TortsProf Blog

What-A-Burger's What-A-Lawyers Post What-An-Arbitration-Agreement Signs Outside Restaurants

Now that's bold. 

What-A-Burger has mandatory arbitration agreements posted at every entrance of their restaurants (see also Public Citizen's blog posting).  By entering, customers are purportedly committing to having any disputes heard by the American Mediation Association, a three-lawyer group (with an astoundingly annoying soundtrack on their website).

--BC

Williams Punitives Upheld Again

The Oregon Supreme Court has yet again affirmed the nearly 100-to-1 ratio of punitive damages in the Williams v. Philip Morris case (opinion, Turkewitz); the affirmance focuses on the failings of Philip Morris's proposed jury instruction.

--BC

Geistfeld's Guide to Torts

Aspen Publishers has launched its "Essentials" series, and Mark Geistfeld is writing the Torts installment.  Aspen describes the series as follows:

The Essentials series offers a prominent author's personal view of the subject matter. Each book will help students understand the salient characteristics of the subject and how the subject relates to other law school courses. Some authors will choose to focus on unifying themes or policy issues; others will choose to focus on doctrines or illustrative case studies. But the purpose of each volume is the same — to illumine the subject matter for the student.

Geistfeld's volume on Torts will be available next year.

--CJR

Kentucky Kingdom Victim's Account Becomes Public

The Lexington paper has a story with details of Katie Lassiter's account of her ride on Six Flags Kentucky Kingdom's "Superman: Tower of Power" ride on which she lost her feet.  It also describes her parents' experience of the day.

--BC

Assumption of the Risk in Jello Wrestling

A great teaching opportunity on assumption of the risk from WNBC (New York):

... Avram Wisnia was an NYU junior in 2004 when he and his dorm mates organized a party called "Beach Bash." While horsing around a kiddie pool filled with gelatin, Wisnia was pushed and shattered his hip....Wisnia's 2005 lawsuit blamed NYU for allowing the event and for having the school's food service provide the gelatin. But Manhattan Justice Carol Robinson Edmead ruled that Wisnia knew what he was doing.

(Via Walter Olson at Overlawyered).

- SBS

O'Connell on Binding Early Offers vs. Med Mal Caps

Jeffrey O'Connell (Virginia) has posted "Commentary Binding Early Offers versus Caps for Medical Malpractice Claims?" on SSRN.  The abstract provides:

Like damages caps, early offer reform promises reduction in the costs of medical liability cases. In contrast to damages caps, early offer reform offers advantages to both claimant and defendant. Under early offer, the defendant would have the option to offer an injured patient periodic payments for the patient's net economic losses as they accrue, but not payments for noneconomic losses (pain and suffering). If an early offer were made and accepted, that would settle the claim. This commentary explains how an early offer reform might work and summarizes data from a recent closed claim study of medical malpractice cases in Texas and Florida. The data show widespread opportunities for successful early offers and provide evidence that substantial per case savings would result.

- SBS

Nagareda on Mass Tort Litigation

In a new featured column at PointofLaw, Richard Nagareda (Vanderbilt) argues that resolution of mass torts requires a reconception of the attorney-client relationship and the role of the civil tort system:

What is needed for mass torts is a corresponding legal response that would turn this leveraging into its own source of constraint—that would bestow the coercive authority needed to make peace, but only coupled with measures to link the interests of the peacemakers to the long-term viability of the arrangements they create. Such measures might include the overriding of existing lawyer-client retention agreements so as to link the fees to be obtained from clients by plaintiffs' lawyers to the peace terms that they fashion for non-clients who are otherwise similarly situated.

- SBS

Sebok on Telecom Immunity

In his latest Findlaw column, Tony Sebok analyzes the constitutionality of providing civil immunity to telephone companies that allegedly violated customers' privacy rights by providing information about phone and Internet communications to the federal government.  Sebok points out that the suits filed against AT&T and other companies sound in tort law:  the original Foreign Intelligence Surveillance Act includes a civil suit provision, and "[t]he causes of action that were triggered by the violation of FISA concerned privacy, a tort interest recognized by almost every state's common law, and possibly protected by an implied right of action under the First and Fourteenth Amendments as well."  Sebok argues that before Congress can eliminate a plaintiff's statutory tort claim, it must provide compensation under the Fifth Amendment's Takings Clause, and that different treatment based on the statutory nature of these claims is unjustified. 

- SBS

Civil Litigation and Declined Prosecutions

The Seattle Times has a disturbing story about former UW standout tight end Jerramy Stevens, now with the Tampa Bay Buccaneers, and his "raft" of second chances after a conviction for assault, a fairly compelling accusation of rape, and a multitude of other legal run-ins. 

