Monday, December 14, 2009
From About Lawsuits:
About 2,100 people joined in a class action lawsuit for Chinese drywall homeowners filed in Louisiana, alleging that their homes were built with toxic wallboard manufactured by Knauf Plasterboard Tainjin Co. Ltd. (KPT).
The drywall lawsuit was filed Wednesday in the U.S. District Court for the Eastern District of Louisiana in New Orleans. The complaint was filed as part of an agreement where the Chinese company agreed to temporarily waive its rights to have lawsuits served through the Hague Convention for plaintiffs who joined the omnibus class action suit against the company by December 9.
Saturday, December 12, 2009
From Injured: A Cornell sociology professor has sued Wesleyan for negligence after the school mistakenly released his photo as a murder suspect in a killing near the Wesleyan campus. He seeks damages for emotional distress and reputational harm.
Friday, December 11, 2009
Reform, Legislation, Policy
- GAO issues report on FDA drug oversight. (AP/Google news)
- Betcha didn't know that the pending health care bills would require chain restaurants and vending machines to post nutritional information. (USA Today)
- FDA widens radiation overdose in LA-area hospitals. (LA Times, PopTort)
- Regulation of direct-to-consumer drug advertising? (St. Louis Post-Dispatch)
- CPSC releases report on Chinese drywall. (Mass Tort Defense)
- Estate of woman killed by driver talking on cell phone sues driver's phone service providers. (NY Times, Injured). Russell Jackson responds.
- Family of father and son killed on NY highway last summer by drunk, wrong-way driver sue driver's estate. (NY Post)
- Parents of high school senior who committed suicide after "sexting" incident sue school for negligence. (eSchoolnews)
Trials, Settlements and Other Ends
- Judge Weinstein dismisses pre-paid cell phone class action. (Jackson)
- NY judge dismisses action as frivolous where doctor sued opposing expert in prior med mal cases - and also sanctions the plaintiff and his counsel. (Turkewitz)
- Seventh Circuit affirms dismissal of negligence claim against Wal-Mart for selling bullets to customer who committed suicide. (Day on Torts)
- Wisconsin Supreme Court decides issue of first impression and holds that victim of intentional tort does not have duty to mitigate. (Wis Law Journal)
- Searle Civil Justice Institute issues preliminary report entitled "State Consumer Protection Acts: An Empirical Investigation of Private Litigation."
- Don't friend the judge in Florida. (ABA Journal)
Thanks to Russell Jackson for material this week.
Thursday, December 10, 2009
Nora Freeman Engstrom (Stanford) has posted to SSRN Run-of-the-Mill Justice. Here is the abstract:
This Article examines a particular form of heretofore unexamined personal injury law practice that has proliferated across the United States. These law firms, which I call settlement mills, are characterized by their high claim volume, aggressive advertising, significant delegation to non-attorneys, entrepreneurial focus, and quick resolution of claims, typically without initiation of suit. Drawing on voluminous documents extracted from federal court and state bar disciplinary files, as well as fifty interviews with current and past law firm employees, the Article demonstrates that settlement mills represent a relatively new, largely distinct, and surprisingly prevalent form of law firm organization. After setting forth the characteristics that distinguish settlement mills from conventional personal injury practices, the Article considers the forces that have contributed to their rise, analyzes how they resolve claims in practice and to what effect, and asks why insurers (not facing a realistic threat of trial) bargain with settlement mills at all. The analysis reveals that settlement mills are not only organized differently than their conventional counterparts; they actually settle claims differently, in a manner that challenges prevailing theories of settlement as well as our basic notions of compensation through tort.
