TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, October 31, 2008

Personal Injury Roundup No. 13 (10/31/08)

Happy Halloween to you all (I have a skeleton and Eleanor Roosevelt in my house), and please go vote.  But only after reading this week's updates: 

Reform, Legislation, Policy

  • Asbestos litigation: the gift that keeps on giving [ALI-ABA]
  • Not quite the right way to describe medians, ABA Journal (but still interesting data) [Point of Law]
  • "Last push to deregulate" [Washington Post]

Experts & Science

  • The "Evidence Gap," tied into medical devices [NYT]

New Lawsuits

  • Family of man who died after vertebrae broken on Coney Island Cyclone sues; park's lawyers, a tad amazingly, purportedly acknowledge a malfunction that caused the ride to drop too fast -- something that is more or less impossible, at least from my understanding of the ride [TortsProf, Newsday, Brooklyn Eagle].
  • Sen. Norm Coleman sues Al Franken for defamation over ads calling him "fourth most corrupt" senator and contending he lives "almost rent-free" in D.C. [Star Tribune]
  • Challenger Kay Hagan sues Sen. Elizabeth Dole for defamation for ad tying her to atheism [AP]

Trials, Settlements & Other Ends

  • Texas A&M settles 1999 bonfire tragedy litigation [TortsProf].
  • Big verdict in hazing lawsuit default [TortsProf]
  • Late addition: The Drug & Device guys have some fun describing a serious case involving (insert scary music here) the theft of human tissue! [Drug & Device Law Blog]


  • Illinois Supreme Court adopts risk/utility with consumer expectations component; useful teaching case [TortsProf].
  • Wyeth commentary abounds with argument Monday; here's one good overview with links to opposing views - the FDA documents are particularly notable [NY Personal Injury Law Blog citing Pharmalot on the FDA documents; see also WSJ Law Blog on the issue and Drug & Device Law Blog responding to the FDA documents released by Rep. Waxman].



Did I mention go vote?  Go vote. 

And just to put you in a Halloween mood, here's my daughter as Amelia Earhart a couple of years ago:


And my son as a hairy eyeball last year:



October 31, 2008 in Roundup | Permalink | Comments (0) | TrackBack (1)

Thursday, October 30, 2008

Coney Island Cyclone Death Results In Lawsuit Against City

Newsday has some details on the death, in which Keith Shirasawa fractured a vertebrae on the Brooklyn roller coaster (the NYPost's coverage from the time is here; I posted about it here).  The Newsday story includes this odd bit:

Lawyers for the amusement park blamed the accident on a malfunction that caused the Cyclone to drop too fast, and that has since been corrected.

His vertebrae was apparently fractured at the bottom of the first drop.  There are really only three things that affect the speed at that point -- the length of the drop, gravity, and the angle.  The park could, I suppose, change the lift hill chain speed (starting out faster makes it get faster) or install a skid brake on the drop, but I don't think either of those things have occurred.  (Update: the lift hill only makes a difference if the train is still engaged after the train gets past the crown of the hill; on most coasters, including, I am told, the Cyclone, it is not so engaged.)

Of note, the lawsuit is against the city for failure to inspect, rather than against the park itself.

On a fairly cursory look through PACER, I can't find the complaint.


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

New Issue of Journal of Tort Law is Available

A new issue of bepress's Journal of Tort Law is now available.  It features three articles:

Operationalizing Deterrence:  Claims Management (In Hospitals, a Large Retailer, and Prisons) by Margo Schlanger

A Watershed Moment:  Reversals of Tort Theory in the Nineteenth Century by Jed Handelsman Shugerman

Three Models of Constitutional Torts by David Zaring


October 30, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 29, 2008

Texas A&M Settles Bonfire Suit

Nearly a decade ago, the annual Texas A&M bonfire collapsed, killing a dozen people.  The school has now settled litigation arising from the tragedy, agreeing to pay $2.1 million and promising to have engineering oversight if the bonfire ever returns to campus.  (Since the collapse, the bonfire has been held off-campus.)

The university had claimed immunity from suit, but an appellate court rejected that claim earlier this year.


October 29, 2008 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Design Defect Law in Illinois

In a great teaching case (pdf), the Illinois Supreme Court discussed, at length, the development of defective design standards.   In particular, the court examined the use of the risk-utility test versus the consumer-expectation test.  The court declined to adopt Section 2(b) of the Restatement (Third) of Torts: Products Liability, but found "its formulation of the risk-utility test to be instructive."  (Slip Op. at 30).   The court then adopted a formulation of the risk-utility test that incorporates consumer-expectation as a factor consistent with comment (f) to the Restatement. 

Thanks to Mark Weber (DePaul) for bringing this case to our attention.


October 29, 2008 in Products Liability, Teaching Torts | Permalink | Comments (0) | TrackBack (1)

Tuesday, October 28, 2008

"The Evidence Gap"

In a series of articles, the New York Times explores "the evidence gap." These articles examine "medical treatments used despite scant proof they work and will consider steps toward medicine based on evidence."   In the latest piece, Reed Abelson looks at the FDA's process for reviewing medical technology, particularly the "fast track review" process.   


