The Canadian Medical Association has come out with an editorial, described here, that calls on Canada to join with other countries to further regulate "asbestsos" exports. The topic is of interest in Canada because its been a major exporter of asbestos for decades, and so the fibers produce jobs, corporate profits and tax revenue. The issue is in part caused by disputes about how safe or unsafe are the various types of asbestos fibers and their various end uses. The topic is relevant here because a recurrent issue in tort litigation no doubt will be whether and how health standards and practices in one country should effect what happens in another country or be applied in different countries.
The same issues also arise for politicans, as illustrated by the article. In the US, the issue has arisen during the US presidential election through Senator Obama has called for further and/or additional enforcement of terms intended to protect workers and "the environment" against processess that are not deemed as safe as practices in the US. Some have called it that a good idea, and others call it "protectionism." Some would say that it is short-sighted if the US and other "developed" economies do not push or "nudge" others to move towards less risky practices. Otherwise, it seems that industry is receiving a subsidy in the form of allowing it to undertake operations known not to be "safe." That said, others argue that the US should "let the free market" work and not "interfere."
Lots of room for debate in this area, and it will be interesting to see what happens.
Monday, October 20, 2008
Saturday, October 18, 2008
Illinois Supreme Court Finally Adopts the Risk Utility Test for Design Defect Product Liability Cases
Finally, it has happened. The following article says it all:
http://www.chicagolawbulletin.com/news/gettoctext.cfm?TOCUID=22758779
By Stephanie Potter Law Bulletin staff writer
The Illinois Supreme Court on Friday set new ground rules for the method of proof in design-defect cases, and in so ruling granted a new trial to two car companies that were hit with a $27 million verdict to the family of a man killed in a high-speed, rear-end collision.
At issue in the case was the relationship between the two tests that can be used by plaintiffs to prove their case in strict-liability design-defect cases: the consumer-expectations test and the risk-utility test.
The consumer-expectations test asks whether the product failed to perform as safely as an ordinary consumer would expect when used in its intended manner. The risk-utility test asks whether the harm could have been avoided by the adoption of a reasonable alternative design and incorporates a number of factors, including the consumer's expectations.
Writing for the court in a 42-page opinion, Justice Rita B. Garman said both tests can be used by plaintiffs in strict-liability design-defect cases in order to prove a product is unreasonably dangerous. However, if the defendant presents evidence under the risk-utility test, that test is determinative because the consumer-expectations test is incorporated into it. In this case, Garman wrote, defendants Ford Motor Co. and Mazda Motor Corp. are entitled to a new trial because they presented evidence of risk-utility and requested a jury instruction on it, but were refused by Cook County Circuit Judge James P. Flannery Jr.
''In sum, we hold that both the consumer-expectation test and risk-utility test continue to have their place in our law of strict product liability based on design defect,'' Garman wrote. ''Each party is entitled to choose its own method of proof, to present relevant evidence, and to request a corresponding jury instruction. If the evidence is sufficient to implicate the risk-utility test, the broader test, which incorporates the factor of consumer expectations, is to be applied by the trier of fact.''
In so ruling, the high court rejected a request by attorneys for the defendants to adopt the risk-utility test as the sole method of proof in strict-liability design-defect cases involving complex products.
Justice Thomas L. Kilbride did not participate in the ruling. Chief Justice Thomas R. Fitzgerald dissented in part, saying he believed the defendants' proposed non-pattern jury instructions were flawed and that Flannery did not abuse his discretion in declining to give them to the jury.
Plaintiff Connie Mikolajczyk sued the car companies after her husband, James, suffered fatal head injuries when his Ford Escort was struck from behind by a drunk-driver. James Mikolajczyk was stopped at a red-light when the driver, William Timberlake, plowed into him at 60 mph, the opinion said. The Mikolajczyks' then 10-year-old daughter also was injured in the February 2000 wreck.
The suit alleged that James Mikolajczyk died because of the driver's side seat collapsed when the car was rear-ended, causing him to be propelled backward and strike his head on the backseat of the car. The seat was designed by Mazda, the opinion said.
