Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘product liability’

Ninth Circuit tosses Corrie-Caterpillar case

“Caterpillar Inc. cannot be held legally liable for the use of its bulldozers in Israeli military operations because the equipment is paid for with American government funds and represents an extension of American foreign policy, a federal appeals court ruled.” (Josh Gerstein, “Caterpillar Escapes Liability For Israeli Bulldozer Operations”, New York Sun, Sept. 18). The court invoked the political question doctrine: “Allowing this action to proceed would necessarily require the judicial branch of our government to question the political branches’ decision to grant extensive military aid to Israel. …In this regard, we are mindful of the potential for causing international embarrassment were a federal court to undermine foreign policy decisions in the sensitive context of the Israeli-Palestinian conflict.” (Dan McLaughlin, Sept. 18). Earlier coverage on this site is here.

“The Corrie family was represented by the Center for Constitutional Rights and Seattle University Law School’s Human Rights Clinic.” (John G. Browning, “Legally Speaking; Sue the bulldozer company, and get crushed by common sense”, Southeast Texas Record, Sept. 11). Joining the family’s cause on appeal was Duke lawprof Erwin Chemerinsky, who, unrelatedly, has now been restored to an offered position as dean of the new UC Irvine school of law, following a bizarre offer-withdrawal that drew protests from across the political spectrum. Ken McCracken at Say Anything comments (Sept. 17) about the Ninth Circuit decision and the Irvine reinstatement, “For Chemerinsky, justice was served correctly to him in both instances.” More: Michael Krauss @ PoL.

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Flood of Taser litigation

Taser International stock dropped from $33 to $6 in 2004-05 after the plaintiffs’ bar engaged in a huge publicity campaign challenging the safety of Taser devices. Taser claims this week that it has won its 45th straight products liability case. (“Taser wins 45th-straight court case”, Business Journal of Phoenix, May 21). Little celebration to shareholders, as the stock is still in the single digits, perhaps because of the overhang: those 45 victories can be completely undone if a 46th court awards bankrupting punitive damages.

As Walter noted in November, Taser Int’l. is hardly innocent of engaging in litigation itself, though its suits against medical examiners seek only a change in ruling, and not damages. (Karen Farkas, “Taser sues over ’cause-of-death’ rulings”, Cleveland Plain-Dealer, Nov. 21). Kohler’s motion to dismiss for lack of standing was denied in January, and the case is in discovery. Taser has also sued an expert witness who testified against it in a losing case. (Taser 10-Q, May 2007).

Earlier discussion of Taser litigation: Feb. 17, 2006.

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Welcome Dallas Morning News readers

The newspaper reprinted my warning labels column yesterday (Walter Olson, “Product labels have come unglued from reality”, Mar. 25). Reader Gary Neyens of Round Rock, Tex. wrote in to say he enjoyed the piece and added one of his own favorite stories:

I recently replaced the serpentine (fan) belt on my Ford pickup. The Ford Motorcraft packaging warned “Shut off engine before checking or replacing belt”. I know the reason for this warning – – Somebody, somewhere…

While on the subject of publicity, Legal NewsLine did a whole article (with file photo!) based on my recent column about not counting the trial lawyers out (Rob Luke, Anti-business suits still surging, warns tort-reform expert”, Mar. 21). Last month New York Post reporter Janon Fisher quoted me in an article on the “firefighter’s rule” which historically has barred injured public rescue personnel from suing the people they were rescuing, or others whose negligence allegedly led to disaster (“Firemen file arson lawsuits”, Feb. 2). And a couple of publicity clips from last year that I didn’t round up at the time: at the North County Times’ The Californian, Bridgit Jordan quotes me on Mayor Bloomberg’s anti-tobacco philanthropy (“Donation may go up in smoke”, Aug. 22); and Joseph Goldstein of the New York Sun quotes me in an illuminating article about the “creeping oversight” of New York City government operations obtained by the feds through consent decrees and the like (“Bush Administration, in Series of Federal Lawsuits Against New York Agencies, Gains Creeping Oversight of Local Government”, Aug. 15).

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“You got your lawsuit in my peanut butter.” “You got your peanut butter in my lawsuit.”

On February 14, 2007, the Food & Drug Administration issued a recall for certain brands of peanut butter manufactured by ConAgra. On March 1, 2007, the FDA announced it had identified the salmonella at the manufacturing plant. Enter the lawyers.

