Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘product liability’

R.I. jury finds former lead paint makers liable

“A Rhode Island jury today found Sherwin-Williams Co. and two other paintmakers guilty of creating a ‘public nuisance’ by manufacturing lead paint after it was found to be dangerous.” If upheld, the verdict will force the companies to contribute millions toward abatement of existing paint; a judge will also consider demands for punitive damages. The ruling, the first of its kind, is also expected to encourage the filing of more suits against the industry; the cities of Chicago and Milwaukee are among those with suits in progress. (Maya R. Payne, “Jury finds against three paintmakers”, Crain’s Cleveland Business, Feb. 22; AP/Boston Globe; Reuters). Blogger Jane Genova has been covering the three-month trial from the scene.

The verdict is an unfortunate confirmation that the “tobacco model” of mass tort litigation remains alive and well. In particular, contingency-fee private counsel have once again managed to 1) dream up a novel idea for litigation based on the idea that some category of public expenditure is really blameable on long-ago sales of a product; 2) sell the idea of suing to public officials who agree to front the action, and who thus provide (along with advocacy groups) a suitably public face for the lawsuit; and 3) manage to get liability attributed retroactively to businesses whose actions decades ago were plainly lawful under the standards of that time. In the Rhode Island case, in particular, the outcome represents the culmination of years of careful groundwork by South Carolina-based asbestos/tobacco powerhouse plaintiff’s firm Motley Rice (earlier Ness Motley), which some years embarked on a strategy of making itself a behind-the-scenes kingmaker in Rhode Island — one of America’s most politically insider-ish, as well as smallest, states. For details on how the Motley firm quickly established itself the number one donor in Rhode Island politics, with special generosity toward officials who could be helpful to its idea for a lead paint suit, see Jun. 7, 2001.

For more coverage of the Rhode Island suit, see Jun. 8-10, 2001; Jul. 2, Nov. 1 and Nov. 16, 2005; and various other entries.

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Asbestos Trust-Fund Legislation Defeated

The Senate has apparently defeated the bill that would create a $140 billion trust fund to pay asbestos claims (Charles Hunt, “The Senate Defeats Asbestos Trust-fund Legislation” The Washington Times, Feb 15).

Whether this represents a final defeat of the measure is unclear, since there seem to be a number of procedural questions surrounding the bill. The Wall Street Journal ($) had an interesting editorial yesterday (2/14), which described the bill basically as deeply-flawed legislation to try to correct a deeply-flawed litigation situation.

You can see the vote count here, but, in a fairly unique outcome in these hyper-partisan times, both Democrats and Republicans were split on this one.

Update: Made a few changes to the links to try to better match Ted and Walter’s style

Ted has more on the bills prospects at Point of Law, as well as a whole archive of following the asbestos mess.

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“Ovenware will get hot when used in oven” and other wacky warnings

Everyone loves M-LAW‘s annual Wacky Warning awards (2005, 2004, and links therein), and this year’s winners in the ninth edition of the contest are no exception. Bobcat-urine users are informed that it’s not for human consumption; “Never try to catch a falling knife”; and don’t try to use a 1000-degree paint-removing heat-gun as a hair dryer are among other winners.

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Damned if you do, damned if you don’t files: toy safety

Maryland PIRG complains about the toy industry:

Some toy manufacturers are over-labeling toys by placing choke hazard warnings on items that do not contain small parts. This could dilute the meaning of the warning labels, making them less useful to parents.

One looks forward to the day where a Ralph Nader-founded organization intervenes as amicus in a failure-to-warn lawsuit to make the argument that liability should not be found because holding a manufacturer liable will create incentives to over-label and dilute the meaning of warnings.

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A Yellow Pages warning joke?

Our friend Dave Boaz of the Cato Institute writes to say:

Our Verizon Superpages this year came with a reduced-size version labeled “SuperPages Companion Directory.” Just below the title it says:

A reduction in ad size may affect legibility.
Caution: Not for use while operating a moving vehicle.