At trial, the car companies argued the ''yielding'' seat used in the Escort would be safer than a rigid seat during certain types of accidents. They contend that jurors presented with an instruction on the risk-utility test could have weighed the evidence of risks, benefits and alternative designs and found in favor of the car companies, the opinion said.
However, Garman wrote in summarizing the defense argument, being presented only with the consumer-expectation test in a case involving a fatal accident raised the risk that the jury might have ''done 'rough-justice' based on their sympathy for the tragic death of a young husband and father, without considering, for example, the evidence that 99.6 percent of the cars on the road at that time were equipped with yielding seats.''
Because of its ruling ordering a new trial, it also did not take up a key issue in the 1st District Appellate Court's ruling affirming the verdict finding the defendants liable.
The appeals court had upheld the $2 million award to Connie Mikolajczyk for loss of money, goods and services, but found the $25 million loss of society award was excessive.
Plaintiff attorney Bruce R. Pfaff of Pfaff & Gill Ltd. was disappointed in the ruling and planned to seek rehearing. Pfaff maintains that the ruling wrongly strips plaintiffs of control over their theory of the case. He said Flannery could not have predicted the high court's change in the law when trial was held more than three years ago.
Nevertheless, he said he would try the case again if necessary, and expected to prevail.
''I received the kindest e-mail from my clients expressing their faith in us and our work and telling us to keep on, and naturally we will,'' Pfaff said.
Pfaff tried the case with Michael T. Gill.
Attorneys for the defendants also were confident they would prevail at a new trial.
''We think the improper jury instructions were a substantial contributing factor to the verdict against Ford in the case,'' said Scott P. Glauberman of Winston & Strawn LLP.
Also representing the defendants were Bruce R. Braun and a number of other attorneys from Winston & Strawn LLP, as well as Karen Kies DeGrand and Mark H. Boyle, both of Donohue, Brown, Mathewson & Smyth LLC.
Amici briefs were filed for the defendants by the Products Liability Advisory Council Inc., the Illinois Manufacturers' Association, the National Association of Manufacturers, the Illinois Association of Defense Trial Counsel, and the Alliance of of Automobile Manufacturers, Inc. The Illinois Trial Lawyers Association filed a brief in support of the plaintiff's position.
Connie Mikolajczyk etc. v. Ford Motor Co., et al., No. 104893. In other decisions issued Friday, the Supreme Court:
http://www.chicagolawbulletin.com/news/gettoctext.cfm?TOCUID=22758779
By Stephanie Potter Law Bulletin staff writer
The Illinois Supreme Court on Friday set new ground rules for the method of proof in design-defect cases, and in so ruling granted a new trial to two car companies that were hit with a $27 million verdict to the family of a man killed in a high-speed, rear-end collision.
At issue in the case was the relationship between the two tests that can be used by plaintiffs to prove their case in strict-liability design-defect cases: the consumer-expectations test and the risk-utility test.
The consumer-expectations test asks whether the product failed to perform as safely as an ordinary consumer would expect when used in its intended manner. The risk-utility test asks whether the harm could have been avoided by the adoption of a reasonable alternative design and incorporates a number of factors, including the consumer's expectations.
Writing for the court in a 42-page opinion, Justice Rita B. Garman said both tests can be used by plaintiffs in strict-liability design-defect cases in order to prove a product is unreasonably dangerous. However, if the defendant presents evidence under the risk-utility test, that test is determinative because the consumer-expectations test is incorporated into it. In this case, Garman wrote, defendants Ford Motor Co. and Mazda Motor Corp. are entitled to a new trial because they presented evidence of risk-utility and requested a jury instruction on it, but were refused by Cook County Circuit Judge James P. Flannery Jr.
''In sum, we hold that both the consumer-expectation test and risk-utility test continue to have their place in our law of strict product liability based on design defect,'' Garman wrote. ''Each party is entitled to choose its own method of proof, to present relevant evidence, and to request a corresponding jury instruction. If the evidence is sufficient to implicate the risk-utility test, the broader test, which incorporates the factor of consumer expectations, is to be applied by the trier of fact.''
In so ruling, the high court rejected a request by attorneys for the defendants to adopt the risk-utility test as the sole method of proof in strict-liability design-defect cases involving complex products.