On Wednesday, a Louisville, Kentucky man who claimed he got sick after eating the peanut butter, filed suit against ConAgra. (The story featured a disclaimer I don’t believe I’ve seen elsewhere in news coverage of litigation: “Claims made in filing a lawsuit give only one side of the case.”) I certainly didn’t think that this was the first suit filed against ConAgra, but I naively thought it was one of the first. Ha! (In my defense, I wasn’t blogging at Overlawyered at the time, and I hadn’t eaten the peanut butter, so I didn’t have any particular personal or professional reason to notice the announcements of the lawsuits.)

The first suits — at least three of them — appear to have been filed on February 16, 2007, just two days after the FDA’s announcement. Each of those three involved individual plaintiffs; in case you were wondering, the first (of many) class action lawsuits seems to have waited until February 20, 2007. The huge four-day gap between the filing of the individual suits and the class-action suits is explained by the three-day Presidents Day holiday; Feb. 20 was actually the next business day.

Is there some sort of trial lawyer contest like the old Name That Tune game show? “I can file that suit in 72 hours.” “I can file that suit in 48 hours.” “Okay, file that suit!” There’s certainly no legal reason the suits need to be filed that fast; there was no approaching statute of limitations, for instance.

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Billion dollar cleanup

Overlawyered has been covering the Rhode Island lead paint trial for quite some time. A year ago last February, a jury found lead paint makers liable (and see links therein); on Monday, a Rhode Island judge issued a 197 page opinion (PDF) rejecting all the motions filed by the manufacturers, and upholding the jury verdict. Associated Press; Providence Journal. There will, of course, be an appeal.

It’s a case which fits well with the theme I mentioned yesterday, with all the elements of litigation as Robin Hood-style wealth redistribution:

  • Creative lawyering, to turn a non-case into a case: this is really a products liability case, but if it had been tried under that theory, the state would have lost. So the plaintiffs called lead paint a “public nuisance,” even though any harms here are identifiably private.
  • Irresponsible victims: The proximate cause of lead-paint-related injuries is the failure of homeowners and landlords to fix peeling paint. But we wouldn’t want to hold people responsible for maintaining their own homes.
  • Going after the deep pockets rather than wrongdoers: Homeowners can’t sue themselves, and landlords don’t have nearly as much money as Sherwin Williams and the other paint manufacturers? So of course the paint manufacturers are liable. Never mind that the paint was perfectly legal when it was sold, sometimes as long as 50 years ago or more. Never mind that the plaintiffs didn’t and couldn’t prove that any of the outstanding problem was caused by any of the defendants.
  • Unlimited liability, unrelated to any money made by the manufacturers for the products in question: the judge hasn’t even figured out how much this cleanup will cost, but he’s nonetheless sure that it’s reasonable to hold that the paint companies should have done this already. Estimates range from a billion dollars to several billion, to clean up any remaining lead paint.
  • Dubious benefit to actual victims: people who have children affected by lead paint aren’t the ones who receive money as a result of this case.
  • Shades of the tobacco cases: private trial lawyers inducing the state to sue, and then then pretending to be acting on behalf of the public.

Of course, we get the obligatory disingenuous comments from the plaintiffs:

Jack McConnell, a lawyer representing the state, called the judge’s decision a “huge, huge victory for lead-poisoned children, homeowners and taxpayers.”

Except, of course, for taxpayers and homeowners who are shareholders in paint companies. Or taxpayers and homeowners who are looking to buy products whose prices will have to rise to cover the costs of lawsuits that may spring up decades down the road because of some unforeseeable risks.

And how it’s a victory “for lead-poisoned children” is a mystery, given that the only outcome of this case is that the paint companies will have to pay for the costs of cleaning up homes. The children who have actually been poisoned do not see a cent from this judgment. Jack McConnell and Motley-Rice, the lawyers “representing the state,” will rake in a few hundred million dollars in contingency fees, though.

Walter Olson also comments at Point of Law.

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The parable of the exploding washing machine

The new Cal Biz Lit blog of San Francisco’s Adams Nye law firm’s managing partner Bruce Nye has an entertaining hypothetical scenario that nicely demonstrates the absurdity of the way California’s products liability law (Jan. 4, etc.) hangs together.

