer and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, and the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Permittee's Contractors and Subcontractors may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Permitted Activities.

(b) Customer shall hold harmless and indemnify Permittee and its directors, officers, servants, agents, subsidiaries, employees and assignees, or any of them, and the United States and its agencies, servants, agents, subsidiaries, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims that Customer's Contractors and Subcontractors, or any person on whose behalf Customer enters into this Agreement, may have for Property Damage sustained by them and for Bodily Injury or Property Damage sustained by their employees, resulting from Permitted Activities.

6. Assurances Under 49 U.S.C. 70112(e)

Notwithstanding any provision of this Agreement to the contrary, Permittee shall hold harmless and indemnify the United States and its agencies, servants, agents, employees and assignees, or any of them, from and against liability, loss or damage arising out of claims for Bodily Injury or Property Damage, resulting from Permitted Activities, regardless of fault, except to the extent that it is provided in section 7(b) of this Agreement, except to the extent that claims (i) result from willful misconduct of the United States or its agents and (ii) for Property Damage sustained by the United States or its Contractors and Subcontractors exceed the amount of insurance or demonstration of financial responsibility required under section 440.9(e) of the Regulations.

7. Miscellaneous

(a) Nothing contained herein shall be construed as a waiver or release by Permittee, Customer or the United States of any claim by an employee of the Permittee, Customer or the United States, respectively, including a member of the Armed Forces of the United States, for Bodily Injury or Property Damage, resulting from Permitted Activities.

(b) Notwithstanding any provision of this Agreement to the contrary, any waiver, release, assumption of responsibility or agreement to hold harmless and indemnify herein shall not apply to claims for Bodily Injury or Property Damage resulting from willful misconduct of any of the Parties, the Contractors and Subcontractors of any of the Parties, and in the case of Permittee and Customer and the Contractors and Subcontractors of each of them, the directors, officers, agents and employees of any of the foregoing, and in the case of the United States, its agents.

(c) In the event that more than one customer is involved in Permitted Activities, references herein to Customer shall apply to, and be deemed to include, each such customer severally and not jointly.

(d) This Agreement shall be governed by and construed in accordance with United States Federal law.

IN WITNESS WHEREOF, the Parties to this Agreement have caused the Agreement to be duly executed by their respective duly authorized representatives as of the date written above.

PERMITTEE

[fxsp0]By:-------------------------------------------------------------
[fxsp0]Its:------------------------------------------------------------

CUSTOMER

[fxsp0]By:-------------------------------------------------------------
[fxsp0]Its:------------------------------------------------------------

FEDERAL AVIATION ADMINISTRATION OF THE DEPARTMENT OF TRANSPORTATION ON BEHALF OF THE UNITED STATES GOVERNMENT

By:--------------------------------------------------------------------
Its:-------------------------------------------------------------------

ASSOCIATE ADMINISTRATOR FOR COMMERCIAL SPACE TRANSPORTATION

Wow, That's Disgusting.

This is a good and oh-so-gross criminal law hypothetical, but also a pretty solid Torts one. 

(My students should note: I've already turned my exams into the student records office, so this won't show up on your final.)

Let me reiterate: Ick.  If you are easily or even not-so-easily grossed out, don't follow that link.

Ketek Limited

Let's see...FDA panel recommends substantial restrictions on antibiotic due to liver side effects.

(Click, click.)

Yep, sure enough, those have been busy Google AdSense keywords:

Discovery: The Game!

I can't explore it in detail (on my way out to see The Hold Steady, and yes, they will rock, I'm quite sure) (update: I was right), but I just heard about So Sue Me: The Game.  One funny excerpt:

Every property has a color. The 5 colors each stand for a kind of lawsuit, symbolized on the Lawsuit™ cards by a particular character. Red = personal injury or "Ambulance Chaser", purple = theft of ideas or "CopyRat", orange = slander/libel or "Loudmouth!", yellow = medical malpractice or "Quack! Quack!", and green = product liability or "Bad Goods." When you land on another player's property, you may sue the owner. Let's say it's a red property, like the Office Building. Pick up the red "Ambulance Chaser" deck. Thumb through the deck until you find the first card for that property - the first card reading "Office Building" - then draw that card for your lawsuit. There are four cards for each business.  You must reveal the front of your Lawsuit™ card, which shows how much you're suing for and the amount of your legal fee. But keep the back hidden! It shows your "win range" or odds of winning the suit. Cards that look the same on the front have different odds on the back - which lets you bluff about whether you have a good card or not.

Look out for that...game controller?

Nintendo is voluntarily replacing the cords on their Wii game controllers.  Not sure if it resulted from litigation, but it certainly could.

Update: The CPSC has its press release up, which helpfully informs you that "Wii" is prounced "We," not "marketing blunder." 

(I kid Nintendo. By all accounts I've seen [which is maybe two], the Wii has been a success.  I still wish they'd just come out with Cannonball Blitz for OS X.)