Friday, December 30, 2011

More end of the year lists - UPDATED

Continuing our coverage of the end of the year's lists, here is a link to Drug and Device Law Blog's Top Ten "Best" cases of the year.  I will let you know if Litigation and Trial blog posts a reply to this one as it did to the Top Ten "worst" cases list. (See here.)

UPDATE 1/3/11:  here is the reply in Litigation and Trial.

Wednesday, December 28, 2011

Another end of the year top ten list

Here is a non-law related list of interest:  Top ten science blog posts of 2011, as selected by Smithonian magazine's Surprising Science blog.  Smithonian is my favorite magazine, by the way.

End of the year "Top ten lists"

As usual, around this time of the year we start seeing "top ten lists" for everything.  Here are a few lists of interest:

Abnormal Use has a list of their favorite posts from their own blog here. It is a good one.  Note that it is in chronological order, rather than the more typical "top ten" order.  Also note that the second one of their posts from way back in February involves a discussion with me!  Does that make my comments one of the top ten of the year too?

Drug and Device law blog has a list of what they consider to be the worst cases of the year here.  If you take the time to read this list, you must also read the next one.

Litigation and Trial has a great response to Drug and Device here, in which it argues D&D is wrong about these cases. 

Similarly, The Week has a list it calls the 8 craziest (by which it means most frivolous) lawsuits of 2011, and David Waterbury and Eric Turkewitz reply to it here arguing many of these cases are not frivolous at all.

Finally, take a look here for the Top Legal Ethics Stories of the Year list as compiled by the Legal Ethics Forum.

Thursday, December 15, 2011

Report of possible mass tort scandal in France

Prof. Jonathan Turley is reporting today (here) that France is experiencing a massive tort scandal after it was discovered thousands of women were given breast implants containing industrial silicone rather than medical silicone.  He recently also reported on cases in the United States of people posing as doctors who performed procedures for others using materials purchased from auto and home repair stores. (See here).  However, these cases do not come close to the French scandal. Over 30,000 women in France (as well as some in Spain and the UK) may have had the defective products from Poly Implant Prosthesis (PIP).  PIP is one of the world’s leading producers of the implants and reportedly saved €1 billion a year by using industrial silicone instead of medical-grade fillers. The company has now closed after women developed cancer and other illnesses.

On a side note, if these cases were ever to be litigated one would think they would justify the imposition of punitive damages.  However, it is unlikely that France recognizes punitive damages.  

Wednesday, December 14, 2011

Why is my blog not communicating with Google Reader?

I just noticed that Google Reader is not updating the posts on this blog.  The last post my reader shows is from December 7.  Anyone know why this happens and how it can be solved?

UPDATE:   Ok; I don't know exactly how I did it, but I think I solved the problem...  Carry on....

Legal Malpractice on 34th Street

Abnormal Use has an interesting take on the movie Miracle on 34th Street, a Christmas classic.  As you may recall, the movie's climax is a trial scene.  Abnormal Use reviews the film and discusses how inaccurate the courtroom scenes are here.

Tuesday, December 13, 2011

NTSB calls for ban on use of cellphones (and other devices) while driving

Earlier today, the National Transportation Safety Board (NTSB) officially called for the first-ever nationwide ban on driver use of personal electronic devices (PEDs) while operating a motor vehicle. The recommendation extends to all PEDs, whether hand-held or hands-free. According to a report by Public Citizen, the NTSB does not have authority to impose this policy by regulation, but its views are often held in high regard by federal and state policy makers. You can read the NTSB press release here and a summary of its report here.

Monday, December 12, 2011

Tobacco Companies Preparing for Supreme Court Review of Graphic Labels

Back in June I reported that the FDA enacted a regulation to mandate new labels for cigarette packs with various graphic images and messages such as “Smoking can kill you.” (See here)  Some time later, after five of the nation's largest cigarette manufacturers filed suit against the FDA, the federal judge presiding over the case granted a preliminary injunction that prevents the FDA from enforcing the new rule.  See here and here.

Today, the Blog of the Legal Times is reporting that in a new motion filed today, the cigarette manufacturers suing the FDA are hinting that they already have their sights set on the Supreme Court.  See the motion here.  Read the story here.

Saturday, December 10, 2011

Recent developments in medical malpractice

The Maryland Medical Malpractice Attorney Blog has a list of recent developments in med mal here.

Friday, December 9, 2011

Update on the claims related to the Indiana sate fair stage collapse - UPDATED

ThePopTort has been covering the developments on the claims related to the Indiana state fair stage collapse, particularly the effect of the state's cap on damages.  In the most recent comment, it states that Ken Feinberg, who created a lot of controversy for the way he managed the Gulf oil spill on behalf of BP, has been recruited to do a similar job in Indiana.  According to the report, he announced yesterday that the families of the seven people killed will get only $300,000 and that Feinberg "is pressuring these families to sign quickly and requiring a complete liability release, so if they take this paltry sum, these families can’t even challenge the cap in court."  The post also comments on similar developments in two other cases in Philadelphia and West Virginia. Read the full story here.

UPDATE:  12/9/11:  ABC news reports that the offers expire next Monday.  If that is accurate and the offers were made on the 7th when the report came out, I think it is fair to say what The PopTort characterized as "pressuring the families" to settle.  According to the ABC article, though, the offers may be for more than $300,000 for certain category of plaintiffs.

