FactCheck.org : Warren’s Role in Asbestos Case

FactCheck.org : Warren’s Role in Asbestos Case: "Massachusetts Sen. Scott Brown and challenger Elizabeth Warren are accusing each other of “not telling the truth.” Brown says Warren worked to “restrict payments” to asbestos victims, while Warren says she worked to “get more money” for them. We find Warren is correct; Brown’s ad is a distortion."



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Med Mal Damage Cap Upheld by Kansas Supreme Court

Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Nancy Moritz

Amy C. Miller sued her surgeon Carolyn Johnson, who mistakenly removed Miller's left ovary during a surgery intended to take the right ovary. A Kansas jury awarded her $759,679.74 in damages. But the trial judge reduced that amount by $325,000 because a state law limited non-economic damages to $250,000 in personal injury lawsuits. On October 5 the state Supreme Court upheld the cap in Miller v. Johnson.  The majority analogized the limits to the tradeoffs which justified the removal of workplace injuries to the administrative remedies of workers compensation.  But as the dissent pointed out those remedies do the injured worker some good by providing a sure and swift remedy.

Section 5 of the Kansas Constitution's Bill of Rights protects the right to trial by jury. It states: "The right of trial by jury shall be inviolate." That right is plainly infringed by the damages cap which abrogates the traditional power of the jury to make whole the victim of a tort.  But, the court held, there is no infringement if the Legislature provides an adequate substitute - a quid pro quo.  Here the court found that the statute compelled every physician to carry at least $200,000/claim insurance ($600,000 annual aggregate).  It also created an excess insurance fund.  The measure thus assured "the prospects for recovery of at least the statutory minimums directly available as a benefit to medical malpractice plaintiffs when there is a finding of liability. This is something many other tort victims do not have."

Justice Carol Beier, in an exhaustive dissent, rejected the holdings, saying that the quid pro quo must be one that serves the person whose individual right is infringed - not just accomplish some general societal good:

I would hold today that an adequate substitute remedy is one that provides an individual benefit to each person in the class of plaintiffs whose constitutional right to remedy is impaired. Section 18 protects an individual right—the right of every person to the remedies that existed at common law for injuries to his or her person, property, or reputation.

JusticeLee  Johnson joined Beier's dissent - adding a populist peroration:

Unfortunately, the most affluent and advantaged people in our society often get what they want at the expense of the least fortunate among us whose voice is not loud enough to be heard. Sometimes, juries and the courts will act as life preservers for these burdened minorities. Today, in my view, this court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher profits for insurance companies and lower expenses for doctors. Shame on us. 

h/t  Torts Prof Blog

BP: More claims, more money - Northwest Florida Daily News

September 7, 2012	Objection Deadline
November 1, 2012	Opt Out Deadline
November 8, 2012	Fairness Hearing

As the November 1 class action opt-out deadline approaches Patrick Juneau - administrator of the court-supervised Deepwater Horizon Settlement fund - has to encourage people to file claims, rather than opt out of the class action settlement and continue the court fight.  But the fund's insistence on back-up documentation has delayed pacceptance of claims, increasing frustration.  There are practical questions: can a hotel prove its damages just by comparing this year to last in a year that was bad for business generally?  Few people canceled - most just never planned to come, they report. - GWC
BP: More claims, more money - Local News - Northwest Florida Daily News: by Tom McLaughlin

"PENSACOLA — “Fifty-eight million in free unadulterated dollars is going to hit” Northwest Florida in the near future, BP Claims Administrator Patrick Juneau announced Tuesday.

Juneau told a group of business people and elected officials that the funds will be used to resolve 1,099 of 11,214 claims filed against BP in the “region around Pensacola.”

Juneau, who on June 4 replaced Ken Feinberg as the man in charge of distributing BP dollars to parties suffering economic or property damage from the 2010 Deepwater Horizon oil spill, also promised more money was on the way.

“There’s going to be millions and millions of dollars,” he predicted during the meeting at Pensacola State College. “What you’re going to see is the number of eligible business claims continue to rise. I think we’ll see many more in the next two weeks.”"...

As of last Thursday, 7,144 claims had been declared eligible, and by Monday more than $422 million was approved for distribution, Juneau said.
Seven thousand remains a far cry from 60,000, Juneau conceded. He said that processing individual claims is being delayed because 90 percent of them don’t include the proper paperwork.
A deadline for parties seeking to opt out of the legal settlement administered by Juneau has been set for Nov. 1.
Jay and Nash Patel, representing 3,000 claims on behalf of the Asian American Hotel Owners Association, told Juneau Tuesday that their group was considering the opt-out.
The hotel group is considering initiating legal action of its own, the Patels said.
The association’s frustration lies with the claims processors’ insistence that owners provide documents proving reservation denials or cancellations, they said.
“We don’t have denials and cancelled reservations,” the Patel said, pointing out that hotel losses were borne out during the oil spill by rooms that simply weren’t filled.

