July 2, 2009

Someone notices the AAJ's leadership changes

Below we note the June 16 Roll Call story, "Trial Lawyers Now Playing Defense," a debatable assessment but still informative enough. The article includes the first reference we've seen in a news publication about Jon Haber's replacement as CEO of the American Association for Justice, the trial lawyers' lobby: "Meanwhile, the AAJ is looking for a new CEO after Jon Haber resigned this spring. Tom Henderson, a longtime veteran of the group, is serving as interim CEO. 'They're going forward with a search, but I can't tell you when it's going to be filled,' Lipsen said."

In a May 28 post, we observed, "AAJ is a powerful group, has an aggressive legislative agenda and is clearly recognized by the White House as an ally. Obviously AAJ isn't publicizing its leadership moves, but shouldn't the beat reporters be paying a little closer attention to the goings on there?"

So there you go.

P.S. Here's a photo of Tom promoting the AAJ convention in San Francisco.

Cal. Appeal Court Reaffirms Assumption of Risk Defense

In a very interesting case, California's intermediate appeals court has affirmed that state's assumption of risk defense.

Once a year, tens of thousands of participants pay hundreds of dollars in fees for the privilege of participating in the "Burning Man Project", which consists of creating "Black Rock City" in Nevada's Black Rock Desert. The atavistic gathering is dedicated to "community, art, self-expression, and self-reliance" [see here for a fuller description of Burning Man]. Anthony Beninati, the general manager of a company that rehabilitated property for resale, was attending his third Burning Man event. He approached the event's climax fire (a 60-foot-high wooden "burning man") to toss in a photograph of a recently deceased friend. Attendees were "authorized and invited to approach the flames," his complaint stated, "to deposit tokens, mementos and other commemorative objects into the fire so attendees can participate more fully and completely in the Burning Man experience." Unfortunately, he apparently tripped and fell so close to the fire that he was severely burned, occasioning more than $1 million in medical expenses that he sought to recover from the allegedly negligent organizers of the event. Negligent or not, said the appellate judges, the organizers were not liable to Beninati as a matter of law, since he was fully apprised of the risks of the Burning Man fire and chose to assume them. The court analogized to the firefighters's rule: if a rescuer who chooses to confront a negligently created hazard may not recover, one who confronts said hazard for his own self-fulfilling purposes may not either.

Beninati v Black Rock Inc., LLC is a refreshing reminder to those courts who have chosen to eliminate Assumption of Risk as a torts defense. Defendant's negligence is not sufficient for tort liability.

June 26, 2009

Federal Circuit Overturns Court of Claims in Vaccine Liability Case

Young child receives whooping cough vaccine, and thereafter develops seizures. The Court of Claims held that there was no evidence that the seizures were caused by the vaccine, making the child ineligible for National Childhood Vaccine Injury Act compensation. But the Federal Circuit has just reversed (see decision here), in a decision that comes very close to saying that "post hoc, ergo propter hoc" is good enough evidence for the NCVIA.

Note, for example, the following quote by the court: "Here, the testimony of Deray, the pediatric neurologist who has treated Enrique since 1996, was sufficient to establish a logical sequence of cause and effect between the DPT vaccine Enrique received on October 31, 1995, and the seizure he experienced the next day. Deray stated unequivocally that he believed that the DPT inoculation caused Enrique's seizures, and explained that there were "[t]wo things" which caused him to reach this conclusion. First, although he was able to identify a cause for seizures in 70 to 75 percent of his patients, Deray had found no cause--other than the DPT vaccination--to explain the seizures that Enrique experienced." In other words, if we don't know what caused the seizure, and the seizure happened after the DPT exam, the plaintiff has met his burden to prove that the DPT exam caused the seizure. The fact that the child had had no observable fever before the vaccination (fever is a contra-indication, because it is established that feverish children can develop seizures from vaccines) was also deemed irrelevant by the court, because fevers are not always noted or checked.

The procedural posture of this case is important (overturning the Claims court implied that the Special Master on whom the Claims Court had relied made a "clear error" in his causation finding). It seems obvious to me that the Federal Circuit has a much more claimant-friendly attitude toward alleged vaccine victims than does the Court of Claims.

June 24, 2009

A new litigation office added in Waxman-Markey bill

Doing some idle word-searching in the latest, 1201-page version of the Waxman-Markey cap-and-trade-and-command-and-control bill, we plugged in the word "litigation." It takes us to Section 198, the Office of Consumer Advocacy, amending 319 of the Federal Power Act, which regulates utilities and natural gas companies.

