Recently in Products Liability Category

Gregory Conko, a senior fellow at the Competitive Enterprise Institute, a Washington D.C.-based think tank, asked an important question in a piece published on our sister blog Medical Progress Today. Who should be liable when a patient is injured by a generic drug?

In a case called Conte v. Wyeth, a California Intermediate Appellate Court in San Francisco held that, since plaintiffs can't sue a generic manufacturer for negligent failure to warn, then they should be able to sue the innovator manufacturer who had some control over the contested labeling -- even if the patient didn't take the innovator's product, and even if the innovator is no longer manufacturing the off-patent drug and therefore no longer keeping its labeling up to date.

Conko tackles the "reasonably foreseeable" theory that emerged from the Conte decision and discusses the potential implications that the broad adoption of such tort theory can have on innovation. While the analysis doesn't call for a particular legal solution, Conko provides insight into a potential Supreme Court issue.

Litigation-lobby front Center for Justice and Democracy is still falsely claiming that McDonald's "coffee was as hot as a car radiator." As we've previously noted, "A car radiator temperature, between chemical coolants and pressurization, is between 195 and 225 degrees Fahrenheit. Stella Liebeck's coffee was between 170 and 180 degrees, and would rapidly cool when exposed to room temperature."

Note also the humor in CJD's use of the passive voice: Liebeck was injured when "McDonald's coffee spilled in her lap." Well, who could complain about a lawsuit where coffee magically spilled itself? Oh, Stella Liebeck spilled the coffee on herself? Gee, that would seem a fact relevant to the assignation of proximate causation when evaluating whether it's appropriate to criticize a court that allowed this case to get to a jury, unlike over 90% of other courts that have dealt with cases similarly claiming that hot coffee was a "defective product."

Liebeck's injuries came from dumping an entire cup of coffee in her own lap while sitting in a car without a cup-holder, and then sitting in that hot coffee for well over a minute while wearing absorbent clothing. As Liebeck's own lawyer claimed, any coffee hotter than 140 degrees would be "unsafe" in those conditions. Unless you wish juries to have the power to punish vendors like McDonald's and Starbucks and Dunkin Donuts and everyone else that commercially sells coffee, that's no more McDonald's fault than it is Liebeck's auto manufacturer or sweatpants manufacturer.

That CJD and Susan Saladoff single out the poster child of abusive litigation as the point of attack on the tort reform movement—without ever fairly addressing the actual arguments tort reformers make—shows the bankruptcy of that attack.

Update, January 27: Welcome, readers of the dishonest "Pop Tort" blog. Note how they cherry-pick a couple of websites that say that radiator temperatures are 190 degrees. Of course, 190 degrees is hotter than Stella Liebeck's coffee (which, even if was "held" at 190 degrees, which there was no evidence of, would rapidly drop in temperature as soon as it stopped being held at that temperature); moreover, most websites give much higher temperatures for car radiators: "Most engines today are designed to operate within a "normal" temperature range of about 195 to 220 degrees F"; (same); many thermostats are set at 195 degrees for car radiators, etc. The only reason to use the "car radiator" analogy is to mislead. At best, a car radiator has such a wide range of temperatures that it is meaningless to use the analogy; if you're saying that Stella Liebeck's coffee is as "hot as a car radiator" because you're claiming that car radiators are 160 degrees, well, Starbucks and Dunkin Donuts and McDonald's and Burger King and Wendy's and Caribou Coffee and 7-Eleven and Cosi are selling coffee today that's hotter than 160 degrees—much less the 140 degrees that Stella Liebeck's lawyer claims makes coffee "unreasonably dangerous."

Note further how Pop Tort makes up a brand new theory of liability for McDonald's—that the cups were not capable of holding hot coffee—that not even Stella Liebeck's lawyer had the chutzpah to argue. Of course, there's no evidence for the proposition that McDonald's was selling coffee in cups that would collapse if "poked by a finger"; if they were, then the rate of injury from coffee spills would be far higher than 1-in-23-million cups (i.e., several times less likely than being struck by lightning).

Note further that CJD still has no answers for the actual arguments tort reformers make against the Liebeck verdict and the judge's erroneous legal decision to let the case get to a jury. Instead, all their website offers is ignorant snark. The question remains: if CJD is in the right, why can't they simply address the issues? Their reliance on dishonest arguments and misleading non sequiturs seems to be part of their business model.

