News clips reporting on large verdicts and settlements cross my desk regularly, and most do not seem on their surface to be worth blogging about. Most are terse summaries of a case’s outcome, and others do not present any indication (again, on the surface at least) that a case might have problematic aspects. The other day, however, I ran across a story in the Charleston (W.V.) Gazette describing a case in which a plaintiff had been terribly injured after a retailer sold what the reporter bluntly stated was a “defective mower.” This particular newspaper story was so one-sided that I thought there almost had to be more to it than was being reported — and I had no idea how right I was in that suspicion. This is a long post, but I hope worth readers’ while. It certainly makes me wonder how much I’m missing when I don’t go into the dockets to fact-check other seemingly run-of-the-mill cases.
Posts Tagged ‘product liability’
Family buys cheap smoke detector; sues because it doesn’t work as well as expensive one
Most smoke detectors are ionization detectors; they effectively detect fast-moving high-temperature fires. But if a fire is a smoldering fire from, say, dropping a cigarette on a couch, cheaper smoke detectors do not do as good a job detecting it; for this, one needs a more expensive dual-detection device that also detects photoelectronic signals from such fires. The Hackert family of Schenectady owned two of the cheaper smoke detectors (and disabled one of them), were not woken by a smoldering fire on May 31, 2001, and two members of the family died. Their lawyers, of course, blamed the smoke detector manufacturers, though the smoke detector design was approved by Underwriters Laboratory and did not suffer from a manufacturing defect. A jury agreed, holding the manufacturers 65% responsible (the Hackerts were held 35% responsible for disabling one of their two smoke detectors) for not making a better detector.
A judge reduced the jury’s $6 million pain-and-suffering damages by half, finding that six minutes of pain and suffering wasn’t worth that much, but only highlighting the inherent arbitrariness of non-economic damages. (John Caher, “Judge Finds Three Minutes of Suffering in Fatal Fire Does Not Equal $3M in Damages”, New York Law Journal, Aug. 18).
“Lawn mower maker’s attorney attacks $2 million verdict”
NJ court: No warning that one might fall out of loft bed required
Donald Mathews, a Stockton State College senior living on campus, woke up in the middle of an October 11, 1999, nap and fell out of bed, injuring himself. For this, he blamed the manufacturer of his loft bed for failing to warn that people might hurt themselves by falling out of bed. A jury agreed, and awarded $179,001.
(Because Mathews claimed that he fell out of bed because he was startled, it’s not clear how a warning would have helped, unless he was seeking an audible recording regularly repeating, much like airport moving walkways, “Caution! The bed is above the ground!” Of course, this might interfere with sleep, but wakefulness is watchfulness.)
A unanimous appellate state court reversed on the obvious grounds that the danger was open and obvious and didn’t require a warning (the same grounds on which the McDonald’s coffee case should have been thrown out), but plaintiffs’ lawyer Gary Piserchia threatens an appeal to the New Jersey Supreme Court. (Robert Schwaneberg, “Suit over loft bed falls short”, Newark Star-Ledger, Aug. 16, via Lattman).
“Jurors award $2 million in child’s mower death”
Lawyers successfully urge a Virginia jury to send a message:
Justin Simmons was killed in April 2004 in Daleville, north of Roanoke, when a mower operated at his daycare center rolled backward while going up a slope and over the child….
The jury held MTD responsible for not designing a mower that automatically stops its blades whenever it rolls backward. No such mower exists or has ever been tested, [company attorney John] Fitzpatrick said.
The company also argued that the operator of the mower, whose wife was the daycare provider, had ignored safety warnings. (“Jurors award $2 million in child’s mower death– company to appeal”, AP/Richmond Times-Dispatch, Jun. 15).
More: Considerable further detail is to be found in Mike Allen’s coverage for the Roanoke Times: “Lawyers for lawn mower maker, operator lay blame in boy’s death”, Jun. 8, and “Lawn mower company liable in boy’s death”, Jun. 15.
More: Aug. 18.
First lawyer indicted in Miss. fen-phen probe
“A Jackson attorney has been indicted on charges accusing him of helping individuals submit false settlement claims for the diet drug Fen-Phen, according to the U.S. Attorney’s office. Robert Arledge, who was employed by Richard Schwartz and Associates during the time the indictment covers, is the first attorney charged in the ongoing federal investigation.” The false submissions generated more than $8 million in settlements in attorneys’ fees, prosecutors say. (Jimmie E. Gates, “Jackson lawyer indictment in Fen-Phen probe”, Jackson Clarion-Ledger, May 26; “Vicksburg attorney indicted in scam”, May 27). For more on the Mississippi fen-phen scandal, see Feb. 8 and many earlier links.