Of particular note for Torts folks is the fact that much of the detail came from depositions in tort suits, as the local prosecutor declined to bring charges (over the police's objections).  The story also notes a dispute about making the plaintiff's name public; UW fought for her identity to be unsealed.  The case settled:

In the spring of 2004, the lawsuit was settled. The agreement was confidential, barring Roe [the lawyer for the alleged rape victim] and Marie [the alleged victim] from disclosing its terms.

But in a letter to the UW's attorney — obtained through a public-records request — Hunsinger [who represented Stevens] described part of the deal. The agreement allowed the UW to be dismissed from the case, while Stevens and the fraternity would settle.

The deal also allowed Stevens to avoid questions about what happened on that June night four years before.

"One of the elements of the settlement is that Jerramy not be required to participate in any other litigation involving the UW, specifically the lawsuits filed by [Roe] regarding [other UW players sued] Eric Shyne and Roc Alexander," Hunsinger wrote. "He does not want to be contacted by anyone, let alone deposed, or testify at trial."

A month later, in June 2004, Hunsinger sent Roe a check — for $300,000 — to settle the case on behalf of Stevens and the fraternity.

It's well worth reading for a number of reasons, in particular to explore the interplay of criminal and civil litigation in at least one setting with significant public pressure in play.

--BC

WNEC Hosting Hearing on Physician Availability

I just received this from our Institute on Legislative and Governmental Affairs:

The Law School’s Institute for Legislative and Governmental Affairs
cordially invites you to attend a hearing of the Commission on Public Health
Access in Sleith Hall Auditorium on January 30, 2008, from 1:00 – 5:00 p.m.
The 14-member Commission is charged with the investigation and study of the
accessibility and quality of doctors who specialize in obstetric,
gynecological, and neurosurgical care of women in western Massachusetts.

“Western Massachusetts is losing physicians within these specialties
at an alarming rate. It is a public health nightmare waiting to happen if
women do not have access to quality doctors and specialists,” said Senator
Gale D. Candaras (L’82) (First Hampden and Hampshire District). 

Senator Candaras introduced the legislation that created the
Commission as part of the 2008 Fiscal Year budget.  “Establishing the
commission was at the top of my list of legislative priorities in
conversations with Senate President Therese Murray and Senator Steven
Panagiotakas, the Chair of Ways & Means.  I thank them both for being so
very receptive and willing to take action on this growing problem,” Senator
Candaras noted.

The Sleith Hall hearing is open to the public. Persons wishing to
testify are asked to provide ten copies of their testimony to the
Commission. Individuals or parties interested in offering testimony but
unable to attend may submit written testimony to the Commission for
consideration. For further information, please call the Department of Public
Health at 617-624-6000 or Senator Candaras’ Office at 413-599-4785.

The 14 Commission members are: John Auerbach, Commissioner, MA
Department of Public Health; Nancy Audesse, Executive Director of the Board
of Registration in Medicine; Nonnie Burnes, Commissioner, MA Department of
Insurance; Dr. Roger Snow (designee), Commissioner of MassHealth; Dr.
Herbert Kantor, physician, Dr. Stephen Metz, physician, and Dr. Sherry
Taylor, physican, appointed by the President of the Massachusetts Medical
Society; Senator Gale Candaras and Senator Benjamin Downing, appointed by
the President of the Senate; Dr. James Wang, appointed by the Minority
Leader of the Senate; Representative Stephen Kulik, Representative Daniel
Bosley, and Dr. Susan Yates,  appointed by the Speaker of the House of
Representatives; and Representative Mary S. Rogeness, appointed by the
Minority Leader of the House of Representatives.

--BC

Blackwater Sues Lawyers

The Post's Government Inc. blog reports that Blackwater is suing Wiley Rein for malpractice in defending the company against a wrongful death suit brought by the "Fallujah Four."  Legal Times has more details:

The complaint, filed in D.C. Superior Court, claims lawyers at Wiley Rein filed sloppy pleadings that ultimately barred Blackwater from shifting the case from a state court in North Carolina to federal district court, where the security firm could have mounted a stronger defense.

After losing its bid to have the case transferred in October 2005, Blackwater discarded its high-wattage Wiley Rein team, which included Fred Fielding, now White House counsel; Barbara Van Gelder, now an attorney with Morgan, Lewis & Bockius; Scott McCaleb, who is a partner with Wiley Rein; and Margaret Ryan, who is now a judge for the U.S. Court of Appeals for the Armed Forces.

An earlier post about the suit is here; it links to earlier posts too.

--BC

New Warnings for Botox?

