D.C. Circuit Court of Appeals rules regulation imposing graphic cigarette warnings is unconstitutional -- UPDATED

As you may recall, I have been following the developments in the litigation over the constitutionality of the proposed new graphic warnings for cigarettes.  Go here and scroll down for all the previous posts on the subject.  The most recent development came in today as news spread that a panel of the Court of Appeals for the District of Columbia found (on a 2 to 1 vote) that the regulation imposing the warnings is unconstitutional.  Go here for a copy of the opinion.  For more news and commentary go to The Blog of the Legal Times, The New York Times (here and here), The Jurist, Drug and Device blog, The Wall Street Journal law blog, Public Citizen, and The First Amendment Center.

UPDATE 8/27/12:  Here are two more links with more discussion (and links) on the case:  Circuit Splits, FDA law blog and Jonathan Turley.

Little league baseball bats

A few days ago I posted a note about a recent case for injuries caused by a ball hit with an aluminum bat during a little league baseball game which settled for $14.5 million.  (See here.)  Today, as I watched the Little League World Series with my 8 year old son on TV, I noticed the bats did not make that metallic high pitched sound that aluminum bats typically make.  So, I went on line and did a quick search - thinking maybe they are not using metal bats anymore...  And I did find that the bats are, in fact, different now.  They are still not using wood bats, but there are more regulations in place.  Here is a link to the Little League page on bat rules.  Not only have the rules changed, I was surprised to see this statement:  "For the 2011 season, a moratorium on the use of baseball bats with composite materials in the barrel was enacted by Little League. The moratorium was enacted because it was discovered, through laboratory testing, that a significant number of these bats could exceed the standard that is printed on the bat – after the bat was broken in."

D.C. Circuit Court of Appeals rules regulation imposing graphic cigarette warnings is unconstitutional

As you may recall, I have been following the developments in the litigation over the constitutionality of the proposed new graphic warnings for cigarettes.  Go here and scroll down for all the previous posts on the subject.  The most recent development came in today as news spread that a panel of the Court of Appeals for the District of Columbia found (on a 2 to 1 vote) that the regulation imposing the warnings is unconstitutional.  Go here for a copy of the opinion.  For more news and commentary go to The Blog of the Legal Times, The New York Times (here and here), The Jurist, Drug and Device blog, The Wall Street Journal law blog, Public Citizen, and The First Amendment Center.

Case for injury caused by aluminum bat in little league game settles for $14.5 million

Sports Illustrated is reporting today that a new case for injuries caused by a ball hit with an aluminum bat during a little league baseball game has settled for $14.5 million.  At the time of the accident (in 2006), the plaintiff was 12 years old.  He was hit in the chest by a line drive while standing on the pitcher's mound. Seconds later he went into cardiac arrest and he now has serious brain injuries.  He can't perform daily life functions and the money will be used to care for him for the rest of his life.  For more on this story (and more links) go to Sports Illustrated and Injured.

This is not the first time I have commented on cases like this one.  (See here and here, for example)  Back in 2009, I posted the following comment when news of a similar case were reported and my views have not changed since:

I remember having read and heard debates about the safety of aluminum bats used in baseball at the high school and college levels (they are not allowed in the professional leagues). I remember reports saying that the bats provide a tremendous level of force to the ball which then travels at a much higher rate of speed toward the fielders. Under such circumstances, players in the infield, particularly pitchers and third basemen are very vulnerable because of the very limited time they would have to react to a sharply hit line drive.

Yesterday, I saw in several sources around the internet a story that a jury in Montana imposed liability on Louisville Slugger, the baseball bat manufacturer, for failing to provide adequate warnings about the dangers posed by aluminum bats and awarded $850,000 to the family of an 18 year old who died when hit with a baseball while pitching in a game in 2003. Go here for the full story and some interesting comments criticizing the decision. This site has the story and links to other related stories. More versions of the story are linked here.

The arguments against this type of verdict are not new: that kid assumed the risk, that a warning would not have made a difference, that plaintiffs lawyers are just using the system to bring frivolous lawsuits, that cases like these result in ridiculous warnings on all products, etc etc.

I think these arguments miss the point. First of all, no one has ever argued that a warning makes a product safer. A warning just provides information that the consumer can then use to make decisions on how to protect him/herself given the risks involved in using the product.

Second, it is true that there are some products (and some activities) that are inherently dangerous, but this does not mean that everyone understands the level of risk they pose.

