Trying to move the contents of his Duval Street store to another location, a jeweler in Key West, Fla. was killed when the enormously heavy object fell on him; his widow’s suit “claims that Mutual Safe Co. and Harwood’s Miami Safe Co. failed to warn her husband of the life-threatening risks involved in moving the 10,000-pound, refrigerator-sized safe, according to the lawsuit filed in Monroe County circuit court Tuesday.” [Adam Linhardt, Key West Citizen; & welcome Lowering the Bar readers]
In 1992, Diana Maychick drove her mother’s Oldsmobile back to Washington Place in Greenwich Village, and got out. Her mother, the 74-year-old Stella Maychick, slid over from the passenger seat to the driver’s seat, readying herself to return to Yonkers. Maycheck, a shorter-than-average woman, suddenly took off in the car, which sped up, ran two stop signs, and tore through Washington Square Park, killing five and maiming several others.
Diana Maychick is now Diana Foote, a restaurant reviewer for a Palm Beach newspaper, and recently recounted the accident, claiming the recent Toyota troubles exonerated her mother.
Which I found fascinating, because I worked on that litigation—and the evidence that Maychick hit the gas instead of the brake was so strong that the plaintiffs’ lawyers abandoned the standard specious “mysterious gremlins caused the car to accelerate” theory and replaced it with a “General Motors knew that drivers were hitting the wrong pedal but didn’t do enough to warn them” theory. I took issue with Foote’s column in a letter to the newspaper.
As for the lawsuit itself, the judge excused everyone in the voir dire who expressed the remotest skepticism about plaintiffs’ theory, and GM settled shortly after the start of trial. One certainly marvels at the chutzpah of the theory of the case, given trial lawyers’ role in trying to persuade the public that driver error couldn’t possibly be to blame.
Canadian health officials require poutine—a Canadian dish of french fries, cheese curds, and gravy—to be heated to 140 to 165 degrees for health reasons, a temperature somewhat that below of hot coffee. Alas, this is a temperature that can cause second-degree burns if a consumer happens to suffer an epileptic fit and fall face-first into their poutine, as happened to an Ontario teenager dining alone at a local KFC. No lawsuit appears to be planned, though her father seems to be demanding warnings of some sort. (Don Peat, “Teen burned in KFC poutine mishap”, canoe.ca, Jan. 19 (h/t Bumper)). Of course, given that warnings cannot deter epileptic seizures, it’s not clear why this would have made a difference. And as the Mocking Words blog points out:
What if instead she ended up falling down and hitting her head on the concrete floor? Are you going to go around warning people that concrete is a very solid material and that people should be aware that if you fall and hit your head on the floor that it’s going to hurt and is possibly going to injure you?
The New York Times publicizes a possible new front for product liability litigation [sidebar, yesterday's p. 1 story]
P.S. A long, must-read post from Russell Jackson, who was quoted in the article: “Various Defenses Should Make Cell Phone Suit Untenable“.
Those of you who have attended my “Law of McDonald’s” talks in California and Florida may recall the case of the strip search hoax. A Florida man who was unusually persuasive would call dozens of fast food restaurants until he could find someone who would believe he was with the police and who would disrobe employees (or themselves) at his instructions; though there have been other lawsuits seeking to blame the fast food restaurants for this, courts have generally thrown them out. One exception was the case of Ogborn v. McDonald’s, where two targets of the hoax successfully sued for millions. On Friday, the Kentucky Court of Appeals largely affirmed the lower court judgment, though it reduced the punitive damages received by Donna Summers (who gave an Alford guilty plea for her role in the strip search) from $1 million to $400,000. McDonald’s hasn’t yet decided whether to appeal to the Kentucky Supreme Court. (Andrew Wolfson, “Appeals court upholds $6.1 million strip-search verdict against McDonald’s”, Kentucky Courier-Journal, Nov. 20, via ABA Journal).
Denny’s as “Public Health Enemy No. 1″, over-salty food as “silent killer” — yes, they really do talk that way at the uber-nannyish (and litigious) Center for Science in the Public Interest [AOL Slashfood, Consumer Law and Policy, Greg Conko/CEI "Open Market"]
The 77-year-old defendant denied it, but a Riverside, California jury chose to believe her story, so she gets $6.75 million and the BMW too. [ABA Journal, Heller/OnPoint News]
More from Amy Alkon: “It’s herpes, not lung cancer.”
