TortsProf Blog

Personal Injury Roundup No. 44 (7/31/09)

After a longer-than-planned-for absence (the reason noted below), I'm back at the TortsProf blogging.  As I announced before, I'll be a bit more irregular than usual, with my new duties as Associate Dean for External Affairs at WNEC, but I will still be around.  And while many of our former students just finished taking the bar exam, there's torts news to consider:

Reform, Legislation, Policy

• S. Todd Brown (Buffalo) explores the intersection of bankruptcy and mass tort in a series at Point of Law (Introductory post
• Abraham on private regulation of medicines (Huffington Post)
• A national board on medical safety?  (NY Times)
• Dorf on Sen. Specter's proposed response to Iqbal (Dorf on Law, Findlaw)
• Alienation of affection: North Carolina's Number One! (Volokh)
• Sue drug dealers in Tennessee (P.S. Good luck collecting) (Day on Torts)
• Immunity for swine flu vaccine manufacturers (MSNBC)
• Possible legislative responses to direct-to-consumer advertising (NYT)
• Obama is skeptical of malpractice damages, etc., as major factor in health costs (Washington Post)
• Tax breaks for trial lawyers (TaxProf and links)

New Lawsuits

• Defamation in under 140 characters (True/Slant)

Trials, Settlements and Other Ends

•  A detailed look, from a defense perspective, at a Daubert loss in Prozac litigation (Drug & Device Law Blog)
• The first Neurontin trial started Monday (WSJ Law Blog)...and ended Wednesday with an anonymous donor funding a trust (WSJ Law Blog) (I note, with interest, that David Egilman, central as an expert in the Zyprexa litigation document leak, is now serving as the family's spokesman); Ron Miller speculates on the identity of the trust funder (Maryland Injury Attorney Blog), as do Beck & Herrmann (Drug & Device Law Blog).  I'd put money on someone with a better Neurontin case coming down the road.
• Speaking of Zyprexa (which we kind of were), West Virginia has apparently settled its off-label marketing case with Lilly (Legal News Line)
• No false imprisonment in hospital deportation case (TortsProf)
• Railroad not responsible for goose-caused injuries (Overlawyered and links therein)
• First 9/11 tort suit to go to trial next spring (Newsday)

Damages

• $3.4M in mesothelioma case (About Lawsuits)
• For a lot of interesting NY verdict cases, check out New York Injury Cases Blog.

Appeals

• Liptak on Iqbal (Sidebar)
• Informed consent in Maryland (Maryland Injury Lawyer Blog)
• ...and Wisconsin (Maryland Injury Lawyer Blog)
• $75M med mal verdict reversed (TortsProf & links)

Miscellaneous    

• Author of "Doubt Is Their Product," sometime plaintiffs' expert, and SKAPP head David Michaels to head OSHA (White House)
• Plaintiffs trying to get Chrysler's attention (ClickOnDetroit.com)
• Wyeth ordered to release documents connected to alleged ghostwriting (AP)
•  I was absent from posting (and most things) for June and most of July due to my father, W. Ves Childs, getting suddenly ill and dying, on June 21, from pancreatic cancer.  He is probably the person most responsible for me teaching, and for my interest in the intersection of law and science.  You can read the official obituary (which I wrote) at my kids' music site, Spare the Rock, Spoil the Child; there is also one from his graduate chemistry department: Mole Street Journal.  Below is the slideshow we put together for his memorial service.

--BC 

$3.4M Mesothelioma Verdict

A California jury has awarded $3.4 million to the family of a former Manville plant worker.   About Lawsuits has more.

- SBS

A Tweet Tort

A Chicago landlord has sued a tenant for libel based on a "malicious and defamatory" tweet about her apartment to her 20 Twitter followers.   ABA Journal and Jonathan Turley both have more.  Here's a copy of the complaint (pdf).