That's what Sidney Wolfe (Public Citizen) is asking for after sixteen deaths have been reported -- but none apparently among the people using it for cosmetic purposes.  As a muscle relaxant, it can, as it turns out, be used to treat severe muscle pain in the neck, but the injections come near the esophagus, which, when it's hit with the drug, can cause paralysis and eventual death.

Perhaps because of the fact that it's thus far apparently limited to people in the non-cosmetic use side, I don't see any relevant ads for lawyers.  The risk/benefit discussion would be interesting in any event, but especially so in the cosmetic use side, I would think.

--BC

Challenge to West Virginia Med Mal Reform

On Thursday, I posted about two states, Ohio and Texas, that passed significant medical malpractice reforms in 2003.  Another state that did so was West Virginia.  This week, the West Virginia Supreme Court heard arguments in a case challenging one of those reforms, the "certificate of merit" requirement in malpractice cases.  The plaintiff claims the requirement is an undue burden; physicians will not sign the certificate because of an association with the defendant or they will charge exorbitant fees to do so.  The plaintiff claimed the fee was "upwards of" $40,000.

The facts of this case are somewhat bizarre, and may make it difficult to focus on the underlying issues.  The plaintiff himself is a physician, he was not represented by counsel for most of the litigation, and plaintiff's claims include a battery allegation in which he was held down by defendant's assistants and had a stent removed (despite his repeated demands to stop the procedure).  The story is here.

--CJR

One Month from Today...

...is the Crimtorts symposium at Widener.

Here's the lineup:

Introductory Panel:

Thomas Koenig (Northeastern-Sociology), Michael Rustad (Suffolk), and Kenneth Simons (Boston)

Applications Panel:

Martha Chamallas (Ohio State), Mary Kate Kearney (Widener), Jeffrey O'Connell (Virginia), and Byron Stier (Southwestern)

Punitive Damages Panel:

Mark Geistfeld (NYU), Keith Hylton (Boston), Sheila Scheuerman (Charleston), Anthony Sebok (Cardozo), and Catherine Sharkey (NYU)

Some of the country's leading scholars will be addressing an interesting and innovative legal concept.  Please come join us for what promises to be a fantastic event.

--CJR

Viscusi on Hedonic Damages

Last week, Kip Viscusi posted on SSRN The Flawed Hedonic Damages Measure for Wrongful Death and Personal Injury Compensation.  Here is the abstract:

The payment of hedonic damages based on the value of statistical life will lead to excessive insurance and excessive deterrence in personal injury cases. The value of statistical life can play a constructive role in assessing negligence and liability. The recent proposal that wrongful death victims be awarded hedonic damages in addition to both economic damages and noneconomic damages to compensate for the harm to survivors will produce rampant double counting and will transform wrongful death awards in a very inefficient and undesirable manner. Recent attempts to set compensation levels by chaining the value of statistical life with measures of happiness and disability reflect a fundamental misunderstanding of the value of statistical life literature.

--CJR

"Traction Park," "Fracture Park": One Facility, Dozens of Hypotheticals

New Jersey's Action Park was an amusement facility open in various incarnations from 1978 to 1996.  It was, in broad terms, designed to feature relatively extreme attractions with an unusual degree of patron control over their experiences.  That combination resulted in a remarkable number of injuries and fatalities -- and all sorts of ideas for torts hypotheticals.  The location now houses the much less extreme Mountain Creek Waterpark.

Among the injuries noted in various sources in its incarnation as Action Park are (a) an electrocution in a water ride; (b) head injuries (one fatal) and injuries on an alpine slide (where patrons control their speed going down a concrete trough); (c) drownings in the wave pool (nicknamed the "Grave Pool"); (d) various injuries from very fast go-karts (employees allegedly would bypass the speed governor); and (e) a variety of injuries from the park's most notorious ride, a looping waterslide.  Yes, a looping waterslide:

The looping waterslide apparently almost never actually operated, though it was there for years.  There have been various reports of another waterslide designer trying to make one less likely to injure.

If you're looking for examples of Bad Ideas™ combined with potential comparative fault and/or assumption of risk, some sources for you:

• The Wikipedia entry, while including a snippy note about it not complying with editorial guidelines, consolidates a lot of information from other sources.  All reliable?  Perhaps not, but filled with truthiness, and that's enough for exams, no?
  
• Weird NJ's page has some more details, including a scan of a newspaper article in which the park was sued for negligence when a lifeguard apparently hit a patron in the face with a life preserver when trying to toss the man the live preserver.
• The not-terribly-tasteful Domain of Death 3 has additional stories.
• Finally, former employees post entertaining stories at Center of the Action, a blog about their experiences.

