Friday, January 31, 2014

Henningsen v. Bloomfield Motors, Inc. (1960): Promoting Product Safety by Protecting Consumers of Defective Goods by Jay M. Feinman, Caitlin Edwards :: SSRN

Henningsen v. Bloomfield Motors, Inc. (1960): Promoting Product Safety by Protecting Consumers of Defective Goods by Jay M. Feinman, Caitlin Edwards :: SSRN:


Safety recalls, child-safe toys, and other consumer safety protections are taken for granted today, but there was a time not so long ago when everyday products were dangerous and consumers who were injured by cars, toys, or other products faced a difficult road to recover compensation from manufacturers. About fifty years ago all of this changed, drastically and in a short period of time. The catalyst for this dramatic change was an unlikely source — a woman from Keansburg, New Jersey, who was injured when her new Plymouth sedan suddenly veered into a brick wall. When she initially sued the dealer who had sold her the car and Chrysler, the manufacturer, the state of the law posed roadblocks to her recovery. The New Jersey Supreme Court recognized that change was needed and issued an opinion — Henningsen v. Bloomfield Motors, Inc. — that quickly would change the world of products liability and consumer protection.
This article, a chapter from Paul L. Tractenberg ed.," Courting Justice: 10 New Jersey Cases That Shook the Nation" (Rutgers University Press, 2013), tells the story of the facts that gave rise to Henningsen, the arguments in the courts, and the case’s role in the development of products.

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Marijuana: Reefer madness or medicine? Jerome Groopman - NY Review of Books

Dr.Jerome Groopman (Harvard Medical School ) says it may be both.  More research is needed. - gwc
Marijuana: The High and the Low by Jerome Groopman | The New York Review of Books:
"Perhaps as states legalize marijuana, the federal barriers to research will be lowered, as it was for stem cell research, once restricted by federal law. And as more studies are conducted on marijuana for medical or recreational uses, opponents and enthusiasts may both discover that they were neither entirely right nor entirely wrong."

32 Laws Waxman Helped Craft That Touched The Lives Of Every American

Rzf7gxvjtbiz9nq1lkhpRep. Henry Waxman - in forty years in Congress he saved lives. He played a leading role in every measure that protected health - from the Surgeon General's cigaret warnings to Medicaid to vaccine compensation, food and drug labeling, and finally the Affordable Care Act which has already helped millions of people.  The account published by the House Commerce and Energy Committee is worth reading when Congress's prestige is at a low ebb. - gwc

