TortsProf Blog

A Small Thought About Flea

The NY PI Blog continues to be the leader in blog coverage of the Flea-blogging-his-own-trial-and-then-settling-when-outed case.  I've read very little of it, so I may be repeating something said elsewhere and better.  But:

Is there anything particularly unique here?  A witness -- here a party -- decided to settle when it became clear that things he had said elsewhere were known to the other side and that those things would affect the case. 

Those things were on a blog in this instance, but is it really different than an expert taking a position in an earlier article contrary to that presented at trial?  (Seen that.)  Or a treating physician in a pharma tort case being impeached by his own records?  (Seen that, too.)  Or an investigating officer being crossed on past racist comments?  (Wish I had avoided that on Court TV.)

I'd initially queried "Is there anything particularly interesting?" above instead of focusing on uniqueness.  Clearly it is interesting; Flea (er, Dr. Lindeman) is a good and clever writer, and it's always interesting to read about people's first-hand interactions with the tort system.  (Even if I would probably choose a different bass player if I were choosing a pseudonym, though I understand that "flea" has a particular meaning among pediatricians.)

But other than that, I'm not sure it's really a "Wow, look at this new world we're in!" moment.  Instead, it may just be a moment to say that it's never a good idea to disclose privileged information to people outside the privilege, whether it's your neighbor or people who stumble across your blog.

--BC

Med Mal Case Against "Flea" Settles After He's Outed

The NY PI Blog has a detailed story based on a Boston Globe story.

--BC

Silicosis Screening

The WLF has a piece [PDF] by defense lawyer Nathan Schachtman (at McCarter & English) about state regulators imposing sanctions based on the 2002 silicosis screenings in Pennsylvania.

In February 2002, Texas invaded Pennsylvania. No conventional weapons were fired.
The Texans took up positions in mobile vans in motel parking lots across eastern
Pennsylvania. Without prescriptions, physicians’ orders, or regulatory approval, the Texans
directed unlawful X-ray radiation at Pennsylvania workers in the hopes of creating evidence
to be used in lawsuits for silicosis. To help establish their litigation beachhead, the Texans
hired local mercenaries – a New Jersey company in the business of providing mobile X-ray
screenings. Dozens of silicosis lawsuits were created and filed in Philadelphia as a result of
the invasion.

On January 25, 2007, the Commonwealth of Pennsylvania, through its Department of
Environmental Protection (DEP), responded by fining the New Jersey company, MOST
Health Services, Inc. The DEP found that MOST violated Pennsylvania law by conducting
X-ray screenings without physician or regulatory approval. For having unlawfully exposed
161 persons to ionizing radiation, DEP assessed a civil penalty of $80,500.00, against
MOST.

It's worth reading all of it.

--BC

Ethics In Negligence Case - Sharp Maybe, But Sanctionable?

The Florida Supreme Court recently sanctioned a lawyer for his conduct in a personal injury case (Florida Bar v. Cocalis).  The lawyer represented the defendant in a dog bite case.  Plaintiffs alleged that the defendant's dog bit their two-year-old daughter, and that the bite caused alopecia (hair loss on the scalp).   During the case, plaintiff's counsel refused to stipulate to the records of a treating physician.   So, defendant's counsel subpoenaed the records custodian to appear at trial.  The custodian, however, mistakenly mailed the records to defendant's counsel.   Defendant's counsel returned the records to the custodian and explained that they should be brought to trial.   

Here's where the case gets interesting:  the mailed copy of the records contained a notation that was not on the original set of document's attached to the doctor's deposition.   The new entry documented a call between the doctor and plaintiff's counsel, stating that the doctor advised plaintiff's counsel that he did not believe the alopecia was caused by the dog bite.   Unaware of the new entry, plaintiff's counsel finally stipulated to the admission of the documents at trial.   Defendant's counsel did not advise plaintiff's counsel that (1) he had received the records from the custodian, (2) that the records contained a new entry, or (3) that the records he sought to admit were not the same as those attached to the depo. 

The Florida Supreme Court found the defendant's lawyer guilty of misconduct under Florida's general "misconduct and dishonesty" rule.  (The Court of Appeals also reversed the case, finding the trial court had abused its discretion in admitting the mailed records.  Bradley v. Brotman, 836 So. 2d 1129 (Fla. 4th DCA 2003)).    The Florida Supreme Court ordered a public reprimand as well as attendance in a professionalism program and bar ethic's course.  Notably, the lawyer had no prior disciplinary charges.