(Via Solum/Legal Theory Blog)
Wednesday, December 9, 2009
The latest paper by Michael Krauss (George Mason), coauthored with Mason student William Jones, is a historical analysis of a case I used when practicing in Virginia and continue to use as a note case in the textbook I teach (Franklin, Rabin & Green). Entitled Rape on the Washington Southern: The Tragic Case of Hines v. Garrett, the abstract is below:
The judicial treatment of the tragic multiple rape of Julia Garrett, in wartime Virginia, offers interesting insights into a fascinating period in the jurisprudence of the Near-South. The economic emancipation of women and of blacks, the rapid urbanization of a heretofore rural area and the behavior of a government regulator were all backdrops for a battle royale over the meaning of "proximate cause."
Tuesday, December 8, 2009
The torts-angle here is that it is an order about privacy law, specifically whether there is a constitutional right to informational privacy.
But really this post is all about the turducken. Who would include a reference to turducken - that weird turkey wrapped around a duck wrapped around a chicken concoction - in a federal appellate decision? That woud be Judge Kozinski.
Adam Liptak has more.
Monday, December 7, 2009
In yesterday's Clarion Ledger, Sid Salter reviewed "Kings of Tort" by Alan Lange and Tom Dawson. The book tells the story of Dickie Scruggs's fall from grace in the bribery scandal that led to his current address in federal prison.
As an aside, I know nothing about copyright law, but I am surprised that the book title is so similar to John Grishama's popular novel "The King of Torts."
UPDATE: Readers might also be interested in "The King and the Dean: Melvin Belli, Roscoe Pound, and the Common Law Nation," which is chapter four in Patriots and Cosmopolitans: Hidden Histories of American Law by John Witt (Yale).
Jane Genova reports on a story out of Rhode Island: Actor James Woods had been in a bitter lawsuit with Kent Hospital in Warwick, Rhode Island over the death of his brother in 2006. As the Providence Journal reports:
When Kent Hospital President Sandra L. Coletta had dinner with actor James Woods Monday night and apologized for her hospital’s role in his brother’s death, Coletta said she was just following her gut, treating a grieving brother the way she’d want to be treated herself.
That apology led to a startling turnaround in what had been an increasingly bitter lawsuit over the 2006 death of Michael Woods from a heart attack in the Warwick hospital’s emergency room.
Less than 24 hours after the dinner, Coletta, Woods and his mother were standing next to each other, announcing the withdrawal of the suit and the creation of the Michael J. Woods Institute to help reorganize the hospital to better serve its patients.
Friday, December 4, 2009
Classes ended this week at Western New England, and we had 60-degree weather too. An odd juxtaposition. It's a shorter roundup than usual, but still some good stuff:
Reform, Legislation, Policy
- A RAND look at diagnosis in silicosis suits [TortsProf]
- Tort reform and health care costs [Houston Chronicle]
- ...and a back-and-forth about whether (and how much) tort reform is in the Obama health care plan [Point of Law]
- ...and one more thing about litigation-related matters in the health reform legislation [Progressive Fix, Overlawyered (which first covered this)
- Crime and tort law - guest post from Jason Solomon [TortsProf]
- Possible suit against Robin Williams for doing yet another movie filled with tired impressions alleged defamation against Brazil in connection with Rio getting the Olympics [Brazzilmag.com]
- Not a new suit, but an interesting one involving slipping on water splashed out of a pool by a dolphin -- a suit that strangely parallels an exam I wrote a few years ago [Lowering the Bar]
Trials, Settlements and Other Ends
- Fosamax bellwether cases dismissed [Mass Tort Litigation Prof Blog]
- Big tobacco verdict in Florida [Mass Tort Litigation Prof Blog and links therein]
- 5th Circuit allows a climate change lawsuit to proceed for now [USA Today]
- Philly trial hits Pfizer in PremPro suit [Philly.com]
Thursday, December 3, 2009
Today's Wall Street Journal has an article about asbestos trusts that quotes Vanderbilt's Richard Nagareda and Buffalo's S. Todd Brown. It's a subscriber-only piece, so I can't link to it. However, the WSJ Law Blog has a shorter post on the issue here.
Thanks to Mark Behrens for the tip.