32 Laws Waxman Helped Craft That Touched The Lives Of Every American:

The Affordable Care Act, which gives all Americans access to affordable health insurance, strengthens Medicare and Medicaid, and reduces the deficit.
Medicaid and CHIP Expansions, which extended the coverage and benefits available to millions of needy and working families.
Nursing Home Reforms, which stopped the industry’s worst abuses and protected the rights of vulnerable residents.
The Waxman-Hatch Generic Drug Act, which gave rise to the generic drug industry, saving consumers over $1 trillion in the last decade alone.
The Orphan Drug Act, which gave drug companies incentives to develop treatments for rare diseases they had previously ignored.
The Ryan White CARE Act, which provides medical care and other services to Americans living with HIV/AIDS.
Women’s Health Initiatives, including the laws establishing standards for mammography, requiring the inclusion of women in clinical trials, and creating the Office of Research on Women’s Health at NIH.
The National Childhood Vaccine Injury Act, which strengthened FDA oversight of vaccine manufacturers and created a no-fault compensation system for vaccine-related injuries.
FDA User Fee Laws, which raise hundreds of millions of dollars each year from drug and device manufacturers to fund vital FDA functions.
The Nutrition Labeling Act, which mandated the ubiquitous and popular nutrition labels that consumers rely upon to compare packaged foods.
The Food Quality Protection Act, which established a strong health-based standard for pesticide residues in food.
The Food Safety Modernization Act, which sets science-based standards for the safe production and harvesting of raw agricultural commodities and requires new preventative controls for companies that process or package foods.
Cigarette and Smokeless Tobacco Health Warning Laws, which required rotating Surgeon General warnings on cigarette packages and advertisements and the first health warnings on smokeless tobacco packages and advertisements.
The Family Smoking Prevention and Tobacco Control Act, which restricted the marketing of cigarettes and smokeless tobacco to children and gave FDA jurisdiction over tobacco products.
The Safe Medical Devices Act, which enhanced public protection from dangerous medical devices by requiring mandatory reporting of adverse events and surveillance and tracking of implantable devices.
The Drug Quality and Security Act, which strengthens FDA’s authority over compounded drugs and creates a uniform system for tracking drugs to prevent counterfeits.
The 1990 Clean Air Act Amendments, which established new programs to reduce urban smog, hazardous air pollution, and acid rain and prevent the depletion of the stratospheric ozone layer.
Safe Drinking Water Act Amendments, which strengthened the standards for drinking water and established funding mechanisms for drinking water infrastructure improvements.
Laws Reducing Childhood Lead Exposure, including laws removing lead from plumbing supplies, water coolers, and children’s toys, requiring disclosure of lead hazards during real estate transactions, and setting standards for safe renovations.
The Formaldehyde Standards Act, which set minimum standards for formaldehyde levels from plywood, fiberboard, and particleboard.
Laws Reducing Greenhouse Gas Emissions, including provisions requiring greater efficiency in federal buildings and procurement of clean vehicles.
Spectrum Reforms, which will ease the nation’s growing spectrum shortage, enable new “super WiFi” applications, and create a nationwide broadband network for first responders.
The 21st Century Video and Communications Accessibility Act, which increases the access of persons with disabilities to smart phones and other modern communications devices.
Procurement Reforms, which enhanced competition, transparency, and accountability in government contracting to reduce waste, fraud, and abuse.
The Postal Accountability and Enhancement Act, the first major overhaul of the U.S. Postal Service since 1970.
Waste, Fraud, and Abuse, identifying over $1 trillion in wasteful and mismanaged federal contracts, including billions of dollars of wasteful spending in Iraq and the response to Hurricane Katrina.
Misleading Intelligence, exposing over 200 misleading statements by senior Bush Administration officials about the threat posed by Iraq.
The Tobacco Industry, revealing decades of industry concealment of the dangers of smoking and the addictiveness of nicotine.
Steroids in Baseball, uncovering the extent of players’ illegal drug use during baseball’s “steroids era” and prompting major reforms in steroid policies in baseball and other sports.
Politicization of Science, disclosing dozens of instances in which Bush Administration officials distorted or misrepresented science, such as funding misleading abstinence-only education programs or censuring climate experts.
The Wall Street Collapse, examining the fall of Lehman Brothers and AIG, the failure of the credit rating agencies, and the negligence and mistakes of market regulators.
The Gulf Oil Spill, disclosing a series of overlooked warnings and risky decisions made by BP to reduce costs and save time.

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Thursday, January 30, 2014

Issacharoff and Rave: BP Settlement a win-win

Samuel Issacharoff and Theodore Rave have posted an excellent analysis of the BP settlement.  Comparing the court-supervised Deepwater Horizon Settlement to the (now expired) Gulf Coast Claims Facility, they declare it a win-win.  Plaintiffs in the aggregate got more from the class action settlement than was available under the individualized claims process of BP's Gulf Coast Claims Facility.  The GCCF was a mechanism BP chose to meet the requirements of the Oil Pollution Act  to pay interim claims without prejudice to the ability to later file a lawsuit.  

Issacharoff and Rave, The BP Oil Spill Settlement and the Paradox of Public Litigation, 74 La. L. Rev. 397 (2014) full text at SSRN

The streamlined administrative program that BP set up to pay claims arising out of the Deepwater Horizon Oil spill — the Gulf Coast Claims Facility (GCCF) — promised a significant transaction-cost savings over litigation in the public court system. At least in theory, that savings should have worked to the benefit of BP and claimants alike, freeing up money that would otherwise have gone to lawyers and other litigation costs to fund claimants’ recoveries. But a comparison of the GCCF to the class action settlement that replaced it reveals that the class settlement will result in greater payments to claimants. Paradoxically, the dispute resolution system with the higher built-in transaction costs appears superior. We offer some hypotheses for why this might be the case. Our central claim is that claimants did better under the higher-cost class action settlement because it allowed them to offer the defendant something it valued — a greater degree of finality than the GCCF could ever provide — in exchange for a “peace premium.” And we analyze some of the features of the public system of class action litigation that enable parties to obtain a greater degree of closure than a purely private dispute resolution system like the GCCF, while at the same time providing guarantees of transparency, consistency, and equitable treatment of absentees.

