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:

Abstract

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

Rep. 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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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

Abstract:

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.

Glass Cage Silences Morsi During Egyptian Trial - NYTimes.com

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 - NYTimes.com:

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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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.

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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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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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:

• A could argue that; or

• A might argue that; or

• A 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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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.
- GWC
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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