TortsProf Blog

Dream Exam Material

For your weekend reading pleasure: Bicycle Built for Brew.

You don't have to thank me.  Just send me copies of exams based on it.

--BC

Exxon Valdez Punitives Fight Still Going

I'm not so good at math, but I'm pretty sure the Exxon Valdez punitive damages rulings have gone up and down the appellate chain about 400 times.  Make that 401.

Plaintiffs in the long-running case surrounding the 1989 Exxon Valdez oil disaster this week asked the U.S. Supreme Court to restore a $5 billion punitive fine against Exxon Mobil Corp, a petition filed with highest U.S. court shows.

The petition, filed Tuesday, followed one filed last week by Exxon Mobil that asked the Supreme Court to overturn the $2.5 billion punitive fine assessed by the 9th Circuit Court of Appeals.

--BC

New Sunscreen Rules Coming

Over a year ago, I posted (here and here) about a putative class action fraud and consumer protection claim brought against sunscreen manufacturers for the alleged failure to deal with UVA rays.  A few days ago, the FDA announced new rules concerning labeling for UVA rays.  The FDA's press release is here and links to various other FDA documents (including the proposed rule) are here.

--BC

Punitives For Wrong -- And Unwashed -- Sperm

A North Carolina InjuryBoard blog has more. The basic facts:

The plaintiff was inseminated with two-day-old unwashed sperm from an unknown donor. A nurse practitioner used an unlabeled syringe from the clinic's incubator without checking her logbook or verifying the donor and used it for the insemination. This unidentified sperm was used instead of a prepared specimen from the sperm bank.

This injection triggered a severe allergic reaction in the plaintiff and caused her emotion distress over the possible exposure to HIV and other sexually transmitted diseases.

According to the story, the plaintiff terminated the pregnancy and decided to adopt.

Liability was found via summary judgment, so the jury considered only damages, awarding $85,000 in compensatory damages and $350,000 in punitives.  That amount exceeds the state statutory cap of $250,000, and so the award has been reduced accordingly, per the story.

--BC

Duke Lacrosse Players Readying Civil Suit

So reports a Research Triangle paper (registration required).  Two of the players have hired my old firm, while a third has hired Barry Scheck.

--BC

Running With Scissors Suit Settled

The Boston Globe has the details, or, more accurately, has the lack of details on the financial part.  The settlement includes a change in the book's description as well as an apology:

Burroughs and his publisher, St. Martin's Press, agree to call the work a "book" instead of "memoirs," in the author's note and to change the acknowledgments page in future editions to say that the Turcotte family's memories of events he describes "are different than my own," and expressing regret for "any unintentional harm" to them, according to Howard Cooper, an attorney for the family.

The acknowledgments will also refer to the Turcottes (the real name of the family) as fine and hardworking people.

--BC

"So Sue Me" - The Board Game - Available Cheap

No commercial endorsements here, but I observe that Tanga presently has "So Sue Me," the board game, available for $15.99.

--BC

New York May Sue Feds Over CHIP Regs

The New York Times reports that New York may sue the federal government over the Bush Administration's new income limits on the Children's Health Insurance Program (CHIP).  (Prior post here).  According to a press release, Spitzer "announced that the state may fight the new federal administrative rules in court on the grounds that they contradict the provisions of the federal SCHIP law and were imposed without notice or the required comment period as required by the federal Administrative Procedures Act." 

- SBS

Yahoo! Seeks Dismissal of Alien Tort Claims Suit

As reported on Jurist and the Washington Post, Yahoo! filed a motion to dismiss a suit filed this past spring by the World Organization for Human Rights USA on behalf of two imprisoned Chinese democracy activists.  The suit alleges that Yahoo! aided and abetted the Chinese government's torture and abuse of the activists by providing Chinese officials with e-mail records and other information that helped the government identify pro-democracy activists. 

Yahoo acknowledged releasing personal user information about the writers to the Chinese government, but said it had to comply with the country's lawful request and therefore cannot be held liable.  [WaPo]. 