Safety mask litigation
Today’s W$J has an editorial about the ill consequences of the trend in recent years for lawyers prosecuting asbestos and silicosis cases to add makers of commonly used industrial masks and respirators as defendants in their suits:
The Coalition for Breathing Safety, an industry group, reports that between 2000 and 2004 plaintiffs attorneys filed more than 326,000 claims against its five members. Some of these are asbestos-related, although the recent deluge has been all silicosis. One manufacturer (which prefers not to be named lest it become a bigger target) says that prior to 2002 it faced about 200 silicosis claims a year. In 2003-4, it got hit with 29,000….The industry coalition estimates its members have spent the equivalent of 90% of their 2004 net income fighting suits in recent years.
The suits have fared poorly — none of the respirator makers have lost a case in court — but the making of industrial respirators and masks is a low-margin line of business, and companies that invest heavily in the business may simply be buying themselves legal risk. And now comes the scare over avian flu:
Respirator manufacturers are still going strong overseas, but the U.S. could find itself unable to purchase these products in a crisis. Worried about a possible flu pandemic, many governments are snapping up masks; France is acquiring 685 million. In previous disease scares (say, China and SARS), countries have blocked mask exports. Local U.S. governments and hospitals are already having a hard time finding supplies.
It might be added that the plight of respirator makers is attributable in large part to the economics of what has been called the shotgun approach to defendant-naming. It is very unlikely that lawyers would have filed 300,000 claims against mask makers, or anything approaching that number, if each suit had to be filed as a freestanding matter. However, it costs very little to add 3M or another respirator defendant when a case is already been judged to be worth filing against other, more vulnerable defendants. For more on the mask litigation, see Sept. 15, 2004 and Jan. 22, 2005. More: Point of Law, May 9.
Damned if you do, damned if you don’t files: sunscreen edition
If there is anything behind that sunscreen class action seeking damages because sunscreen manufacturers comply with warning label regulations, it’s because the FDA refuses to approve Mexoryl, a sunscreen ingredient widely used in Canada and Europe that protects against UV-A rays. (Mike Thomas, “Not legal — but best thing under the sun”, Orlando Sentinel, Apr. 23).
Vioxx coverage (and more) at Point of Law
For comprehensive coverage of this week’s verdicts in lawsuits against Merck, see Point of Law. In particular, Ted corrects reporters who keep passing on ill-informed assertions that the Cona/McDarby results are going to preclude Merck from raising its earlier defenses in the thousands of Vioxx cases yet to come, and that that New Jersey cases are being heard in “Merck’s home court“.
Other things you’ve been missing if you don’t check our sister site regularly:
* New regular contributors include Larry Ribstein (Ideoblog), Tom Kirkendall (Houston’s Clear Thinkers), and Sam Munson (Manhattan Institute);
* Theodore Dalrymple on a new history of vaccine litigation;
* Jim Copland on Rep. Cynthia McKinney and a class action on behalf of Capitol police;
* Ted on the Supreme Court’s recent Dabit decision on state-court securities suits (here and here); and on a new med-mal study;
* Michael Krauss on a tort suit in the U.S. against ExxonMobil over abuses by the Indonesian military;
* Jonathan B. Wilson on offer-of-judgment reform in Georgia (and more); and joint-and-several-liability reform in Pennsylvania, just vetoed by that state’s Gov. Ed Rendell;
* Posts by me nominating an Arizona lawprof for “the worst and most tendentious analogy in the history of the liability debate”; on doctors’ Good Samaritan liability; a ruling in the New York school finance case, an AG who dissents from his brethren on the tobacco deal; the Rhode Island lead paint verdict (here, here, etc.); Seventh Circuit judge Diane Sykes criticizes the Wisconsin Supreme Court; and lost-overtime suits on behalf of $400,000-a-year stockbrokers. And, of course, much much more — bookmark the site today.
AEI Liability Outlook: “Making the FAIR Act Fair”
The first edition of the AEI Liability Outlook is out today, and features my analysis of pending asbestos legislation:
The AEI Liability Project hereby inaugurates its Liability Outlook series, designed to guarantee a paper trail to exclude any of its authors from Article III appointments. This Outlook examines the congressional attempts at asbestos liability reform. The eventual cost of asbestos litigation is estimated in the hundreds of billions of dollars, the majority of which will end up in the hands of attorneys, thus affecting thousands of corporate defendants with little or no culpability and costing tens of thousands of jobs. The trust-fund approach is a congressional attempt to reach a compromise on the liability problem, so long as nationwide reform is not politically feasible. While a trust fund has the potential to save tens of billions of dollars, the current legislation suffers from dangerous flaws that could make the cost of the asbestos litigation crisis far worse.
Other Point of Law coverage of S. 852. (Cross-posted at Point of Law.)