Sunday, March 31, 2013

OTHERWISE: New S.E.C. Chair White should retreat, answer Judge Rakoff's questions - NJ Law Journal Editorial Board

OTHERWISE: New S.E.C. Chair White should retreat, answer Judge Rakoff's questions - NJ Law Journal Editorial Board:

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Federal Tort Claims Act covers jailer's sexual assault.

Kim Millbrook, a federal prisoner, was sexually assaulted by a guard.  Like Clarence Gideon 50 years ago, he filed a pro se complaint and cert petition.  Like Gideon he won in the United States Supreme Court.   In Millbrook v. United States of America (about which we commented at the time of oral argument in this post) the Supreme Court construed 28 USC 2680 (h) which contains a proviso (or exception to the exception from sovereign immunity).  The proviso is that though the United States is not liable for the intentional torts of assault, battery, false arrest, malicious prosecution, libel, slander, interference with contract,  the United States shall be liable for such intentional torts if an “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” consists of  “acts or omissions of investigative or law enforcement officers of the United States Government”.  Justice Thomas, writing for the court, explained that the U.S.A. is liable if the assaulting officer was acting within the scope of his/her employment - even if the investigative or law enforcement officer was not making an arrest or seizing evidence, at the time.

The case also provides an opportunity to consider how FTCA and diversity jurisdiction differ in their reliance on state law.

28 USC 2674  partially waives sovereign immunity:
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.
In diversity of jurisdiction cases (28 USC 1332) the court is guided by 28 USC 1652 which provides:
The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

The difference is significant.  In a diversity case the U.S. court is merely a neutral forum.  It bound (statutorily) to follow the law of the state whose applies (based on the applicable choice of law).  The U.S. Court does not establish any precedent that binds a state or its courts when the federal court is sitting via diversity jurisdiction.

But in a Federal Tort Claims Act cases 28 USC 2680 it is the liability of the United States that is at stake and the substantive law is a matter of federal law - that is it is a  federal question.  Since the U.S. does not have a common law the Congress `borrows’ or adopts the law of the place of the accident.  Once a federal court has determined liability under its understanding of the law of the state even a subsequent change in the law of the state does not change the result reached by the federal court.

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Tuesday, March 26, 2013

OTHERWISE: Anthony Lewis, Who Transformed Coverage of the Supreme Court, Dies at 85 -

OTHERWISE: Anthony Lewis, Who Transformed Coverage of the Supreme Court, Dies at 85 -
ifty years ago the United States Supreme Court announced in Gideon v. Wainwright that the Sixth Amendment right to the assistance of counsel is so essential to a fair trial that government must provide a lawyer to a defendant who cannot afford one.

No one did more to celebrate the importance of the decision than did Times Supreme Court reporter and columnist Anthony Lewis, who died yesterday.

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Thursday, March 21, 2013

Replevin for a lost dog

Judge Judy does justice!

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Tuesday, March 19, 2013

Guest Post: Parents Hold the Key to Concussion Awareness | NFL Concussion Litigation

Guest Post: Parents Hold the Key to Concussion Awareness | NFL Concussion Litigation:

By Brittany Beaumont
It takes less than ten minutes to reach pages eleven and twelve of Concussions and our Kids where just four convincing paragraphs serve as a wakeup call for any parent who has a child participating in youth sports. Written by Robert Cantu, M.D. and Mark Hyman (2012), this book presents solid documentation that concussions (especially multiple concussions or head injuries/trauma) should be taken seriously by parents and coaches alike. However, it appears the words from these esteemed authors are still falling on deaf ears. Not enough has been written to convince those, especially parents of aspiring young football players that it is time for the nation to wake up and demand that those in charge of full contact youth sports be held accountable for their lack of action (or reaction as the case may be) whenever a child is involved in a head injury.

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Torts Blog: Idaho Supreme Court refuses to adopt "baseball rule"

Torts Blog: Idaho Supreme Court refuses to adopt "baseball rule":
by Prof. Alberto Bernabe
"The Idaho Supreme Court recently declined to adopt the so-called "baseball rule” which is commonly used to release baseball park operators from liability based on the notion that spectators assume the risk of being hit by foul balls. The court reached the correct result, but it could have done more to clarify what has become a confusing area of the law.
It is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them. 
Neither of the two parts of this statement is entirely correct. The problem is that the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense. The so–called “primary assumption of the risk” is simply another way of asking whether the defendant owes a duty to the plaintiff.  "

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Losses at sea: oil spills, marine pollution and maritime law in China | chinadialogue

Beijing-based Xia Jun, a member of the Zhongshi law firm, discusses the past decade's oil spill cases in China. - gwc
Losses at sea: oil spills, marine pollution and maritime law in China | chinadialogue:
by Xia Jun
"The rule of environmental law in China is making progress – and the situation is already better this year than it was last year. Even so, both government and civil resources for seeking damages are inadequate, law enforcement is weak and success is only seen in straightforward cases. These issues still need to be resolved.

