TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, July 31, 2007

Avandia Roundup

  • Our neighbors summarize.  So do our other neighbors.
  • In The Pipeline comments.
  • DrugWonks cheers, and cheers, and discusses.
  • A new-to-me blog, but one I'm liking more just about every day, Life Sciences Daily, discusses and goes after DrugWonks.  In so doing, Ogan Gurel identifies for me what it is that sometimes bugs me about DrugWonks, and it's similar to what sometimes bugs me about a lot of the sites funded by particular groups or industries (not at all limited to DrugWonks - just a convenient example) -- they often don't act like adults, instead seeming more like teenagers arguing over the best Scary Movie sequel.


(Usual disclosure: I do a small amount of work for pharma clients.  GSK is not, nor has it ever been, a client.)

July 31, 2007 in Products Liability | Permalink | Comments (1) | TrackBack (0)

Which Comes First - Negligence or Intentional Torts?

With the start of a new school year almost upon us, the question arose:  how do you structure your Torts course?  Do you begin with intentional torts or negligence? 

Readers, please post a comment.  As new torts professors consider how to design their course, we'd love to gather comments on what has worked for you, and why you chose your approach. 


July 31, 2007 in Teaching Torts | Permalink | Comments (3) | TrackBack (0)

Update: Family of Drunk Driver Dismisses Lawsuit Against Restaurant

As posted earlier, the father of Josh Hancock, a St. Louis Cardinals pitcher killed in a drunk driving accident, filed suit last May against 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.  The St. Louis Post-Dispatch reports that the family dismissed the suit yesterday just before a hearing on the defendants' motion to dismiss.  The dismissal, however, was without prejudice.  (Howard Wasserman at Sports Law Blog has a thorough post examining the dismissal.)

The Post-Dispatch reports that the family released the following statement: 

    "The subject of my son's death has been widely reported and discussed, as has my motivation to file the wrongful death lawsuit. Often, legal action has more to do with performing responsibilities and gaining control. This lawsuit was not filed for personal gain. Few know that Josh died without a Will, leaving multiple heirs in two separate families in different states. When I became the court appointed Administrator of his estate, I agreed to perform fiduciary responsibilities to protect the interests of his estate and all beneficiaries.

    "Information from the intense news coverage of Josh's tragic death, facts about the accident and varying public statements from witnesses indicated that certain individuals and entities shared some degree of comparative negligence in the cause of Josh's death.

    "The final investigation report recently issued by the Missouri Division of Alcohol and Tobacco Control ("ATC") provided some insight into the events leading to Josh's death. Considering all factual issues, combined with the prolonged legal battles which we would have to fight if this lawsuit were to continue, I have instructed that the defendants be dismissed from the lawsuit.

    "Josh was often quoted saying, 'everything happens for the good.' The ATC report confirms that since his death, bars and restaurants are now becoming even more focused on their responsibilities. I am certain that his death has caused many individuals to become more aware of personal responsibility. Additionally, a number of employers and groups are also examining and changing their alcohol policies.

    "It is my hope that public opinion will eventually have an even greater effect on public policy to emphasize the responsibilities of both those who consume alcohol and those who serve it."

As I queried in my earlier post, was this a classic example of a frivolous lawsuit?  Certainly sounds like the family had a good faith belief that another party was negligent when they filed the suit.  But assuming no discovery has taken place in the past two months (which given the posture of the case seems correct), no new information has been discovered that could not have been learned with greater pre-filing investigation on the part of the plaintiff's attorneys, or in the case of the ATC's final report, some patience in rushing to the courthouse.   Overall, this one seems to exemplify "sue first, ask questions later."


July 31, 2007 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2007

Suing a Chinese Company? Good Luck.

That's the message of a Post story today.


July 30, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Judge Holds Ruling On Merck's Request To Appeal Vioxx Preemption Ruling

Newsday reports that U.S. District Judge Eldon E. Fallon - the federal judge assigned to handle pretrial in all federal Vioxx lawsuits - held a hearing on Friday.  Merck, the manufacturer of Vioxx, has asked permission to immediately appeal the judge's ruling that FDA approval of drug labels does not preempt state law claims for failure-to-warn. (Prior post on the judge's ruling here).  Judge Fallon said his ruling on Merck's request "may wait on testimony from the governors of Mississippi and Indiana about their consultations with the U.S. Food and Drug Administration as new drug label rules took effect."  The governors' testimony could be available by September. 


