Shadow home secretary Dominic Grieve said if the Conservatives return to power they will amend the Health and Safety at Work Act of 1974, sections of which have applied to police work since 1997. The much-criticized results have included refusals to allow police officers to venture into potentially dangerous crime scenes and rescue situations. The party also pledges to curtail a trend toward the filing of official charges against citizens who intervene in efforts to stop crimes. (James Kirkup, “Tory conference: Dominic Grieve promises to scrap police health and safety laws”, Telegraph, Sept. 30). See also Jun. 30, 2003 (police not warned that climbing on roofs was dangerous).

Direct from prohibited to protected-class status, making no local stops: “The idea that the government should just stay out of the matter and leave both private employers and medical marijuana users alone is apparently beyond the comprehension of most California legislators, who think that everything permitted must be made mandatory,” notes Hans Bader. Apparently a narrow exception will be allowed “for ’safety-sensitive’ positions that employers can prove would ‘clearly’ be highly risky.” (CEI OpenMarket.org, Sept. 8).

By a 2-1 margin with Judge David Sentelle dissenting, a panel of the D.C. Circuit upheld the USDA’s rule prohibiting companies from testing beef they own for the dread disease. The rule had been challenged by Creekstone Farms, a Kansas-based meat exporter. (Legal Times “BLT”; opinion in PDF; earlier).

Does this mean we’re not even supposed to sue about them? (”10 Things to Scratch From Your Worry List”, New York Times, Jul. 29).

Industrial safety specialists have long warned of the hazards of letting employees wear baggy garments around assembly-line machinery, hence the snug uniform, including pants, prescribed for both sexes by Mission Foods at its tortilla-making plant in New Brighton, Minn. Fatuma Hassan, an employee of Somali descent, claims it’s religious discrimination not to let her wear traditional garb. Thanks in part to activist groups eager to provide backup, Minnesota has become a flashpoint for Muslim employees’ demands for religious accommodation on the job: the cab drivers who refused to transport arriving airline passengers carrying duty-free alcohol and the Target cashiers who declined to scan pork apparently never made it to court, but complainants in the state filed 45 other cases with the EEOC last year. A class action is in progress against circuit-board maker Celestica on behalf of 22 employees, many of whom “were fired or suspended for taking unauthorized breaks at sunset. The changing Islamic prayer schedule was a key reason.” (”Cultural traditions can lead to conflict on the job”, AP/Rochester (Minn.) Post-Bulletin, Jun. 17)(via Michelle Malkin).

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.

Michael Lewyn writes:

In recent decades, American state and local highway officials have built wide streets and roads designed primarily to accommodate high-speed automobile traffic. However, such high-speed streets are more dangerous for pedestrians and bicyclists than streets with slower traffic, and thus fail to adequately accommodate nondrivers. Government officials design streets for high-speed traffic partially because of their fear of tort liability. An influential street engineering manual, the American Association of State Highway and Transportation Officials’ Green Book, has generally favored the construction of such high-speed streets, and transportation planners fear that if they fail to follow the Green Book’s recommendations, they are more likely to be held negligent if a speeding driver is injured on a street designed for relatively slow traffic.

Changes in the Green Book may ameliorate such design considerations in the future.

There is no shortage of examples of medical malpractice litigation where plaintiffs blame doctors for failing to perform a CT scan. E.g., Oct. 2006 and Feb. 2004. This plainly raises costs far more than the direct costs of medical malpractice insurance that you see when the trial bar claims that malpractice reflects only 1-2% of health-care expenses. Tom Baker, among others, argues that defensive medicine has to be viewed as good with bad, because of improved health-care outcomes from the additional care. But not all defensive medicine is positive; it can be irrelevant, or, worse, adversely affects health results.