Tuesday, January 28, 2014

Glass Cage Silences Morsi During Egyptian Trial -

I suppose it's better than binding and gagging, which is what Judge Julius Hoffman did to Black Panther Bobby Seale in Chicago in 1969. - gwc

Glass Cage Silences Morsi During Egyptian Trial -

by David Kirkpatrick and Mayy El Sheikh

 "CAIRO — Mohamed Morsi, the deposed Egyptian president, appeared in public on Tuesday for the second time since his detention after the military takeover last July, this time locked in a soundproof glass cage as the defendant at a criminal trial.

The installation of the cage, a novelty in Egyptian courts, underscored the extent of the effort by the new government to silence the former president and his fellow defendants, about 20 fellow leaders of the Muslim Brotherhood. It dominated the courtroom debate, with lawyers for the defendants arguing that it deprived the accused of their right to hear or participate in their own trial and supporters of the government crediting the soundproof barrier with preserving order in the court."

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Monday, January 27, 2014

20 children and teens per day hospitalized for gunshot wounds

Hospitalization due to firearms injury in Children & Adolescents - Pediatrics

Almost one child or teen an hour is injured by a firearm seriously enough to require hospitalization, a new analysis finds. Six percent of the 7,391 hospitalizations analyzed in 2009 resulted in a death, says the study in February's Pediatrics, released Monday. [above]
The damage caused by gun-related injuries rarely gets the same attention as fatalities, "but that every day, 20 of our children are hospitalized for firearms injury, often suffering severe and costly injuries, clearly shows that this is a national public health problem," says Robert Sege, director of the Division of Family and Child Advocacy at Boston Medical Center and a co-author of the study.
Despite declining rates over the past decade, firearm injuries remain the second leading cause of death, behind motor vehicle crashes, for teens ages 15 to 19, according to the Centers for Disease Control and Prevention.
Children who survive firearm injuries often require extensive follow-up treatment, including rehabilitation, home health care, hospital readmission from delayed effects of the injury, and mental health or social services, Sege says.

Wednesday, January 22, 2014

Another Florida Jury Awards Smoker $5M In Suit Against Philip Morris

Another Florida Jury Awards Smoker $5M In Suit Against Philip Morris:

by Chris Placitella, Esq.

Most people think that the tobacco litigation ended with the settlement reached in the States Attorneys’ General case against Big’ Tobacco. Yet, in Florida and to a lesser extent elsewhere, the battles against Big tobacco continue. It is ironic that Florida, a target tort reformed state, is the epicenter for these cases. Of course the primary defense is personal responsibility. Thus, in Florida, juries are allowed to assess responsibility against the smoker and the tobacco company when considering the case. Accordingly, in the most recent case, Antonio Cuculino, 69, was found to be 60 percent responsible for his health problems caused by decades of smoking Marlboro cigarettes, and the jury reduced the $12.5 million award against Philip Morris to $5 million, according to Cuculino’s attorney Jeffrey Sloman of The Ferraro Law Firm.The jury found that defendant R.J. Reynolds Tobacco Co. was not liable…Even as this story is written, another Florida Tobacco case is being tried  by my close friend Don Migliori one of the many protégés of the great Ronald Motley who was the driver and architect of the  Attorney Generals’ case against Big Tobacco. The jury is expected to get the case on Thursday.

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Monday, January 20, 2014

The Law Talking Guy - Concurring Opinions

The Law Talking Guy - Concurring Opinions:

"...the most frequent mistake that I see on student exams and papers (not to mention some scholarship) is an undue focus on describing the law rather than analyzing it...."

