Chronicling the high cost of our legal system
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Reversing a state appeals court, the Louisiana Supreme Court has reinstated summary judgment in favor of a defendant manufacturer in the case of a 13-year-old injured while playing unsupervised with an oil pump, “finding that riding an oil-well pump like it was an amusement park ride was not a reasonably anticipated use of the pumping unit at the time of its manufacture in the 1950′s.” [Wajert; earlier]
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By reversing a grant of summary judgment, a Louisiana court has reinstated a suit alleging that the manufacturer of a 50-year-old oil pump should have reasonably anticipated that a 13-year-old boy would climb onto its moving pendulum and attempt to ride it for fun, thus injuring himself. As evidence that such a use was reasonably foreseeable, plaintiffs offered three instances in which kids had been hurt attempting similar stunts in other states — all of which, as it happened, had occurred well after the making of the Louisiana pump, leaving it unclear in what way they could have served to put its manufacturer “on notice” of anything. [Sean Wajert]
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Critics say the U.S. government has turned down offers of state-of-the-art Gulf cleanup help from the Netherlands and other countries because it would require a waiver of the Jones Act, a union-backed law from 1920 that restricts coastwise marine trade to U.S. ships and crews. [Houston Chronicle, Mark Perry, Mike Riggs/Daily Caller] More: Keith Hennessey, via PoL, on the Bush Administration experience with Jones Act waivers after Katrina and Rita. Yet more: according to the Obama administration, waivers wouldn’t make a difference. More: Bainbridge.
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Don’t trust the reports of a supposed $75 million limit on damages, which are being spread by some who should know better — including New York Times columnist Paul Krugman.
More: Katrina Kuh at Prawfsblawg takes a look at proposed legislation on the topic. And welcome readers of Daniel Gross’s Slate column.
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“[Then Congress] went off and passed by 324 to 82 votes the so-called NOPEC bill. The NOPEC bill is, in effect, a suit against OPEC, which, if I recall correctly, stands for the Oil Price-Exploiting Club. “No War For Oil!,” as the bumper stickers say. But a massive suit for oil — now that’s the American way! …
“Congress hauls Big Oil execs in for the dinner-theatre version of a Soviet show trial and then passes irrelevant poseur legislation like the NOPEC bill. Plus ca change you can believe in, plus c’est la meme chose. The NOPEC bill is really the NO PECS bill — a waste of photocopier paper passed by what C. S. Lewis called ‘men without chests’.” (“Fill Her Up with Hot Air”, National Review Online, May 24)(via Lindgren @ Volokh).
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Don’t expect the much-hyped Kivalina suit to bring down Big Energy, the columnist says, but it might just keep the lawyers at Hagens Berman in BMWs:
The Inupiat Eskimos are perfect, jury-worthy plaintiffs. They have occupied their tiny barrier reef, just a few feet above sea level, “since time immemorial,” according to the lawsuit. They are poor. They live in harmony with nature, according to the documentary. (Pay no attention to those all-terrain vehicles zipping around town, and the kid flashing the gang sign.) …Some judges may be liberal, but they’re not idiots. They know that utilities sold electricity to Americans because their customers wanted to jack up the AC. In fact, there isn’t a utility in America that hasn’t spent the past 20 years begging its customers to use less oil and gas. There is an inconvenient truth if I ever saw one.
Not to be missed (“Eskimos, whales, and luaus…Oh my!”, Boston Globe, May 24).
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I’ve got a post at Point of Law detailing a judge’s ruling chastising, and imposing sanctions on, three lawyers (including one who’s fairly famous) who sued the oil company on behalf of supposed cancer victims in Ecuador; it turned out some of the victims 1) didn’t have cancer and 2) weren’t aware a suit was being filed in the U.S. in their name. (Oct. 25; and see Roger Parloff’s excellent post on the episode at Fortune “Legal Pad”).