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Skydiver Delays 23-Mile Free Fall - NYTimes.com

Probably just as well. -gwc
Skydiver Delays 23-Mile Free Fall - NYTimes.com: "ROSWELL, N.M. (AP) — Extreme athlete Felix Baumgartner canceled his planned death-defying 23-mile free fall Tuesday because of high winds, the second time this week he was forced to postpone his quest to become the world's first supersonic skydiver"

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In a Shuttered Gasoline Can Factory, the Two Sides of Product Liability - NYTimes.com

They are classic product liability cases: terrible injuries, careless conduct, and an apparently simple fix. It leads to compromise and to the occasional blockbuster verdict as in the Utah case Calder v. Blitz USA, Inc., in which he jury found Calder 30% at fault and Blitz 70%.  Pouring gasoline on a fire is a terrible idea.  And it gets worse if the flame shoots back to the source and the can explodes.  the defenses of misuse and the user's contributory negligence are obvious.  

But what if there is a simple device - a flame arrester - a piece of wire mesh - that, an engineer explains,  could prevent the explosion?  An alternative safer design, its feasibility, and practicality become the focus of the litigation.  And so it as been for the ironically named Blitz- manufacturers of a familiar object: the red plastic gas can which has gone bankrupt and shut down.   Someone will buy their assets but will not continue their product line for fear of taking on their liabilities too.  The Times presents the story well.  - GWC

In a Shuttered Gasoline Can Factory, the Two Sides of Product Liability - NYTimes.com: 

By CLIFFORD KRAUSS 

Crusading against what it considers frivolous lawsuits, the United States Chamber of Commerce has had no shortage of cases to highlight, like the man suing a cruise line after burning his feet on a sunny deck or the mother claiming hearing loss from the screaming at a Justin Bieber concert.  Now, the lobbying group’s Institute for Legal Reform is showing a 30-second commercial that uses Blitz USA, a bankrupt Oklahoma gasoline can manufacturer, to illustrate the consequences of abusive lawsuits. The ad shows tearful workers losing their jobs and the lights going out at the 46-year-old company as a result of steep legal costs from lawsuits targeting the red plastic containers, according to the company and the institute."...

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Argument recap: In search of an ATS compromise : SCOTUSblog

Update: Prof. Alberto Bernabe has collected commentary on argument at his Torts Blog

The plaintiff's Alien Tort Statute case in Kiobel v. Royal Dutch Shell appears to be in grave jeopardy.  There was not much support today at re-argument in the Supreme Court for this claim by a foreign national against a foreign corporation for conduct that occurred entirely outside the United States.  Sonia Sotomayor appeared to embrace the approach urged by the European Commission: that the U.S. courts should provide a "forum by necessity" where there was no remedy where the rights violation occurred.
Argument recap: In search of an ATS compromise : SCOTUSblog:
by Lyle Denniston

Paul L. Hoffman, a California lawyer representing Nigerian nationals claiming killing and torture in their homeland, faced claims that his approach would mean no limits on a worldwide pursuit of human rights justice, potentially disrupting diplomatic relations generally.  Kathleen M. Sullivan, a New York lawyer for the big foreign oil companies sued in the case and seeking to head off almost all ATS claims, encountered suggestions that her view would cut back even on ATS claims that the Court has already allowed.  And U.S. Solicitor General Donald B. Verrilli, Jr., arguing against the Kiobel claim but pleading to keep the courts open to at least some ATS cases, ran up against arguments that he was switching away unpersuasively from the more clear-cut position taken by the government in the past

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OTHERWISE: Three lawyers ask Supreme Court to Spurn Alien Tort claims act cases | Reuters

OTHERWISE: Three lawyers ask Supreme Court to Spurn Alien Tort claims act cases | Reuters:



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New Ruling on Katrina Favors Corps of Engineers - NYTimes.com

Bernouilli's principle -  animation
"as the velocity of a fluid increases, the pressure exerted by that fluid decreases."