One can almost fill an entirely separate blog with variations on the McDonald’s hot coffee case. In Manhattan, 77-year-old Rachel Moltner ordered a hot tea from a Starbucks, but had trouble removing the tightly-secured lid, spilling the beverage all over her. (You will recall other lawsuits complaining that the Starbucks lids are not tight enough.) Moltner not only blames Starbucks for her resulting second- and third-degree burns (and recall that the raison d’être of the Stella Liebeck suit was the false claim that only McDonald’s served beverages that were hot enough to cause third-degree burns), but for the broken bones she suffered when she fell out of bed in Lenox Hill Hospital while being treated for burns. Moltner’s asking for $3 million.
Press coverage in the NY Post (h/t P.G.) is short on legal details (though one is encouraged to see Starbucks publicly defending themselves, an apparent change in policy). But I’ve downloaded and uploaded the complaint, which was filed in state court and removed to federal court. The kitchen-sink allegations include a defective cup, defectively hot tea, and a failure to warn. Right now the parties are haggling over federal removal jurisdiction, as Starbucks waited more than thirty days after receiving the complaint–until a formal demand for money was made–to seek removal. This is an interesting example of sandbagging; if defendants remove cases simply on the possibility that alleged damages will exceed the amount-in-controversy requirement, they may incorrectly remove cases that should remain in state court, but if they wait for the formal confirmation from the plaintiff, they may face the allegation that they’ve missed the 30-day window to remove a case–something to consider when plaintiffs’ attorneys complain that defendants reflexively remove cases to federal court that don’t belong there. Moltner has a good argument that Starbucks waited too long to remove, because alleged damages would have clearly exceeded $75,000 despite the lack of an ad damnum clause in the complaint citing a number, but the consequence of such a ruling will be that defendants will be forced to prematurely remove cases that perhaps should not be removed. (Moltner v. Starbucks Coffee Co., #: 1:08-cv-09257-LAP-AJP (S.D.N.Y.)).
This much seems to be agreed: Itzamargrid Ramos took her friend Clarissa Marino to scenic but hazardous Kaaterskill Falls in the Catskills as a surprise for her 20th birthday. The two were hiking when Marino slipped on a rock — her footwear at the time was “flat, rubber-soled slip-on shoes with no tread” — and fell into a stream from which it took ninety minutes to rescue her. She sued the state of New York for failure to warn, but just lost her case in the state Court of Claims, which hears cases against the state government.
The two friends are now described as estranged, which may put in perspective a noteworthy discrepancy between their respective testimony. Marino “said she was never blindfolded at any point during the day”, while Ramos “told the court Marino was blindfolded for the entire two-hour car ride and even as they traversed most of the trail until just before the top of the falls. … In the end, the court said it found Ramos’ version more credible and that the ‘profound danger posed by the Kaaterskill Falls was open and obvious to anyone employing the reasonable use of her senses.’” (Paul Nelson, “Court rules against fall victim”, Albany Times-Union, Sept. 7).
Gary Charbonneau had a gambling history, including substantial wins, which devolved into compulsive gambling in 2002. He blames this on his Parkinson’s disease medication, Mirapex, which he started taking in 1997. Mirapex changed its warning label to include reports of a correlation while Charbonneau was taking the drug; Charbonneau’s doctor kept prescribing the drug. Nevertheless, Charbonneau was able to persuade a jury that the failure to warn was what was responsible for his $200,000 gambling losses (much of which came from gambling illegally) and resulting marital troubles. The jury verdict even awarded $8 million in punitive damages, giving a whole new meaning to jackpot justice (though one would expect the trial court to reduce this substantially). The only press coverage of this lawsuit, aside from a handful of blogs (Pharmalot; TortsProf; InjuryBoard), is in an op-ed I wrote for today’s Examiner about the case and about how a Supreme Court case and Congressional legislation could affect it. (Theodore H. Frank, “Jackpot justice gets new meaning,” DC Examiner, Aug. 19).
(Post bumped with 12:20 AM update adding coverage of state Labor Department’s suggestion for new warnings.)
Roller-coaster enthusiast and torts professor Bill Childs is stealing our thunder in his coverage of the recent Georgia Batman roller coaster decapitation of Asia LeeShawn Ferguson IV, so there’s no point in rewriting his excellent post instead of quoting it:
[click to continue…]
The manual for the L120 John Deere mower reads:
DANGER: ROTATING BLADES CUT OFF ARMS AND LEGS
· Do not mow when children or others are around.
· Do not mow in reverse.
· Look down and behind before and while backing.
· Never carry children even with blades off.
[click to continue…]
I’m proud to be part of the amicus brief in Wyeth v. Levine filed by leading economists John E. Calfee, Ernst R. Berndt, Robert Hahn, Tomas Philipson, Paul H. Rubin, and W. Kip Viscusi. It provides an excellent explanation why FDA preemption is good for consumer safety and health policy, and why failure-to-warn litigation by trial lawyers hurts consumer safety. (You may notice that none of the public-policy arguments against preemption you see in the blogosphere fairly address these economic arguments.)
