Tuesday, December 25, 2012

Can Bushmaster Be Sued Over CT School Shooting? - Defective Products / Products Liability - Injured

Can Bushmaster Be Sued Over CT School Shooting? - Defective Products / Products Liability - Injured:

Is there a basis in law - particularly in product liability law - for a manufacturer to be liable for the murderous use of its product?  A Bushmaster rifle was reportedly used in the shootings that claimed 26 lives at Sandy Hook Elementary School in Newtown. A Bushmaster rifle was also used in the Washington, D.C.-area sniper attacks in 2002, after which victims and their families sued the company, Forbes reports. The suit ended in a $2.5 million settlement.
The company may soon find itself involved in another lawsuit tied to the elementary school tragedy. This may be true even though there is a federal law that would seem to bar lawsuits against gunmakers for crimes committed with their products, according to Forbes.

Congress passed the Protection of Lawful Commerce in Arms Act in 2005, and President George W. Bush signed it into law. The act was specifically aimed at reducing lawsuits against gun manufacturers over illegal acts committed by their customers, writesForbes.

But even with this statutory protection, the Brady Campaign to End Gun Violence says that gun manufacturers like Bushmaster could still face legal consequences for such tragedies.  The Products Liability Restatement generally rejected "categorical liability" - but in § 2, cmt d  allowed the possibility that a product could be so dangerous and of such little utility that no reasonable person would sell it.  Lawn darts was offered in one illustration was such a product.  Is a Bushmaster AR-15 assault rifle offered for non-military use such a product?

That's because while the 2005 act does provide general protections to gun manufacturers, there are loopholes in the law that could potentially expose a gun manufacturer to liability.


Monday, December 24, 2012

BP Gulf Oil Spill: Holding Individuals Accountable For Workplace Safety Violations | NC Workers Comp Journal

Holding Individuals Accountable For Workplace Safety Violations | North Carolina Workers' Compensation ExpertsNorth Carolina Workers' Compensation Experts:

British Petroleum (BP) supervisors Donald J. Vidrine and Robert Kaluza were indicted on manslaughter charges in the deaths of 11 fellow workers in connection with the 2009 Deepwater Horizon explosion in the Gulf of Mexico. David Rainey, a BP deepwater explorer, was charged with obstruction of Congress and lying about the size of the spill. These indictments were in addition to a record $4.5 billion in criminal fines that BP agreed to pay for the disaster, which will be paid out over 5 years. Mr. Vidrine and Mr. Kaluza were negligent in their supervision of key safety tests performed on the drilling rig, and they failed to phone engineers on shore to alert them of problems in the drilling operation. These charges carry maximum penalties of 10 years in prison on each “seaman’s manslaughter” count, 8 years in prison on each involuntary manslaughter count and a year in prison on a Clean Water Act count. Mr. Rainey obstructed Congressional inquiries and made false statements by underestimating the flow rate to 5,000 barrels a day even as millions were gushing into the Gulf. He faces a maximum of 10 years in prison.

'via Blog this'

Sunday, December 23, 2012

JAMA: End Ban on Funding Gun Control Studies

 I did not know that Congress had blocked CDC studies of  gun control. This JAMA opinion piece recounts the appalling history. - gwc
Arthur L. Kellermann, MD, MPH; Frederick P. Rivara, MD, MPH
Journal of the American Medical Association - JAMA -  December 21, 2012
"Injury prevention research can have real and lasting effects. Over the last 20 years, the number of Americans dying in motor vehicle crashes has decreased by 31%.1 Deaths from fires and drowning have been reduced even more, by 38% and 52%, respectively.1 This progress was achieved without banning automobiles, swimming pools, or matches. Instead, it came from translating research findings into effective interventions.