October 28, 2008 in Current Affairs | Permalink | Comments (1) | TrackBack (1)

"Asbestos Litigation: Where Is It Going? When Will It End" Presented by ALI-ABA

ALI-ABA is sponsoring a conference on "Asbestos Litigation:  Where Is It Going? When Will It End?" on December 4th-5th in San Antonio, Texas.   The program description provides:

This advanced course of study examines the reevaluation of asbestos litigation that is taking place as a result of the backlash against screenings and developments in state tort law “reform.” The course comprises 12 hours of instruction, including one hour of ethics. There are a lot of asbestos conferences, but this one has the “first chair” players covering all aspects of this complex litigation. The faculty not only talks about ongoing developments, but also is in a position to suggest likely future developments in the litigation as well as in filings, medicine, bankruptcy, and insurance.


October 28, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2008

WSJ on Wyeth

The Journal has a piece  on the Wyeth v. Levine case, being heard next week.  (Any DC readers want to blog the argument?)


October 27, 2008 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Punitives Rejected in Taser Death

According to a press release issued by TASER, although it was found 15% responsible for the death of a man tasered by police, the judge, on post-trial motions, vacated the jury's grant of punitive damages.  An earlier story on the verdict is available here [PDF], and this page has a lot of Taser-related stories (from a very anti-Taser standpoint).


October 27, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Sunday, October 26, 2008

$16.2 Million Default Award in Hazing Death Lawsuit

The family of a Marietta, Georgia, college student, Tyler Cross, who died in an alleged frat hazing at the University of Texas was awarded $16.2 million in a default judgment against the Sigma Alpha Epsilon fraternity.

Cross, a 2006 Lovett School graduate, fell from the fifth floor of a dormitory during freshman pledge week in the run-up to SAE’s renowned “Jungle Party.” Texas law-enforcement officials discovered that Cross and other pledges had been given half-gallon liquor bottles to drink the night before he died.

Cross’ blood-alcohol level registered 0.19 at the time of his death, more than double the legal driving limit in Texas, after a week of sleep deprivation from hazing, according to the lawsuit.

It's not entirely clear why there was a default judgment; the fraternity exists and blames the default on an administrative error.  They are seeking to remove the default and defend the suit.  A suit against the alumni advisory group and the housing corporation is pending as well.


October 26, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2008

Personal Injury Roundup No. 12 (10/24/08)

On this day in history, the George Washington Bridge in New York City was dedicated, and the forty-hour work week went into effect in the United States.   No historical torts news, so on to recent events: 

Reform, Legislation, Policy

  • Science Board to the Food and Drug Administration will meet on Oct. 31st to discuss the topic of BPA. (Mass Tort Defense)
  • In the meantime, Canada becomes first country to ban BPA baby bottles. (WebMD)
  • Republican candidates for AG in Ohio and West Virginia pledge "greater oversight of contingency fee-based contracts and disclosure of contracts with the attorneys general offices, including agreements for outside counsel."   (Legal Newsline)
  • GAO issues report on FDA's foreign drug inspection program.  (Report (pdf), LifeSciences Legal Update, Pharmalot)
  • Congressional Research Service evaluates constitutionality of federal tort reform legislation.  (Open CRS, Law Librarian Blog)

Experts & Science

  • Court finds plaintiffs' expert causation opinions inadmissible under Daubert in the In re Human Tissue Products Liability Litigation MDL.  (NJ Law Journal/, Drug & Device). 

New Lawsuits

  • Xbox gamers file consumer class action against Microsoft.  (PC World)
  • Passengers sue Lindsay Lohan for "fear and panic" during car chase.  (TortsProf, AP)
  • David Duchovny files libel suit against British newspaper.  (SF Gate, Contact Music, NOW Mag)
  • City of Tampa votes to sue engineer, builder, and construction manager over cracks that are limiting the capacity of the city's water reservoir.  (St. Pete Times)

Trials, Settlements & Other Ends

  • Pfizer settles "substantially all" of the Bextra and Celebrex suits for $900 million.  (Pharmalot, Drug & Device, AP/
  • Two diet-drug trials; two different results:  New Jersey jury awards $3M to the plaintiff in a fen-phen trial against Wyeth.  (Pharmalot).  While in Philadelphia, Wyeth gets a win. (Legal Intelligencer/
  • Trial court applies Oregon's statutory damages cap to an employment discrimination case, finding it constituted a tort within the meaning of the Oregon Tort Claims Act.  (Curry County Reporter)
  • Manhattan trial judge grants summary judgment for Lawyers Athletic League in suit by former college basketball player who was injured while playing on a team organized by Milberg Weiss.  (NY Law Journal/





October 24, 2008 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, October 23, 2008

Two from the Widener Faculty

Two of my colleagues on the Delaware campus have recently uploaded torts-related pieces to SSRN.  Jean Eggen posted The Synergy of Toxic Tort Law and Public Health:  Lessons from a Century of Cigarettes (forthcoming Connecticut Law Review).  Meanwhile, Martin Kotler posted Shared Sovereign Immunity as an Alternative to Federal Preemption:  An Essay on the Attribution of Responsibility for Harm to Others (forthcoming Hofstra Law Review).