Jay Feinman (Rutgers-Camden) has posted to SSRN The Insurance Relationship as Relational Contract and the "Fairly Debatable" Rule for First-Party Bad Faith. Here is the abstract:
This article uses relational contract theory to discuss the standard to be applied to evaluate the behavior of insurance companies in first-party bad faith cases.
The article first briefly summarizes relational contract theory and describes the insurance contract as a prime example of a relational contract. It then describes the law of bad faith in first-party insurance cases-cases in which a policyholder alleges that the insurance company has violated the duty of good faith and fair dealing that is present in every contract and intensified in insurance contracts. The most widely adopted standard for bad faith is the “fairly debatable” test, under which an insurance company is liable only if it lacks a reasonable basis for denying benefits of the policy and knows or recklessly disregards the lack of a reasonable basis for denying the claim. Therefore, where a claim is “fairly debatable,” the company is held to have not acted in bad faith. Moreover, courts have created a procedural elaboration on the fairly debatable test, under which a policyholder who could not have established as a matter of law a right to summary judgment on the substantive claim is not entitled to assert a claim for an insurer’s bad-faith refusal to pay the claim.
The article argues that from the perspective of relational contract theory, the fairly debatable rule and the summary judgment elaboration are deeply flawed. Instead, negligence is a better rule because it recognizes that the relationship between the company and policyholder is one of security, in which the company has adopted a role of acting not as an adverse party to its insured, but in a responsible manner to give the insured the benefits it reasonably expects. A negligence rule also recognizes and deters the possibility of insurer opportunism in the area of claim practices. The rule also serves the broader social role of the insurance relation in providing indemnity and security for large numbers of people.
This article is a contribution to a symposium in memory of Professor Richard Speidel.
Wednesday, December 2, 2009
The Rio Olympic Committee's lawyers are considering action in a U.S. court over Robin Williams's comment to David Letterman on The Late Show regarding how Rio won the Olympic nod. Brazzil Magazine has the story (as well as a clip of the interview).
Robert McFarland (Jones School of Law) has posted to SSRN Teaching the Law of Wrongs Without Searching for What is Right. Here is the abstract:
This essay fits into a growing body of academic literature examining a crisis of identity in the legal profession. Three recent reports (Carnegie Foundation Report, MacCrate Report and Best Practice in Legal Education Report) link professional malaise to the the state of legal education in America.
This essay argues that a significant problem is embedded in the structure and pedagogy of the traditional first-year curriculum. First-year students are typically not invited to develop an understanding of jurisprudence or professionalism in the first-year. Instead, the typical first-year pedagogy focuses on development of analytical ability and writing skill at the expense of development of a coherent legal philosophy.The typical student learns to set aside questions of justice in order to “learn the rules” and write the brief. Because students are not permitted to search for "right" answers to any question, students develop a fierce cynicism which follows them into the profession and manifests as professional malcontent.
My argument is advanced in three parts. Part one examines the crisis of identity currently afflicting the legal profession and connects this problem to the place where professional identity is formed: law school. Part two follows a student through her first-year experience in torts and describes a process whereby the student loses her moral identity in order to obtain rigorous analytical ability. She learns to set aside her own qualms in order to learn “the law” but is not equipped nor given the opportunity to reconcile the law with her moral and ethical instincts. Part three then argues that this process is problematic because the first year lacks balance and proposes changes allowing the student to learn analytical ability without developing a cynical view of law and justice.
Tuesday, December 1, 2009
The RAND Institute has released Stephen J. Carroll et al., The Abuse of Medical Diagnostic Practices in Mass Litigation: The Case of Silica (RAND Inst. for Civil Justice 2009). It is available here: Download DC-170832-v1-RAND_silica_study_final_report.
Thanks to Mark Behrens for the tip.
In last week's Houston Chronicle, Jennifer Bard (Texas Tech) had an interesting op-ed piece, "There's No Proof Tort Reform Reduces Health Costs." In this essay, Bard explains why tort reform is not a necessary part of health care reform.