- SBS

Top 10 Recent SSRN Torts & Products Liability Downloads

RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of Torts & Products Liability Law
May 30, 2009 to July 29, 2009

Rank	Downloads	Paper Title
1	124	The Decision to Award Punitive Damages: An Empirical Study Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells, Cornell University - School of Law, Cornell Law School, National Center for State Courts, Cornell University - School of Law, Date posted to database: June 2, 2009
2	86	Trade 2.0 Anupam Chander, University of California, Davis - School of Law, Date posted to database: June 3, 2009
3	75	Taxing Structured Settlements Gregg D. Polsky, Brant J. Hellwig, Florida State University - College of Law, University of South Carolina - School of Law, Date posted to database: May 21, 2009
4	74	Frivolous Cases Suja A. Thomas, University of Illinois at Urbana-Champaign - College of Law, Date posted to database: May 30, 2009
5	73	Irrelevant Confusion Mark A. Lemley, Mark P. McKenna, Stanford Law School, Notre Dame Law School, Date posted to database: May 21, 2009
6	73	Federalism Accountability: 'Agency-Forcing' Measures Catherine M. Sharkey, New York University - School of Law, Date posted to database: May 28, 2009
7	53	The Curious Case of Directors' and Officers' Liability for Supervision and Management: Exploring the Intersection of Corporate and Tort Law Martin Petrin, University of California, Los Angeles - School of Law, Date posted to database: May 21, 2009
8	52	Trial Selection Theory and Evidence: A Review Keith N. Hylton, Haizhen Lin, Boston University, Indiana University, Date posted to database: May 20, 2009
9	45	The Value of Consumer Choice in Products Liability Mark Geistfeld, New York University - School of Law, Date posted to database: April 29, 2009
10	43	Territorial Claims in the Domain of Accident Law: Conflicting Conceptions of Tort Preemption Robert L. Rabin, Stanford Law School, Date posted to database: May 29, 2009 --CJR

OT: The Legal Limit by Martin Clark

Ah, summer!  The scholarship, the sun, the books!  I just read a terrific book I want to recommend to our readers:  Martin Clark's The Legal Limit.  The book has been out for a year, and is now available in paperback.

I begin with caveats.  First, Random House sent me a copy of this book; I assume the company wanted me to do exactly what I'm doing.  I'm okay with that because I'm disclosing it, and, more importantly, I love the book.  Second, the book is set in rural Stuart, Virginia, about 40 miles from where I grew up in Hillsville, Virginia.  The thrill I get in seeing places like Pandowdy's Restaurant in Mt. Airy, North Carolina factor into the plot of a novel from a major publishing house may not be shared by all.

Without giving away too much of the plot, the book follows two brothers who are victims of an abusive childhood:  Gates and Mason Hunt.  Gates, the older brother, falls into dealing drugs and sponging off his mother.  By contrast, Mason goes on to law school, and, eventually, becomes the Commonwealth's Attorney of Patrick County (of which Stuart is the county seat).  However, the brothers have kept a secret that threatens everything Mason has worked to achieve.

The book is both entertaining and enlightening.  The plot is gripping, and Clark does a superb job with character development (but, hey, every novel can't have a TortsProf as action hero!).  I can attest that he evocatively conveys the atmosphere of a small town in Virginia in the 1980's.  Additionally, the book raises questions about the relationship between law and justice, and the proper place for loyalty in both.

Martin Clark is a circuit court judge seated in Stuart, and the author of two previous, well-received novels:  The Many Aspects of Mobile Home Living (love the title!) and Plain Heathen Mischief.  Writing fiction is challenging (my mother writes), and the fact Judge Clark can do it well on top of his day job is impressive. 

--CJR

No False Imprisonment for Forced Deportation

As the New York Times reports, a Florida jury found that a hospital did not act unreasonably when it chartered a plane and repatriated a severely brain injured illegal immigrant to Guatemala (after caring for the patient for 3 years at a cost of $1.5 million).  Accordingly, the jury rejected the family's false imprisonment claim and found for the hospital.

- SBS

Legislators Take on Direct-To-Consumer Drug Advertising

Sunday's New York Times had an article summarizing the various efforts in Congress to control direct-to-consumer drug advertising.   Bills have been introduced that would ban ads for certain drugs during prime time, or alternatively, amend the tax code to eliminate DTC ads as a deductible business expense. 

- SBS

Internet Images and the Right to Privacy

Jonathan Bick has published "Pictures from Public Places Not Private" in the New Jersey Law Journal.   The article provides a nice summary of the tort and privacy issues surrounding the use of public images on the Internet such as Google Street View.  

- SBS

$75M Med Mal Verdict Overturned in NJ

The largest med mal verdict in New Jersey history was overturned on Thursday due to numerous trial errors, particularly during jury selection.  There's a lot of coverage:  Philadelphia Inquirer, The Star-Ledger, NJ.com.