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Sunday, January 19, 2014

Sally can’t argue that (on law school exams) - Concurring Opinions

So true...drives me nuts.  - gwc
Sally can’t argue that (on law school exams) - Concurring Opinions:
by Dave Hoffman // Temple University Law School
At most law schools, first year students get back their fall semester grades this week.  This can be a difficult time for students who – often for the first time – are on the bottom half of steep curves.  If you are in that situation, I thought I’d offer one tip that might help you diagnosis a correctable problem with exam-taking technique.  When you get back your exam, and before you look at the model answer, I’d urge you to scan your exam for the following phrases:
  • could argue that; or
  • might argue that; or
  • has an argument…
Every time you see this phrase, highlight it in red ink.  It’s almost certainly leading you down a dark path.Why is this phrase pernicious?  Because, very often, it signals that you are about to fail to actually evaluate the noted argument. Rather, you will simply list the possibility (in contracts, for example, “A could argue that the correspondence of May 1 was an offer”) and not tell the reader whether or not that claim is a plausible or winning one in court.  Though sometimes professors truly want to see a kitchen sink answer listing every possible claim, most, instead, are testing judgment. Judgment requires one to actually evaluate legal claims, not to list them.  
The problem with “argue that” is that it leads you to think that you are actually saying something — implicitly, that the argument raised is plausible? — without articulating the predicate rationale and limiting conditions. I can’t tell you how many times I’ve sat with students in exam reviews, pointed out this phrase, only to have the student tell me that they knew that the argument was a good or bad one, but they failed to put that judgment on the page.  ”Argue that” blinds you to your own failure to exercise your situation sense.
The great thing about this tic is that it’s a useful, concrete, red flag for conclusory exam writing, which typically distinguishes average exams from great ones.  If you are working on your computer, you can simply use the find function before handing in the exam to make sure that you haven’t fallen into the trap.  Other tics, like “obviously,” “clearly,” and “certainly,” are similar but aren’t as prevalent on law school exam answers. Eliminating “could argue that” also helps to omit needless words: instead of introducing issues before disposing of them, you can simply fold the analysis into the introductory sentence. Thus: “While the May 1 letter has some of the markings of an offer (it identifies price & amount), it fails to state the timing of delivery and most courts will follow Nebraska Seed in denying formation.”Now, you could argue that this is all needlessly pedantic mutterings over style points, when the real skills that ought to separate good from bad exams concern doctrine.  But, if you did make that argument, you’d be wrong. Being conclusory – that is, assuming the conclusion in question and failing to analyze why the answer follows from the facts – is the key sin on most issue-spotter exams.  You can learn to be less conclusory over time by training yourself to see it in your writing.  And, if you got bad news this week, spotting conclusory writing before it’s graded will go a long way toward better news in May.

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Friday, January 17, 2014

Actos - Conflict Preemption: Would FDA Reject the Warning? //Drug and Device Law:

The defense lawyers at Drug and Device Law blog are distressed the the Actos MDL District Court judge has denied defendnat's motion for summery judgement.  Relyin on Wyeth v. Levine (U.S. 2009) the judge found that the defendant had neither proposed a stronger warning, nor had the FDA actually rejected a stronger warning.  Thus the claims of plaintiffs were not preempted by federal regulatory action. 
The drug, prescribed for diabetics, has been linked to cases of bladder cancer by the FDA.  One verdict has already been returned for a plaintiff in Los Angeles.
Drug and Device Law: Conflict Preemption: Would FDA Reject the Warning?:
 See In re Actos (Pioglitazone) Prods. Liab. Litig., No. 6:11-md-2299, 2014 U.S. Dist. LEXIS 1749 (W.D. La. Jan. 7, 2014).

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Wednesday, January 15, 2014

Safety Alerts for Human Medical Products > Acetaminophen Prescription Combination Drug Products with more than 325 mg: FDA Statement - Recommendation to Discontinue Prescribing and Dispensing

Safety Alerts for Human Medical Products > Acetaminophen Prescription Combination Drug Products with more than 325 mg: FDA Statement - Recommendation to Discontinue Prescribing and Dispensing: January 14, 2014
 FDA is recommending health care professionals discontinue prescribing and dispensing prescription combination drug products that contain more than 325 milligrams (mg) of acetaminophen per tablet, capsule or other dosage unit. There are no available data to show that taking more than 325 mg of acetaminophen per dosage unit provides additional benefit that outweighs the added risks for liver injury. Further, limiting the amount of acetaminophen per dosage unit will reduce the risk of severe liver injury from inadvertent acetaminophen overdose, which can lead to liver failure, liver transplant, and death.  Cases of severe liver injury with acetaminophen have occurred in patients who:• took more than the prescribed dose of an acetaminophen-containing product in a 24-hour period; • took more than one acetaminophen-containing product at the same time; or • drank alcohol while taking acetaminophen products.

