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.

January 29, 2010

SEC to require climate-change disclosure; global warming as next-asbestos?

On a party-line 3-2 vote, the SEC says companies need to disclose global warming exposures, and its critics suspect that politico-environmental objectives may be more at play here than motives of investor protection [Megan McArdle, Jonathan Adler] Meanwhile, as John Schwartz reports at the New York Times, advocates of global warming litigation have taken heart from a couple of favorable rulings and hope to reverse the dismissal of the much-watched Kivalina suit. A Swiss Re report (PDF, via Pero) is also being read as backing for the view that the suits are not going away soon. Christopher Fountain has this observation:

It's notable that the Eskimos bringing this Alaskan suit live on a barrier island, by definition a temporary, always moving geological structure. If they can win damages for the result of living on earth, who can't?

P.S. And here's analysis from Bainbridge (companies already must report important exposures, SEC's "guidance may muddy the waters," and "Investors don't get much of value from [the newly required] disclosures") and Ribstein ("what really bothers me is that firms (meaning, of course, their managers and shareholders) have been forced, upon penalty of fines and damages, to participate in the contentious global warming debate").

January 19, 2010

Baltimore expected to return with revised subprime suit

The city's efforts to blame lenders for its urban decay aren't over yet. More: Consumer Law & Policy (earlier).

January 14, 2010

Prohibition and litigation, hand in hand

At the very end of the post Wednesday on the new government and activist alliance agitating for a ban on cell phones in cars, we added an afterthought:

The National Highway Traffic Safety Administration is also promoting the group, and in earlier posts we had noted the new NHTSA administrator, David Strickland, is a former lobbyist for Association of Trial Lawyers of America, now American Association for Justice. However, this cell phone prohibition campaign began before his Dec. 24 Senate confirmation, and we don't immediately infer an interest in this effort from the plaintiffs' bar.

We had paid insufficient attention to the issue. There's no need to infer. It's explicit.

Distracted driving has been a topic at the American Association for Justice's website, for example here and here. The New York Times in December reported on a woman suing cell companies following her mother's death after her vehicle was struck by an allegedly distracted driver, "A Victim's Daughter Takes the Cellphone Industry to Court."

Various lawyer/advertisers promote the issue, e.g., Jim Adler & Associates, a Texas law firm: "If you or a loved one is harmed by a distracted driver, alert a cell phone accident lawyer or attorney or a car accident lawyer or attorney with Jim S. Adler & Associates. The fight against distracted driving has only just begun."

And from the Matthew D. Kaplan law firm of Portland, "Oregon Distracted Driving Law Takes Effect": "The fact that Oregon now restricts distracted driving may also make the issue the subject of more civil actions around the state. If you have been injured by someone who was inappropriately using a cellphone behind the wheel, consulting with a Portland distracted driving lawyer should be among your top priorities. Even if the police have not issued a criminal citation to an Oregon distracted driver you, as the victim, may be entitled to a substantial settlement."

The combine of government regulators, impassioned activists, politicians and trial lawyers has reshaped America into land of regulation by litigation -- a process that's best served by creating emotion-laden crises that always demand more and more action. That process is well under way on the cell phone/distracted driver issue.

Indeed, for a good description of the prohibitionist fever on the issue, read The Day's account of the news conference Tuesday where Transportation Secretary Ray LaHood declared, "We're not going to sit around and we're not going to wait for Congress. We're moving ahead."

In all seriousness, we're very sorry for people who have been hurt, reckless drivers ought to be held accountable, and people should put down their cell phones and watch the road.

January 11, 2010

"The Lesson of Baltimore: Never Settle"

Kevin Funnell at Bank Lawyer's Blog on Judge Motz's welcome rebuke to a subprime-lending case. Earlier here, etc.

The year that was (and more lists)

Public Nuisance Wire summarizes the high points of 2009 in lead paint litigation and new-style public nuisance law generally. At Mass Tort Lit, Alexandra Lahav rounds up highlights of 2009 scholarship on mass torts and class actions and separately asks: "What were the most important developments in mass torts in the last decade?" Bruce Carton has a 2009 securities-law year in review at Compliance Week. Finally, at the Marquette Law Faculty Blog, Michael Ariens has a list of "Top Ten Changes in the Legal Profession Since 1979" [part one, two].

December 17, 2009

On public nuisance litigation

The Searle Center at Northwestern Law has put together a resource page on the topic.

November 27, 2009

Climategate: So Who Sues Whom?

An exchange between Hugh Hewitt -- an attorney and law professor -- and columnist Mark Steyn on Hugh's radio program, Thanksgiving eve:

HH: Is it fair to say, Mark Steyn, that everything that the tobacco companies were ever accused of doing with data about cigarettes is now true about the CRU and its global warming data?