Justice Thomas L. Kilbride did not participate in the ruling. Chief Justice Thomas R. Fitzgerald dissented in part, saying he believed the defendants' proposed non-pattern jury instructions were flawed and that Flannery did not abuse his discretion in declining to give them to the jury.
Plaintiff Connie Mikolajczyk sued the car companies after her husband, James, suffered fatal head injuries when his Ford Escort was struck from behind by a drunk-driver. James Mikolajczyk was stopped at a red-light when the driver, William Timberlake, plowed into him at 60 mph, the opinion said. The Mikolajczyks' then 10-year-old daughter also was injured in the February 2000 wreck.
The suit alleged that James Mikolajczyk died because of the driver's side seat collapsed when the car was rear-ended, causing him to be propelled backward and strike his head on the backseat of the car. The seat was designed by Mazda, the opinion said.
At trial, the car companies argued the ''yielding'' seat used in the Escort would be safer than a rigid seat during certain types of accidents. They contend that jurors presented with an instruction on the risk-utility test could have weighed the evidence of risks, benefits and alternative designs and found in favor of the car companies, the opinion said.
However, Garman wrote in summarizing the defense argument, being presented only with the consumer-expectation test in a case involving a fatal accident raised the risk that the jury might have ''done 'rough-justice' based on their sympathy for the tragic death of a young husband and father, without considering, for example, the evidence that 99.6 percent of the cars on the road at that time were equipped with yielding seats.''
Because of its ruling ordering a new trial, it also did not take up a key issue in the 1st District Appellate Court's ruling affirming the verdict finding the defendants liable.
The appeals court had upheld the $2 million award to Connie Mikolajczyk for loss of money, goods and services, but found the $25 million loss of society award was excessive.
Plaintiff attorney Bruce R. Pfaff of Pfaff & Gill Ltd. was disappointed in the ruling and planned to seek rehearing. Pfaff maintains that the ruling wrongly strips plaintiffs of control over their theory of the case. He said Flannery could not have predicted the high court's change in the law when trial was held more than three years ago.
Nevertheless, he said he would try the case again if necessary, and expected to prevail.
''I received the kindest e-mail from my clients expressing their faith in us and our work and telling us to keep on, and naturally we will,'' Pfaff said.
Pfaff tried the case with Michael T. Gill.
Attorneys for the defendants also were confident they would prevail at a new trial.
''We think the improper jury instructions were a substantial contributing factor to the verdict against Ford in the case,'' said Scott P. Glauberman of Winston & Strawn LLP.
Also representing the defendants were Bruce R. Braun and a number of other attorneys from Winston & Strawn LLP, as well as Karen Kies DeGrand and Mark H. Boyle, both of Donohue, Brown, Mathewson & Smyth LLC.
Amici briefs were filed for the defendants by the Products Liability Advisory Council Inc., the Illinois Manufacturers' Association, the National Association of Manufacturers, the Illinois Association of Defense Trial Counsel, and the Alliance of of Automobile Manufacturers, Inc. The Illinois Trial Lawyers Association filed a brief in support of the plaintiff's position.
Connie Mikolajczyk etc. v. Ford Motor Co., et al., No. 104893. In other decisions issued Friday, the Supreme Court:
Tuesday, October 14, 2008
5th Circuit Weighs in on Rocket Dockets, Venue and Forum Shopping
A new en banc 5th Circuit opinion from a strongly divided court grants the extraordinary remedy of mandamus to overturn perceived forum shopping related to a "rocket docket" in the Eastern District of Texas. Much is being made of this opinion in many contexts, including patent law and product liability cases.
Opinions on venues and "rocket dockets" are taking on even more importance as litigants seek fast outcomes and ROI. That said, the Illinois Supreme Court has been issuing rulings since 1983 trying to stop perceived forum shopping in Illinois with respect to Madison and St. Clair counties (and other venues) but those counties remain extraordinarily active venues.
Opinions on venues and "rocket dockets" are taking on even more importance as litigants seek fast outcomes and ROI. That said, the Illinois Supreme Court has been issuing rulings since 1983 trying to stop perceived forum shopping in Illinois with respect to Madison and St. Clair counties (and other venues) but those counties remain extraordinarily active venues.