New Ruling on Katrina Favors Corps of Engineers - NYTimes.com: 

A federal appeals court has reversed itself, ruling that the Army Corps of Engineers is not liable for devastation caused in Hurricane Katrina by a government-built navigation canal - the Mississippi River Gulf Outlet.  Dredged from 1958-1968, MRGO has now been "deauthorized" by Congress.
The Court of Appeals for the Fifth Circuit ruled that the United States of America is immune from lawsuits for decisions made by the Corps in design and maintenance of the 76-mile shipping channel carved through Louisiana wetlands  by the Corps.

“MR-GO’s size and configuration greatly aggravated the storm’s effects on the city and its environs,” wrote Judge Jerry E. Smith, writing for a three-judge panel, but the "discretionary function exception" to the federal tort claims act “completely insulates the government from liability.”
In March, the same panel had ruled that the government was liable for some of the flooding, affirming a landmark ruling by Judge Stanwood Duval Jr. of federal District Court in 2009 (647 F. Supp. 2d 644)
Treating the government's petition for en banc review by the entire circuit as a petition for panel rehearing, the three judge panel withdrew its earlier pro-plaintiff opinion  in In re Katrina Canal Breaches Litig., 673 F.3d 381 (5th Cir. March 2, 2012) and reversed itself (September 24, 2012).  The court concluded that even though the Army Corps of engineer's MRGO's design did not gain immunity under the Flood Control Act, 33 USC 702c, yet any design flaw-caused damages were entitled to immunity under the Federal Torts claims Act's discretionary function exception 28 USC 2680 (a).  That measure provides that the government's consent to suit does not include

"(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. "

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At Cravath, Swaine & Moore, Loving the Work Led to Promotions - NYTimes.com

Now get this: In 1976 Times columnist James Stewart, fresh out of Harvard Law, started at Cravath.  He made $16,500.  I was a pass-fail graduate of Rutgers - the People's Electric Law School - I started my first law job - earning $13,500 as a J.D. desirable - but not required - Business Rep at Actors Equity Association- AFL-CIO.   But today an associate at Cravath makes $160,000 to start and an associate at a small firm makes perhaps $60,000.  A year at a private law school then was $2,500.  Today it is $45,000 or more.  You do the math. - GWC
At Cravath, Swaine & Moore, Loving the Work Led to Promotions - NYTimes.com:
by James B. Stewart

When I crossed the threshold of Cravath, Swaine & Moore 36 years ago next month, fresh from the bar exam and Harvard Law School, I entered a new world and began what turned into a life-changing experience.
Cravath’s offices were at One Chase Manhattan Plaza, headquarters for the Rockefellers’ Chase Manhattan Bank and a magnet for prominent law firms. I was just a short elevator ride away from lunch with my friends at Davis Polk & Wardwell; Milbank, Tweed, Hadley & McCloy; and Willkie Farr & Gallagher. All of Cravath’s lawyers and support personnel fit into two floors — 57 and 58 — and everyone knew one another, except for a cadre dispatched to Armonk, N.Y., for an I.B.M. case and small offices in London and Paris.

As a newcomer, I shared an office with a more senior associate, who got the coveted window seat. Cravath did its best to keep the outside world at bay and minimize distractions. Among these was what other lawyers were being paid. I was told when I arrived that my salary would be $16,500 and it was Cravath policy to always pay the highest rate. While my friends at other firms were speculating avidly about whether, say, Sullivan & Cromwell would raise starting salaries and others would follow, at Cravath we knew that if they did, our firm would top them. We were all paid the same based on seniority, and bonuses were unheard-of, so there were no jealousies or resentments.

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3 wounded in Colorado mass shooting sue theater owner - Denver Post

James Holmes - deranged shooter at the Dark Knight opening

Aurora theater shooting victims file suits against Cinemark

POSTED:   09/21/2012 02:08:07 PM MDT
UPDATED:   09/22/2012 08:31:15 AM MDT

-- Three people wounded in the July mass shooting at a Colorado multiplex are suing the theater owner, claiming that security was lax the night a gunman opened fire and killed 12 people.

Two lawsuits filed Friday against Cinemark USA Inc., owner of Century Aurora 16, allege negligence on the part of the corporation because the theater lacked adequate security or sufficient alarm systems:.

"Although the theater was showing a midnight premier of the movie and was expecting large crowds of people to attend the midnight showing, no security personnel were present for that showing," according to both lawsuits, which were filed by the same law firm."The exterior doors to the theater were lacking in any alarm system, interlocking security systems, or any other security or alarm features."

Complaint: Nowlan v. Cinemark USA 

Updated: 9/27/2012 Cinemark has moved to dismiss, arguing that the massacre was a "random act", unforeseeable as a matter of law.

Recommendation of Magistrate Judge denying motion to dismiss under FRCP 12(b)(6) - January 23, 2012

R

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