Given the chance, could researchers achieve similar progress with firearm violence? It will not be possible to find out unless Congress rescinds its moratorium on firearm injury prevention research. Since Congress took this action in 1997, at least 427 000 people have died of gunshot wounds in the United States, including more than 165 000 who were victims of homicide.1 To put these numbers in context, during the same time period, 4586 Americans lost their lives in combat in Iraq and Afghanistan.10

The United States has long relied on public health science to improve the safety, health, and lives of its citizens. Perhaps the same straightforward, problem-solving approach that worked well in other circumstances can help the nation meet the challenge of firearm violence. Otherwise, the heartache that the nation and perhaps the world is feeling over the senseless gun violence in Newtown will likely be repeated, again and again."

Saturday, December 22, 2012

Judge Barbier approves BP Gulf Settlements

Judge Carl Barbier, E.D. Louisiana
The BP Gulf oil spill economic loss class action settlement was approved by District Judge Carl Barbier on December 21, 2012.  Barbier - who manages the litigation arising from the 2010 BP Deepwater Horizon oil spill - presents (over 125 pages) the history of the litigation and settlement.  It is an excellent overview.  Notable to me is that he does not note in approving the settlement how much wider was the scope of liability recognized here than in other disasters - such as the Exxon Valdez or the Fifth Circuit allowed in M/V Testbank.  There claims were limited under maritime law to fishermen and those who suffered property damage. 
In the Deepwater Horizon spill claimants had the benefit of the Oil Pollution Act (1990) which - Barbier had advised the parties - did not contain the maritime law's restrictions dating back to Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927). There Justice Holmes announced the rule that only those who suffered property damage or personal injury could make a claim for economic loss.   Until BP only fishermen had been spared that stricture.  The settlement vindicates the Testbank dissent by civil rights movement hero Judge John Minor Wisdom who argued that all engaged in "primary maritime activity" should be compensated including seafood processors, chandlers, tackle shops, fuel docks, and shoreline companies etc.  The DeepWater Horizon settlement actually exceeds Wisdom's suggested scope. - gwc

Tuesday, December 18, 2012

No Clear Link Between Cancer and 9/11 Debris, New York Health Dept. Study Finds - NYTimes.com

No Clear Link Between Cancer and 9/11 Debris, New York Health Dept. Study Finds - NYTimes.com:
by Anemona Hartocollis
 "Six months after the federal government added cancer to the list of sicknesses covered by the $4.3 billion World Trade Center fund, a New York City health department study has found no clear link between cancer and the dust, debris and fumes released by the burning wreckage of the twin towers."

'via Blog this'

Sunday, December 16, 2012

OTHERWISE: Investigating the Link Between Gun Possession and Gun Assault

OTHERWISE: Investigating the Link Between Gun Possession and Gun Assault:
Charales Branas, et a (2009)
Conclusions. On average, guns did not protect those who possessed them from being shot in an assault. Although successful defensive gun uses occur each year, the probability of success may be low for civilian gun users in urban areas. Such users should reconsider their possession of guns or, at least, understand that regular possession necessitates careful safety countermeasures.

'via Blog this'

Thursday, December 13, 2012

Gulf Coast States at Odds on Penalties for Oil Spill - NYTimes.com

Joe Raedle/Getty Images
Oil from the BP Deepwater Horizon spill in 2010 washed up to Fourchon Beach, La.
Gulf Coast States at Odds on Penalties for Oil Spill - NYTimes.com:
by Campbell Robertson
 "NEW ORLEANS — With BP’s agreement on Thursday to plead guilty to 14 criminal charges and pay $4.5 billion in fines and other payments in connection with its 2010 oil spill in the Gulf of Mexico, Gulf Coast politicians are now eyeing a much bigger potential windfall from the company: $20 billion or more in civil pollution penalties for the spill.

But the negotiations over those penalties — including which states get the money, how quickly, and what it can be used for — could be more contentious than the talks that led to the criminal settlement."  Officials with the Justice Department, who are leading the discussions, are not simply representing the federal government, but a number of other governments, including those of the five gulf states. And not only do some states have a different vision of a just settlement than federal officials do, they also disagree among one another. In some cases, leaders within a single state cannot agree on the best course of action.
Civil penalties under the Clean Water Act have not yet been settled.  Under the Restore Act the Gulf Cost states will share the proceeds.