Malpractice litigation does change doctors’ incentives, but only with respect to short-term results. Because doctors won’t be sued for long-term consequences of defensive medicine, there is a substantial risk of overexposure to radiation in the course of defensive CT scans—a problem identified in a study in the latest issue of Annals of Emergency Medicine (Winslow, et al., Quantitative Assessment of Diagnostic Radiation Doses in Adult Blunt Trauma Patients; Reuters summary), finding that standard trauma treatment—1005 chest X-ray equivalents—results in an additional 322 cases of cancer per 100,000 treated because of use of CT scans. Earlier: Feb. 2004.

(Update: Walter writes in to note that “the problem of needless or avoidable CT and MRI scans has been getting a fair bit of discussion at the medical blogs lately, e.g. White Coat Rants, GruntDoc, and KevinMD.”)

• As governor, Huckabee signed a good tort reform package capping punitive and non-economic damages, and reforming joint and several liability and venue law, but the rest of his economic record is big-government. And David Harsanyi is critical of Huckabee’s claimed opposition to nanny-statism. [Insurance Journal; Human Events; Harsanyi; RCP; Michael Tanner @ FoxNews]
• Update to the popular Bridezilla flowers lawsuit; florist files opposition. Lots of comments ensue. [Lattman]
• South Dakota Supreme Court: no, you can’t sue a pharmacy for being a “drug dealer” when plaintiff steals prescription medicine for a disabled friend and injures himself OD’ing on it. [On Point]
• Former litigator hired to invest $100m in court cases for UK hedge fund. [Times Online]
• Atkins fallout in Texas and California, as professional anti-death-penalty experts there happily minimize subject IQs to call their intelligent clients retarded. Earlier: Feb. 2005; Sep. 2003. [Science Evidence blog; and again]
• Heartbalm tort of alienation of affection withstand constitutional challenge in Mississippi. Earlier: Jul. 5; Nov. 2006, etc. [Torts Prof]
• Bob Woodruff biography: I would have died if my injury happened in the United States because of fear of liability. [Murnane]
• I’ve updated my paper on Thomas Geoghegan’s new book. [SSRN]
• Overlawyered holds slim lead at ABA Blawg 100 popularity contest. But why aren’t any of you voting for Point of Law? [ABA Journal]

The state of Texas recently enacted legislation requiring that all non-working fire hydrants, defined as those pumping less than 250 gallons of water per minute, be painted black so that firefighters do not waste time during emergencies hooking up to futile sources (and presumably so that nearby homeowners can also assess their risk before a fire). Alas, the new law has had an unintended consequence, according to this Sept. 18 press release (PDF) from the State Firemen’s and Fire Marshals’ Association of Texas:

Unfortunately, some water utilities in Smith County have over-reacted to the legislation by painting all fire hydrants black, most of which are functioning hydrants that pump well over 250gpm. “The utilities are painting all hydrants black to protect against liability,” said, Cody Crawford, Fire Chief of Chapel Hill Fire Department. “While this makes sense to the lawyers, it doesn’t make good common sense and it puts homeowners at risk.”

Crawford goes on to give his opinion that the practice “creates more liability than it removes”; presumably the water utilities’ lawyers disagree with that assessment (h/t reader Eric Bainter).

• Class action lawyer on the divvying up of $6.9M of attorneys fees among 79 attorneys: “There were two firms that . . . we generously gave a substantial award that really didn’t do anything for the common benefit.” But the award is still under seal; the Fifth Circuit is now considering. WSJ: “Unsealing the records would be a good first step, but Mr. Barrett’s statements suggest that the juiciest story is not how the money was divided among the lawyers, but how 79 lawyers extracted nearly twice as much from the defendant for themselves than they won for their 81,000 clients. Just another day at the office for the tort bar.” We reported Apr. 9. [W$J]
• Street vendor sign of “180-degree coffee” reminds professor that McDonald’s coffee isn’t all that relatively hot. [Childs]
• Briefing from the Pearson pants case (Apr. 26, etc.). [On Point]
• FDA scandal! Or is it? Is it really the case, as some claim, that safety is never too expensive? [Point of Law]
• Trial lawyers and Jay Angoff, at it again, incredibly accusing a non-profit mutual med-mal insurer of gouging. [RiskProf]
• “Treating patients is a lot harder for this physician—and much less fun—in a climate of fingerpointing.” [Medical Economics via Kevin MD]
• Are abuse victims squandering their moral authority? [Commonweal]