For $1600-$3000 or so, it's possible to buy a top-of-the-line table saw with "SawStop" "flesh detection" technology—if you don't mind paying $175 every time a false positive mistaking a wet pocket in wood for flesh drives an aluminum block into the blade and cartridge. Or you can simply buy a relatively high-quality table saw for less than half that price and be more careful. Of course, if lawyers have their way, you won't have that choice: the First Circuit has upheld a $1.5 million verdict on behalf of a plaintiff who lost his finger in a cheaper saw, theorizing that the absence of the top-of-the-line technology was a product defect. The CPSC is proposing regulations that would take away the consumer choice to buy cheaper saws without flesh-detection technology, pushed in part by lobbying by the inventors of the SawStop. [Osorio v. One World Tech. via Torts Today via Torts Prof; CPSC press release; Fine WoodWorking; Overlawyered coverage of trial-court verdict]

As David Oliver points out, we correctly don't hold scientists liable for making mistakes in cutting-edge science; when an Italy even considers the issue, as they did in an unsuccessful criminal prosecution of scientists that failed to predict a deadly earthquake, we justifiably ridicule them. Science is a process of trial and error, and we want scientists to explore hypotheses that might be wrong without fear of legal consequence for failure. So why do we hold manufacturers liable for failing to anticipate the future judgments of lay juries evaluating the predictions of scientists presented at trial testimony, most of which are arguable at best?

Of course, this sort of double-standard is common. We don't hold lawyers liable for the larger effects on society when they use abusive litigation to make us less safe by driving safe and effective products from the marketplace. We let juries second-guess doctors when experts disagree over the correct course of medicine, but give that discretion to attorneys free from liability.

Monday's Wall Street Journal reports on statistics that felony defendants were convicted in 61% of bench trials, while juries convicted 67% of felony defendants. But fewer than 20% of defendants waive their rights to a jury trial. Are they making a mistake? Are New York judges soft-hearted?

Not necessarily. After all, the statistics reflect apples and oranges. Because the criminal defendant has a right to a jury trial, such a defendant is rarely, if ever, going to choose a bench trial with a judge considered pro-prosecution. It wouldn't surprise me if there were several such judges who never had a bench trial in the five-year period reported on. Imagine a world where the jurisdiction has eleven judges who are one to eleven percent more likely to rule in favor of the defendant than the average jury, but 49 judges who are one to twenty percent more likely to rule in favor of the prosecution than the average jury. Assuming criminal defense lawyers knowledgeable about judge's tendencies, we'd see the same sort of statistical results from this hypothetical law-and-order judiciary—about 6% higher acquittal rates for bench trials than for jury trials, but fewer than 20% of defendants picking bench trials—as we do in New York City.

What I found most fascinating in the article is the argument "legal experts" made for when a bench trial makes sense: the cases where "a jury could be swayed by emotion for the victim, overwhelmed by technical evidence, or confused by complicated legal instructions." Or, in other words, the same scenario as just about every civil product liability trial.

It's also surprising that prosecutors win fewer than two thirds of their trials. Again, there is an iceberg effect, as someone truly innocent is less likely to plea bargain and someone faced with overwhelming evidence is more likely to. But such a statistic does seem to suggest either overaggressive prosecutors or rampant jury nullification.

I'm interviewed by Bob Dorigo Jones about why wacky warning labels are symptomatic of a larger problem; the video is supposed to air on local PBS stations.

I now have an entry for this year's Wacky Warning contest, though I have to think that this is marketing, rather than legal behind the text.

Tort reform advocates are often accused of being in the pocket of the insurance industry, but insurers are sometimes among the worst offenders in the civil justice system. Allstate is suing Toyota for $3 billion of subrogation claims relating to the bogus sudden acceleration theory, and has hired Cozen O'Connor to push for ludicrous venue rulings to forum-shop the case in Los Angeles County. [NLJ]

Brian Ross of ABC News repeatedly used footage of Sean Kane criticizing Toyota over sudden acceleration without telling viewers that Kane was being paid by plaintiffs' attorneys pushing bogus product liability claims; he also faked footage of a tachometer speeding out of control to push the "deadly Toyota" meme. All of these scare tactics and hysteria turned out to be utterly false, and refuted by a NASA/NHTSA report finding nothing wrong with the electronics in the automobile. Ross and ABC News haven't retracted their scare-tactic stories or even apologized, much less slunk off in disgrace. Rather, ABC News submitted Ross's quack reports for an Edward R. Murrow Award—and got the award, doubling the scandal. Where's the expose of biased reporters doing the bidding of plaintiffs' lawyers? [Gawker via @walterolson]

Post edited to correct name of reporter.

The House Judiciary Subcommittee on the Constitution holds a hearing at 2 p.m. today, "Can We Sue Our Way to Prosperity?: Litigation's Effect on America's Global Competitiveness." Witnesses:

• 
  Paul Hinton, Vice President, NERA Economic Consulting. Hinton has done extensive work in economic analysis of products liability, with studies of asbestos, silicone breast implants, and homebuilder liability. (Curriculum vitae)
• Charles Silver, McDonald Chair in Civil Procedure, University of Texas School of Law. (Curriculum vitae). Silver is a critic of Texas' medical liability reforms for undermining patient safety and opposes congressional efforts to pass similar federal reforms.
• John Beisner, Skadden, Arps, L.L.P. is a corporate defense counsel, co-head of Skadden's Mass Torts and Insurance Litigation Group. He focuses on the defense of purported class actions, mass tort matters and other complex civil litigation in both federal and state courts.