Thursday, October 9, 2008
UK Litigation Rising
Litigation is rising in the UK as litigation becomes a truly global industry. An October 8, 2008 online story from Global Reinsurance advises that the current fiscal fiasco of course will spawn lots of litigation, and then states the following specifics regarding increased litigation in the UK :
"UK Government figures for 2007 saw the highest number of actions being commenced in the Queens Bench Division for five years and statistics released by the Ministry of Justice last week also show that the number of defended claims is on the increase with a 16% rise on 2006."
"UK Government figures for 2007 saw the highest number of actions being commenced in the Queens Bench Division for five years and statistics released by the Ministry of Justice last week also show that the number of defended claims is on the increase with a 16% rise on 2006."
Wednesday, October 8, 2008
Courts Are Indeed Making Changes to the Law for Information-Related Tort Claims and New Article on Additional Changes and Impacts
For some time now, I've been writing about potential changes in product liability law due to rapid changes in communication and science. In a February, 2007 article for Corporate Counsel, I addressed various changes, including the widespread availability of scientific information and its impact on information-related tort claims. The article included my prediction that "sophisticated intermediary" types of defenses would change in light of all the available information. I'll pat myself on the back and note that I was right - in a drug case in 2007, the West Virginia Supreme Court cast aside the "learned intermediary defense due to the wide availability of information to consumers. See Johnson and Johnson v. Karl, 220 W.Va. 463, 647 S.E.2d 899 (2007). The Court there said many things, including the following:
"When the learned intermediary doctrine was developed, direct-to-consumer advertising of prescription drugs was utterly unknown . . . Since the 1997 proliferation of drug advertising, only four high courts have adopted the learned intermediary doctrine . . . None of those courts gave thorough consideration to the changes that have occurred in the prescription drug industry with respect to direct-to-consumer advertising. We however, find such changes to be a significant factor in deciding this issue . . "
So, with that as background, I particularly enjoyed reading an excellent new article by Sarah (Sally) Olson of Wildman regarding the Johnson case and other additional specific examples of the Internet's effect on tort claiming. The article is titled: Net's Impact on Strict Product Laibility Law. The effects she describes include increased numbers of public consumer complaints of defects, consumer input into design, whether a company needs to monitor blogs, whether a company run blog or website will produce its own liability if a company is not accurate in what it says publicly, and various other points. Ms. Olson's article is well worth reading in full and considering how it might apply in your context.
After that, think also about reading a 2008 book titled: Stop The Presses: The Crisis and Litigation PR Desk Reference. Written by Richard Levick and Larry Smith of Levick Strategic Communications, the book's chapters 7 and * deal with blog strategies and lots of other "crisis" issues that did not exist 5 years ago in any material way. Then I'd suggest reading their chapter 9 on the impacts of media as related to increased prosecutorial activity. That's a topic I've also covered in a more limited context in a 2006 Corporate Counsel article focused on "toxic torts" and criminal prosecutions.
"When the learned intermediary doctrine was developed, direct-to-consumer advertising of prescription drugs was utterly unknown . . . Since the 1997 proliferation of drug advertising, only four high courts have adopted the learned intermediary doctrine . . . None of those courts gave thorough consideration to the changes that have occurred in the prescription drug industry with respect to direct-to-consumer advertising. We however, find such changes to be a significant factor in deciding this issue . . "
So, with that as background, I particularly enjoyed reading an excellent new article by Sarah (Sally) Olson of Wildman regarding the Johnson case and other additional specific examples of the Internet's effect on tort claiming. The article is titled: Net's Impact on Strict Product Laibility Law. The effects she describes include increased numbers of public consumer complaints of defects, consumer input into design, whether a company needs to monitor blogs, whether a company run blog or website will produce its own liability if a company is not accurate in what it says publicly, and various other points. Ms. Olson's article is well worth reading in full and considering how it might apply in your context.