For everything you could possibly want to know about the Wyeth v. Levine case, do see Beck & Herrmann’s roundup of their excellent posts on the subject, and keep an eye out for their discussion of the top-side briefs undoubtedly coming soon.
One of the justifications for FDA preemption is the fear of overwarning; warning overload can be counterproductive, causing people to ignore important warnings. Thus, failure-to-warn litigation impedes safety. See “Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products,” 71 Fed. Reg. 3922 (Jan. 24, 2006); Larkin v. Pfizer, Inc., 153 S.W.3d 758, 764 (Ky. 2004).
Further evidence comes from a CNNMoney.com report (Aaron Smith, “Consumers tune out FDA warnings”, Feb. 25) suggesting that the FDA’s post-Vioxx caution has already caused the agency to be at the point of diminishing returns, as it is averaging 50% more safety alerts a year for 2005-2007 than it did in 2004, the year Vioxx was withdrawn from the market.
I discussed overwarning in other contexts on Overlawyered in Sep. 2006.
For all the complaints about tort reformers supposedly relying upon urban legends to promote their cause, one more frequently sees trial lawyers promoting fictional versions of their victories. As Hillary Clinton and Barack Obama kowtow to John Edwards for his endorsement, it’s worth exploring the case on his record he refers to most frequently. Remarkably, not a single mainstream media organization has questioned Edwards’s self-serving version of the Valerie Lakey case. I correct this problem in today’s American:
Sta-Rite had already been putting warnings on its pool drain covers, and the 1993 case did nothing to change their product design or the warnings conveyed to buyers. The drain cover in the Lakey case was sold in February 1987 with a warning label; soon thereafter Sta-Rite began embossing the warnings on the cover. This safety innovation was used against them at trial, the argument being that they should have acted earlier. But no one could reasonably think that an additional warning to screw in the drain cover would have made an iota of difference. The cover already had holes for screws, county regulations already required the pool drain cover to be screwed down, the pool managers testified that they had done so several times in the year before Lakey’s accident—and Edwards had already recovered millions from the municipality for its failure to keep the cover screwed down.
The Simplicity Manufacturing riding mower, manufactured in 1994, includes the following warning, almost so obvious and over-the-top as to be wacky:
(I) DO NOT MOW WHEN CHILDREN OR OTHERS ARE AROUND; (ii) NEVER CARRY CHILDREN; (iii) LOOK DOWN AND BEHIND BEFORE AND WHILE BACKING.
Moreover, the manual includes the following warnings:
(I) Tragic accidents can occur if the operator is not alert to the presence of children. Children are often attracted to the unit and the mowing activity. Never assume that children will remain where you last saw them.
(ii) Keep children out of the mowing area and under the watchful care of another responsible adult.
(iii) Be alert and turn unit off if children enter the area.
(iv) Before and when backing, look behind and down for small children.
Nevertheless, on May 7, 2003, in Honeybrook, Pennsylvania, Melvin Shoff backed up his riding mower and managed to run over the foot of four-year-old Ashley Berrier, resulting in its amputation. This is, Ashley’s parents complain in a lawsuit, the fault of Simplicity Manufacturing for not doing more to idiot-proof the mower. The federal district court threw out the suit based on a 2003 Pennsylvania Supreme Court precedent (involving a two-year-old and a lighter), but the Third Circuit, twelve months after the case was argued, has certified the question to the Supreme Court whether they’ve changed their mind in the last five years. The Court appears to have been swayed by the American Law Institute’s “Restatement” proposal to expand product-liability law in this area. (Berrier v. Simplicity Manufacturing (3d Cir. Jan. 17, 2008) via Steenson; Legal Intelligencer).
Gruesome life-changing injuries from tug-of-war matches (e.g., Colorado, Oct. 12; North Carolina, 2003; Taiwan, 1997; Tennessee, 1995) are rare, but not unheard of. Safety measures on tug-of-war ropes are possible. Do everyday ropes, used for a variety of purposes other than tug-of-war, need warning labels? Do previous injuries put the Colorado school district on notice: i.e., does a single publicized injury now make every school district effectively strictly liable if future injuries occur? What happens when tug-warriors disregard safety rules because the obvious risk of wrapping rope around a body part is not clearly spelled out? (Keep in mind in the Stella Liebeck McDonald’s coffee case, the plaintiffs complained that the coffee-cup warning that the beverage was hot wasn’t clear enough about the risk of injury.)