CPSIA & dirtbikes: temporary stay, no permanent relief

It’s going to take an act of Congress to bring dirtbikes, kid-size ATVs and similar motorized vehicles back into the legal sunlight. In the mean time, though, the CPSC has consented to let them venture back out into a half-legal and temporary twilight. That’s the upshot of the commission’s new pair of decisions, in which it’s 1) granting a temporary stay of enforcement on the vehicles, just as in February it granted such a temporary stay with respect to some of CPSIA’s most impractical testing obligations for manufacturers, while 2) refusing to accord the recreational vehicles an actual exemption from the law. Because of the latter refusal, sale and service of the vehicles will continue to be in violation of the law’s terms, and dealers and families will have to hope that the 50 state attorneys general agree to follow the federal agency’s lead in forbearing from enforcing the law for the time being. [Motorcycle Industry Council; StopTheBanNow.com; documents at “What’s New” section of agency site]
Ride in the shadows
Why this unsatisfactory half-relief, in the face of a continuing uproar against the ban? Acting chair Nancy Nord has said she believes a permanent exemption to be inconsistent with CPSIA’s terms, which forbid such exemptions unless manufacturers can proffer a scientific demonstration that leaving a class of products on the market will not result in “any” lead absorption or other public health risk. Her co-commissioner Thomas Moore, while as usual distancing himself from Nord and from critics of the law, reached the same conclusion, agreeing that the ban was risking safety problems by causing kids to get on bikes too large for them. [Washington Post] According to Rick Woldenberg, the industry submitted evidence that the lead exposure a child would experience from riding an ATV for between two and seven weeks would approximate the amount of naturally occurring lead in one (1) Coffee Nip candy (a perfectly legal confection). But “so infinitesimal as not to worry about” is not the same thing as “not any”, and no such legal distinction was recognized by the drafters of CPSIA, for whom the maxim “the dose makes the poison” would appear as mysterious as if written in, well, some sixteenth-century German book.

More on the political maneuvering and protests over the industry’s pleas for relief: KneeSlider, CycleTrader, ShopFloor (and more there). On protests, see RacerX Online, CALA (on Malcolm Smith protest). Missouri legislator Tom Self made a 10-day tour to Illinois, Indiana and Kentucky on behalf of lifting the ban [Covenant Zone]. No word on whether an April 23 protest rally set for Denver will go forward as scheduled.
Crossed one motocrosser too many
Congress, of course, must act. Apropos of which, Covenant Zone has some further thoughts with which to close:

A sign of immaturity in children is when they fail to see the consequences of their actions; without a belief in the value of seeing the big picture, they would constantly snack on chocolate bars and coca-cola instead of fruits, vegetables and juice, they would stay up “past their bedtime” at the expense of a good night’s sleep and being refreshed for the next day, they would simply jump on a motorbike and ride instead of summoning the discipline to first learn about safety and maintenance, as well as the honesty required in understanding how to ride within one’s limits.

Sometimes I get the impression that the average kid who spends time in the great outdoors has more maturity, common sense and appreciation for the broad horizon of life’s Big Picture than does the average members of Congress, who don’t even read the bills they sign into law.

Carelessness for millions in New York City

Dustin Dibble was intoxicated when a Manhattan subway train ran over him in 2006, but a jury found the transit authority 65% responsible in February: $2.3 million for the lost right leg.

James Sanders stumbled onto the tracks and was hit by a train in 2002, but a New York City jury again found him only 30% responsible: $7 million for a lost right leg and eye.

Gloria Aguilar did not look both ways when she crossed the street; there was a dispute whether she was in the crosswalk. A Manhattan jury–after a seven-week trial–found the transit authority 100% responsible, and awarded $27.5 million for her lost left leg; a judge refused to reduce that figure.

Clearly a left leg is more valuable than a right leg. Or, as I’ve noted several times in the past, noneconomic damages are essentially random jackpots.

New York City is appealing all three verdicts. (Liz Robbins, “Woman Run Over by Bus Is Awarded $27.5 Million”, New York Times, Apr. 16).

10 year old on ATV swerves into truck’s path

Police did not file charges last year against 61-year-old Richard L. Robertson of Sedalia, Missouri, after his pickup truck struck and killed a 10 year old girl riding an all-terrain vehicle. “Law enforcement officials said they determined [Jordan Keith] swerved out in front of Richardson and he couldn’t stop in time.” Parents Michael and Lesli Keith have sued Richardson anyway, accusing him “of being negligent and failing to drive more carefully or sound a warning”. [AP/Columbia Missourian]

“A Tidal Wave of Regulations to Hit IT Shores”

If enterprise IT departments and data managers thought the compliance burdens of Sarbanes-Oxley were tough, they’d better brace themselves for an even bigger wave of regulation to come, brought on as part of Washington’s reaction to the financial crisis. [Paul Rubens, ServerWatch] More: Jeff Nolan, Venture Chronicles, to whom thanks also for the kind words.

Prescription drug abusers, be not ashamed

Under the holding of a recent court opinion, if you were never prescribed a drug but unlawfully grab and pop pills that had been prescribed to someone else, you (or your estate) can sue the manufacturer anyway for side effects you are said to have suffered. The court did disallow claims for failure to warn, but left standing claims that the drug (fen-phen) posed too high a risk to users overall [Beck & Herrmann, Crowe v. Wyeth, E.D. Pa. applying Missouri law]

“One of the biggest [disasters] left over from 2008”

Excellent editorial on the Consumer Product Safety Improvement Act last week in the Las Vegas Review-Journal.

Incidentally, someone was soliciting a quick reading list on behalf of a person who wanted to catch up on CPSIA’s post-Feb. 10 effects by way of reporting (not opinion pieces or editorials) from major media organizations only. I came up with the following list which is anything but exhaustive but at least gives a start: The top

“There wasn’t the slightest bit of pay-to-play here”

That’s Pennsylvania Gov. Ed Rendell on his no-bid hiring of a Texas plaintiff’s firm (and generous political donor) to sue Johnson & Johnson on contingency fee [Wall Street Journal editorial; Point of Law background here, here, here, here (Arkansas, and Bailey Perrin Bailey’s generous donations to the Democratic Attorney Generals Association (DAGA)), here, and here; ShopFloor].

P.S. And more reporting on the case from John O’Brien at U.S. Chamber-backed Legal NewsLine.