Addendum: a commenter asks whether, even though a jury is likely to rule against the plaintiffs in Nye’s example, the defendant wouldn’t feel intense pressure to settle. Answer: probably not more than a nuisance sum, if that. (Then again, an irrational plaintiff determined to bring this case to trial can impose large costs on the defendant, who, as Nye points out, would be unlikely to win the case before a jury trial because of the alleged factual disputes, increasing the settlement value.) A critical difference is that the damages do not include personal injury. As such, the home insurance probably pays and then decides whether to sue the manufacturer. (Insurers aren’t immune to bringing stupid products liability suits against manufacturers: we documented one such case Dec. 20, 2004 involving an unattended toaster.) If a small child had been horribly disfigured or killed by the accident, the scenario changes, and the outside risk of weirdly exorbitant damages unbalances the settlement calculus, as juries are more likely to demand unreasonable measures when hindsight and sophistic trial lawyers suggest the failure to post an armed guard 24/7 next to every washing machine warning people not to wash gasoline-soaked rags was actually evidence of the corporate indifference of the defendant for putting profits before people. (You might scoff, but a regular theme of the Bizarro-Overlawyered site is how corporations are terribly callous for ever deciding that any safety measure might be too expensive. See also Jan. 12 (Edwards on warnings).)

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Why wacky warnings matter

David Rossmiller blogs:

My experiences growing up in NoDak and later working as a crime reporter may not be typical, and perhaps the people I came to know were by some measures outside, shall we say, the social mainstream, but my first thought when I saw these purportedly wacky, useless warning labels was this: “I can see someone doing that!” Personally I’ve seen folks do much more ridiculous things many times.

The issue is whether people doing “ridiculous things” should have a cause of action for their own failure of common sense, or whether we require manufacturers to treat all of their adult customers like infants on pain of liability.

Such overwarnings have real social costs: as numerous studies have documented, if one’s personal watercraft manual says “Never use a lit match or open flame to check fuel level,” one’s going to be less likely to slog through the whole thing and find the warnings that aren’t so obvious. In many cases, the “failure-to-warn” is really just a Trojan horse to force the deep pocket to become a social insurer. In the Vioxx litigation, Mark Lanier has accused Merck of making too many warnings, and thus “hiding” its warning of VIGOR cardiovascular data. This effectively holds a manufacturer strictly liable for failing to anticipate with perfect foresight what risks will accompany which consumers, and tailoring its warnings on that micro-level—and if anyone regrets taking the risk later, they can always complain that the warning was legally insufficient for failing to be scary enough.

The wacky warning awards are often entertaining fluff, to be sure; the marginal harm from a “Do not iron” warning on a lottery ticket is infinitesimal, and is probably there as an anti-fraud device rather than as a product-safety mechanism. But ATLA, abetted by sympathetic law professors and credulous or disingenuous journalists, has engaged in a mass campaign to make equally silly warning cases—such as the McDonald’s coffee case, where Stella Liebeck complained that the warning on her cup of coffee wasn’t “big enough” to adequately warn her not to spill her coffee in her lap and sit in the puddle for ninety seconds—aspirational, rather than outliers. The wacky warnings are the canaries in that coal mine.

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Because we all love wacky pro se suits: Ward v. Arm & Hammer

Via the District of New Jersey, please find attached the order dismissing the case in Ward v. Arm & Hammer [sic], 341 F.Supp.2d 499 (2004): no, a baking soda manufacturer has no legal duty to warn users that using baking soda to cook crack cocaine is illegal. (See David Lat’s blog for the complaint.)

We can still find something to complain about, though: the district court has the power under 28 U.S.C. § 1915 to dismiss the case sua sponte as frivolous, which this case was in even the most narrow and technical senses of the word, or even just to dismiss the case for failure to state a claim without waiting for briefing. Church & Dwight Co., the makers of Arm & Hammer, was forced to retain Morgan, Lewis & Bockius to file multiple briefs in the federal court at not inconsiderable expense to rid itself of this nuisance suit.

More on product liability, including many successful cases not much less wacky than this one, on our product liability page.

Update: The post originally protested the granting of in forma pauperis status; David Giacalone correctly points out in the comments that IFP status is automatic without a showing of bad faith, and that my complaint was with the failure of the court to exercise its sua sponte powers to dismiss. I’ve corrected the post accordingly.

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Update: anti-milk suit dismissed

A federal judge in the District of Columbia has dismissed a lawsuit against dairy manufacturers filed by the animal-rights group that calls itself the Physicians Committee for Responsible Medicine (PCRM). The lawsuit claimed that it was legally wrongful for producers not to label dairy products to warn of the risk of lactose intolerance (“District Court Dismisses Anti-Dairy Lawsuit”, USAgNet/Wisconsin Ag Connection, Sept. 5). Ted covered the suit Jun. 21, 2005; see also May 28, 2004. Bill Childs comments on the dismissal (Aug. 23) and also has details of a ruling by the Michigan Supreme Court (over two dissents) that a hair oil manufacturer did not have to warn of the dangers of ingesting its product.

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