Was a public reprimand (and exclusion of the evidence) warranted in this case?   What about the plaintiff's lawyer who failed to follow up with the most current version of the records?   This one just strikes me as odd. 

- SBS

Wrong Casket? Dig Up Your Ancestor and Sue

That's the approach in Arkansas, anyway:

When [Clarence Budy] Simons died in July 2002, the Simons family shelled out $1,745 for an Addison 20 gauge casket that was supposed to be leak-proof for 75 years.

But in 2005, Simons' family learned that some "leak-proof" caskets made by Batesville Casket weren't so watertight, according to the family's lawsuit filed in Pulaski County Circuit Court by their attorney, Charles Phillip Boyd Jr. of Little Rock.

In May 2005, the family exhumed Simons to see if the casket had leaked.

Sure enough, the family said, the casket had leaked and didn't preserve Simons.

Why, yes, they have sued:

The family also learned the casket Simons was in was of "significantly less quality" and cheaper than the one they ordered.

The family said the situation has caused severe emotional distress and has listed several counts on which they are seeking damages, including breach of contract.

Query: Does voluntarily witnessing the exhumation of your father/spouse/family member fit in the category of consent and/or assumption of risk?

(h/t LCC)

--BC

Father of Drunk Driver Sues Restaurant For Son's Death

Howard Wasserman has an interesting post over at Sports Law Blog about a case filed last week by the father of a St. Louis Cardinals pitcher against a restaurant (Mike Shannon's Steaks and Seafood), the driver of a stalled car and a towing company for their alleged roles in his son's death.  A copy of the complaint is available from KMOV in St. Louis.

Cardinals pitcher Josh Hancock was killed last April when his car collided with a tow truck that was assisting a disabled car.  Prior to the accident, Josh Hancock had been drinking at Mike Shannon's.  In the lawsuit, Hancock's father, Noel Dean Hancock, alleges that the restaurant violated Missouri's dram shop law by continuing to serve Josh even though he was visibly intoxicated.  The complaint also brings negligence claims against the tow truck company and stalled car driver.  Notably, reports indicate that Josh was drunk, speeding, and talking on his cell phone with his girlfriend at the time of the crash.  (Check out Wasserman's post for links to several stories about the accident and lawsuit). 

Wasserman provides a thorough analysis of the unlikely success of the dram shop count and the likely comparative fault defenses on the negligence counts against the tow truck and stalled car driver.  Beyond that, Wasserman raises an interesting point about the tort system:  Is this case a frivolous lawsuit clogging our system or a dispute best resolved by a jury? 

(Note to TortsProfs:  The case also may provide some good facts for exam time -- save this idea away for next year). 

- SBS

Changes In China's Food & Drug Administration

China has announced its first regulations on nationwide food recalls.  This follows the widely-publicized pet food recall here in the U.S., linked to rice and wheat proteins imported from Chinese manufacturers.  The FDA has a comprehensive website on this story (and its related issues). 

In a related story, the New York Times reports that the former head of the Chinese State Food and Drug Administration was sentenced to death after pleading guilty to corruption and bribery charges. 

-SBS

New Jersey Judge Rejects "Prepackaged" Asbestos Bankruptcy

Law.com reports that New Jersey Judge Nicholas J. Stroumtsos has ruled that insurers do not have to pay asbestos claims against Congoleum, a manufacturer of flooring tiles.  Congoleum has been in bankruptcy court since late 2003 as part of a "prepackaged bankruptcy" settlement with asbestos victims. Judge Stroumtsos used strong words condemning the "bad faith" deal:  "GHR [Gilbert Heintz & Randolph]  colluded with [Joseph] Rice [of Motley Rice] and [Perry] Weitz [of Weitz & Luxenberg] to create a framework that would provide Congoleum with both the insurance money and also protect against the asbestos liability, while leaving the insurance companies to bear the costs."

The Wall Street Journal has a link to the decision.

-SBS

Punitives Possible in Clergy Abuse Case

So reports the AP, with one of the more confused explanations for punitive damages I've seen ("Punitive damages generally are far greater than damages to compensate victims for pain and loss.").