Do you think that’s just a little joke by an Overlawyered reader at Verizon?

More: Reader Pete Madsen writes, “No, not a joke. My wife’s a Realtor, and I’ve seen too many of her colleagues’ cars with phone books in them.”

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“For many, Vioxx verdict may mean more suffering”

Lisa Stringer, 38, of Chicago, who suffers chronic pain from a spine condition and gets little relief from other drugs, “is saving her last three precious Vioxx tablets for the really bad days”; she’s one of thousands of patients upset that the drug is unavailable now. Even one of the plaintiff’s expert witnesses in Ernst seems to agree that it ought to be on the market — slim chance of that now (Bruce Japsen, Chicago Tribune, Aug. 21). WiredGC (Aug. 22) writes: “I know people who are desperate for it to go back on the market, as it was the only medication that made their pain bearable and a mobile life livable. They would gladly take the (slight) increased risk of stroke or heart attack, for the chance to be able to get out of bed in the morning.”

Derek Lowe (Aug. 21) doesn’t buy the notion that the execs, scientists and marketers at a company like Merck carry a map in their heads with a big line drawn between “Vioxx users” and “us”. And Ted has further expanded his big Point of Law post on the case to reflect new press accounts based on juror interviews: in particular, don’t miss the juror who wanted to be on Oprah, and the juror who bragged to the WSJ that he didn’t understand any of the medical evidence.

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Update: suing the goal post maker

Updating our Sept. 30, 2003 item: an attorney for Andrew Bourne of Liberty, Ind., says his client will appeal a recent court ruling that found that a manufacturer of goal posts, Connecticut-based Gilman Gear, is not responsible for injuries Bourne sustained when his fellow Ball State students toppled a goal post after a 2001 football victory. (Brian Zimmerman, “Paralyzed man will appeal ruling”, Richmond (Ind.) Palladium-Item, Jul. 23).

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Ernst v. Merck opening statements

Fortune has the best coverage of the Thursday opening statements, and notes the contrast between the opening statements of plaintiff’s attorney Mark Lanier, which was illustrated by pictures of a steamroller and a shell game, and Merck attorney David C. Kiernan, which the magazine seems to think made a mistake in respecting the intelligence of the jury by relying on the science behind the case instead of folksy name-calling. “If the company hoped to win points with the public for erring on the side of safety—its stated public rationale for having pulled the drug—the wager may have been naïve.” And if plaintiffs’ attorneys succeed in punishing Merck for taking safety measures, it’s bound to reduce safety in the future. Meanwhile, the New York Times publishes a puff piece on the plaintiff widow fed to the newspaper by the attorneys, barely acknowledging that her husband died of an arhythmia rather than a blood clot, and then failing to note that Roger Ernst was just one of 200,000 victims a year of fatal atherosclerosis (except in the small print of a photo of the coroner’s certificate), and thus was not “healthy and fit” regardless of whether he was a triathlete. The Times reveals a rogues’ gallery of plaintiffs’ lawyers helping out Lanier, without giving any indication of their unseemly background: Benedict Morelli (Nov. 23, 2003) and Fred Baron’s wife, Lisa Blue of Baron & Budd (Jul. 15, 2004; Jun. 17, 2004 and links therein). (Roger Parloff, “Stark Choices at the First Vioxx Trial”, Fortune, Jul. 15; Alex Berenson, “Contrary Tales of Vioxx Role in Texan’s Death”, New York Times, Jul. 15; Alex Berenson, “Jury Is Selected for Case Involving the Drug Vioxx”, New York Times, Jul. 14; Alex Berenson, “In First of Many Vioxx Cases, a Texas Widow Prepares to Take the Stand”, New York Times, Jul. 13; previous Overlawyered coverage: Jul. 1, Jul. 11 (includes my disclaimer), POL Jul. 15). Plaintiffs’ attorney Daniel Keller is liveblogging the trial, albeit not in the most objective fashion. Further coverage: Jul. 29, Aug. 19 ($253 million jury verdict).

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