China should be able to deal with the impact of oil slicks more effectively than it did during the 2006 Bohai spill, or the 2010 Dalian leak. Administrative and judicial procedures should be combined. But the government still habitually uses administrative measures to deal with pollution incidents, sacrificing the interests of the weak and the environment. There is still work to be done, by both the authorities and the Chinese people. "

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Fish farms protest oilfield restart - BUSINESS -

by Song Shengxia
"More than 200 farmers in North China's Hebei Province have petitioned the country's top economic planner to suspend offshore oil operations by US firm ConocoPhillips in Bohai Bay, farmers and lawyers confirmed Tuesday.

A total of 208 fish farmers in the Caofeidian district of Tangshan in Hebei, who claim to be victims of oil spills from the Conoco-operated field in Bohai Bay, are asking the National Development and Reform Commission (NDRC) to take back oil drilling rights from ConocoPhillips, according to a letter obtained by the Global Times Tuesday from lawyers acting on behalf of the farmers.
The Caofeidian farmers also asked the NDRC to order ConocoPhillips to compensate for losses caused by pollution from the oil spills.

They claimed they lost about 500 million yuan ($80.45 million) from damage to their fisheries, but unlike farmers in nearby Laoting county, they received no compensation, according to the letter.

The letter comes on the heels of ConocoPhillips resuming operation in the Penglai oilfield in February after the State Oceanic Administration (SOA) approved the field's revised development and production plan and environmental impact assessment following the oil spills. "

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Monday, March 18, 2013

Democrats don't plan hearings on Christie's N.J. Supreme Court nominees for at least 8 months |

You can't put Humpty Dumpty together again.  For 50 years New Jersey's Supreme Court worked within a range from moderate Republican to liberal Democrat.  When Chris Christie came in he said he was going to break some china - reverse the court's excessive (in his view) liberalism.  Chief suburban gripes were the  Abbott v. Burke 40 year old litigation for equitable funding of urban schools, and the Mt. Laurel open housing - land use controls.
Christie promptly  denied a tenure nomination to John Wallace - a 68 year old veteran jurist and moderate Black Democrat on the state's high court, citing his record as too liberal.  That introduction of a previously unseen ardent partisanship is the genie that he cannot put back in the bottle.  Having embraced partisanship, the Governor enters his re-election campaign with two vacancies on the Supreme Court.  The Democrat-controlled legislature wants a Democrat to be one of them.   The standoff appears headed to resolution after the November general elections. - gwc
Democrats don't plan hearings on Christie's N.J. Supreme Court nominees for at least 8 months |
TRENTON — Senate Democrats don’t plan hearings on Gov. Chris Christie’s two nominees for the state Supreme Court until at least November, two senior Democrats with knowledge of the party’s thinking confirmed to the Star-Ledger.
After Democrats rejected his previous two nominees, Christie in December nominated Superior Court Judge David Bauman, a Republican, and Board of Public Utilities President Robert Hanna, an independent.
But Senate President Stephen Sweeney (D-Gloucester), who decides whether or not to post nominations, has not said much about the nominees.

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Torts Blog: Court of Appeals for the 6th Circuit holds claim against generic drug manufacturer is not preempted

Torts Blog: Court of Appeals for the 6th Circuit holds claim against generic drug manufacturer is not preempted:
Fulgenzi v. Plever asks if a claim against a generic drug manufacturer for failure to update warnings claims is preempted by FDA regulation.  The 6th Circuit says NO, correctly in my view applying Ohio law.  (see excerpt below.)  (For the full text go to Prof. Bernabe's Torts Blog, above.)
[T]he result of this violation does raise concerns that [plaintiff] is simply attempting to enforce a federal-law violation through state litigation. Where, as here, the statute specifically excludes a private cause of action, 21 U.S.C. §337(a), state tort suits premised on violations of federal law may be impliedly preempted . . . if the claims "exist solely by virtue of” the regulatory scheme . . . . Here, [plaintiff's] suit is not even premised on violation of federal law, but rather on an independent state duty. The alleged breach arises from the same act, but the legal basis is different. This is simply not grounds for preemption. The federal duty of sameness is not a "critical element" in [plaintiff's] case. Failure to update from one adequate warning to another would violate the FDCA, but not Ohio law. Her suit instead relies upon the adequacy of the warnings and the causation of her injuries.