MS: Yeah, that's absolutely, that is actually a good way to put it. I mean, I think this idea...they've corrupted the very essence of science. They've corrupted peer review, they've had editors from journals fired who disagree with them, they've corrupted the data. They basically are the antithesis of science. They decide the result, and then figure out how you need to set up the computer model to get the result. This is disgraceful.

CRU is the Climatic Research Unit of the University of East Anglia, whose researchers and correspondents have been shown by disclosed e-mails and computer programs to have manipulated and politicized research. If the tobacco company analogy is apt, then state attorneys general must already be planning their joint legal strategies.

No? Still, the revelations of debased science have far-reaching implications for all sorts of climate-related litigation. Consider the public nuisance suit by eight states against utilities that generate electricity from coal, Connecticut v. American Electric Power. In its opinion that the states could sue, the Second Circuit noted the litigation was based on "reports from the Intergovernmental Panel on Climate Change [IPCC] and the U.S. National Academy of Sciences to support the States' claims of a causal link between heightened greenhouse gas concentrations and global warming." (Page 7)

Yes, and IPCC as well as the Environmental Protection Agency relied on the now beleaguered Climatic Research Unit. In a widely cited and excellent report, "Congress May Probe Leaked Global Warming E-Mails," at a CBS News blog, Declan McCullough writes:

The leaked documents (see our previous coverage) come from the Climatic Research Unit of the University of East Anglia in eastern England. In global warming circles, the CRU wields outsize influence: it claims the world's largest temperature data set, and its work and mathematical models were incorporated into the United Nations Intergovernmental Panel on Climate Change's 2007 report. That report, in turn, is what the Environmental Protection Agency acknowledged it "relies on most heavily" when concluding that carbon dioxide emissions endanger public health and should be regulated.

The EPA connection takes us to Kim Strassel's "Potomac Watch" column today in The Wall Street Journal, "'Cap and Trade Is Dead'," those being the words of Sen. Jim Inhofe (R-OK), commenting on the debased science, its legislative implications and the possibility of an EPA "endangerment" finding.

Mr. Inhofe goes so far as to suggest that the agency might not now issue the finding. "The president knows how punitive this will be; he's never wanted to do it through [the EPA] because that's all on him." The EPA was already out on a legal limb with its finding, and Mr. Inhofe argues that if it does go ahead, the CRU disclosure guarantees court limbo. "The way the far left used to stop us is to file lawsuits and stall and stall. We'll do the same thing."

November 7, 2009

House passes chemical facility security bill, welcomes litigation

The U.S. House of Representatives on Friday voted 230-193 to pass H.R. 2868, the Chemical Facility Anti-Terrorism Act. (Roll call vote.) All but 21 Democrats voted in favor; Republicans all opposed.

With the announcement yesterday of October's 10.2 percent unemployment, opponents stressed the bill's harm to jobs and the economy. (See Shopfloor.org posts here and here.)

But there was also an important, if brief, debate about the bill's introduction of "citizen lawsuits" against the Department of Homeland Security's oversight of chemical plants. Rep. Michael McCaul (R-TX) submitted an amendment to strike the third-party lawsuits language. From McCaul's floor statement:

Allowing any third party--anybody-- to sue the Secretary is both reckless and unnecessary. This provision would be a boon to trial lawyers and to environmentalists at the expense of the Department of Homeland Security and national security interests. Citizen suits have no place in a national security context, and this would be the very first time that Congress would be authorizing such suits in the homeland security arena.

McCaul's amendment was defeated196-232 (roll call vote). More...

• Bloomberg, "House Passes Chemical Security Measure Over Industry Objections"
• NOLA.com (Times-Picayune), "Chemical security bill wins nod from House"
• Greenpeace.org, "Historic Chemical Security Compromise Approved by House"
• USPIRG, "U.S. House Passes Chemical Security Legislation"

November 2, 2009

Around the web, November 2

• More Comer v. Murphy Oil fallout: "Fifth Circuit Decision Threatens a Tsunami of Climate Change Tort Cases" [Legal Wilderness, Bracewell & Giuliani, earlier here and here] Russell Jackson interviewed on ramifications [PNW]
• Pharma marketing suits: "Yet Another Qui Tam Grand Slam" [WSJ Law Blog] "SDNY Dismisses Third Party Payor Class Action" [union fund vs. Pfizer; Russell Jackson, Beck & Herrmann]
• Delaware lawmakers lift the statute of limitations on church abuse suits and bankrupt the Diocese of Wilmington [Religion Clause, Lund/Prawfsblawg]
• Contention among law profs as to whether at-will should be deemed default rule in American employment law [Workplace Prof]
• "An Enron Task Force-induced nightmare ends" [Kirkendall on Scott Yeager case]
  
• "Opinion Specialization: Alive and Well in the Federal Appellate Judiciary" [Edward Cheng, Stanford LR/Legal Workshop]