--BC

Check That Fish On Your Grill!

The FDA has issued a warning to consumers not to buy or eat imported fish labeled as "monkfish."   The fish actually may be "puffer fish" (also known as "blow fish"), which contains a deadly neurotoxin and can be deadly if improperly prepared. (Fans of "The Simpsons," may recall the "One Fish, Two Fish, Blowfish, Blue Fish" episode, in which Homer eats a piece of improperly prepared blowfish.).  The Chicago Tribune reported that a woman in Chicago became extremely ill after eating the mislabeled fish. 

So, in the interest of backyard cookout safety, be sure to check that fish before you grill today!

Happy Memorial Day!
- SBS

Dept. of Unlikely References to Tort Law

Because I have the most exciting life ever, it's Saturday at 10:00 pm and I just finished watching this episode of the Food Network's Good Eats.  "TORT(illa) Reform."  Cute.

--BC

Empirical Data on State Appeals

An interesting new paper by Theodore Eisenberg and Michael Hesie (both of Cornell) analyzing state appeals is now up on SSRN.  The abstract:

Two findings dominate prior empirical studies of federal civil appeals. First, appeals courts are more likely to disrupt jury verdicts than bench decisions. Second, trial court defendants fare better than plaintiffs on appeal. But federal cases are limited by subject matter and comprise a small fraction of the nation's civil litigation activity. This study, which exploits a uniquely comprehensive database of state court trials and civil appeals, presents the first statistical models of the appeals process for a comprehensive set of state court civil trials. Using data from 46 large counties consisting of 8,038 trials and 549 concluded appeals, we find that state court appellate reversal rates for jury trials and appeals by defendants exceed the reversal rates for bench trials and appeals by plaintiffs. The reversal rate for trials appealed by plaintiffs is 21.5% compared to 41.5% for trial outcomes appealed by defendants. The reversal rate for jury trials is 33.7% compared to 27.5% for judge trials. Both descriptive analyses as well as more formal selection models point to appellate judges' attitudes toward trial-level adjudicators as an important explanation for these asymmetric outcomes of civil appeals in state courts. Our results are generally consistent with prior research on federal court appeals but also suggest a higher reversal rate of trial outcomes in state court compared to federal court.

--BC

A Couple of Interesting Suits

Long-time readers know that I have an odd side interest in amusement park safety.  This week provides two interesting suits -- one new and one on the verge of trial.

• The new suit involves a lawsuit relating to injuries after a woman fell out of a roller coaster in Arkansas.  She's quite a large woman and the ride operators (remarkably) allowed her to ride in two seats.  This is a long way from recommended behavior for either ride operators or passengers (though one assumes that there are no express warnings about riding in two seats, and I suppose she can probably point out that she is allowed to ride in two seats in planes, etc.).  She fell eleven feet and alleges that she has not been able to work since the incident; she's seeking $16 million from the park and the ride importer.
• The old suit (set to start trial next week, I understand) relates to the tragic death of Greyson Yoe, who was electrocuted while waiting in line for bumper cars at a county fair in Ohio.  The ride had been inspected the day before, when state inspectors passed it, expressly checking on the inspection form that they had checked the grounding.  In fact, they had not and now disavow any knowledge of how to check grounding.  (I hear that testimony may suggest that they received more electrical training than they now claim.)  The inspectors pleaded guilty a year or two ago to dereliction of duty.  Of note, after the criminal charges, the relevant regulatory agency (which in Ohio is the Ohio Department of Agriculture) removed electrical inspection entirely from their inspectors' forms.  The Ohio legislature directed the ODA to reverse that decision.
  
  This suit is by Yoe's family and estate against the ODA.  (I haven't dug through to find the sovereign immunity decision but I assume there's some sort of exception when there's criminal conduct.)
  
  I wrote about this case in a paper [PDF] I presented to amusement lawyers about criminal charges in amusement accidents and in When Criminal and Tort Law Incentives Run Into Tight Budgets and Regulatory Discretion, 34 CAP. U.L. REV. 581 (2006).

--BC

New York Death Officially Linked to 9/11 Dust

Today's New York Times reports that the New York medical examiner has officially listed dust from the Twin Towers as a "contributory cause" of the death of a civil rights lawyer who was engulfed in clouds of dust as she ran from her office one block from the trade center. 