After that, think also about reading a 2008 book titled: Stop The Presses: The Crisis and Litigation PR Desk Reference. Written by Richard Levick and Larry Smith of Levick Strategic Communications, the book's chapters 7 and * deal with blog strategies and lots of other "crisis" issues that did not exist 5 years ago in any material way. Then I'd suggest reading their chapter 9 on the impacts of media as related to increased prosecutorial activity. That's a topic I've also covered in a more limited context in a 2006 Corporate Counsel article focused on "toxic torts" and criminal prosecutions.
Tuesday, September 16, 2008
Offtopic - Lawyers and Voters' Rights 2008 - Get Involved
The 2008 elections in the US are hard fought and important. Indeed, the President of the American Bar Association has issued a call to lawyers to get involved in 2008 elections to ensure that voting rights are honored. http://www.abanet.org/op/2008elections/%22%3Ehttp://www.abanet.org/op/2008elections/
For those who would like to get involved with voters rights issues, the following describes both nonpartisan and partisan groups focused on voters' rights.
The web pages referred to below are embedded in links, and the link addresses also are spelled out for anyone who wishes to copy and paste the information.
1) The American Bar Association has a website page specific to 2008 voting rights issues. http://www.abanet.org/2008election/
The page includes links to sign up for various different types of activities ranging from state-specific efforts to staffing a national hot line for voters with questions.
2) The National Campaign for Fair Elections is an initiative of the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law, and its website is here. http://nationalcampaignforfairelections.org/pages/about_us
That group and its efforts have been praised by the New York Times, among others, in editorials addressing some of the significant voting problems that marred the last two presidential elections. http://www.nytimes.com/2008/08/09/opinion/09sat1.html
The sign up page is located at: http://www.nationalcampaignforfairelections.org/page/s/volunteer
3) Vote Trust USA is a subgroup for the Verified Voting Foundation, which was founded by a Stanford law professor concerned about preserving an audit trail that enables meaningful recounts in the age of electronic voting. http://www.verifiedvotingfoundation.org/article.php?list=type&type=52
The Vote Trust website is at a different page, and includes substantive information and links to state-specific voting rights news and some groups involved in local voters' rights projects.
http://votetrustusa.org/index.php?option=com_content&task=blogsection&id=8&Itemid=113
4) The Brennan Center for Justice at New York University School of Law is not involved in poll watching per se, but does provides a wide-range of substantive information on voters right issues, and engages in some specific advocacy efforts in particular states.
http://www.brennancenter.org/
5) For partisan efforts, the Obama campaign is actively seeking lawyers and law students for election day poll watching and other voters rights efforts. The voters' rights sign up page is located at: http://my.barackobama.com/page/content/vrachome
6) A ten minute search of the McCain campaign website did not reveal a subgroup aimed at enlisting poll watchers. However, the website did include a September 15, 2008 press release yesterday promoting a voters' rights initiative by the campaign. http://www.johnmccain.com/Informing/News/PressReleases/Read.aspx?guid=90c928f6-38c7-4dc3-86c6-15149dbb8e07.
The press release directs readers to a website that lists various persons involved in the effort and presumably they can be contacted for further information.
http://www.johnmccain.com/honest/
For those who would like to get involved with voters rights issues, the following describes both nonpartisan and partisan groups focused on voters' rights.
The web pages referred to below are embedded in links, and the link addresses also are spelled out for anyone who wishes to copy and paste the information.
1) The American Bar Association has a website page specific to 2008 voting rights issues. http://www.abanet.org/2008election/
The page includes links to sign up for various different types of activities ranging from state-specific efforts to staffing a national hot line for voters with questions.
2) The National Campaign for Fair Elections is an initiative of the Voting Rights Project of the Lawyers' Committee for Civil Rights Under Law, and its website is here. http://nationalcampaignforfairelections.org/pages/about_us
That group and its efforts have been praised by the New York Times, among others, in editorials addressing some of the significant voting problems that marred the last two presidential elections. http://www.nytimes.com/2008/08/09/opinion/09sat1.html
The sign up page is located at: http://www.nationalcampaignforfairelections.org/page/s/volunteer
3) Vote Trust USA is a subgroup for the Verified Voting Foundation, which was founded by a Stanford law professor concerned about preserving an audit trail that enables meaningful recounts in the age of electronic voting. http://www.verifiedvotingfoundation.org/article.php?list=type&type=52
The Vote Trust website is at a different page, and includes substantive information and links to state-specific voting rights news and some groups involved in local voters' rights projects.