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Tuesday, January 14, 2014

Judge Questions Whether Sum of N.F.L. Settlement Is Enough -

Updated: Judge Brody's memorandum opinion of January 14, 2014 is HERE.
Judge Questions Whether Sum of N.F.L. Settlement Is Enough -
by Ken Belson
 "The judge presiding over the proposed $765 million settlement between the N.F.L. and more than 4,500 retired players who sued the league and accused it of hiding the dangers of concussions has raised significant questions about whether there will be enough money for all of the payouts, medical tests and treatment.
In a ruling issued on Tuesday, Judge Anita B. Brody of the United States District Court for the Eastern District of Pennsylvania rejected the proposed settlement because the league and the plaintiffs’ lawyers had not produced enough evidence to convince her that $765 million would cover the potential costs for 18,000 retirees over the 65-year life of the agreement."

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Monday, January 13, 2014

NFL Former Players: Counsel Fees Unfair in Proposed Concussion Settlement

In a memorandum of law submitted to Judge Anita Brody who must rule on the fairness of the proposed class settlement certain former NFL players say they will bear an unfair burden in counsel fees.  Their attorneys argue:

"The proposed settlement is unfair to all former players who filed suit against the NFL. Under the proposal, players who hired lawyers must separately pay their lawyers for representing them in this litigation. Most of the litigant-players in this category are subject to contingency fee contracts where a portion of the player’s recovery goes to their attorney as an attorney’s fee. In contrast, former players who
did not join the litigation are eligible for the same recoveries. But the non-litigant players do not have to pay any attorneys’ fees or other administrative costs. This means that the proposed settlement provides dissimilar treatment to persons with similar claims. As a result, the settlement is not fair, reasonable and adequate
under Fed. R. Civ. P. 23(e)(2)."

Little Rock Schools to Lose Desegregation Aid - AP

The nation watched as federalized National Guardsmen enforced a court's desegregation order at Little Rock, Arkansas's Central High School.  A desegregation plan entered in 1982 will soon come to an end thanks to a federal District Judge's Price Marshall's ruling - though there will doubtless be another review by the U.S. Court of Appeals for the Eighth Circuit which has blocked previous efforts by the judge.  - GWC

Judge Approves Desegregation Plan Termination in Arkansas // Associated Press
LITTLE ROCK, Ark. — January 13, 2014 
A federal judge approved a settlement Monday that would allow the state of Arkansas to stop making payments to three Little Rock-area school districts to aid their desegregation efforts.
Federal District Judge Price Marshall signed off on the pact after hearing several hours of testimony from opponents of the deal and lawyers for the signees: the state, the districts and black schoolchildren.

Alex Rodriguez Continues Fight; Arbitrator’s Ruling Becomes Public -

A-Rod's alleged drug regimen
In a Complaint filed today in U.S. District Court in Manhattan baseball star Alex Rodriguez seeks to set aside an arbitrator's award suspending him for a full season.  The player alleges that the arbitrator was evidently partial to Major League Baseball and grossly exceeded his authority under the collective bargaining agreement between the big leagues and the Major League Baseball Player's Association.
Setting aside such an award is a tall order.  Courts usually defer to arbitrators interpretations of the scope of their authority under the contract.  Factual findings by arbitrators are rarely examined - a reflection of courts' long standing deference to private dispute resolution. agreements - a trend recently underlined by the U.S. Supreme Court's upholding the one-sided arbitration clauses imposed by companies like ATT upon their customers who have no real choice but to accept the profferred terms of service.  In the case of a collective bargaining agreement under the National Labor Relations Act the employee is subject to the union as exclusive representative, though as here he may be allowed private counsel in the arbitration proceedings.
Alex Rodriguez Continues Fight; Arbitrator’s Ruling Becomes Public -
by Steve Eder

The filing, provided by Rodriguez’s lawyers, also accuses Fredric Horowitz, Major League Baseball’s chief arbitrator, of exhibiting “a manifest disregard for the law” and claims that he was not impartial and that he refused to hear evidence in Rodriguez’s appeal of the suspension imposed against him last year....

