TortsProf Blog

Lawyers Ready? Gladiators Ready?

(Welcome, AboveTheLaw readers.)

I admit to some hesitation in acknowledging watching American Gladiators, which is not by any rational measure a particularly good show.  And yet there it sits on our TiVo, and yet we watch it.  Such is the mystery of life, no?

But today, I get to tie it in both to my law school and to Torts.

Last night (watch the full episode here) one of the contestants, Jennifer Blum, was identified as a New Jersey lawyer and a professional football player (she plays for the New York Sharks and is their all-time leading scorer).  A quick search of our alumni database reveals that she's a 2002 graduate of Western New England College School of Law!  Sources vary; I thought they said on the show that she's a criminal defense lawyer, but other sites indicate that she's a civil litigator.  Maybe she reads this blog!  (Sadly, 2002 was before I joined the faculty, so I don't know her.)

Blum won the competition last night, but her time on the Eliminator was insufficient to get into the final 8 (who have a chance at $100,000 and joining as a gladiator).

So, what did she have to agree to for her appearance?  Let's look at the casting process. 

In addition to attending one of several open casting calls (or submitting a videotape), applicants have to fill out a form [28-page PDF].  After getting through many questions (e.g., "If you had Aladdin’s lamp and 3 wishes, what would you wish for? (Rule: you can’t wish for money or more wishes)."), a bunch of required disclosures (ever been arrested? sued? in porn?), and extensive IP releases, we get to the waiver section.  Some excerpts:

I AM AWARE THAT THE ACTIVITIES IN WHICH I MAY PARTICIPATE IN
CONNECTION WITH THE SERIES (INCLUDING WITHOUT LIMITATION, THE
CONTESTANT SELECTION PROCESS) MAY BE STRENUOUS AND/OR
DANGEROUS PHYSICAL AND/OR MENTAL ACTIVITIES, AND I AM
VOLUNTARILY PARTICIPATING IN THE SERIES AND RELATED ACTIVITIES
WITH FULL KNOWLEDGE, APPRECIATION AND UNDERSTANDING OF THE
DANGERS AND PERSONAL RISKS INVOLVED AND HEREBY AGREE TO
ACCEPT ANY AND ALL RISKS OF PARTICIPATING IN CONTESTANT
SELECTION AND/OR IN THE SERIES, INCLUDING BUT NOT LIMITED TO,
ILLNESS, SERIOUS PERSONAL INJURY, DEATH AND/OR PROPERTY LOSS.

* * *

I irrevocably authorize Am Glad Productions (“PRODUCER”) to conduct physical and
psychological examinations of me in connection with its selection of contestants in the
Series.  I understand and acknowledge that I am solely responsible for determining
whether I am physically and mentally able to participate in the Series, and that the
opinion of medical personnel contracted by Producer to conduct physical and mental
examinations of me regarding my fitness to participate in the Series is not a substitute for
my own judgment or that of my own physician.

* * *

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE RELEASING PARTIES
AND WE HEREBY RELEASE THE RELEASED PARTIES, AND EACH OF THEM,
FROM ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LOSSES,
COSTS AND EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS’ FEES) ARISING OUT OF, RESULTING FROM, OR BY REASON OF
MY PARTICIPATION ON OR IN CONNECTION WITH THE SERIES, OR MY
APPEARANCE ON THE SERIES, THE FAILURE OF PRODUCER TO SELECT ME
AS A CONTESTANT, THE CANCELLATION OF THE SERIES, OR THE EXERCISE
BY PRODUCER OR ANYONE ELSE OF ANY RIGHTS GRANTED BY ME UNDER
THIS AGREEMENT.  THE RELEASED CLAIMS SPECIFICALLY INCLUDE, ANY
CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES
OF ANY KIND RESULTING FROM THE ACTIONS OF ANOTHER CONTESTANT
OR ANY OTHER THIRD PARTY AT ANY TIME, OR FROM ANY DEFECT IN OR
FAILURE OF EQUIPMENT, WARNINGS OR INSTRUCTIONS, OR MY
APPLICATION OR PREPARATION FOR, PARTICIPATION OR APPEARANCE IN
OR ELIMINATION FROM THE SERIES, OR ACTIVITIES ASSOCIATED WITH
THE SERIES, WHETHER OCCURRING BEFORE, DURING OR AFTER MY
ACTUAL PARTICIPATION IN THE SERIES, AND WHETHER OR NOT CAUSED
BY OR ARISING OUT OF THE NEGLIGENCE OR GROSS NEGLIGENCE OF ANY
OF THE RELEASED PARTIES. 