--CJR

Personal Injury Roundup No. 43 (7/24/09)

It is the dog days of summer here in sunny South Carolina.  I hope you are staying cool.  Here's what happened this past week in the world of torts:

Reform, Legislation, Policy

• Saying "sorry" works for Michigan doctors.  (KIMA TV (AP))
• Coverage everywhere on health care reform:  WaPo, ABC News Political Punch, WSJ, NYT, NYT#2)
• Michigan House Democrats introduced "bad faith denial" bill.  (The Pop Tort) 

New Lawsuits

• NY state judge reinstates Dan Rather's fraud claim against CBS.  (AmLaw Daily)
• Two passengers in May 8th Boston trolley accident filed suit against the MBTA and the trolley driver, who was allegedly texting at the time of the accident.  (AboutLawsuits)
• Hepatitis exposure class action filed against McDonald's.  (AboutLawsuits, Law and More)
• Steelers QB sued for sexual assault.  (TortsProf)
• Warning labels on hot dogs?  (ABA Journal, Overlawyered)

Trials, Settlements and Other Ends

• Shermin-Williams's files post-verdict motions in Mississippi lead paint case.  (Point of Law)
• Donald Trump loses an invasion of privacy case in NY and a libel suit in NJ.  (ABA Journal, NY Law Journal/law.com, WSJ Law Blog)

Damages

• $24M verdict in TN med-mal case.  (TortsProf)

Appeals

• Eleventh Circuit reverses contempt ruling against Dickie Scruggs (NMissCommentator, Copy of opinion (pdf))

Miscellaneous    

• Laugh out loud at the coffee cup warning from Walter Olson. 

 - SBS 

Engel & McCann on Tort as Cultural Practice

David Engel (Buffalo) & Michael McCann (Washington-Political Science) [Not Michael McCann of Vermont Law, Sports Law Blog, and Sports Illustrated fame] have posted to SSRN Introduction:  Tort Law as Cultural Practice.  This essay serves as an introduction to a forthcoming book.  Here is the abstract:

Most scholars would agree that tort law is a cultural phenomenon and that its norms, institutions, and procedures both reflect and shape the broader culture of which it is a part. Yet relatively few studies have attempted to analyze tort law as a form of cultural practice or to address basic challenges regarding the methods or subject matter that are appropriate to such analyses. This essay introduces and summarizes a new volume of interdisciplinary, comparative, and historical studies of tort law in the United States as well as in the United Kingdom, Japan, Italy, India, Thailand, and elsewhere (the volume is entitled Fault Lines: Tort Law as Cultural Practice, Stanford University Press, 2009). The introductory essay contends that culture is not some 'thing' outside of tort law that may or may not influence legal behavior and deposit artifacts in the case law reporters. Rather, tort law and culture are inseparable dimensions of social practice in which risk, injury, liability, compensation, deterrence, and normative pronouncements about acceptable behavior are crucial features. Contributors to this volume demonstrate a variety of ways in which tort law’s cultural dimensions can be explored as they write about such topics as causation and duty, gender and race, the jury and the media, products liability and medical malpractice, insurance and the police, and tobacco and asbestos litigation. Their analyses extend far beyond the confines of the tort reform debate, which has until now set the agenda for much of the sociolegal research on tort law.

--CJR

Roethlisberger Sued for Sexual Assault

Harrisburg is a town of divided NFL loyalties.  Leaving aside the New York teams, four clubs vie for fans' loyalty:  Philadelphia, Pittsburgh, Baltimore, and Washington.  I'm partial to the Iggles myself, but Pittsburgh has been successful lately, and a large portion of area fans are rabidly pro-Steelers.  As such, there is some concern over the news that quarterback Ben Roethlisberger has been sued in Reno, Nevada for alleged sexual assault.  As I understand it, there will be no criminal charges, unlike Kobe Bryant's difficulties in Colorado.  From an academic perspective, it will be interesting to watch this case progress to see if it becomes the common dispute over consent.

--CJR

$24M Med Mal Verdict In Tennessee

A Tennessee jury has awarded nearly $24 million in a breast cancer misdiagnosis suit.   AboutLawsuits has more.

- SBS

7M Verdict in Mississippi Lead Paint Suit

Walter Olson (Point of Law) collects links on defendant Sherwin Williams's post-verdict motions in the $7M lead paint verdict down in Mississippi.

- SBS

EU Approves Pfizer Takeover of Wyeth

The European Commission has approved Pfizer's takeover of Wyeth.   U.S. approval is still pending.  Reuters has more.