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Saturday, January 11, 2014

Circuit Court upholds approval of BP oil spill settlement

BP oil rig fire
Deepwater Horizon rig burning
The Fifth Circuit U.S. Court of Appeals has upheld (2-1) Judge Carl Barbier's approval of the class action settlement in the BP oil spill cases.  Although it had supported the agreement which it negotiated, BP later intervened to urge decertification of the class.  It secured the vote of Judge Emilio Garza who dissented saying that the broad terms of the agreement permitted compensation of people who had in fact suffered no loss, depriving them of Article III standing (case and controversy) .  The majority, however rejected that view, saying that it is enough for Rule 23 purposes that the agreement was non-collusive and that the plaintiffs "seek recovery for an economic harm they allege they have suffered".

The decision - despite its bizarre procedural posture as BP repudiates an agreement it negotiated - will doubtless be presented to the Circuit Court en banc.  That court and the U.S. Supreme Court at a later stage, could well find that the deference shown to the parties at class certification stage is insufficient  to support a judgment approving a class action settlement. 
I think that is a very close call that Judge Garza made.  I am sympathetic to an aggressive role for MDL judges - to assure fairness, etc.  This is a class action, of course, but the public character of the cases removes them from the purely private wrongdoer-victim model that my eminent colleague Ben Zipursky and his collaborator John Goldberg preach.  But a mega-deal by a giant like BP - which has political risk and market positioning objectives - may not be the best case to explore the limits of judicial power. 
- gwc

OTHERWISE: Court upholds approval of BP oil spill settlement - Government - The News Herald:

by The Associated Press
NEW ORLEANS (AP) — Over BP's objections, a federal appeals court on Friday upheld a judge's approval of the company's multibillion-dollar settlement with lawyers for businesses and residents who claim the massive 2010 oil spill in the Gulf of Mexico cost them money.BP has argued that U.S. District Judge Carl Barbier and court-appointed claims administrator Patrick Juneau have misinterpreted settlement terms in ways that would force the London-based oil giant to pay for billions of dollars in inflated or bogus claims by businesses.During a hearing in November before a three-judge panel of the 5th U.S. Circuit Court of Appeals, a BP lawyer argued that Barbier's December 2012 approval of the deal shouldn't stand unless the company ultimately prevails in its ongoing dispute over business payments.But the divided panel ruled Friday that Barbier did not err by failing to determine more than a year ago whether the class of eligible claimants included individuals who haven't actually suffered any injury related to the spill.

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Friday, January 10, 2014

NFL $765 Million Concussion-Settlement Prediction May Be Way Off | PRLog

NFL $765 Million Concussion-Settlement Prediction May Be Way Off | PRLog:
PRLog (Press Release) - Jan. 9, 2014 - WASHINGTON, D.C. -- WASHINGTON, D.C. (Dec. 9, 2014):  Although an attorney representing many players regarding a proposed $765 million dollar settlement of concussion-related medical problems says that the vast majority of NFL retirees will accept the controversial deal, this optimism is contradicted by many without a versed interest in the settlement, notes public interest law professor John Banzhaf.

        The tentative deal apparently was to be presented to a federal judge for approval shortly after it was announced many months ago, but even that initial step was held up when the judge, immediately following allegations of possible wrongdoing, appointed a special master to investigate and report back to her.

        More specifically, he is "reportedly investigating allegations of  'double dipping' on the part of some plaintiffs’ attorneys," according to a Pennsylvania legal journal.  Forbes reported it in an article entitled "NFL Concussion Lawsuit Settlement Agreement Stalled By Judicial Intervention."

        Banzhaf has predicted that more than 2,000 retirees are likely to opt out of the deal, a prediction based upon private conversations, as well as on remarks by other impartial commentators.