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Thursday, March 14, 2013

Prisoners Seek Restitution for Wrongful Convictions -

Suppose he was convicted erroneously but not "wrongfully" by a jury?  If the prosecutor suppressed evidence?  Should he be compensated?  In both cases?  Should prosecutors be immune in tort - but assessed "compassionate payments" when a decision to prosecute on uncertain evidence proves to be wrong in fact? - gwc

Prisoners Seek Restitution for Wrongful Convictions -

COLORADO SPRINGS — Robert Dewey spent almost 18 years in prison for a murder he did not commit. Now he spends his time waiting. Waiting for food stamps, or his monthly $698 disability check. Swallowing painkillers and waiting for his wrenched back to stop aching. Waiting for the state to repay him for lost time.


“When you come out, you’re on top,” he said one recent afternoon, dragging on a cigarette and sinking deeper into the couch at a friend’s house. “It’s easy to fall.”

Mr. Dewey’s release is among a few high-profile exonerations that are now prodding Colorado to confront the question of what it owes inmates who have been falsely imprisoned, a civic soul-searching that Louisiana, Texas, Illinois and other states are also confronting.

Colorado is one of 23 states that have no system to compensate the wrongfully convicted. It does not provide a formal network of counseling, education or other assistance, which advocacy groups like the Innocence Project say aggravates an already difficult and meager transition back to civilian life.

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Saturday, March 9, 2013

OTHERWISE: Johnson & Johnson Must Pay $8.3 million in First Hip-Implant Case -

OTHERWISE: Johnson & Johnson Must Pay $8.3 million in First Hip-Implant Case -
Los Angeles, California
An $8.3 million jury verdict in the first trial about the ASR hip implant puts Johnson & Johnson on notice that they should move quickly to resolve the 10,000,00 open claims.  They're going to have to sell a lot of Band Aids to make up for this hip implant disaster.

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Wednesday, March 6, 2013

Concussions, Class Actions, and the 2011 Collective Bargaining Agreement

Nicholas Burkhart, a 3L at St. Louis University has some observations about the recent NFL bargaining agreement's efforts to address the concussion crisis.  Click through on the tile to get to the paper which posted on SSRN. - GWC

Concussions, Class Actions, and the 2011 Collective Bargaining Agreement:
A Look at Concussions and the Response of the National Football League in the 2011 NFL Collective Bargaining Agreement

Violent collisions are an integral part to the success of the NFL, but medical research suggests those same hits have serious health consequences for players long after they leave the league. The dilemma for the NFL becomes ensuring fan support and financial success while protecting the safety of athletes, ultimately limiting liability. In the midst of recent class actions filed by former players against the NFL, which experts say may push the boundaries in both law and science, players and owners agreed to a new collective bargaining agreement. That agreement appears to be a substantial step forward for the NFL in addressing growing concerns over player injuries, concussions in particular, for the future. Although the new guidelines in the collective bargaining agreement may be the first step in protecting players, it is also, not coincidentally, the first step in reducing the liability of the league, and team doctors. While the new collective bargaining agreement may shield the NFL from future liability, the question remains - Will the NFL be held liable for its violent past?

Monday, March 4, 2013

BP safety chief denies internal report on Gulf spill intended to 'avoid casting blame' on global oil giant |

 "In his third day of testimony, BP's safety chief denied Monday that the internal investigation he led into the Macondo oil well blowout intended to "blame the folks on the rig and avoid casting blame on the BP onshore people."
During cross-examination Monday (March 4), Transocean attorney Brad Brian asked Bly about an April 17, 2010, email, in which BP's Houston-based well team leader John Guide warned that there were so many last-minute changes to the Macondo operation that "rig leaders have finally come to their wits end. The quote is flying by the seat of our pants.""The operation is not going to succeed if we continue in this manner," Guide wrote in the email to his boss, David Sims, BP's manager for Gulf of Mexico oil drilling operations.During cross-examination, Bly testified that he was "probably" aware of the email while the investigation was under way. He downplayed its significance when asked whether the email was crucial in assessing the actions of BP management, specifically that "that the operations supervisor onshore had written three days before the blowout that the operation is not going to succeed.""We didn't think one sentence out" out of the email was "particularly significant," Bly replied. 

