TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Saturday, August 30, 2008

NY: Gov. Paterson Suspends Increases in Med Mal Premiums

From the Kaiser Network:

New York: Gov. David Paterson (D) on Friday enacted a one-year moratorium on medical malpractice insurance rate increases, the New York Post reports. The moratorium, which will last until June 2009, could halt increases of up to 30% according to the state Insurance Department. According to the Post, New York physicians currently have the highest malpractice premiums in the U.S. Donna Montalto, executive director of New York's American College of Obstetricians and Gynecologists said, "We've been lobbying for years and years to get doctors some kind of reform. This year, because doctors are leaving the state because it's getting out of hand, they addressed it." According to Montalto, premiums result in the loss of about 30 obstetricians annually. The Post reports that obstetricians, who pay some of the highest premiums, have rates in New York City ranging from $129,851 to $154,027 annually. Michael Rosenberg, president of the Medical Society of the State of New York said, "The imposition of a premium increase at this time could have destabilized our health care delivery system to the serious detriment of our patients" (Bennett, New York Post, 8/23).


August 30, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (1)

Friday, August 29, 2008

Personal Injury Roundup No. 5 (8/29/2008)

Labor Day weekend marks the unofficial end of summer.    Down here in the south, we are keeping an eye on Gustav and Hannah as we prepare for our end-of-season cookouts.   

Reform, Legislation, Policy

New Lawsuits

  • Extras seek $11 million from Tom Cruise for alleged injuries during the filming of Valkyrie.  [E! Online]
  • Families of bicyclists killed by Santa Clara County sheriff's deputy file wrongful death suit against county.  [SF Gate]
  • Seven current and former NFL players sue Swiss bank UBS for fraud.  [Am Law Daily]
  • Malpractice action filed against Phillips & Cohen based on alleged failure to pursue a whistle-blower case.  [ABA Journal]
  • Families of Nepalese workers killed in Iraq sue military contractor KRB under Alien Tort Claims Act.  [Reuters, BBC]
  • New suit challenges South Dakota's law capping non-economic damages in med-mal cases.  [Capital Journal]

Trials, Settlements & Other Ends

  • NY state judge declined to dismiss defamation suit against criminal defense lawyer.  [NY Law Journal/]
  • Vermont judge denied RJ Reynold's request to dismiss lawsuit by VT Attorney General (on behalf of VT and 35 other states) that challenges RJR's claim that its Eclipse cigarette "may produce less risk of cancer" than other cigarettes.  [BusWeek]
  • Parties reach partial settlement in Exxon Shipping v. Baker (on remand from the Supreme Court's reduction of the punitive damages award this past summer).  [Cal Punitive DamagesHow Appealing]
  • In the Vioxx settlement, Judge Fallon caps plaintiffs' counsels' fees at 32%. [AP/, Overlawyered, Pharmalot, WSJ Law Blog]
  • Nearly 6,000 claims have been filed in last year's pet food settlement class, but the number is expected to rise before the fairness hearing in October.  [PopTort]


  • New Jersey appellate court hold state Consumer Fraud Act applies where bank employee failed to to invest a client's money in a mutual fund as promised.  [NJ Law Journal/]
  • Eleventh Circuit upholds Graves Amendment, which prevents families of people injured or killed by the driver of a rental car from suing rental car companies for damages.  [Court's opinion, NY Personal Injury]
  • Eleventh Circuit affirms trial judge's grant of summary judgment and exclusion of evidence allegedly linking Accutane to inflammatory bowel disease.  [Drug & Device]


  • New Jersey appellate court finds $100k pain and suffering award "too low," and orders a new trial in med-mal case.  [NJ Law Journal/]
  • Ninth Circuit concludes restitution award can't serve as predicate for punitive damages under California law (and affirms vacatur of jury's $700 million punitives where $0 compensatory damages were awarded).  [Court's opinion, Cal Punitive Damages, AP/]


  • If you are interested in the Dickie Scruggs saga, you should check out Roger Parloff's seven-part series.  [Fortune]
  • Beck & Herrmann analyze the decision (and provide a link to the court's opinion) in Gunvalson v. PTC Therapeutics, Inc., in which Judge William J. Martini of the District of New Jersey ordered the defendant pharmaceutical company to provide the terminally ill plaintiff with an unapproved, experimental drug.  [Drug & Device]

Goofy Stuff

  • Court TV judge appointed to Supreme Court?  No, just the latest book from Christopher Buckley.  [WaPo Book Review]

Shameless Self-Promotion (favorite posts of this week)

Thanks to:  Ted Frank and Anthony Franze for material. 