--BC

Minnesota Bridge Victims Take Steps To Sue

WCCO in Minneapolis (via AP) reports that at least 73 victims from last summer's bridge collapse have filed notices of potential legal claims with the State.  As Bill noted in October, the State is considering a victims' compensation fund:

Bridge victims don't stand to get much from the state because of a law limiting the government's liability to $1 million per incident. But lawmakers are considering a compensation fund that would offer more to those who gave up the right to sue the state. A joint House-Senate panel takes up the proposal [today].

- SBS

MDL Symposium at Tulane

Tulane Law Review is hosting a symposium on "The Problem of Multidistrict Litigation" on February 15th to 16th.   Panels will discuss:

• The Workings of the Federal MDL Panel and the Selection of the Transferee Court
• Attorney Strategies and Ethical Considerations in MDL Practice
• Multidistrict Litigation: The New Solution to a Post-Class-Action Era?
• The State of State MDLs and State/Federal Coordination
• Bellwether Trials and Settlement Devices
• Practicalities of Multidistrict Litigation
• Ad Hoc District-wide MDLs / MMTJA

Speakers include Judge Lee Rosenthal (Chair of the U.S. Judicial Conference Committee on Rules Practice and Procedure), Judge Eldon Fallon (Vioxx), Richard Marcus (Hastings), Alexandra Lahav (Connecticut), Francis McGovern (Duke), as well as Dickie Scruggs (The Scruggs Law Firm) and Mark Herrmann (Jones Day, Drug & Device Law Blog).

- SBS

Litigation Science

Science News Online has an overview of some recent work on the subject of litigation-driven science that was presented at a 2006 Coronado Conference (presented by SKAPP at George Washington) and recently published.  Many of the conclusions echo mine in this piece published in the Nebraska Law Review.

--BC

Torts and Race

I believe I linked to this before, but it's worth another mention on MLK day -- Jennifer Wriggins (Maine) has an SSRN posting entitled "Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949."  The abstract:

The essay explores the relationships between U.S. tort law, race, and legal culture in the first half of the twentieth century. The essay begins by highlighting two ways in which tort law and legal culture were glaringly white. First, whiteness was the default in the sense that litigants and witnesses were presumed to be white unless otherwise identified, and second, African-American people were excluded from decision-making roles in the tort system. Despite the whiteness of the civil justice system, black plaintiffs brought and won tort cases in all regions during this period. The tort system's institutional commitment to private enforcement and individualized resolution of claims resulted in significant access to the civil justice system for black plaintiffs. However, that same commitment to individualized resolution of tort claims allowed bias and inequality to devalue black plaintiffs' claims at every stage of tort litigation, in ways that were impossible to challenge. Despite the racist exclusions of the legal system and wider culture during this period, a theoretical commitment to equal treatment of tort victims persisted as an undercurrent in legal culture. Judges and others used a variety of attempted justifications, different in content but similar in structure, to rationalize their unequal treatment of black tort plaintiffs.

--BC

USSC to Offer Guidance on Preemption

Yesterday, the Court granted cert in two products liability preemption cases.  In Wyeth v. Levine, No. 06-1249, the Court will determine whether the FDA's labeling requirements for prescription drugs preempt state law or merely provide minimal protections that states are at liberty to exceed.  In Itria Group v. Good, No. 07-562, the Court will determine whether statements authorized by the FTC preempt state law consumer fraud class actions in the context of so-called "low tar" or "light" cigarettes.

The resolution of these cases should go a long way toward clarifying preemption issues.  The Court's decision to hear them has attracted a lot of attention.  For more on the issue, see Point of Law/Frank, Mass Tort Litigation Blog/Lahav, Drug and Device Law, and Products Liability Prof Blog/Steenson.  It appears Cathy Sharkey's paper that I recommended yesterday has increased relevance today.

--CJR

More Torts at the Zoo

CNN is reporting a series of allegations about the victims of the Christmas Day tiger attack at the San Francisco Zoo.  If true, the allegations undermine a potential physical injury suit against the zoo, and seriously undermine a threatened defamation suit.  According to CNN, one of the surviving victims told the father of the deceased victim that all three victims yelled and waved at the tiger.  One of the victims allegedly yelled and waved from on top of a railing of the big cat enclosure.  However, the victims deny they threw anything into the tiger's pen.  CNN also reports an allegation that toxicology results indicate all three victims had both alcohol and marijuana in their systems at the time of the incident.  The story is here.

--CJR

Sharkey on Products Liability Preemption

Yesterday, Cathy Sharkey posted Products Liability Preemption:  An Institutional Perspective on SSRN.  The article provides both a positive analysis of what the Court has been doing in preemption cases, and a normative proposal about how it should proceed.  Preemption is an increasingly significant issue in tort law, and Sharkey has been doing interesting work in this area for some time.