http://votetrustusa.org/index.php?option=com_content&task=blogsection&id=8&Itemid=113
4) The Brennan Center for Justice at New York University School of Law is not involved in poll watching per se, but does provides a wide-range of substantive information on voters right issues, and engages in some specific advocacy efforts in particular states.
http://www.brennancenter.org/
5) For partisan efforts, the Obama campaign is actively seeking lawyers and law students for election day poll watching and other voters rights efforts. The voters' rights sign up page is located at: http://my.barackobama.com/page/content/vrachome
6) A ten minute search of the McCain campaign website did not reveal a subgroup aimed at enlisting poll watchers. However, the website did include a September 15, 2008 press release yesterday promoting a voters' rights initiative by the campaign. http://www.johnmccain.com/Informing/News/PressReleases/Read.aspx?guid=90c928f6-38c7-4dc3-86c6-15149dbb8e07.
The press release directs readers to a website that lists various persons involved in the effort and presumably they can be contacted for further information.
http://www.johnmccain.com/honest/
Tuesday, September 9, 2008
Update on Entrepreneurial Claiming, Global Tort Litigation and Contingent Fees
There is renewed interest in and attention to the changes being wrought around the globe by entrepreneurial litigation claiming. I say that for many reasons, one of which is that it was a lively topic of discussion at meetings I attended the last few days in Europe with lawyers from around the world who belong to the International Business Law Consortium, commonly known as the IBLC. (Disclaimer/caveat - my law firm belongs to the group. The group's website is http://www.iblc.com/, which is here. )The topic also is currently in the news because of some $ 800 million of attorneys' fees awarded in Enron litigation, as is further described below.
The bottom line, in my view, is that entrepreneurial claiming is clearly growing all around the world and will continue to cause many changes. An interesting summer 2008 article from SJ Berwin LLP (an EU law firm with offices in several cities) explains the latest, claimant friendly ruling on UK "uplift" fees, and notes that Allianz has announced plans to raise a fund to commercial litigation cases. Also educational is a 2002 article by Professor Herbert Kritzer on myths related to contingent fees. In fact, contingent fees are permitted in many countries outside the US (including Luxembourg), as Prof. Kritzer describes in his detailed article, which is online in full text at this link.
Global litigation plainly is being fueled by claim buying, contingent fees and other entrepreneurial activities of trial lawyers. My partner, Karen Borg, and I described some of these developments in a recent article available here. The third and fourth sections include citations to find a German entity which buys antitrust claims, and describes an Illinois law firm which is pursuing tobacco litigation in Nigeria with the Nigerian government.
How well can it pay? This week news is out on attorneys' fees awards for the lawyers who helped to obtain the over $ 7 billion of recoveries from 3 major banks. A Law.com article by Amanda Bronstad states that the awards include "$688 million in attorney fees to San Diego's Coughlin, Stoia, Geller, Rudman & Robbins, lead counsel in the case. "The Court finds that in the face of extraordinary obstacles, the skills, expertise, commitment, and tenacity of Lead Counsel in this litigation cannot be overstated," wrote U.S. District Judge Melinda Harman, for the Southern District of Houston, who, in her ruling on Monday, referred to Coughlin Stoia as "a lion" in the securities bar. "Not to be overlooked are the unparalleled results, $7.2 billion in settlement funds, which demonstrate counsel's clearly superlative litigating and negotiating skills." The award gives Coughlin Stoia, which represents the lead plaintiff, the Regents of the University of California, its requested amount, which is about 9.52% of the net recovery of the settlement, the largest ever in a single class action. The firm stated that its lawyers and co-counsel, 13 firms, had spent nearly 290,000 hours on the litigation at a blended rate of $456 per hour. Coughlin Stoia was responsible for more than 85% of the time expended."This award is hardly unique. A prior post here reviewed some other recent large awards in contingent fee litigation.
Where will it all end? I am sure I do not know, but plainly there is much more to come in this area.
Subscribe to:
Posts (Atom)
Posts