July 30, 2007 in MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

U.S. Attorney Declines To Prosecute Dickie Scruggs For Contempt; Judge Names Special Prosecutors

As reported on (via AP), last week, the U.S. Attorney's Office in Birmingham, AL, refused to prosecute plaintiffs' lawyer Dickie Scruggs and the Scruggs Law Firm for criminal contempt in a Hurricane Katrina insurance dispute.   Scruggs (brother-in-law of Senator Trent Lott (R-MI)) is suing State Farm on behalf of Mississippi residents.  (More on the underlying case here).   Back in June, U.S. District Judge William M. Acker Jr. recommended the criminal prosecution based on Scruggs's violation of a court order that "required him to deliver "all documents" about State Farm Insurance Co. that whistleblowers Cori and Kerri Rigsby secretly copied after Katrina."  (Copies of the judge's original memorandum and order are available here via WSJ Law Blog).  In a letter to Judge Acker, the U.S. Attorney declined to prosecute Scruggs. 

In the latest twist, WSJ Law Blog reports that last Thursday Judge Acker appointed two Birmingham lawyers as special prosecutors to pursue the criminal contempt charge against Scruggs.  Stay tuned!


July 30, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, July 29, 2007

Documents: Investigation Report in "Air Glory" Ride Death

A couple of weeks ago, a sixteen-year-old girl fell to her death while riding an "Air Glory" ride at a Christian festival in Wisconsin.  This ride is somewhat similar conceptually to the popular SkyCoaster rides, but is very different in setup.  It appears that the Air Glory ride uses a construction crane adapted to use for the ride's purposes.

The state has now released its inspection report: Download AirGloryReport.pdf [PDF]

The report concludes that the ride itself, though violating code in many ways, had no defect that caused the death.  It does not quite reach a conclusion about what did cause it, but hints strongly at operator error:

Mr. Armelin was working on the right side of the platform, and Mr. Ross was working on the left side. Mr. Ross said that Mr. Armelin was a new employee having worked for Mr. Ross only about two weeks. Mr. Ross also said Mr. Armelin also had a tendency not to lock the carabineer after attaching the rider to the ride. Mr. Ross said he always worked on the left side when working with Mr. Armelin so that he (Mr. Ross) could check the carabineer before attaching the safety rope. Mr. Ross stated if the carabineer was locked, there would be no way it could come loose when a person was attached to it. Mr. Ross also said that if the carabineer was locked and if the safety rope was properly attached it would not be possible for anyone to come loose from the ride. This is consistent with the statements that Mr. Ross provided to the Oshkosh Police and with Commerce’s independent investigation.

The state has imposed new restrictions on rides owned by the Air Glory's owner and announced its intention to implement an emergency rule regarding similar rides, and to re-evaluate the ride safety program in Wisconsin.  There's been no lawsuit filed (yet).

Incidentally, I am guest posting this week at ThemeLaw, a blog focused on amusement industry legal issues by Chad Emerson (Faulkner).


July 29, 2007 in Documents | Permalink | Comments (0) | TrackBack (0)

Mmmm...Botulism: Recalled Canned Goods Still on Shelves

That's the story from the New York Times today, addressing the recall of millions of cans of food from an Augusta, Georgia, plant, dating back two years.

And, yes, lawyers are advertising.


July 29, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Fairness of Malpractice Settlements

Philip G. Peters, Jr. (UMKC) has a new paper (in Regulation and on SSRN) relating to medical malpractice settlements.  Its abstract:

Over the past quarter of a century, more than a dozen studies have collected data on malpractice settlements. With only one exception, they have consistently shown that plaintiffs with strong cases are more likely to receive a settlement payment than plaintiffs with weak cases. Moreover, the data on malpractice settlement strongly suggests that liability insurers possess a palpable advantage in bargaining power.

And the concluding paragraph of the article itself (which is very short):

The overall performance of the settlement process should be reassuring to those physicians who are willing to listen. Quality of care drives settlement outcomes. To the extent that settlement outcomes depart from the merits, the discrepancies usually favor malpractice defendants. Although physicians may find it hard to believe, it will be hard to design an evenhanded adjudicative process that treats them much better.


July 29, 2007 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, July 28, 2007

"Relentless" Focus on Hygiene

The NYT has a piece discussing the astonishingly high rate of infections in hospitals and the relatively simple means by which some hospitals have reduced that rate.  Worth a read.

(h/t PSM)


July 28, 2007 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, July 27, 2007

Homeland Security Legislation Passes - The Tort Law Relevancy

Congress passed new homeland security legislation today, adopting many of the suggestions of the 9/11 commission, and it is on its way to President Bush, who has said he will sign it.  (The bill as adopted is available here.)  It's got two potentially interesting components for torts folks:

  • First, it provides immunity for people who make "good faith reports" of suspected terrorist activity. This targets situations like the US Air flight out of Minneapolis last year where six imams were removed from the flight when other passengers said they acted suspiciously; the imams later filed suit.
  • Second, the AAJ (formerly ATLA) reports in an e-mail newsletter that the bill includes language that eliminates the argument that tort law is preempted by the Federal Rail Security Act.  On a fairly quick glance, I can't find that language (and it's not referenced in any of the coverage of the bill that I can find), but it's a pretty long bill, too.