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Does Duty to Warn Extend to Bystander of a Bystander?

Does Duty to Warn Extend to Bystander of a Bystander? 

by Sandra Scheuerman - Torts Prof Blog, March 4, 2013

An amicus brief by Pacific Legal Foundation alerted me to an interesting case in the Maryland appellate courts.  In Georgia Pacific LLC v. Farrar, the family member of an employee who worked near other workers using asbestos sued an asbestos manufacturer for failure to warn of the risks of asbestos.  The worker, the plaintiff's grandfather, did not himself work with asbestos.   Thus, the case raises the question of whether the duty to warn extends to a bystander of a bystander.   The Court of Special Appeals held that the manufacturer did have a duty to warn, and the case is now before the Maryland Court of Appeals. 

OTHERWISE: As God gave him to see the right | xpostfactoid

OTHERWISE: As God gave him to see the right | xpostfactoid:
Andrew Sprung analyzes the rhetoric of the greatest political speech in American history - and perhaps of all time - Lincoln's second inaugural address.

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Sunday, March 3, 2013

Parker Waichman LLP Reviews Closing Arguments of DePuy ASR Trial and Discusses Risks of Metal-on-Metal Hip Implant - - Tulsa, OK - News, Weather, Video and Sports - |

Parker Waichman LLP Reviews Closing Arguments of DePuy ASR Trial and Discusses Risks of Metal-on-Metal Hip Implant|:

According to Bloomberg, attorneys for Kransky argued that Johnson & Johnson defectively designed the ASR hip implant and failed to warn about its risks. Among other things, the attorneys said that J&J failed to test the metal-on-metal hip implant before selling it in 2005; they also stated that J&J ignored mounting safety concerns from surgeons who implanted the device. Plaintiff’s lawyers have asked for $5.3 million in compensatory damages and punitive damages as high as $179 million.
The trial began on January 25th in California Superior Court, Los Angeles County. Throughout the trial,J&J has consistently claimed that his injuries do not stem from the defects of the implant. Kransky’s attorneys recently produced a document showing that the ASR recall was issued due to defects that could cause health or safety problems; the document was signed by former DePuy president David Floyd. They have also pointed out that Kransky’s cobalt levels are 7 to 8 times higher than the 7 parts per billion recommended by the Medicines Healthcare products and Regulatory Agency (MHRA).
In the closing arguments, Kransky’s attorneys stated that Johnson & Johnson knew the ASR was defective long before it was implanted. Brian Panish, one of the lawyers for Kransky, said “They wanted to play Russian roulette with patients. This defendant didn't care about patient safety." according to LA Times.Jurors were told that J&J’s DePuy unit has acted as a “ruthless competitor” that cared more about profits than patient safety. "All they care about is the money," Panish stated. "They aren't looking at patients. They're looking at balance sheets."
J&J’s DePuy unit recalled 93,000 ASR hip worldwide in 2010, stating that the device had failed in 12 percent of patients within five years. In Australia, failure rates have exceeded 40 percent. Kransky’s lawsuit and thousands of others allege that the metal-on-metal design generates a toxic amount of metal ions, which leads to metal poisoning and other complications that lead to revision surgery.
Kransky, a retired corrections office from Montana received the ASR in 2007 and had it revised in February 2012. His attorneys have cited excessively high levels of metal ions, and alleged that his injuries, revision surgery and other complications stem from the defective nature of the all-metal hip replacement. J&J claims that his injuries are unrelated to his implant and have attributed his damages to other factors, including his pre-existing health problems. The company has also blamed the high revision rates of the ASR on surgical techniques, insisting that surgeons implant the cup socket at the wrong angle. Kransky’s attorneys have said that the cup is unsafe at any angle.

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New Hampshire officials warn of Poland Spring water contaminated with gasoline | Yourlawyer Blog

I always thought that the example in comment i of the 2d Restatement of Torts, Section 402A was ridiculous - whiskey contaminated by fuel oil.  Never happen.  Well...

New Hampshire officials warn of Poland Spring water contaminated with gasoline | Yourlawyer Blog:
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