The outrage is so common, we may have to create its own category. This one is in Newark, New Jersey: three car thieves running from police in a stolen SUV swerved into a group of pedestrians. Taxpayers are on the hook for a $3.6 million settlement, a substantial chunk of which will go to attorneys. [AP/Newsday] The Newark police department has “changed its chase policy” as a result; no mention in the press coverage that now criminals know that they are more likely to escape if they engage in a dangerous high-speed getaway, they’re more likely to engage in a high-speed getaway that will endanger the public. Earlier: Feb. 28; Feb. 27; Jan. 9; Nov. 27, 2005 and links therein.

Justinian Lane writes in the comments: “I oppose any tort reform measure that places corporate efficiency ahead of the public safety.”

I don’t believe him. I mean, perhaps Lane honestly believes that one can always put safety ahead of efficiency, but if so, it’s because he hasn’t thought about it very deeply.

Continue Reading »

Left over from last month: “An economics professor from California who was arrested because a flight attendant thought she looked like a terrorist has been awarded $27.5m. In a victory for critics of racial profiling, a jury in El Paso, Texas, ordered Southwest Airlines to pay damages to Samantha Carrington for false imprisonment and malicious prosecution after she was bundled off a flight and arrested because flight attendants found her appearance suspicious.” (Salamagundi, Apr. 14; Best of the Fray; Protein Wisdom; “Finding the wrong answer” (editorial), USA Today, Apr. 14). For more links on air profiling, see our aviation page archive.

Maryland PIRG complains about the toy industry:

Some toy manufacturers are over-labeling toys by placing choke hazard warnings on items that do not contain small parts. This could dilute the meaning of the warning labels, making them less useful to parents.

One looks forward to the day where a Ralph Nader-founded organization intervenes as amicus in a failure-to-warn lawsuit to make the argument that liability should not be found because holding a manufacturer liable will create incentives to over-label and dilute the meaning of warnings.

Drivers of the Ford Explorer have a lower fatality rate than drivers of other vehicles — and a lower fatality rate from rollovers than drivers of other SUVs. The NHTSA found that there was nothing wrong with the Explorer’s design after a spate of well-publicized accidents resulted in an investigation. Nevertheless, plaintiffs persist in filing lawsuits accusing the Explorer of being unreasonably dangerous. And one can see why: Ford has successfully defended the vehicle in at least ten consecutive jury cases, but on Wednesday a San Diego jury rewarded the latest roll of the dice with a $122.6 million verdict for a paraplegic plaintiff, Benetta Buell-Wilson. Ms. Buell-Wilson was driving at a high speed on Interstate 8, when the RV in front of her lost a large piece of metal; she lost control of the SUV when she swerved, and the vehicle went off the highway and flipped 4 times before landing on the roof. The jury returns today to deliberate the question of punitive damages. (Ray Huard, “$123 million awarded in SUV rollover”, San Diego Union-Tribune, Jun. 3; Myron Levin, “Jury Orders Ford to Pay $122.6 Million”, LA Times, Jun. 3) (via Bashman). “This was an extremely severe crash, and any SUV would have reacted in the same way under similar circumstances,” Ford spokeswoman Kathleen Vokes said. “Our concern goes out to Ms. Buell-Wilson and her family, but this tragic accident was caused by a combination of high speed and a large metal obstruction in the road.” (”Verdict ends Ford streak”, Detroit News, Jun. 3). Ford says it will appeal; the jury awarded four times more than what plaintiffs asked for.

Update: Jury awards $246 million in punitive damages. Ford protests that it wasn’t allowed to introduce evidence to the jury comparing the safety record of the Explorer to other SUVs. (Reuters, Jun. 3; Myron Levin, “Jury Adds Punitive Award in Ford Case”, LA Times, Jun. 4).