And why not?  An apparently-unavoidable-at-the-time ad that might be in the mix in any hypothetical suit:

 

Good times.

--BC

Medical Malpractice Claims Decrease in Ohio

As part of a series of Ohio reforms, the Insurance Department was required to compile data on medical malpractice claims.  The initial report was issued last year, making this the first year a comparison could be conducted.  In 2005, there were 5,051 med mal claims filed in the state.  In 2006, only 4,006 claims were filed, a decrease of approximately 20%.

The Insurance Department attributed the decrease to changes made by lawmakers five years ago.  Those changes included caps for pain-and-suffering, and attempts to restrict "frivolous" claims against doctors.  The story is here. 

Because Texas seems to have had an influx of physicians following relatively similar tort reforms in 2003, I was curious whether Ohio had been likewise affected.  The State Medical Board of Ohio has licensing statistics on its website, but only through 2005.  I don't see any evidence that the reforms had a significant effect on licensing, but I didn't run statistical tests on the figures.  Will more data show bigger changes?  Will the Ohio Supreme Court's blessing of the tort reforms convince other doctors to come?  Or is there something that separates Texas from Ohio?  The weather?  The lack of a state income tax?

--CJR

Edwards on Clinton on Trial Lawyers

I'm on the John Edwards mailing list, having given a small contribution.  Today, I got this:

Dear William,

Throughout this campaign, John Edwards has spoken with pride of his life as a lawyer, providing a voice for those who would otherwise be voiceless in our justice system.

But in Monday night's presidential debate, Hillary Clinton shared a different viewpoint. To her, trial lawyers are no more than another Washington special interest, focused only on selfishly influencing the outcome of this year's election.

For her, the individual contributions made by attorneys to John's campaign equate to the hundreds of thousands of dollars she has received from lobbyists and public action committees. John has never taken a dime from special interests or PACs -- and Hillary Clinton is wrong to make the comparison.

I was proud of the way in which John came back forcefully and spoke passionately of the difference lawyers make every day for American families who have been victimized by negligent acts of large companies.

Take a look at the debate exchange on trial lawyers between John Edwards and Hillary Clinton for yourself.

Click here to see the video clip

You decide for yourself who truly understands the legal community and the importance of lawyers: Hillary Clinton or John Edwards?

Please support John as he campaigns across America to provide a voice for those who have no voice, speaking out with no fear or favor.

Sincerely,

--David Bonior
  National Campaign Manager, John Edwards for President
  January 23, 2008

--BC

Calorie Counting in New York City

The New York Times reports that New York City once again is going to require restaurants to post calorie content on menu boards.   The Board of Health revised the regulations following a decision last September by U.S. District Judge Richard J. Holwell striking down the original regs.   (In an interesting note given the buzz on preemption these days, Judge Holwell found that the original regs were preempted by the federal Nutrition Labeling and Education Act of 1990). 

Under the revised regs, "any chain that operates at least 15 outlets nationwide would have to display calorie content on their menu boards, menus or food tags — essentially wherever the restaurant lists the information that customers use to make their choices."   The regulations are scheduled to take effect March 31st, but the New York State Restaurant Association is considering a lawsuit.

- SBS

Vladeck on Preemption

David C. Vladeck has written an issue paper entitled, "The Emerging Threat of Regulatory Preemption," distributed by the American Constitution Society.  The abstract provides:

In The Emerging Threat of Regulatory Preemption, Georgetown University Law Center Professor David C. Vladeck examines how, in his view, regulatory agencies have attempted to insulate regulated industries from state tort law claims by slipping preemption language into regulatory preambles. Professor Vladeck traces this “preemption by preamble” campaign in several key agencies, such as the Food and Drug Administration, and highlights the serious procedural and substantive issues involved. Procedurally, making preemption determinations in a regulation’s preamble (the introductory language that often precedes the actual regulation) is setting policy in a way that is “neither transparent nor democratic,” insulating it from the political process and formal notice-and-comment procedures. Substantively, permitting such preemption raises separation of powers concerns, as it could be viewed as an “effort by the Executive Branch to arrogate power that properly belongs to Congress.” Professor Vladeck argues that decisions “on whether to displace state law to achieve federal objectives are quintessentially legislative judgments that Article I, Section I of the Constitution entrusts to Congress.” Historically, state tort and damages law have served important and complementary roles to federal regulation, and tampering with that balance should not be undertaken lightly. Professor Vladeck concludes by cautioning that “[w]hile the public watches the Supreme Court wrestle with the preemption questions presented in Riegel v. Medtronic, and perhaps in Wyeth v. Levine, the more troubling action is taking place out of public view,” a quiet erosion of tort law remedies and the health and safety benefits they entail. 

- SBS