 Finally, and I think most importantly in this case, sometimes we need to ask whether a product is so dangerous that it should not be used at all, period. I understand you can't play baseball unless the hitters use a bat...duh! But it does not have to be an aluminum bat! Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won't eliminate all the risk, but it is safer.

Now, some argue the result would have been the same even if the bat had been made of wood. I have no expertise on that question, but I can concede that may be true in some cases. I am sure it is not true in all cases, though, and it is those cases that matter.

Also, if it is true that the death in this case would have happened even if the bat used had been a wooden bat, I wonder how come the defendant did not get the case dismissed early on arguing that the plaintiff could not establish cause in fact. Did they not have an expert ready to testify? Aluminum bats are probably ok for very little kids who do not generate the bat swing speed necessary to make much of a difference (and for many of whom a wood bat would be too heavy), but as the kids get bigger and stronger the leagues should move to wooden bats.

ABA Journal's Annual Blawg 100 - Vote Today!

The ABA Journal is now accepting nominations for its 100 best legal blogs ("Blawg 100") list. If you have enjoyed reading my blog, please consider voting for it here by September 7.

Podcast on litigation over damages caused by bedbugs

The Legal Talk Network has a new podcast discussing  issues related to litigation over damages caused by bedbugs.  The description of the show reads: "All across America, from motels to five‑star hotels, bed bugs are affecting people both physically and mentally, resulting in lawsuits. These tiny creatures are not only limited to hotels, but can be found virtually anywhere; from apartments, schools, and hospitals, to warehouses, box springs, and mattresses. Ringler Radio host, Larry Cohen joins Ringler colleague and co-host, Ross Duncan and guest, Attorney Daniel W, Whitney, managing partner of Whitney & Bogris, LLP, as they take a look at the impact of bedbugs, the preventive measures to help avoid them, as well as some of the litigation that’s risen up to combat the problem."  You can listen to the program here.

Austalia's approach to cigarette package warnings

As you may recall, I have been following the debate and litigation on the constitutionality of the regulations that require cigarette manufacturers to place graphic images as part of the required warnings in cigarette packages.  Go here and scroll down for all the posts on the subject.  Interestingly, the Australian courts have been considering the same issue and the High Court of Australia recently upheld a law that requires cigarette packages to display graphic images warning of the dangers of smoking and bans brand logos. For more information go Jurist, Public Citizen, and The Huffington Post.

ABA adopts resolution on dog regulation

Every now and then, often after reports of a dog attack, the issue of whether the government can (or should) regulate specific breeds of dogs resurfaces.  For some examples of this discussion take a look at these older posts here, here and here.

Now comes news that a couple of days ago the ABA's House of Delegates adopted a resolution urging legislative bodies to adopt breed-neutral dangerous dog regulations.  Specifically, the resolution states, in its entirety:  "RESOLVED, That the American Bar Association urges all all state, territorial, and local legislative bodies and governmental agencies to adopt comprehensive breed-neutral dangerous dog/reckless owner laws that ensure due process protections for owners, encourage responsible pet ownership and focus on the behavior of both dog owners and dogs, and to repeal any breed discriminatory or breed specific provisions."

I am not sure why this was on the ABA's agenda this year, but there you have it.  Here is a link to the 16 page report (in Word format) that accompanied the resolution. Here is a link to a page with more information and links.

Georgia Supreme Court opinion on apportionment of liability

Here is a link to an interesting opinion by the Georgia Supreme Court on whether a defendant can ask they jury to apportion part of the liability to a person who is not a part to the lawsuit. The jury in the case found the defendant had been negligent in failing to prevent criminal attack on its property.  Then the US District Court for the Northern District of Georgia certified two specific questions to the state supreme court.

Based on statutory interpretation, the state supreme court found that (1) the jury is allowed to apportion damages among a property owner and the criminal assailant and (2) instructions or a special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights.  Specifically, the court concluded that "[t]he rules of statutory construction, including reliance on ordinary word meanings, dictate that an assailant who evades hotel security to intentionally abduct, rob, and assault a hotel guest is, at the very least, partially at "fault" for the brutal injuries inflicted by the assailant on that guest. As a party at fault, such an assailant must be included with others who may be at fault, e.g., the property owner in a premises liability action, for purposes of apportioning damages among all wrongdoing parties. The case is called Couch v. Red Roofs Inn, Inc and it is available here.

