Liability roundup

  • As one who wrote at length about the silicone-implant litigation at the time — founded as it was on junk science theories hyped to panic potential plaintiffs — I agree that Elizabeth Warren has nothing to apologize for about her bankruptcy work for Dow Corning. Move on to better criticisms, please [Darren McKinney, WSJ] Related: Federalist Society teleforum on mass tort bankruptcies with Steven Todd Brown, Ralph Brubaker, and Dan Prieto;
  • “What should be the duty of public retailers whose customers have bizarre or offensive clothing, appearance, demeanor or behavior but do not actually engage in or threaten violence on the retailers’ premises? To avoid risk, should the retailers exclude them from their stores?” [Eugene Volokh quoting federal court opinion in Budreau v. Shaw’s Supermarkets, Inc. (D. Maine)]
  • New York residents should brace for higher taxes as trial-lawyer-backed bill in Albany exposes public authorities to more road claims [John Whittaker, Jamestown Post-Journal]
  • “Kansas Supreme Court Throws Out Personal Injury Damages Cap” [Associated Press]
  • Whose proposal for joint trial counts as triggering removal of mass action under the Class Action Fairness Act? The court’s? Choice between federal and state courts implicates fundamental questions of fairness [Eric Alexander, Drug and Device Law on Supreme Court certiorari petition in Pfizer v. Adamyan]
  • Glyphosate, talc verdicts suggest juries may be paying more attention to purported smoking-gun documents than to scientific evidence on causation [Daniel D. Fisher, Northern California Record; Corbin Barthold, WLF] “Inconsistent Gatekeeping Undercuts the Continuing Promise of Daubert” [Joe G. Hollingsworth and Mark A. Miller, WLF]


  • “Elizabeth Warren has nothing to apologize for about her bankruptcy work for Dow Corning.”

    I accept what you say, and i think that identifies the sole qualification (aside from her age) that Warren has to be President – she knows a lot about bankruptcy.

  • Regarding the idea of expert jurors for cases with a scientific question at the core, such as the plausibility of glyphosate causing NHL.
    The writers in the links suggested that only jurors who knew the science could judge the science. But that would hardly be an impartial jury, or at the least, selection of jurors absent something like a compulsory and random draft from throughout the country or throughout the world would be needed. Science knows no jurisdiction, so there can be no geographic relationship between the juror and the courts venue. And experts might well be foreign citizens, so how could a true fact finding jury exclude the best fact finders merely because they live elsewhere

    Maybe a better proposal would be to impanel jurors capable of knowing the subject. Learned folks who have rigorous scientific training, and some decades experience at the general methodology of research, data analysis, and general debunkum skills. Pull from an unrelated scientific field, and then let the expert witnesses on both sides present the evidence to a at cannot easily be fooled with smoke and mirrors.

    • Gasman,
      I have been summoned for Jury Duty three times in my life. Once I was in a pool for three days and then told that I wasn’t needed. The other two times I made it to the selection phase. Both were Liability Trials, both times when I was asked what I did for a living and replied “Mechanical Engineer” I was thanked for my time and dismissed. Do you think that there might be a reason why they want people on a Jury that don’t understand science?

      • I was thanked for my time and dismissed.

        It’s small solace, but at least you cost the side who dismissed you one of their limited number of peremptory challenges.

        The same thing often happens to lawyers and other professionals who are called for jury duty.

        One side or the other usually wants a jury of the most gullible and unskilled people possible.

    • I’ve been impaneled several times, but reached a jury only once. That was in slip and fall liability case in NYC. I was amazed, because at the time I was a senior exec at a large insurance company in New York. Go figure.