The earlier version of H.R. 2554 also created the advocacy office (in Section 194). But THIS is a new creation (starting on page 291):

The Office of Administrative Litigation within the Commission shall be incorporated into the Office of Consumer Advocacy.

''(2) DIRECTOR.--The Office shall be headed by a Director to be appointed by the President by and with the advice and consent of the Senate from among individuals who are licensed attorneys admitted to the Bar of any State or of the District of Columbia and who have experience in public utility proceedings.

Etc.

So the proposed office of advocacy has expanded its role from advocacy to litigation, with the power to engage in investigations, file amicus briefs, advise and otherwise employ more government attorneys in Washington. More green jobs...

That's the only use of the term "litigation" in the bill we find. There may be synonyms.

Guestbloggers for Point of Law

Summer is upon us and with it a wider opening for guestbloggers to join us for what is usually a week of posting. Authors of newly published books and scholarly articles in our fields of interest are particularly welcome. If you're interested, contact editor - at - thisdomainname.com.

"Antitrust Pricing War: Congress v. the Court"

Two years ago, in Leegin, the Supreme Court lifted the longstanding per se ban on resale price maintenance (RPM); now some in Congress want to reinstate it [Joshua Wright (George Mason Law), Federalist Society New Federal Initiatives Project paper]

June 22, 2009

An epic lobbying battle in Nevada, amid an investigation

The Las Vegas Sun this weekend published a major piece on this session's big lobbying battle in Carson City, pitting the trial lawyers against the construction industry over lawsuits claiming construction defects (governed by Chapter 40 in Nevada statutes). It's a good political post mortem: "On home defect legislation, lobbyists went to the wire."

Included was this side note:

In an ongoing investigation, the FBI appears to be looking into whether homeowner associations and their elections have been corrupted by businesses -- including possibly construction defect law firms -- so they could bring suits against builders and win those guaranteed legal fees.

In these alleged schemes, people would buy 1 percent stakes in homes and then win seats on homeowner boards, after which they would bring construction defect lawsuits and steer the legal work to favored firms.

Last September, the FBI searched the offices of homeowners associations as part of the investigation. See Las Vegas Review Journal here.

Meanwhile, "The Nevada Supreme Court will decide whether homeowners associations have the right to sue on behalf of individual homeowners in a case that could have a major impact on the number of construction defect cases filed in the state."

June 19, 2009

John Stossel...

...has a new blog at ABC News.

Music-stealing woman held liable for $1.92 million

The Minneapolis Star-Tribune reports that a jury has condemned Jammie Thomas-Rasset to pay almost $2 million, or $80,000 per song, for having downloaded and freely distributed on a web site 24 songs. Seeming unrepentant, Thomas-Rasset testified her children or ex-boyfriend might have downloaded songs to her file-sharing site without her knowledge. But the jury didn't buy it and took only five hours to deliberate. "Good luck getting it from me", she is reported to have said after she turned aggressive after the announcement of the verdict.

This is the first and only suit brought by the Recording Industry Association of America against file-sharers to go to trial, and in fact it was tried twice (the trial judge ordered a retrial after admitting that his jury instructions during the first trial were erroneous).

June 18, 2009

Jose Canseco, Tort Lawyer...

AP (here via Canadian Press) reports that Jose Canseco plans to sue Major League Baseball and the MLB players' union.

In what looks to me like a report straight out of The Onion, Canseco announces that he will enlist Sammy Sosa and Rafael Palmeiro and others (it will be a "class action", so presumably unnamed players will be plaintiffs) in the suit. The grounds? "lost wages - in some cases, defamation of character." To wit (numerous sics spared):

"Because I used steroids and I came out with a book, I was kicked out of the game, but I have not been inducted into the Hall of Fame. A lot of these players have not been inducted into the Hall of Fame: Mark McGwire and so forth. They're losing salaries, because obviously when you're inducted into the Hall of Fame, you get asked to do certain, you know, appearances and shows and so forth, which incorporates income. So there is a major income loss... Not even that, baseball blackballs you from their family, meaning you can't have a future proper reference from them, a job, no managerial jobs, no coaching jobs, nothing. They completely sever you."

Let's wait and see which lawyer has "consulted" with Canseco, which other players will team up with him, and which jurist is prepared to make a straight-faced claim to a court that a player has the right to get into the Hall of Fame, and that truth is no longer a defense to a defamation suit.