October 23, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sebok on Judge Weinstein's Decision to Bar Race-Based Actuarial Data

In his latest Findlaw column, Tony Sebok addresses Judge Weinstein's recent decision barring the use of race-based actuarial tables in calculating the lifespan of a severely-injured African-American man who sought future medical expenses, and pain and suffering damages.   Sebok concisely summarizes Judge Weinstein's opinion (pdf), and then provides his critique of the decision.   

Well worth a read. 


October 23, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2008

Five-Year-Old Climbs Six-Foot Fence, Gets on Roller Coaster Tracks

...and, remarkably, is fine.  A five-year-old got over a six-foot fence and onto the tracks of the Pepsi Orange Streak coaster (formerly the Pepsi Ripsaw) at the Mall of America's amusement park.  He was seen by an employee and, after some struggle, removed from the tracks unharmed.

It's another case to put in the hopper when considering how much protection to provide around amusement rides (or, really, any heavy machinery), previously in play in the Six Flags Over Georgia death last summer.  Incidentally, despite rumblings of a lawsuit in that case, as far as I can tell, none has been filed yet.


October 22, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2008

Passengers Sue Lindsay Lohan for "Shock, Fear, and Panic" During Car Chase

Three male passengers have sued Lindsay Lohan based on the 2007 car chase that led to the actress's second DUI arrest.   According to People Magazine, the plaintiffs "'felt surprise, shock, fear and panic at Lohan's surprising and sudden act' of allegedly commandeering a car in which they happened to be sitting to chase her personal assistant through the streets of Santa Monica." Nobody was injured in the car chase. 


October 21, 2008 in Current Affairs, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Causation in Court: Working Principles for Toxic Tort Cases

The Washington Legal Foundation has published "Causation in Court:  Working Principles for Toxic Tort Cases" (pdf) authored by Antony Klapper, a partner in the DC office of Reed Smith.

The paper focuses on "toxic substances and disease causation," and proposes the following "six working principles that may render 'causation' a less mysterious element to understand and apply":

  1. Causation in science is not synonymous with causation in law, but the gap has closed.
  2. Proof of general causation requires, at a minimum, reliable epidemiology and a statistically significant estimated relative risk of more than 2.0.
  3. Proving causation does not end with the general causation inquiry. Proof of specific causation is absolutely essential before any causal conclusions can be drawn.
  4. Risk assessment is the best tool available to answer questions of causation.
  5. Although risk assessment is the best tool available, regulatory rules for implementing risk assessments should not be used, and too often are abused.
  6. Where there are multiple exposure sources for the same toxin, a more principled, objectively reliable methodology should be used to answer questions of causation. Concepts such as “substantial contributing” cause should be jettisoned.

(Thanks to Life Sciences Legal Update).


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

Is Electricity a "Product"?

So asks William Ruskin over at Toxic Tort Litigation Blog.  (I missed this nugget back in September, and think it worth mentioning, albeit tardily).   Ruskin comments on a recent Connecticut decision holding that "once electricity entered the homeowner's residence, it constituted a 'product' rather than a 'service' and that plaintiff could  proceed under the Connecticut Product Liability Act."   Ruskin considers this to be the "emerging majority view nationally."


October 21, 2008 in Products Liability, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Monday, October 20, 2008

The Nation on The Court

The Nation this week has a forum on the stakes in the November election in connection with potential Supreme Court nominees.  David Vladeck (Georgetown) writes a short preemption piece.


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

Confidentiality in Settlements

There's a new RAND paper at SSRN, written by James Anderson of that organization, discussing a situation in which not requiring (indeed, not permitting) confidentiality in settling mass tort cases may be beneficial to defendants.  His case study is of the Baycol litigation.  The abstract:

Settlement agreements that require a plaintiff not to disclose or publicize any information about her claim are both common and controversial. Under some conditions, however, a mass tort defendant will rationally choose to discourage such secrecy. A defendant can use publicity to act as a commitment device akin to a most-favored-nation agreement to increase its bargaining power with plaintiffs. The paper uses the real world example of Bayer's cerivastatin litigation as a case study to illustrate this theory in practice and to explore the public policy implications of this finding.

(I was a defense lawyer for Bayer in the Baycol litigation but had no involvement in this paper.)


October 20, 2008 in Damages, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

Squabbling Over Exxon Punitive Damages

We don't usually get to hear a lot about what happens after money is released to satisfy (part of) judgments, but in the Exxon Valdez case, we do:

It took better than 19 years for Alaska commercial fishermen and other plaintiffs to win sizeable punitive damages from Exxon Mobil Corp. for the disastrous 1989 oil spill in Prince William Sound.

Now that some money is in hand -- about $383 million -- it still could be months away from distribution.


Because of new legal squabbling among the plaintiffs about how to slice the pie.


October 20, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)