Not all jurisdictions agree with this approach.  Some jurisdictions allow juries to apportion liability only among parties present at trial. For more on this case go here.

Recent Ninth Circuit Opinion on whether a manufacturer has a duty to warn of a particular risk

About a month ago, the Court of Appeals for the Ninth Circuit issued a short opinion on how to determine if a manufacturer has a duty to warn of a particular risk created by its products.   As stated by the court, the case called upon the court “to decide whether, in August 2004, a manufacturer of electronic control devices, commonly referred to as “tasers,” was under a duty to warn that repeated exposure to its products could lead to fatal levels of metabolic acidosis.”

Applying California law, which appears to be typical on this issue, the court stated that manufacturers have a duty to warn of a particular risk “if it is known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.”  Then the court explained the basic principles on the issue of what is “knowable”:

(1) manufacturers are held to the knowledge and skill of an expert in the field

(2) manufacturers are obliged to keep abreast of any scientific discoveries and are presumed to know the results of all such advances.

(3) manufacturers cannot defeat liability by claiming they did not review the relevant scientific literature.

But, (4) manufacturers are not under a duty to warn of every report of a possible risk, no matter how speculative, conjectural, or tentative.

Applying these principles to the facts of the case, the court found that to establish that the risk that the defendant’s products could cause fatal levels of metabolic acidosis was knowable by December 2003, the plaintiffs relied primarily on four peer-reviewed articles and concluded that these articles did not present a triable issue of fact that the risk was more than purely speculative.

The case is called Rosa v. Taser International and it is available here.

Did University of Colorado Have a Duty to Warn about Holmes?

Recent reports on the suspect of the shooting at the Batman movie in Colorado raise the issue of whether those with knowledge of the suspect's dangerous tendencies had a duty to do something (more) about it.  Obviously, the issue is similar to the classic Tarasoff case.  For more information on this issue go here and here.

Max Kennerly debates tort reformer Ted Frank

Over at Litigation and Trial, Max Kennerly describes his on-going debate with tort reform advocate Ted Frank (here).   I have always said that the goal of tort reform proposals is not to eliminate frivolous lawsuits but to regulate the valid ones; in other words, to make it more difficult (or impossible) for plaintiffs to bring valid claims or to reduce what they can recover if they can bring the claims.  Using Frank's own replies to Kennerly's questions, Kennerly argues Frank's arguments can be reduced to the same principle:  injured plaintiffs should always lose. Here is Ted Frank's reply to Kennerly.

More on the Missouri Supreme Court decision declaring damages cap unconstitutional

Yesterday I reported that the Missouri Supreme Court declared unconstitutional that state's statute that imposes a cap on non economic damages in medical malpractice cases.  See here. 

Today, the PopTort has posted a bit more information on the case and the issue here.  It turns out that Missouri provides a good example of why capping recovery for victims does not necessarily result in reducing insurance premiums. According to Missouri’s insurance department, by 2003, while claims and payouts had already dropped dramatically for the state’s insurance industry, doctors’ malpractice insurance premiums were rising.

Not surprisingly, however, tort reform support groups have criticized the decision.  See here.  In this report, the president of the American Tort Reform Association said the opinion was written by the court's "activist majority" and is quoted as saying that “Missouri is an outlier again, joining a minority of states in which high court decisions have stymied elected legislators and governors who had acted reasonably to limit pain and suffering awards when state constitutions did not explicitly disallow such limits.”

In statements like those, ATRA wants to imply that courts that rule against their positions are "radical" or "activist" which are not following the law. This characterization of the court's decision is unfair and misleading. The fact that a legislature enacts a statute does not by itself mean that the statute is valid and should be respected. We need courts in order to determine if a statute is unconstitutional.  Otherwise there would be no check on the power of a legislative body.

In deciding the constitutionality of a statute, the Missouri Supreme Court performed its role in our democratic system.  ATRA's argument seems to be simply that courts should not question or second guess what legislators do. That is a dumb argument. If you don't agree with the decision, argue it on the merits.  Don't just start name calling and saying the court had no right to do what it did.  Of course it did.  That's what courts are for.

The report from ATRA is also quoted as stating that reform is needed "if the cost of and access to health care in Missouri is to help the state compete for jobs and economic growth” a notion that has been discredited so many times in some many studies it is almost laughable anyone is still trying to advance it.