Have a happy Labor Day weekend!

August 29, 2008 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2008

Stier on Issue Preclusion in Mass Torts

Our Mass Tort Lit Blog colleague, Byron Stier, has posted on Bepress Another Jackpot (In)Justice:  Verdict Variability and Issue Preclusion in Mass Torts.  The piece is essentially part II to Stier's similarly titled article on mass tort class actions.  Here is the abstract:

If there are no prior inconsistent verdicts, non-mutual offensive issue preclusion generally allows a finding by a single jury to bar relitigation, in future cases, of the issue by the defendant who lost in the prior case. This approach, however, ignores the possibility that the first verdict delivered may have been an outlier if further verdicts were permitted to be delivered. In mass tort litigation, such a flawed approach may result in critical issues such as defect or negligence being resolved by only six jurors, whose potentially outlier verdict is then applied to resolve the cases of thousands, perhaps bankrupting a company or an industry when most juries would not so hold. Focusing on mass tort litigation, this article presents the growing empirical evidence of verdict variability and then critiques the use of issue preclusion, whose downside is applied only against defendants, not plaintiffs, because only defendants were parties to the prior action. As a result, the article argues that courts should exercise their discretion to deny issue preclusion in mass tort litigation. Instead, courts should join the emerging consensus of mass tort management that ultimately better serves the goals of efficiency and public respect supposedly underlying issue preclusion: allow multiple verdicts to unfold a more balanced view of liability that will frequently be used for well-informed and far-reaching settlements.


August 28, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (1)

Sebok on Loser Pays

Tony Sebok participated in last week's NewTalk discussion of loser-pays rules.  He's now posted a Writ column about both NewTalk and the subject.


August 28, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (3) | TrackBack (0)

Biden & Asbestos

Sen. Joe Biden's connections to asbestos plaintiffs' lawyers has gotten a fair bit of attention.  Go here to find links to a pretty good sampling of the coverage.


August 28, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2008

Symeonides on Products Liability Conflicts

Symeon C. Symeonides (Williamette) has posted his 2004 Tulane article, "Choice of Law for Products Liability: The 1990s and Beyond," on SSRN.  The abstract provides:

This Article provides a comprehensive review of product-liability conflicts cases decided by American courts between 1989 and 2004 and involving significant choice-of-law questions.

Among the Article's findings are that choice-of-law methodology plays a less significant role in the courts' choice of the governing law than do other factors, such as the number and pertinence of factual contacts with a given state. For example, regardless of methodology, in 79% of the cases in which the product's acquisition and the victim's domicile and injury were in the same state, the courts applied that state's law, regardless of whether it favored the plaintiff or the defendant and regardless of whether that state was also the forum. Among the Article's unexpected findings are that, contrary to prevailing perceptions, forum-shopping is not as common or rewarding as critics assume, and that courts do not unduly favor plaintiffs as a class nor the law or the domiciliaries of the forum state.

The Article concludes that an all-inclusive review of the cases reveals that, on the whole, the record of American courts in resolving these most intractable of conflicts is much better than one might assume from a selective reading of a few cases. However, because this record entails a heavy cost in time and resources for courts and litigants, the Article proposes a new choice-of-law rule that would produce mostly the same results as the decided cases, but much more quickly and at a lower cost.