- SBS

Wrongful Provision of a Car?

The parents of a Staten Island police man who was killed during a traffic stop have filed a wrongful death suit against the shooter's employer - a Long Island car dealership.   According to the Staten Island Advance, the suit alleges that the dealership "did nothing to prevent [the shooter] from having full and unrestricted access to the dealership's inventory vehicles at any time."   

- SBS

Bernstein on Asbestos Achievements

Anita Bernstein (Brooklyn) has posted to SSRN a paper sure to generate discussion, Asbestos Achievements.  Here is the abstract:

This Article defends a much-maligned cohort of lawyers by pointing out their unique accomplishments. Critics of the asbestos plaintiffs’ bar call these advocates greedy, unethical, and over-enriched. Regardless of the merits of the accusations, any judgment of these lawyers must also recognize what they achieved. American legal doctrines, both substantive and procedural, had stood in the way of asbestos plaintiffs’ claims. The vigorous advocacy and creative challenges that overcame these barriers should inspire all lawyers who seek to perform effectively in behalf of clients.

--CJR

Avraham, Hyman, & Silver Op-Ed on Med Mal Damage Caps

Ronen Avraham (Texas), David Hyman (Illinois--Law & Medicine), and Charles Silver (Texas) have published an op-ed on medical malpractice damage caps in the Fort Worth Star-Telegram.  They are responding to Rep. Michael Burgess's bill to enact Texas-style damage caps for the entire country.  Here's a taste:

In our judgment, the Texas approach is too simple-minded. Texans got nothing in return when they gave all healthcare providers the benefit of caps on noneconomic damages in 2003. They received no guarantee that the supply or the quality of healthcare available to Texans would improve, or that costs would go down.

Any restrictions the federal government imposes should be "smart" ones. They should insulate only providers who deliver cost-effective healthcare that protects patients from harm.

The entire piece is here.

--CJR

Punitive Damages: Common Law and Civil Law Perspectives

Yesterday the Institute for European Tort Law (of which Ken Oliphant is director) and the European Centre of Tort and Insurance Law published their new book:  Punitive Damages: Common Law and Civil Law Perspectives; Tort & Insurance Law, vol. 25 (Helmut Koziol  Vanessa Wilcox, eds.).  From the blurb: 

With the growing literature on the subject of punitive damages, the consensus is that it seems worthwhile and even necessary to discuss, thoroughly and on a comparative basis, the nature, role and suitability of such damages in tort law and private law in general.

This book contains reports from selected jurisdictions that explicitly allow the award of punitive damages as well as from jurisdictions which purport (sometimes emphatically) to deny their existence (although a number covertly incorporate such damages into the framework of their tort systems). It also benefits from special reports on insurance, law and economics, private international law and aggravated damages. The book’s comparative report and conclusion critically evaluates the material in the above reports and advances a thorough analysis of the nature of punitive damages, the cases for and against them, and their suitability in the field of tort law. Alternative remedies in private and criminal law are also considered.

Order details, for those interested, can be found here:
http://www.springer.com/springerwiennewyork/law/book/978-3-211-92210-1
 
--CJR

Personal Injury Roundup No. 42 (7/17/09)

It's been a big week in Wisconsin.

Reform, Legislation, Policy

• WI:  Bill would expand parties who could bring a med mal death suit to include non-dependent family members (Wisconsin Radio Network)
• Point:  John Avlon (Manhattan Institute)--"Sue City":  The Big Apple's tort tax dwarfs other cities (Forbes.com)
• Counterpoint:  Eric Turkewitz--Debunking another tort reform column (New York Personal Injury Law Blog)
• Counterpoint:  Ron Miller (The Maryland Injury Lawyer Blog)
• More coverage at Overlawyered

Trials, Settlement and Other Ends

• TX:  Pre-cap med mal verdict:  $10M (JusticeNewsFlash.com)
• NY:  Bronx jury awards $60M in med mal case (PR Newsline)
• TN:  Shelby county jury awards $24M in med mal case (commercialappeal.com)

Appeals    

• WI:  No lead-paint liability; design not defective (LegalNewsline)
• WI:  No bystander NIED for med mal claims (Wisbar)

Miscellaneous

• A fourth year of law school?  So recommends an ABA committee.  PropertyProf Ben Barros offers an alternative proposal.  (PropertyProf Blog)

--CJR