--CJR

Insurance Executives: Tort Trends Stable in 2008

At the Insurance Information Industry's annual Property/Casualty Insurance Joint Industry Forum, executives were polled regarding likely tort trends for 2008.  Two-thirds of those executives polled thought that tort trends in 2008 would be similar to those in 2007.  Twenty-eight percent thought tort trends would "deteriorate" (meaning, I assume, that insurance companies would be paying out more money).  Six percent thought tort trends would "improve" (meaning, I assume, the opposite).  The Insurance Journal has the full story.

--CJR

Case Update: Mesman v. Crane Pro Services

The new edition of the David Owen et al. Products Liability casebook uses Mesman v. Crane Pro Services, 409 F.3d 846 (7th Cir. 2005) to discuss negligence in design (using Indiana's statutory products liability provisions).  In case you're using that book (as I am now), the Seventh Circuit, again with Posner writing the opinion, heard it a second time and ruled a couple of weeks ago [PDF].  It has another interesting discussion of the Learned Hand formula, along with some relatively uninteresting jury instruction material -- though even that has a good bit about the interplay of "open and obvious dangers" with "incurred risk."

--BC

Vladeck on Regulatory Preemption

The ACS blog has a post (with video) and an issue brief [PDF] from David Vladeck (Georgetown) relating to regulatory preemption.  He focuses less on the wisdom (or lack of wisdom) of preemption and more on the means by which agencies are announcing their views on preemption:

The concern here is not with agencies expressing their position on the preemptive effect
of their regulatory actions.  That is unobjectionable, and, in many instances, unavoidable.  What is objectionable is that agencies are making substantive preemption determinations in a way that is neither transparent nor democratic, and are doing so because the Administration has determined that insulating big business from tort litigation is right as a matter of federal policy. Invariably, in making these pro-preemption determinations, the agency is repudiating long-standing agency policy to the contrary.

--BC

MySpace Promises Age-Related Improvements

MySpace has agreed with the AGs of 49 states to make a number of changes to its software and policies in an effort to reduce the use of the social networking site by predators.  (Press release from News Corp., press release from the Massachusetts AG, the formal statement [PDF].)   PC World describes the key aspects of the agreement:

Called the Joint Statement on Key Principles of Social Networking Sites Safety, the document states among its goals the development of a truly effective tool that social-networking sites can use to verify the age of members and potential members.

As part of the agreement, MySpace also pledged to develop a registry to which parents can submit their children's e-mail addresses to have them barred from social-networking sites.

MySpace will also make profiles of members under 18 years of age private by default and make it harder for adults to contact children via the site. The minimum age to have a MySpace profile is 14 years old.

In conjunction with the participating state attorneys general, MySpace has also committed to organizing an industry-wide Internet Safety Technical Task Force.

MySpace will also improve its tools and methods to identify and delete inappropriate images, obtain and constantly update a list of pornographic Web sites and break links between them and its site.

As we've covered extensively, various families of alleged victims have brought suit against MySpace for failure to provide better protections; most (if not all) of those suits that have made it to dispositive motions have been dismissed for either lack of duty or lack of legal cause.

--BC

Damage Caps and Physician Shortages

Considerable attention has been focused on Texas since its 2003 tort reforms, the most significant of which is a cap on pain and suffering damages in medical malpractice cases.  Most commentators acknowledge that physicians have moved to Texas in increasing numbers since the reforms were enacted.  Over at Day on Torts, John Day is continuing a series of posts providing empirical data about the tort system in Tennessee.  He notes that, despite a lack of damage caps, Tennessee maintains a higher ratio of physicians to residents (24.1 for every 10,000 residents) than both the national average (23.8) and many states with caps (Texas, for example, has 19.4).  The data comes from the CDC.  Day's post is here.

--CJR

Former DEA Agents Sue Over "American Gangster"

DEA agents have filed a class action defamation suit against NBC Universal alleging defamation in the Denzel Washington film American Gangster.  The film (which I have not seen), while primarily a work of fiction, is admittedly based on actual events in the drug wars in New York.  The movie's ending is primarily what the agents object to:

As the final credits roll on the flick starring Denzel Washington as Harlem drug thug Frank Lucas, a screen appears that states three-quarters of the drug enforcement agents assigned to New York were convicted as a result of Lucas' cooperation with "outcast cop" Richie Roberts, portrayed by Russell Crowe in the movie.

There were no such convictions, Drug Enforcement Administration officials told ABC News. But the agency had no immediate reaction when told of the lawsuit.

The lawsuit seeks an injunction against further distribution and monetary damages.

--BC

Criminal Conviction Over Mitsubishi Defects and Coverup

A former Mitsubishi president was convicted in Japan of professional malpractice relating to a death in a head-on collision and a long-term systematic coverup of defects.

Kawasoe, who became president in 1997, quit in disgrace in 2000 after acknowledging that the automaker had hidden defects for decades, many secretly repaired without recalls, despite reports of dozens of accidents.