The proposed rule differentiates between liability and damages and, within certain narrow parameters, allows plaintiffs and secondarily defendants to choose the state whose law will determine liability. Surprisingly, this rule will not favor plaintiffs more than the decided cases, but it should increase the incentive for early negotiations with regard to damages and encourage settlements without resort to litigation.


August 27, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 26, 2008

You Think Your Family Has Issues?

The WSJ Law Blog reports on a civil suit filed by Blackstone executive David Blitzer against his father-in-law Stuart Ross.   According to the Law Blog, "[i]n the civil suit filed Friday ... Blitzer accuses Ross of stealing $195,000 from him. The suit reportedly details Ross’s estranged relationship with his daughter, Allison Blitzer." 

The Law Blog also details criminal charges filed against Ross and his lawyer for trying to extort Blizter.


August 26, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2008

Big Caffeine?

Is "big caffeine" the next "big tobacco"?    Timothy Sandefur of Pacific Legal Foundation thinks it is possible, while James Speta (Northwestern) disagrees.   LegalNewsline reports. 


August 25, 2008 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

The FDA's New CBE Rule

The FDA issued a new final rule [PDF] relating to "changes being effected" -- i.e., changes that a drug manufacturer can make to its label without advance permission.  The focus of the changes is on emphasizing that it relates to new risk information, and that the CBE process isn't appropriate for tweaks to old risk information.  It also reiterates the FDA's position that compliance with its regulations results in preemption of state tort claims.

The Drug & Device Law Blog has more, following up on their first look back in January.  No surprise that they like the rule, but even if you disagree on the value of it, their analysis of its mechanics is worth reading.


August 25, 2008 in Experts & Science | Permalink | Comments (0) | TrackBack (0)

Saturday, August 23, 2008

Torts at 11:00...

Larry Mendte and Alycia Lane co-anchored the evening news for four years on KYW-TV, a CBS affiliate in my former hometown of Philadelphia.  The station was gaining on the dominant ABC affiliate when the wheels flew off.  Lane was arrested for an alleged scuffle with New York police.  Now her co-anchor has admitted to invading Lane's privacy by hacking into her e-mail system.  It is alleged Mendte provided details about Lane's criminal case and other information to the Philadelphia Daily News.  Both anchors were fired and have had to deal with criminal charges.  The story is here.


August 23, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, August 22, 2008

Personal Injury Roundup No. 4 (8/22/2008)

We had our orientation at WNEC Law this week, and classes start in just a couple of days.  And me?  I've got my fantasy football draft on Saturday.  (And by the way, the commissioner is Christopher Harris of ESPN fantasy sports fame, and another player is Andy Behrens of Yahoo! fantasy sports.  It's kind of an intimidating crowd.)

Reform, Legislation, Policy

New Lawsuits

  • That Bigfoot story and carcass was a hoax?  We're shocked!  And we're suing.  [TortsProf]
  • Congress would like some information about Vytorin's potential cancer link.  [ABC News]

Experts & Science

  • Not just experts, but related: doctors & pharma ties. [CNN]
  • "Science or politics" -- a landfill fight, right here in Paradise City [Valley Advocate]

Trials, Settlements & Other Ends

  • The Station fire: last two major defendants (state & town) settle [TortsProf; Overlawyered]
  • More preemption decisions & discussions [PharmExec, TortDeform (though they're discussing, as they note, a manufacturing case as to which preemption doesn't apply), Drug & Device Law (device scorecard)



Goofy Stuff

  • Kinda have to go with the Bigfoot story, don't I?  [TortsProf]

Shameless Self-Promotion (favorite posts of this week)

  • Bill: Um, did I mention the Bigfoot story?  I can't tell you how much time I spent reading stuff about it.  No good reason, no history of interest, and yet there it is.  I assure you, if the case continues, it'll be wall-to-wall coverage.  [TortsProf] 

Thanks to:  Brooks Schuelke, Sam Charron

Not as much as usual, content-wise, but I've gotta get my cheat sheets put together for the draft.


August 22, 2008 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2008

Epstein on Preemption

Over at the Northwestern Colloquy, Richard Epstein has published The Case for Field Preemption of State Laws in Drug Cases.