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Thursday, January 9, 2014

Risk, Uncertainty and Precaution: Lessons from the History of US Environmental Law by Robert V. Percival :: SSRN

Robert Percival, an exemplar of what it means to be an engaged scholar, and a China hand, has a new essay exploring the history and importance of the "precautionary principle", much resisted by those who worry most about the cost of regulation, and celebrated by those who emphasize prevention.  Follow Bob at Global Environmental Law Blog. - GWC
h/t Environmental Law & History

Risk, Uncertainty and Precaution: Lessons from the History of US Environmental Law by Robert V. Percival :: SSRN:
by Robert Percival // University of Maryland
Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy.
This chapter reviews controversies over regulatory policy through the lens of history. It discusses the precautionary principle and why it is valuable even if it does not purport to answer the question of how stringent regulatory policy should be. It also considers recent studies that assess whether regulatory policy is more precautionary in the United States or the European Union and why it is difficult to make confident, comparative conclusions. The chapter then examines the history of how precaution has been incorporated into U.S. environmental law. It demonstrates that, despite the law’s promise to prevent harm before it occurs, regulatory policy has been largely reactive, concentrating primarily on highly visible problems only after harm has become manifest. After reviewing the state of contemporary regulatory politics in the U.S., the chapter concludes by analyzing lessons that can be learned to improve future regulatory policy.
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Tuesday, January 7, 2014

JPMorgan Settles With Federal Authorities in Madoff Case -

One advantage of this regulatory enforcement action is that the defrauded investors will not have to pay counsel fees.  The deadly sin of greed led Chase to ignore the obvious signs of a massive fraud.  - GWC
JPMorgan Settles With Federal Authorities in Madoff Case -
by Ben Protess and Jessica Silver-Greenberg
On Tuesday, five years after [Bernard]. Madoff’s arrest set off a panic on Wall Street and in Washington, Mr. Madoff’s primary bank received a punishment of its own.
Federal prosecutors in Manhattan imposed a $1.7 billion penalty on JPMorgan for two felony violations of the Bank Secrecy Act, a record payout under that 1970 law, which requires banks to alert authorities to suspicious activity. The prosecutors, essentially accusing the nation’s biggest bank of turning a blind eye to Mr. Madoff’s fraud, will require JPMorgan to pay the $1.7 billion to his victims.
The bank cannot write off the sum as a tax deduction. And including the Madoff settlement, JPMorgan will have doled out some $20 billion to resolve government investigations over the last 12 months.
Later on Tuesday, federal regulators are expected to announce their own rebuke of the bank in a civil case. The Office of the Comptroller of the Currency, according to people briefed on the matter, struck a $350 million settlement with the bank over the Madoff case and broader breakdowns in safeguards against anti-money laundering.

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Monday, January 6, 2014

NFL, Lawyers Submit Proposed Settlement for Court Approval in Concussion Injury Litigation

Proposed class counsel have submitted for approval the agreement negotiated by them for a proposed `opt-out' class of former NFL players.  The $760 million deal must win the approval of Judge Anita Brody, of the federal District Court in Philadelphia.  The proposed settlement and memorandum of law are HERE.  (358 pp) Players who do not opt out are included in the class and would be bound by its terms. The process of obtaining court approval (FRCP 23) is likely to be contentious.
Paul Anderson, a plaintiff's lawyer who writes  NFL Concussion Litigation blog, says "Basically, the NFL is paying a fee to make the lawyers go away – many of them took the bait. I decided that the fight must go on." Last month Anderson, representing a group of former players (1987-1993) critical of the proposal, filed suit directly against the Kansas City Chiefs.  Since Missouri workers comp law does not cover occupational disease claims a tort action against the employer is not barred.  The complaint in that action - Cooper, et al v. KC Chiefs - can be found HERE.  Since they are all retired players their action presumably conflicts with the proposed class action.

Another group - the Brain Injury Association of America has asked the Court to appoint it as a party amicus  to advise the court on fairness, particularly regarding the proposed provision for ongoing medical research.  - gwc

The proposed notice to class members summarizes the terms:

$760 Million NFL Concussion Litigation Settlement

Retired NFL Football Players May Be Eligible for Money and Medical Benefits
A federal court authorized this notice.  This is not a solicitation from a lawyer.

The National Football League ("NFL") and NFL Properties LLC (collectively "NFL Parties") have agreed  to  a  $760  million   Settlement   of  a  class  action  lawsuit   seeking  medical  monitoring  and compensation for brain injuries al1egedly caused by head impacts experienced in NFL footbal1. The NFL Parties deny that they did anything wrong.