The massive cover-up scandal stunned Japan when it surfaced in 2000. The sale of Mitsubishi Motors vehicles plunged, sending the Tokyo-based maker into losses for years.

For decades, Mitsubishi kept a two-tier record of driver complaints, tucking away defect reports in a locker that employees called "H," standing for the Japanese word for "secret."

Responsibilities were not defined and driver safety concerns were forgotten, according to a company report ordered in response to the scandal. When the concealed defects grew massive over the years, everyone was afraid to speak up, it said.

Mitsubishi apologized Wednesday to the family of the driver who died, and the company promised to do better.

--BC

FDA Approves Food From Cloned Animals

As reported by the New York Times, the FDA has concluded that food from cloned animals is safe to eat.  The Agriculture Department, however, has asked farmers to continue withholding foods from cloned animals from the market, "saying the department wanted time to allay concerns among retailers and overseas trading partners."

“We are very cognizant we have a global environment as it pertains to movement of agricultural products,” said Bruce I. Knight, under secretary of agriculture for marketing and regulatory programs. He said it was his goal to have the transition last months, not years.

- SBS 

NJ Governor Vetoes Changes To Wrongful Death Statute

The New Jersey Law Journal (via law.com) reports that New Jersey Governor Jon Corzine vetoed the bill passed by the Assembly last week to expand the state's wrongful death statute.  As posted earlier, the bill would have allowed claims for emotional harm.   (Under the present statute, damages are recoverable only for pecuniary loss).  Governor Corzine explained his veto: 

"[U]nlimited damages … could have a significant impact on state and local budgets, since government entities are not infrequently named as defendants in wrongful death suits, and there are similar concerns as the State undertakes efforts to attract and grow businesses here."

"Unfortunately, I do not believe that this bill in its current form strikes a fair balance that would avoid using a strict monetary valuation of a person’s life while also addressing the adverse effect of allowing unlimited and unpredictable damages."

He urged the Legislature to consider alternatives "granting more flexibility for courts to reduce excessive non-pecuniary damage awards and defining non-pecuniary damages less expansively."

- SBS 

Of Shotguns and Changing Tires

So this fellow is changing his tire, and gets frustrated by one particularly stubborn lug nut.  He tries and tries but can't loosen it.  So, what does he do?

Why, he shoots it, of course.

No, he hasn't sued anyone, nor has he been sued.  But the Woot blog links to it with this note:

Great, now shotguns will have to carry this warning label: "NOT TO BE USED AS A LUG WRENCH".

--BC

Is the Kentucky Kingdom Victim's Father Posting on an Amusement Park Enthusiast Forum?

So it seems.  In the actual forum, there's a first reference here, where he evidently sent a message to a member discussing the facts of the accident, and then he posts here:

I am not out "bashing" all parks, exept for the one who is hiring under educated children and putting them in positions of failure off the bat. Also, if MGMT is not doing their job, which is to lead and babysit, how can these places be safe? We are originally from Orlando Fl, and my daughter and I have been on coasters since she was 4 and have never once thought " Wow what if someone didn't check these rides". Why? Because Disney takes pride in their parks, they are not running around the world buying up a bunch of Real estate, they run Amusement Parks. And to be honest this is the first time I've posted in a forum about coasters. Just figured people like you enthusist deserved to know some right information. And as for the future, we are working with people and going to Congress to make sure this "ROLLER COASTER LOOPHOLE ACT" of 1981 is abolished completely. What an insane Gov't we have to allow something as a loophole to be involved with the safety of millions of your own people, let alone the huge amount of tourist that are in and out of these parks from around the world.

He continues to discuss the facts of the accident, including a discussion of the timeframe -- which, if he's right, suggests that one cable snapped while the ride was lifting, meaning that if the operator had been able to hit the emergency-stop button, the tragedy could have been avoided.  In a later post, he describes seeing the cable that broke:

Let me just say that when I personally went to KK with our lawyer and specialist we hired I was blown away by the condition of the cable. There was no place on the cable that didn't have splintering going on. I mean if I were to run my hands down the cable it would have been a bloody pulp after 10 feet. There is no way this cable deteriorated that much since it's "yearly" inspection in April by the Dept. Of Agri. So my point is that there are atleast 10 people directly responsible at that park and the two idiot inspectors from Ky.

On a broader subject, it's not unlike Flea's blogging during his own trial, is it?

--BC

Torts at the Zoo: An Unexpected Twist

There is a planned lawsuit in the Christmas day tiger attack at the San Francisco Zoo.  But it's not the one most people have been anticipating.  According to a Times of India article, two survivors of the attack plan to sue for defamation, not physical injuries (at least not yet).  Famed lawyer Mark Geragos said he would file suit against the zoo's public relations agency for suggesting his clients provoked the tiger.  In particular, Geragos noted statements that his clients were armed with slingshots and had been drinking at an establishment outside the zoo.

--CJR