The suit brings claims under the Torture Victim Protection and the Alien Tort Claims Statute on behalf of two Chinese activists who used Yahoo's email service to distribute their work, and who are now serving 10 year-prison sentences. 

- SBS

House Democrats Investigate FDA Outsourcing

Forbes (via AP) reports that Representatives John Dingell (D-MI) and Bart Stupak (D-MI) are investigating the FDA's plan to outsource 300+ jobs.  The FDA's plan originally involved outsourcing jobs by lab technicians involved in safety inspections, but the FDA "said a revised list includes only administrative jobs."

- SBS

Asthma Rate 12X Higher Among 9/11 Workers

As reported by ABC News-New York, the NY health department released findings yesterday from a study on the health effects of dust and debris exposure among 9/11 workers:

The data, drawn from the World Trade Center Health Registry, show that 3.6 percent of the 25,000 rescue and recovery workers enrolled in the Registry reported developing asthma after working at the site. The rate is 12 times what would be normally expected for the adult population during such a time period.

The rescue and recovery workers are a subset of the 71,000 people enrolled in the registry.

The survey, conducted in 2003 and 2004, found that arriving soon after the buildings collapsed or working on the WTC pile over a long period increased the workers' risk of developing asthma. Workers who arrived on September 11, 2001, and worked more than 90 days reported the highest rate of new asthma (7 percent).

These findings could be potentially relevant in the pending class action against NYC by 9/11 workers seeking compensation for respiratory illnesses allegedly caused by exposure to 9/11 dust.  (Prior posts here and here). 

- SBS

Lawsuit's A-Comin' Against Playland

In a move that will surprise precisely nobody, the family of the young woman killed on the Mind Scrambler at Playland plans to sue the municipally-owned park.

The state labor department concluded that the ride operator started the ride even though he knew that Ms. Garin (a just-off-duty ride operator herself, and the supervisor of the young man who started the ride) was not properly seated.  Some witness accounts suggest that Garin was horsing around and may have even urged the operator to start the ride without being properly restrained.  Her family rejects that notion, saying she was too responsible to do such a thing.

--BC

A Quick Glance at the Belly Button

I don't do much navel-gazing, but there's an interesting post at Race to the Bottom. It describes the TortsProf blog (among others) as one "that [has] not attracted, relatively speaking, a large general readership but [has] attracted strong interest from academic readers."  That's consistent with my occasional glance at our stats.

--BC

CPSC "Neutered Almost to the Point of Uselessness"

That's what Ann Brown (former CPSC chair) and Pamela Gilbert (former CPSC executive director) say in a scathing WaPo op-ed about the agency.

--BC

3rd Circuit Adheres to Single Digit Ratio for Punitive Damages

The Legal Intelligencer (via Law.com) reports that the Third Circuit appears to be adhering strictly to the Supreme Court's admonition regarding single-digit ratios.   Reducing a punitive damages award to a 7:1 ratio between punitive damages and compensatory damages, the Third Circuit stated:

"Heeding the Supreme Court's admonition that few awards exceeding the single-digit threshold will satisfy due process, we conclude that the 18:1 ratio in this case crosses the line into constitutional impropriety," U.S. Circuit Judge Kent A. Jordan wrote in CGB Occupational Therapy Inc. v. RHA/Pennsylvania Nursing Homes Inc.

The trial judge had reduced the jury's $30 million punitive award to $2 million - a 19:1 ratio - finding the reduced amount "is not constitutionally excessive given the facts of this case -- including the wealth of [the] defendant and the state's interest in punishment and deterrence."

The Third Circuit, however, disagreed, and further reduced the award to $750,000.

Has the Supreme Court created a presumptive constitutional ceiling at a 9:1 ratio?  (Interested in this topic?  Come to the punitive damages symposium next week here in Charleston.  Registration is still open.). 

(Thanks to Tony Sebok for the tip).