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The AP reports that a “lawsuit seeks what attorneys say could be billions of dollars from a long list of oil companies for damages to wetlands that allegedly would have softened Hurricane Katrina’s blow.” Attorneys from the New Orleans firm of St. Martin & Williams are seeking class-action status on behalf of all persons and entities in Louisiana that suffered injury from Katrina’s wind and storm surge. They’re naming as defendants 11 oil and gas companies including Shell Oil, ExxonMobil, Chevron and BP Corp. whose activities they say depleted marshlands, including by building and neglecting pipeline canals. (AP/Shreveport Times, Sept. 17; “Class-action suit filed against oil companies”, BizNewOrleans.com, Sept. 15).
Meanwhile, environmental litigation over the years aimed at slowing levee and flood-control projects could come under Senate scrutiny, despite peals of protest from the Sierra Club, Sen. Chuck Schumer and others (Dan Eggen, “Senate Panel Investigating Challenges to Levees”, Washington Post, Sept. 17; Jerry Mitchell, “Senate panel investigates levee lawsuits”, Jackson Clarion-Ledger, Sept. 17). See Sept. 9, Sept. 14 (& Baseball Crank).
Adrian Moore explains why no new refineries have been built in the U.S. since 1976, and not for lack of demand (“Katrina Reveals Gas Price Folly”, Orange County Register, Sept. 1, reprinted at Reason Foundation site) (via Instapundit). See Jun. 10, 2004.
In 1955, there was a gasoline pipeline leak at the Sunburst Works Refinery that caused minor contamination of a 19-acre underground site. Texaco cleaned the spill at the time, and did further millions of dollars of cleanup starting in 1993. State regulators determined that there was no health effects, and that benzene levels in Sunburst, Montana were no different than in areas unaffected by the spill. The state Department of Environmental Quality ruled that nothing more needed to be done beyond additional monitoring, not least because the groundwater at issue isn’t used for anything–even livestock find it “naturally too briny” to drink.
Not good enough, say some residents and their lawyers, who blame the half-century-old spill for a variety of illnesses from arthritis to mononucleosis. They sued to require additional multi-million dollar cleanup. The plaintiffs originally sought damages for decreased property values, though townpeople who refused to join the lawsuit say that the main cause of the decreased property values is bad publicity from the 2001 lawsuit. (There are only 82 plaintiffs in a town of about 400.) Texaco acknowledges responsibility for the spill, but disputed the need to spend millions more on a clean-up methodology of little efficacy. The judge refused to allow Texaco to introduce evidence that they did exactly what the Montana regulators asked them to do, and a jury awarded a $41 million verdict, including $25 million in punitive damages. Texaco will appeal. The case is important because the verdict could encourage other “double-whammy” lawsuits on companies who have already been spending millions to comply with the extensive state and federal environmental regulations. (Kathleen A. Schultz, “Texaco to appeal Sunburst ruling”, Great Falls Tribune, Aug. 20; “Jury Rules Against ChevronTexaco In Cleanup Suit”, Wall Street Journal, Aug. 20 (sub – $); Reuters, Aug. 20; Kathleen A. Schultz, “Texaco must pay Sunburst $41M”, Aug. 19; Kathleen A. Schultz, “Texaco-Sunburst trial gets under way”, Jul. 26).
No new oil refineries have been built in the United States since 1976 — not even in California, where capacity shortages have especially pinched. The reason is not the lack of demand, but the legal/regulatory environment. (Mike Angell, “Rules, Small Returns Block New Refineries”, Investor’s Business Daily, Jun. 10; Dale Kasler, “No new California refineries despite soaring gas prices”, AP/Oakland Tribune, Jun. 10).
Erin Brockovich’s law firm has filed its third lawsuit against Beverly Hills, its school district and several oil and gas companies, claiming that emissions from an oil derrick on the Beverly Hills High School campus caused former students and others to develop high rates of cancer – or at least put them at greater risk of developing the disease. (“Brockovich Files Third Lawsuit in Cancer Case,” L.A. Times, Jan. 3; Associated Press, “Brockovich Firm Against Sues Beverly Hills,” lasvegassun.com, Jan. 3 ). City officials have disputed the claims.
The latest lawsuit filed in California state court lists nearly 300 plaintiffs, “a number” of which claim that they “do not have cancer but are at greater risk of developing the disease.” Earlier posts on the media-savvy paralegal’s environmental lawsuits can be found on Nov. 19, July 15, and elsewhere in this space.
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