July 27, 2007 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Vick's Got A Civil Suit, Too

AboveTheLaw has the pro se complaint and commentary.  Short version is that Vick's got a lot more criminal exposure than civil, at least from this complaint.


July 27, 2007 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

So far as I know, Paul Caron has not committed a tort yet today.

...but, despite his insistence on remaining irrelevant to this blog, rumor has it that he is turning 50 today.

Happy birthday, blog emperor Caron!

You've been a great help to me and to all on the LawProfessorBlogs network, and I know I speak for the thousands of readers of the network blogs when I say thank you, and happy birthday!


[Ditto for me! Happy Birthday, Paul! - SBS]

July 27, 2007 | Permalink | Comments (0) | TrackBack (0)

Record-Breaking Malicious Prosecution Award

U.S. Dist. Judge Nancy Gertner (D. Mass) awarded two men and the families of two other men $101 million in damages arising from their wrongful imprisonment for a 1965 murder.  The family alleged that the FBI was aware that a key witness was lying to protect another person who was cooperating with the FBI.  Judge Gertner rejected as "absurd" the FBI's argument that it had no duty to the state government.


July 27, 2007 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Family of Veteran Sues VA for Suicide

23-year-old Marine Jeffrey Lucey returned from service in Iraq and was, according to allegations in a lawsuit filed Thursday, denied mental health coverage by the VA.  Not long afterward, he committed suicide, and his family has filed suit against the government and Jim Nicholson, the outgoing VA chief, alleging negligence.

According to the complaint, Lance Cpl. Jeffrey Lucey began to experience difficulties several months after returning home from Iraq.

He had nightmares, daily bouts of vomiting and began drinking heavily. Depression soon set in.

He told his sister he had "a rope and tree picked out" behind the family home and needed to keep a flashlight by his bed to check for "camel spiders" he heard at night.

His parents took him to the U.S. Department of Veterans Affairs Medical Center in Northampton and he was involuntarily committed for help. He was released a few days later after VA personnel said they couldn't make an assessment of his post-traumatic stress disorder until he was alcohol free, said the complaint.

A few days later, his family took Lucey back to the center, but the lawsuit says the staff turned him away. Kevin Lucey found his son dead, hanging from a beam in the cellar two weeks later.


July 27, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Mike Piazza Would Rather You Keep the Water Bottle in the Stands, Thank You Very Much

Oakland A's designated hitter Mike Piazza is promising legal action against one Roland Flores, who threw a water bottle at Piazza and hit him on the (helmeted? not sure) head.

The story's headline states that Piazza plans to sue Flores, while the story itself suggests that the likely action will be criminal charges.

(Via Deadspin.)


July 27, 2007 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, July 26, 2007

"Considerable Concern" at FDA About Avandia

Pharmalot has a good overview of the situation, though I question the wisdom of declaring it "AvandiaGate" at this stage. Addition: DrugWonks has an interesting excerpt from the Glaxo submission.


(As usual: I do a small amount of work for pharmaceutical clients.  I have not represented Glaxo, though I've had clients be co-defendants with them.)

July 26, 2007 in Products Liability | Permalink | Comments (3) | TrackBack (0)

Goldman v. OJ: Wanting to Publish an Execrable Book to Try to Recover Damages

The WSJ Law Blog has the details of Fred Goldman's ongoing effort to obtain the rights to OJ Simpson's proof that he's pretty much evil "hypothetical" book If I Did It.  Goldman hopes to use any proceeds to go towards the $38 million Simpson owes him from the wrongful death suit.


July 26, 2007 in Current Affairs, Damages | Permalink | Comments (1) | TrackBack (0)

The Culture of FEMA

Following up on the earlier story about FEMA's attorneys delaying testing of the Katrina trailers due to fears about liability, David Michaels of SKAPP blogs today about the Washington Post editorial "FEMA's Toxic Environment."


July 26, 2007 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

MySpace Deletes 29,000 Sex Offender Profiles

MySpace -- which has faced (and presumably continues to face) civil litigation over the torts of its users -- announced this week that it has removed 29,000 registered sex offenders from its membership.

MySpace has not commented on the attorneys generals' proposals for requiring parental consent and monitoring or on the Clayton case. Representatives declined to provide interviews Wednesday. The company claims the use of Sentinel Tech's database is one in a series of steps to make the site safer.


July 26, 2007 in Current Affairs | Permalink | Comments (0) | TrackBack (0)