February 9, 2010

Florida Smoker's $300 Million Award to Be Reduced

The largest individual award to a Florida smoker will be reduced, Judge Jeffrey Streitfeld (Broward County Circuit Court) ruled Friday. [Here's the story on Law.com]

Judge Streitfeld called the $300 million jury verdict, rendered months ago, "excessive" and "shocking," based on anger (which the judge attributed to poor lawyering tactics on the part of the defense) and not merely on the desire to compensate and punish. The verdict, discussed in POL previously, awarded $56.5 million in compensatory damages and $244 million in punitive damages to Cindy Naugle, an emphysema patient who quit smoking in 1993. Florida law caps punitive damages at three times compensatory damages, absent extraordinary circumstances -- and in the Naug case the compensatories (including millions for pain and suffering) as well as the punitives were challenged as excessive. Under Florida law, judges must reduce jury awards found to be excessive.

The Naug case is currently #1 on the hit parade 8,000 individual suits against cigarette manufacturers that were filed after the Florida Supreme Court decertified struck down a $145 billion punitive class action award on the grounds that smokers must sue individually. That decision held that the class action jury's finding that smoking is dangerous and addictive and causes disease could not be questioned in the individual suits.

Judge Streitfeld did not indicate when he would determine the amount of the reduction.

February 4, 2010

Ergonomics, Public Citizen, Cars and NPR

The Occupational Safety and Health Administration on Jan. 28 proposed a new rule requiring employers to report more detail on musculoskeletal injuries. Business interests fear OSHA's move is just an interim step toward reviving the Clinton Administration's ergonomics regulation, enacted in January 2001 but subsequently blocked by Congress. (See Financial Times, Feb. 3, "Business opposes work safety proposal"; Sacramento Bee, Feb. 24, 2009, "Obama could restore ergonomics work rules.")

OSHA cannot admit its goal is a new ergonomics rule because the agency would run afoul of the Congressional Review Act used to revoke the 2001 regulation. The law stops agencies from re-promulgating disapproved rules without specific legislative approval. [Section 801(b)(2)] Comments from OSHA officials on the possibility of a new ergonomics rule have been all over the map. (Earlier Point of Law posts.) But the Naderites at Public Citizen were not so restrained in the group's release praising the new musculoskeletal mandate:

OSHA states that this recordkeeping change does not imply that the agency will issue a standard related to musculoskeletal injuries and illnesses, commonly known as an ergonomics standard. Public Citizen believes such a standard is needed and urges the agency to issue one without delay.

Apropos Public Citizen, NPR's "Morning Edition" today carried a lengthy report on Toyota's troubles and the role of the National Highway Traffic Safety Administration (NHTSA). The primary interview for the report was Joan Claybrook, identified only as a former head of NHTSA during the Carter Administration -- a scanty description for a woman who targeted the auto industry for two decades as head of Public Citizen. NPR lionized her last August with a piece, "Consumers' Crusader Joan Claybrook Steps Down."

The "Morning Edition" story also brought up the usual allegations of a "revolving door" -- lobbyist to official to lobbyist, with the Bush Administration being the point of complaint. OK, but wouldn't it then warrant mention that the current head of the NHTSA, David Strickland, is a former lobbyist for the American Association of Trial Lawyers? The trial lawyers' lobby, now American Association for Justice, is offering materials to its members designed to aid them in litigation against the car company.

February 1, 2010

Around the web, February 1

• Lawyers swarm Toyota [Bronstad, NLJ, ABA Journal, WSJ Law Blog] Feds asked for it, they got it (the damagingly wide recall, that is) and speculation arises as to whether Washington's role as owner-ally of GM might have made a difference [Harner, ConcurOp; Coyote, with comments discussing issue of brakes' role in stopping unintended acceleration] But maybe other theories would also explain the feds taking a hard line. And this new, perfect development: "Lawyers Ask Court To Stop Toyota From Fixing Cars."
• Big plaintiff win in Vivendi securities class action trial could bring billions [10b-5 Daily, LaCroix, WSJ Law Blog]
  
• "Judge Rejects Lerach's Request for European Trip" [California Civil Justice]
• Unions see hopes for card check bill dim with Brown Senate win [In These Times] AFL-CIO instead hopes to get it through NLRB fiat, which could make this week's confirmation hearing on nominee Craig Becker a key one to watch [Carter at ShopFloor, more, yet more] Related: lawprofs for Becker [Workplace Prof]
• Illinois: "GOP gubernatorial hopefuls tout tort reform" [Knef, MC Record]
• Point of Law favorite Richard Epstein will be guestblogging Monday at TortsProf. Update: here's his post.

January 27, 2010

Lawsuit alleges death by dentures

Litigation has been developing for a while alleging toxic overdoses of zinc in denture cream, and now from Miami comes what appears to be the first wrongful-death suit.

January 26, 2010

See the fabulous sites of Hawaii from the air, take notes, sue

The American Association for Justice's "Litigation at Sunrise" sessions at the AAJ convention cited below end with a presentation, "Hawaiian Heli-Tour Industry: Under the Radar," by Kristine Meredith of the Danko Law Firm in San Mateo, Calif. Plaintiff." Meredith's areas of expertise with the firm, which bills itself as "Trial Lawyers for the Plaintiff," include aviation law.

In fact, at the firm's Aviation Law Monitor blog, Meredith posted a new entry Monday, "Crashes of Helicoptor Air Tours in Hawaii: On the Rise or Decline?" And last April, she asserted bloggingly, "Hawaiian Helicopter Tours: Profit Motive Still Trumps Safety."