August 21, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (1)

Bigfoot Hoax to Trigger Lawsuit

A friend, in discussing the fact that the alleged Bigfoot turned out to be a frozen rubber suit, noted that "the bigfoot business seems like a good one to get into, so long as you never claim to discover anything substantive."

Alas, Matthew Whitton and Rick Dyer claimed to have an actual Bigfoot, sold rights to the story (and I think the alleged carcass) for $50,000, and are going to get sued for it.

Good times.


August 21, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Ties Between Physicians and Pharmaceutical Companies

CNN has a piece on the relationship between physicians and pharmaceutical companies here.


August 21, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Robbennolt on Apologies

I continue to be fascinated by the apology movement.  I'm about to take a serious look at the literature on apologies/explanations and medical malpractice.  Jennifer Robbennolt (Illinois) has recently posted Apologies and Settlement Levers on SSRN.  The piece presents empirical evidence to support the natural intuition that apologies can alter one's perception of a situation and/or offender to make settlement more likely.  The empirical results go further and suggest that both the nature of the apology and the circumstances surrounding the incident may play important roles in how an apology is understood.


August 21, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (2)

Wednesday, August 20, 2008

City, State Settle Station Lawsuit

The last two major defendants have settled in the lawsuits arising from the fire at The Station nightclub in West Warwick, Rhode Island, that killed 100 people.  Rhode Island and West Warwick have each agreed to pay $10 million, bringing the total to $175 million.  The most recent settlements include claims relating to allegedly botched inspections and negligent security (performed by an off-duty police officer).


August 20, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Mercury-In-Tuna Class Action Gets Green Light

The Legal Intelligencer (via reports that the Third Circuit has reversed the dismissal of a class action against the manufacturer of Chicken-of-the-Sea brand tuna.  The suit alleges that the company failed to warn consumers that excessive tuna consumption could lead to mercury poisoning. 

The unanimous three-judge panel found that a lower court improperly dismissed the suit on the grounds that it was pre-empted by U.S. Food & Drug Administration regulations.

"The FDA has promulgated no regulation concerning the risk posed by mercury in fish or warnings for that risk, has adopted no rule precluding states from imposing a duty to warn, and has taken no action establishing mercury warnings as misbranding under federal law or as contrary to federal law in any other respect," Senior U.S. Circuit Judge Walter K. Stapleton wrote in Fellner v. Tri-Union Seafoods. 

A copy of the opinion is available here



August 20, 2008 in MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Loser Pays: Good or Bad?

That's the question addressed in detail at, with comments from people all over the spectrum.


August 20, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Welcome back, law students everywhere!

Today is the start of orientation at my law school and I assume many others are starting now too.  Congratulations!  You're (probably) going to (mostly) have fun.

If you're a 1L, don't be scared off by the name of this or any of the other law professor blogs in the network.  You can keep up on what people teaching and practicing in these areas think is interesting, and think about how it might fit into your legal education.

So stick around and read some of our neighbor blogs, or at least our roundups (posted on Fridays).  It's good for you.


August 20, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 19, 2008

Sebok on Public Use of Private Lawyers

In last week's Findlaw column, Tony Sebok discussed County of Santa Clara v. Superior Court, which is on appeal to the California Supreme Court regarding whether a public entity may retain private counsel to prosecute a public nuisance abatement action under a contingency fee agreement .  (Prior post here). 

Sebok believes that the California Supreme Court can take two approaches.  On the one hand, Sebok argues the court could "simply agree with the trial court that public nuisance litigation is identical to criminal prosecution, and that municipalities cannot “farm out” the state’s prosecutorial power."  Sebok, however, argues that this approach would "be a mistake" because the analogy to criminal prosecutions is misplaced.    Alternatively, Sebok argues that the court could go behind the prosecution analogy, and ask "whether the lack of neutrality which is present in every litigation—whether brought by the state or a private actor—is exacerbated in unacceptable ways by the retention of plaintiffs’ firms." 


August 19, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)