Update: Judge reduces damages to $150 million; Ford has appealed. (Michelle Morgante, AP, Aug. 19; Nora Lockwood Tooher, “Explorer Rollover Yields $368.6 Million Verdict”, Lawyers Weekly USA, Dec. 30).

As with all my posts, I speak for myself and not my firm or any of my firm’s clients (which include Ford).

Archived entries before July 2003 can be found here, where the following brief essay originally appeared:

The finest achievement of American trial lawyers, to hear many of them tell it, has been their success in identifying unsafe models of automobile and forcing them off the road. The Ford Pinto case is invariably put forth as an example of how a big company knowingly designed and sold an obviously defective vehicle for which it was properly chastised by means of large jury awards. (Ralph Nader has promised to put a Pinto exhibit in his proposed Museum of American Tort Law.) Almost as well known has been litigation over claims of “sudden acceleration” in Audi 5000s, in which the German-made sedans were said to dart inexplicably out of control even though their owners were pressing the brake pedal with all their might.

To be sure, the Audi case presents an inconvenient complication, namely that the cars weren’t inexplicably accelerating — a series of conclusive government investigations found that the drivers were in fact mistakenly pressing the accelerator thinking they were on the brake. Likewise with the controversy over “sidesaddle” gas tanks on some GM full-size pickup trucks, said to be inexcusably unsafe in side-impact collisions but revealed in real-world crash statistics to be considerably safer than the average vehicle on the road (which did not keep lawyers from winning at least one huge verdict against them).

Trial lawyers offer up the auto safety issue to public audiences and juries as a simple, satisfying morality play of wicked automakers versus helpless victims. It is seldom clear, however, what they would consider to be adequate safety performance. Every mass maker of vehicles for the U.S. market — even Volvo, even Lexus, even BMW — has faced lawsuits in American courts alleging that its designs are impermissibly unsafe. The explanation is not that all models are defectively designed, but that drivers of all models get into accidents — and when crash victims’ injuries are serious and the other driver underinsured, lawyers will often stretch quite a ways to find some theory or other that allows them to pull in the maker of the car as a defendant. Many such theories are available because auto design is a complex subject, because the circumstances in which accidents take place are often factually muddled and open to dispute, and because the design of all vehicles, even the full-size Mercedes, involves trade-offs between safety vs. expense, safety vs. convenience/enjoyment, and safety vs. safety (protecting passengers from front impacts versus protecting them from side impacts, for instance). But some trial lawyers seem to be willing to get up in front of a jury and downplay even well-known, longstanding safety trade-offs in vehicle design — such as the greater rollover hazard that drivers face in convertibles and in off-road vehicles with high ground clearance — in favor of the theory of a sinister conspiracy in executive suites to kill customers.

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The Audi case is written up at length in Chapter 4 of Peter Huber’s magisterial Galileo’s Revenge: Junk Science in the Courtroom (Basic Books, 1991), which is not online but is available through the Overlawyered.com bookstore. It is also discussed more briefly in his article “Junk Science in the Courtroom“. A short but vivid account appears in P. J. O’Rourke’s humorous account of the workings of government, Parliament of Whores (Atlantic Monthly Press, 1991, pp. 86-87). The notorious “60 Minutes” show attacking the Audi comes in for a drubbing in our editor’s 1993 National Review expose of dubious crash journalism, “It Didn’t Start With Dateline NBC“, adapted and reprinted in The Rule of Lawyers, and is the subject of a valuable retrospective in the August 1998 Brill’s Content by Greg Farrell (”Lynched: Lurching Into Reverse”), which in turn provoked a fairly hysterical response from CBS executives.