Wednesday, December 7, 2011

Debate on medical malpractice reform (and tort reform in general)

On October 20, the Cato Institute published a study by economics professor at California State University, Northridge Shirley Svorny claiming that existing empirical evidence suggests that "medical malpractice awards do track actual damages" and that noneconomic damage caps and other "policies that reduce liability or shield physicians from oversight by carriers may harm consumers."  Evidently, Svorny's position is at odds with those who support tort reform and she has agreed to a debate on the issue.  The featured discussion is available here.

New information on Summers v. Tice

The blog Concurring Opinions has a short comment on the classic old case Summer v Tice - the case most law students remember as the case of the hunters who shot the plaintiff in the eye.  The post, by Kyle Graham, states he visited the California State Archive and reviewed the old case file where he found some interesting new information.

The case, as you may remember, is used to discuss the issues that arise when the plaintiff can't identify who from among two negligent actors actually caused the injury.  In the case, there were two negligent actors but  only one could have actually caused the injury. Given these circumstances, the court decided to switch the burden of proof to the defendants to show that they did not cause the injury.

The old case file, apparently, tells a slightly different story.

Apparently, Tice argued that the plaintiff could have identified the person whose conduct caused the injury but lost that chance due to his own negligence.  Tice testified that he had been using No. 6 shot, whereas Simonson (the other shooter) had been using No. 7½ shot. He argued that the two pellets are of slightly different size, and capable of distinction and that the reason that the distinction was not made was that the plaintiff lost the pellet after it was removed.  In fact, the plaintiff himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home.

Thanks to TortsProf for the link to the new information.

Oregon finally gets its share of punitive damages in tobacco case

In Oregon awards for punitive damages are shared by the party who wins the judgment of the award and the state.  According to a state statute the plaintiff gets 40% and the state gets 60%.  I've always been surprised more states don't adopt this approach to punitives, but that is a different story.

In any case, the blog "Injured" is reporting today on a twelve year old battle over the payment of punitive damages in a case against Philip Morris from back in 1999.  The case resulted in an award of $79.5 million in punitive damages but it wasn't until 2009 that U.S. Supreme Court denied the tobacco company's appeal.  It ended up paying 40% of the original $79.5 million plus 9% interest to the plaintiff in the original case.  PM then fought against the state of Oregon but the Oregon Supreme Court ruled last week that the company must pay the remaining 60% of the punitive damages to the state, plus interest. In total, the company will end up paying around $99 million.

Woman stabbed by classmate in anger management class sues the company that ran the class

Here is an interesting story that would be funny if the result hadn't been that someone suffered real injuries as a result.  A certain organization held an anger management class during which one of the students got so angry she stabbed another one.  The student who was injured has sued the organization running the class.  What made the student so angry?  A video of "Dr. Phil."  The ABA Journal has more on the story.

Comment on Virginia Tech's negligence during massacre in 2007 and effect of caps on claims by victims - UPDATED

In the first trial of its kind, Virginia Tech University is challenging a $55,000 fine levied by the Department of Education over the university's handling of the April 16, 2007, massacre that left 33 people dead. Professor Jonathan Turley has posted a comment related to the negligence of Virginia Tech during the massacre of students back in 2007 and the effect of damages caps on the claims by the victims. Read the full comment here.

For more on the story go the Blog of the Legal Times here.

Monday, December 5, 2011

New comment about old topic: the (no) relation between tort reform and doctors' migration

The PopTort is reporting today (here) on an article in the Washington Post blog that reminds us once again that there is little or no relation between the number of doctors available in certain states or the patterns of migration of doctors among states and tort reform.  The claim that lawsuits, or fear of lawsuits, or the lack of tort reform contributes significantly to doctors abandoning their practices or moving to other states has been discredited by a number of studies and reports over the years.  This new article serves as a reminder (even though apparently the article itself did not acknowledge those older studies on the same issue.)

Not one of the top blogs

Once again, my blogs did NOT make it into the list of the "best" law blogs.  What's the matter with you people?!  Don't you like me?   C'mon...  I am getting discouraged here!!!   I guess I need to get organized and start a campaign much sooner next year...  Is it that my blogs don't have "catchy" titles?   Then help me come up with a better one...  Torts Talk?  Today in Torts?  All About Torts?  ....

All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam....  Decide for yourself after you read his post here.

Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.

Thursday, December 1, 2011

Yet another article criticizing Congress' attempt to "reform" medical malpractice

I have criticized the proposed attempts by Republicans in Congress to enact tort reform legislation (particularly a medical malpractice bill) herehereherehereherehereherehere and here.  See also here.

I don't really know what happened to the bill that was originally proposed, but now reports are coming in that the U.S. Senate is set to consider on the Republicans' Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas.

Hopefully, someone will point out to the Senators Public Citizen's recently published report documenting the failures of tort reform in Texas (see here).

In the meantime, you can read an article by Shirley Svorny on the subject in which she argues that caps on damages not only (obviously) hurt the most severely-injured individuals who seek compensation for their injuries, but also increase the risk of injury because they reduce medical professional liability insurers' financial incentives to reduce practice risk.  You can read her full article here.