This finding could have potential relevance in the pending 9/11 litigation against New York City.  Over 8,000 firemen, police officers, rescue workers, sanitation workers, and construction workers have filed suit in NY district court against New York City for respiratory illnesses allegedly caused by exposure to 9/11 dust. 

In a two-part Findlaw series last March and April, Tony Sebok examined New York's efforts to reopen the 9/11 Fund to compensate these plaintiffs.  In Part I, Sebok discussed the background of the 9/11 Fund, and the respiratory illness suits against New York City.  In Part II, Sebok argued that the liability cap imposed by the 9/11 Fund statute could be unconstitutional as applied to the the respiratory plaintiffs.  Sebok then addressed the secondary question: Should Congress reopen the 9/11 fund to compensate the respiratory plaintiffs?  Sebok examined both the legal and emotional issues raised by this question, reluctantly concluding that the answer is "no."

- SBS

North Carolina House Passes Med Mal Cap

WRAL in North Carolina reports that the North Carolina House passed a bill that would cap monetary damages in negligence cases against doctors and hospitals at $1 million.  The bill allows parties to select binding arbitration with monetary damages limited to $1 million.  Interestingly, the North Carolina Medical Society (the doctors) joined forces with the North Carolina Academy of Trial Lawyers (the lawyers) to support the bill. 

- SBS

Med Ad News on Zyprexa

Med Ad News (a publication I admit never having heard of before getting the call from their reporter) has a lengthy piece about the Zyprexa document story, quoting me fairly extensively (at a glance, at least mostly accurately). 

I haven't read it carefully, but will do so.  I also recently received some other material relevant to the case that I will review, hopefully soon, and post about.  And as that article notes, I'm working on a longer law review article related to the issues raised by it.

--BC

"NOPEC" - High Gas Prices, Let's Sue

On Tuesday, the House passed the "No Oil Producing and Exporting Act of 2007," which would allow the Department of Justice to sue members of the Organization of the Petroleum Exporting Countries (OPEC) in U.S. court.  A similar bill has passed the Senate Judiciary Committee, and has been placed on the Senate's legislative calendar for a vote.  President Bush has threatened to veto the Act, though the House passed the bill with enough votes to override a presidential veto.   

Putting aside the likely demise of this bill in the political process, is the solution to higher gas prices really a lawsuit?   What does this bill say about our cultural propensity to solve problems through litigation? 

-SBS

CPSC Nominee Baroody Withdraws

The AP has more.

The White House said “it became evident to Mr. Baroody that he would not be confirmed.” The statement added that the process will begin immediately to find “another qualified and committed leader to serve in this important position.”

A Senate subcommittee hearing on Baroody's nomination had been scheduled for Thursday. Democratic Sens. Bill Nelson of Florida and Richard Durbin of Illinois wrote Bush last week saying the nomination should be withdrawn.

“We should not put a person who's made a living lobbying against consumer protections in charge of safeguarding the public from dangerous and defective products,” said Nelson.

--BC

SCOTUS Invites SG View On Products/Preemption Case

On Monday, the Supreme Court invited the Solicitor General to file a brief in Wyeth v. Levine.  At issue is whether the FDA's drug label requirements preempt state negligence and failure-to-warn products liability claims. 

Wyeth is appealing a $6.8 million judgment awarded to a Vermont woman whose hand and forearm were amputated after an anti-nausea drug was improperly injected into her artery.  The FDA had approved the drug's label, which included injection as a method of administration and warned of the risk of gangrene when injected into an artery.  On appeal, the Vermont Supreme Court upheld the award, rejecting Wyeth's preemption argument. 

The cert documents are available at SCOTUSBlog as well as the brief in opposition and amici briefs filed by PLAC and PRMA.  SCOTUSBlog gives Wyeth's petition a "reasonable chance" of being granted - and that was before the SG was invited to weigh in.

-SBS 

Michael Moore Takes On Health Insurance

Michael Moore (of "Farenheit 911" fame) premiered his new film, "Sicko," at Cannes this past weekend.  His latest film takes on the American health insurance system, and raises questions about the cost of health care in the United States.  The film opens on June 29th, but Moore is providing a sneak peek for eager fans.  The movie is receiving good reviews, as summarized on Slate.  The Post has a full discussion of the movie, including an interview with Moore.   

- SBS