In 1993, “Dateline NBC” was caught in one of the great television scandals of all time: filming a supposed “crash test” of a GM full-size pickup being hit and bursting into flames without telling viewers that the truck had been rigged with hidden incendiary devices and tampered with in various other ways to make a fire more likely. But in fact TV newsmagazines had been running highly dubious “crash test” footage for many years; the main difference was that in this case NBC happened to get caught. In the Dateline case, as in many previous instances of fakery, the network was guided and advised by crash “experts” who happened simultaneously to be working for the plaintiff’s lawyers in suits over the defects being alleged in the TV coverage. Not by coincidence, NBC aired its bogus report not long before an Atlanta jury was to hear a major liability suit against GM, the target of the show; they proceeded to vote an award of $105 million.

Overlawyered.com’s editor weighed into the controversy with pieces on the truck’s safety record (”‘The Most Dangerous Vehicle on the Road’“, Wall Street Journal, February 9, 1993), on the media’s reliance on plaintiff’s experts (”Exposing the ‘Experts’ Behind the Sexy Exposes“, Washington Post, February 28, 1993), and on the earlier history of questionable crash-test journalism at American networks (”It Didn’t Start With Dateline NBC“, National Review, June 21, 1993).

On the Ford Pinto case, the best resource is unfortunately not online, but is well worth a trip to the local law library now online: the late Gary Schwartz’s 1991 Rutgers Law Review article “The Myth of the Ford Pinto Case” (43 Rutgers L. Rev. 1013-1068). Schwartz, a law professor at UCLA and prominent expert on product liability, showed that (as our editor summed up his findings in 1993): “everyone’s received ideas about the fabled ’smoking gun’ memo are false. The actual memo did not pertain to Pintos, or even Ford products, but to American cars in general; it dealt with rollovers, not rear-end collisions; it did not contemplate the matter of tort liability at all, let alone accept it as cheaper than a design change; it assigned a value to human life because federal regulators, for whose eyes it was meant, themselves employed that concept in their deliberations; and the value it used was one that they, the regulators, had set forth in documents. In retrospect, Schwartz writes, the Pinto’s safety record appears to have been very typical of its time and class.”

In July 1999, rekindling a public debate about the irrationality of jury decisions in product liability cases, two California juries returned enormous verdicts within three days of each other: a Los Angeles jury voted $5 billion against GM for the allegedly defective design of its 1979 Chevrolet Malibu, and a jury in rural Ceres, Cal. returned a $290 million verdict against Ford in a case against its Bronco truck. The cases are discussed on Overlawyered.com in the entries for July 10, August 27 and September 10 (GM) and August 24 (Ford). In the General Motors case, plaintiffs successfully prevented GM from telling the jury that the accident had been caused by a drunk driver who had been convicted of a felony and imprisoned over the accident; or that the Malibu’s real-life crash statistics showed it to be safer than the average car of its era; or that the alternative crash design proffered by plaintiffs raised safety concerns of its own and was not widely used by other makers. In the Ford case, a long series of emotionally manipulative trial tactics by the plaintiff’s lawyers paid off when one juror told her colleagues that the reason they had to vote for liability had come to her in a dream.

In April 2000, after a two-month trial, the tables were turned when a federal jury found that the magazine Consumer Reports, frequently aligned with the trial-lawyer side in legislative fights, had made numerous false statements in its October 1996 cover story alleging a dangerous propensity to roll over in the 1995-96 Isuzu Trooper sport utility vehicle, but declined to award the Japanese carmaker any cash damages. The jury found that CR’s “testing” had put the vehicle through unnatural steering maneuvers which, contrary to the magazine’s claims, were not the same as those to which competitors’ vehicles had been subjected. Jury foreman Don Sylvia said the trial had left many jurors feeling that the magazine had conducted itself arrogantly, and that eight of ten jurors wanted to award Isuzu as much as $25 million, but couldn’t see their way to overcoming the high threshold to proving “malice”. The jury found eight statements in the article false, but in only one of these did it determine CR to be knowingly or recklessly in error, which was when it said: “Isuzu … should never have allowed these vehicles on the road.” However, it ruled that statement not to have damaged the company, despite a sharp drop in Trooper sales from which the vehicle later recovered.