'via Blog this'

Monday, December 10, 2012

Concussion Liability Costs May Rise, and Not Just for N.F.L. - NYTimes.com

Paul Kitagaki Jr./The Sacramento Bee, via Associated Press
SF 49'er QB Smith sustained a concussion with this hit in November
The National Football League, its affiliates and teams faces a wide array of claims.  A good source on these is the Paul Anderson's NFL Concussion Litigation blog  See, for example, this recent post.  The NFL inserted itself into the issue about twenty years ago when they created the Mild Traumatic Brain Injury Committee, which, like the Tobacco Institute's scientists, produced reports not simply later rebutted but discredited.
The dispute with insurers includes the issue that plaintiffs seeking to break the workers cop exclusivity bar allege fraud and intentional injury - which are probably not insurable torts as a matter of public policy. - GWC

Concussion Liability Costs May Rise, and Not Just for N.F.L. - NYTimes.com
by Ken Belson

"As the N.F.L. confronts a raft of lawsuits brought by thousands of former players who accuse the league of hiding information about the dangers of concussions, a less visible battle that may have a greater effect is unfolding between the league and 32 of its current and former insurers."***
Regardless of how it is resolved, the dispute could hurt teams, leagues and schools at all levels if insurers raise premiums to compensate for the increased risk of lawsuits from players and their parents who play hockey, lacrosse and other contact sports.
The N.F.L., which generates about $9 billion a year, may be equipped to survive these legal challenges. But colleges, high schools and club teams may be forced to consider severe measures in the face of liability issues, from raising fees to offset higher premiums to capping potential damages to requiring players to sign away their right to sue coaches and schools. Some schools and leagues may even shut down teams because the expense and legal risk are too high.

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Saturday, December 8, 2012

BP Oil Spill Flow Rate Vastly Understated For Weeks, Emails Show

Bp Flow RateBP Oil Spill Flow Rate Vastly Understated For Weeks, Emails Show:
 "Emails that attorneys representing a defendant in the BP oil spill case plan to introduce in February show for the first time that the oil company knew the massive scale of the 2010 blowout in the Gulf of Mexico weeks earlier than previously disclosed.

BP has long maintained that it provided full disclosure to the public and the federal government about its knowledge of the spill’s extent and did so promptly. The emails suggest otherwise.

BP has said in the past that it learned of the spill's full extent months after the April 2010 blowout. But the emails indicate that the company knew almost immediately after the drilling rig exploded, killing 11 workers and injuring 17, that the spill may be extraordinarily large."

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Tuesday, December 4, 2012

Defending the jury system - CJ&D report

The Center for Justice and Democracy at New York Law School has issued a new report defending the civil jury system from its detractors.

Saturday, December 1, 2012

Off the Charts Blog | Center on Budget and Policy Priorities | The Geography of Disability

The sort answer is that age, educational level, physical demands of the work explain disparate rates of receipt of SSD and SSI. - GWC
Off the Charts Blog | Center on Budget and Policy Priorities | The Geography of Disability:

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Nate Silver's lessons of Romney campaign''s inaccurate polling

Nate Silver's analyses -we now know - were not biased but accurately forecast Obama's re-election.  The Romney campaign's own analyses were not so accurate. The lesson's Nate Silver draws from the Romney campaign's flawed polling are as true for litigation as they are for politics.  I have lost cases in which I invested a lot of time and money the same way that Romney lost.- GWC
Silver reports

Nonetheless, the seeming inaccuracy of Mr. Romney’s internal polls ought to present a warning to future campaigns. The problems with internal polls may run deeper than the tendency for campaigns to report them to the public in a selective or manipulative way. The campaigns may also be fooling themselves.
Our self-perceptions are very often more optimistic than the reality; 80 percent of people think they are above-average drivers, for example.
These problems can be worse when we join together to form businesses or organizations. Honest self-assessment is a challenge for any business, and it is one reason that management consultants are sometimes engaged at considerable expense to provide a supposedly more objective and unbiased take on the state of the organization’s operations. (Much of Mr. Romney’s success in business, of course, came precisely because he was able to identify companies whose organizational cultures prevented them from functioning efficiently.)