The Settlement inc1udes all retired players of the NFL, the American Football League  ("AFL")  that merged with the NFL, the World League of American Football,  NFL Europe League and NFL Europa League as well as immediate family members of retired players and legal  representatives  of incapacitated incompetent or  deceased  retired  players.

The Settlement will provide  eligible retired  players  with:

Baseline neuropsychological and neurological exams to determine if retired players are:  a) currently suffering from any neurocognitive impairment including impairment serious enough for compensation and b) eligible for additional testing and/or treatment ($75 million);

Monetary   awards  for  diagnoses   of  ALS  (Lou  Gehrig's  disease), Parkinson’s   Disease, Alzheimer's Disease, early  and  moderate  Dementia  and  certain  cases  of chronic  traumatic  encephalopathy (CTE) (a neuropathological finding) diagnosed  after death ($675 million); and

Education  programs  promoting  safety  and  injury  prevention   with  respect  to  football players including  safety-related  initiatives  in youth  football, the  education  of retired  players  regarding  the NFL' s medical  and  disability programs  and  other  educational  programs  and  initiatives  ($10 million)
To get money proof that injuries were caused by playing NFL football is not required.

Settlement Class Members must register to get benefits. Sign up at the website for notification of the registration date.

Your legal rights are affected even if you do nothing.  Please read this Notice carefully.

The Fight Must Go On | NFL Concussion Litigation

The proposed NFL concussion class action settlement was filed today.  More on that in the next post.  A reactionary provision of Missouri law bars workers comp claims for occupational diseases.  This created an opening for Paul Anderson to file a tort action on behalf of former players for the Kansas City Chiefs who allege brain injury due to the unsafe conditions of play.  The action is framed in the years 1987 - 1993 when there was no collective bargaining agreement.  The NFL CBA gives the exclusive right of representation to the players union as certified representative under the National Labor Relations Act.  Its 2011 version provides substantial liability protection to the NFL and its physicians, as Nicholas Burkhart argues in a recent paper. - GWC

The Fight Must Go On | NFL Concussion Litigation:
by Paul Anderson  - December 3, 2013
"Basically, the NFL is paying a fee to make the lawyers go away – many of them took the bait. I decided that the fight must go on. The commentator hat is coming off. More work must be done. The public demands the truth and the players deserve justice.To that end, our legal team (comprised of Ken McClain, Dirk Vandever and myself) filed the first ever brain injury lawsuit against the Kansas City Chiefs. Due to a unique opportunity in the law, Missouri is the only state that allows employees to sue their employers directly for occupational diseases. What’s more,our lawsuit is framed to focus squarely on the years (1987 – 1993) when no collective bargaining agreement was in effect.Today, Chris Martin, Kevin Porter, Joe Phillips, Louis Cooper and Leonard Griffin took the first step to lead the former players down the path of justice. Many other players that played for the Chiefs or Rams could also benefit. The time is now.A copy of the lawsuit filed today in Kansas City, Missouri can be found here: Cooper et al v. KC Chiefs."

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Thursday, January 2, 2014

Distracted driving most common among young drivers // NEJM

Distracted Driving.
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Distracted Driving and Risk of Road Crashes among Novice and Experienced Drivers — NEJM by Kauer, et al
Drivers who are 15 to 20 years of age constitute 6.4% of all drivers, but they account for 10.0% of all motor vehicle traffic deaths and 14.0% of all police-reported crashes resulting in injuries.1 These rates are thought to result from a combination of young age, inexperience, and risky driving behaviors.2One of the riskiest driving behaviors is the performance of a secondary task, and novice drivers appear to be particularly prone to this distraction.3Distracted driving has been defined as the “diversion of attention away from activities critical for safe driving toward a competing activity.”4 Drivers engage in many competing tasks (including eating, adjusting the radio, and talking to passengers) that are not related to operating the vehicle in traffic, but the use of electronic devices such as cell phones while driving has garnered the most public and mass-media interest. An estimated 9% of all persons who drive during the day do so while dialing or talking on a cell phone or sending or receiving text messages.3