Funny thing is, AAJ's convention brochure promotes helicopter tours of the island. From page 5:

Air Tours Hana/Haleakala Helicopter Adventure
Fly like a tropical bird above two of the most famous sites on Maui -- Hana and Haleakala Crater -- and everywhere in-between. Cruise over the alien vista of Haleakala, the "House of the Sun" and see the terrain change right before your eyes. From Haleakala, you'll follow the rugged shorelines of Northeast Maui to "Heavenly" Hana, home to over one hundred cascading waterfalls, rainforests and a dramatic coastline.

What must Hawaii convention officials think? Here's AAJ, a group that promotes the services of a local business -- helicopter tours -- as an attraction to get people to attend their convention. Yet AAJ sponsors a lawyer discussing litigation against the very same tour industry.

That's the way you pay back Hawaii's hospitality? "Fly like a tropical bird, and then sue!"

Hanging out in Maui with the litigation industry

The American Association for Justice's winter convention begins this Saturday in Maui. As the convention brochure and the online schedule document, the list of legal targets is long, indeed.

We always like to check out the topics discussed at the "Litigation at Sunrise" session, because the presenters usually include the more entrepreneurial among the trial lawyers. So to speak. From the agenda:

• Birth Defects Suffered by Children Whose Parents Are Exposed to Chemicals Used in "Clean Rooms" -- Frank Verderame, AZ
• Denture Cream -- Andres F. Alonso, NY
• Preemption in Generic Drug Cases Post-Levine -- Seth A. Katz, CO
• Pharmacy and Pharmacist Liability and Other Resources from the AAJ Exchange -- E. Drew Britcher, NJ
• Fleet -- M. Clay Martin, AL*
• What Is a Qui Tam Case? How to Know It When You See It -- Jan Soifer, TX
• Recent Trends in Federal Whistleblower Law -- Brian J. McCormick, Jr., PA
• Pool Safety: Drain Entrapment -- Dennis M. Lynch, IL
• How I Learned to Relax and Love Mediation -- Douglas K.W. Landau, VA
• Zimmer Durom Cup -- Robert J. Binstock, TX
• Hawaiian Heli-Tour Industry: "Under the Radar" -- Kristine K. Meredith, CA

There are so many ideas for litigation that each speaker is limited to 10 minutes. Otherwise, they couldn't squeeze in all the presentations by 8:30 a.m.

* Fleet refers to oral sodium phosphate products for bowel cleansing, one of the many specialties of Mr. Martin's firm in Huntsville, Ala. The convention schedule also lists an entire litigation group devoted to oral sodium phosphate products.

January 25, 2010

Yale, PCRM, and grilled chicken

Yale law professor Robert Solomon, director of clinical studies at the institution, is plaintiff's counsel in a lawsuit filed late last year contending that it is a violation of Connecticut consumer protection law for McDonald's, Burger King and Friendly's not to disclose to customers that their grilled chicken contains naturally occurring carcinogens (as do a wide variety of grilled, charred and barbecued food). Richard Goldfarb at Food Liability Law has tracked down the documents in Delio v. McDonald's (PDF). One nonobvious point that might be added, however: the "Cancer Project" promoting the lawsuit appears to be yet another project of the dubiously named Physicians Committee for Responsible Medicine, an animal-rights organization which regularly pursues highly publicized crusades against milk, hot dogs, and many other nonvegetarian articles of diet. If memory serves, though, they usually aren't able to draw on such fancy legal representation. For much more on PCRM, see the coverage at Overlawyered here, here, here, and here.

January 20, 2010

The year ahead in food liability

"Nobody doubts that we're in the midst of the most significant legislative and regulatory changes in food safety in generations." Ken Odza at Food Liability Law has details.

January 12, 2010

Nevada Supreme Court rejects third-party pharmacy liability

"The Nevada Supreme Court ruled 5-2 [last month] that eight pharmacies in Las Vegas cannot be sued for negligence in the death of a man killed by a motorist under the influence of prescription drugs purchased at their businesses." [Behavioral Health Central, AP/SFGate, Las Vegas Business Press]

January 11, 2010

Trial lawyers association outlines its 2010 legislative agenda

The American Association of Justice sponsored a media briefing today to outline its 2010 legislative agenda. The headline on the news release, "2010 Dawning of New 'Decade of Corporate Accountability'."

Judging by President Anthony Tarricone's quote, the AAJ is still campaigning against the Bush Administration: "During the last decade, we saw a dismantling of regulations and our legal system for the benefit of big corporations and to the severe detriment of patients and consumers." More hyperbole follows. The goals highlighted:

• A restoration of notice pleadings, i.e., legislation to reverse the Iqbal and Twombly decisions.
  
• Passage of the Medical Device Safety Act to expand litigation against FDA-approved devices to state courts.
  
• Elimination of arbitration clauses in consumer contracts.
  
• "Protecting patients injured by medical negligence," or as we'd put it, no medical liability reform.
  
• Passage of the Foreign Manufacturers Legal Accountability Act (S. 1606) to provide more effective procedures for bringing overseas companies into U.S. courts.

The only coverage we've seen of the event comes from the Blog of the Legal Times, which focuses on the arbitration angle, "Next Target for Plaintiffs Bar: Nursing Homes?"

UPDATE (Tuesday): Also covering the event was The Hill, "Trial bar tries to end 'forced arbitration'." The Chamber-backed Legal Newsline wrote, "Trial bar seeks to expand liability, end arbitration clauses."