- SBS

 

Romney Proposes State-by-State Health Insurance Plan

The New York Times reports that Mitt Romney is proposing an overhaul to the nation's health insurance system that "departs significantly" from Massachusetts's universal health care program:

In his plan, Mr. Romney proposes taking federal money currently being used to help states cover the cost of medical care for the uninsured and offering that money to states to help low-income people who are not eligible for Medicaid and other public programs to buy their own private health insurance.

The same pool of money will be wielded as a carrot for states to reform their health insurance regulations to help drive costs down and make plans affordable. That would include reducing the number of requirements for coverage that states impose on health insurance providers or lifting restrictions in some states on health maintenance organizations.

- SBS

Florida Court May Consider Waivers

An intermediate appellate court in Florida recently issued what lawyers involved describe as a confusing opinion, according to The Palm Beach Post:

Christopher Jones died in May 2003 after losing control of his ATV at the Thunder Cross Motor Sports Park. His father, Bobby, had signed a waiver acknowledging the risks at the park and giving up his and Christopher's rights to sue - a common practice before children enter parks or participate in sports events.

The 4th District Court of Appeal ruled this month that Bobby Jones could not sign away his son's right to sue, clearing the way for a lawsuit against the park on behalf of the boy's estate.

* * *

In their decision, the appellate judges said it is still up to parents to decide which activities their children can participate in, but they can't waive a child's right to make a claim in cases of injury without court approval.

That would mean the only way the "hold-harmless" agreements would be enforceable against a child would be if the court appointed an independent guardian for the child in each case, and the guardian signed off on the document before the child was allowed into the park.

The story also suggests that, regardless of what the Supreme Court does (there's a split in Florida, so their involvement seems likely), legislative action is probable as well.

--BC

Ludington on "A Tort for the Misuse of Personal Information"

As noted by Larry Solum, Sarah Ludington has posted Reining in the Data Traders: A Tort for the Misuse of Personal Information on SSRN.  From the abstract:

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills were taken to a vote before the election in 2006. In large part, individuals remain powerless to discover the information a data trader holds about them, to discover what information was sold or stolen, to prevent data traders from using their personal information in unauthorized ways, or to hold data traders accountable for lax security.

The Article argues that a new common law tort should be used to force reform and accountability on data traders, and to provide remedies for individuals who have suffered harm to their core privacy interests of choice and control-choice about who may receive their information, control over the information revealed, and how the recipient of that information may use it. The Article examines the current legislative and common law regimes, concluding that there are no effective remedies for individuals who have suffered harm from data misuse. Given the ineffective legislative response to the security breaches of 2005, the Article argues that the existing scheme of common law privacy torts should be expanded to create a new tort for information misuse. The new tort borrows from existing privacy torts-in particular, the tort of appropriation-and existing privacy statutes, importing the Fair Information Practices from the Privacy Act of 1974 as a standard of care.

- SBS 

Playland Operator Faulted

In the ongoing story of the death of a ride operator at Rye's Playland amusement park, the state labor department concluded that another rider operator was at fault, reports the local paper, via Turkewitz.  The report does not appear to be  on the labor department's website.

The paper reports:

A state report on the death this summer of 21-year-old Gabriela Garin on the Mind Scrambler at Playland accuses the ride's teenage operator of starting the ride even though he knew the victim was not properly seated.

The report, which was released late yesterday afternoon by the state Labor Department, also slams the ride's owner, S&L Amusements, for providing inadequate training to its employees and not ensuring that the ride, especially a secondary operations booth, was properly staffed.

"The ride operator failed to properly operate the ride," said Leo Rosales, a spokesman for the Labor Department. "He turned on the ride when there was obviously somebody not seated properly."

Prior posts about the ride are here.

--BC

Scruggs Seeks Dismissal of Criminal Contempt Charge

As reported on WSJ Law Blog, Dickie Scruggs has hired John Keker  to defend him in the pending criminal contempt proceeding.  (Prior posts on this topic here and here).  Keker has filed a petition with the Eleventh Circuit seeking dismissal of the contempt charges. 

- SBS