Orin Kerr, at the libertarian legal blog The Volokh Conspiracy, points to a new study claiming that laws prohibiting cell phone use while driving have not succeeded in reducing car crashes.
Kerr seems to suggest that, in light of the study’s data, such laws should be repealed.
It seems to me that the data, if true, are consistent with a number of conclusions, other than the conclusion that it’s perfectly safe to talk on your phone while driving. First, if these laws are ineffective, it may be because of underenforcement by the police. Having a law on the books is one thing, but in order to get people to change their behavior, the law has to be enforced. Maybe the police aren’t enforcing the law, or they are underenforcing the law. For example, Massachusetts police generally don’t stop cars to issue citations for violations of the state seat belt law; such citations are tacked on as add-ons, if a car is stopped for another reason, such as speeding.
Second, talking on a cell phone while driving might be such a ubiquitous phenomenon that, even in areas where police are enforcing the law, they are not making a dent in the number of people actually talking on their phones.
These competing explanations seem much more plausible to me than the conclusion that talking on a cell phone while driving is perfectly safe. Kerr’s conclusion simply flies in the face of the research showing talking on your cell phone while driving is very dangerous and makes drivers much more likely to be involved in a car crash.
USA Today ran a great article yesterday on nursing home quality. Their investigation found, somewhat surprisingly, that nonprofit nursing homes provide better care than for-profit homes.
So, nursing home care seems to be one of those few areas in life where you don’t necessarily get what you pay for.
Upon reflection, the results aren’t so surprising. Caring for the elderly is a calling. People who are motivated primarily by money are unlikely to have that calling and therefore are likely to provide lesser care.
As this Times article details, Graco Children’s Product, Inc. has recalled 1.5 million of its baby strollers because defective hinges on the stroller can amputate children’s fingers.
The defective strollers were sold in Massachusetts stores including Walmart, Babies R Us, Toys R Us, and Target between 2004 and 2008. The strollers affected by the recall are strollers marketed as part of the Graco’s Passage, Alano, Spree Travelers and Travel Systems lines.
The official recall notice can be read by clicking here.
If it seems to you that between the Toyota recall, the Graco recall, the crib recall and others, there has been a wave of massive product recalls lately, you’re right. As the Pop Tort blog explains, this increase in product recalls is partly the result of stepped-up enforcement by the Consumer Products Safety Commission after years of neglect under the Bush administration.
Yesterday’s New York Times carried an eight-page story entitled “Radiation Offers New Cures, and Ways to Do Harm,” dealing with a surprisingly prevalent form of medical malpractice: radiation overdose.
The story – detailing the progression of radiation poisoning – is as gruesome to read as John Hershey’s Hiroshima, but there are some important takeaways for medical malpractice attorneys.
First, radiation overdoses are disturbingly common – the story cites to one hospital that did not detect an error in its machine’s calibration for more than a year. Second, they are dramatically unreported. One doctor quoted in the story, Dr. Fred A. Mettler, Jr., estimates that only about half of radiation overdoses are ever discovered and reported.
The source of the problem seems twofold. First, doctors are transitioning from the old-fashioned way of administering radiation therapy – an unfocused beam of weak radiation – to the newer method of focused, high-energy radiation administered by linear accelerators. Second, the software that is used to operate these linear accelerators does not seem to have enough fail-safes to make sure that the so-called “multileaf collimators” – equipment that shields the patient – is deployed in the right position.
Radiation overdose is really the intersection of two personal injury fields: medical malpractice (committed by the doctors and other technicians who operate the linear accelerators) and products liability (for the dangerous designs of some of these machines and their software). Decades of products liability litigation has made the industrial workplace safer by sending engineers back to the drawing board to design newer and safer machines. A wave of safety innovation has been the result and today’s factory floor is no longer the same threat to life and limb that it once was.
Let’s hope that medical malpractice and product liability lawsuits against the doctors who operate these linear accelerators and the manufacturers who design them will lead to similar product re-designs, so that simple mindless errors in the radiation ward no longer cause unspeakable tragedies.
Assuming that the modern-day football helmets effectively prevent against the most serious head injuries – such as fractured skulls – but are ineffective in preventing other sorts of head injuries would Massachusetts product liability law regard the typical football helmet as a dangerous or defective product?
That’s a good question and there’s really no clear cut answer under Massachusetts law right now since there are no cases directly on point. Despite the lack of case law to guide us, there are a few things that we can say for certain. Massachusetts law recognizes three main types of product liability claims:
1. Manufacture defects: These types of cases involve something that went awry in the factory – basically this is a case when the machine spits out an irregular product, but it gets packaged up and sold anyways and the manufacture defect causes injury.
2. Design defects: This type of case involves a product that was manufactured as intended but the design concept was unreasonably dangerous.
3. Failure to warn: This is a claim that the product did not provide an adequate warning about a danger involved in its use and this failure-to-warn caused an injury.
If the safety of football helmets were litigated in Massachusetts, a player’s claim would like be premised on both a failure to warn theory and a design defect theory.
It would most likely be up to a jury to consider whether modern day football helmet has any design defects and, in weighing that question, a Massachusetts jury would be asked to weigh several factors:
-the gravity of the danger posed by the current football helmet design
-the likelihood that head injury will result from the use of the helmet
-the technical feasibility of a safer alternative design
-the financial feasibility of that alternative design, and
-any other consequences likely to result from the alternative design
However, even if a jury were to conclude that there exists a cost-effective design that would be more effective in preventing head injuries than the current football helmet design, the manufacturer might still have a few defenses under Massachusetts law: the so-called Vassallo defense and Correia defense. (The defenses are named after the Massachusetts cases that bear their name).
The Vassallo and Correia defenses would exonerate a defendant if either: 1. the danger could not be detected by reasonable testing at the time the product was sold or 2. the consumer unreasonably continues to use the defective product after becoming aware of its dangers. The relevance, if any, of these defenses would really only come out through litigating the case.
As you can see, a design defect case can be difficult to prosecute and normally requires expert testimony from engineers or other design defects. Failure-to-warn cases tend to be the simpler variety of products liability litigation.
If a football player were successful in such a products liability case who would be held liable? The helmet manufacturer and merchant who sold the helmet would definitely be liable and, under Massachusetts law, the school or team supplying the defective helmet might also be held responsible.
Will football helmet litigation ever take off in Massachusetts? Who knows. But let’s hope that we do see safer helmets down the road, so fewer players meet the plight of former Patriots linebacker Ted Johnson and others like him.
In November, a Wall Street Journal article asked, “Is It Time to Retire the Football Helmet?” At the beginning of this month, Representative John Conyers (D-MI), of the House Judiciary Committee, held the second part of a hearing on whether football gear is causing brain injuries.
As football fans in Massachusetts and throughout New England who are familiar with former Patriot Ted Johnson’s story know well, football players stand a great risk of brain injuries. What may be surprising to most fans however is the questions that are being raised about how effective football helmets are in preventing brain injuries.
Some speculate that the helmets might actually do more harm than good. The modern football helmet was designed to prevent catastrophic injuries like fractured skulls. It does a fairly good job at this. But the modern football helmet, and the ubiquitous football face mask, have also made some players feel invincible. By protecting the player’s skull from an open fracture, his face from broken bones and his teeth from getting knocked out, the modern helmet has encouraged players to collide more violently and more often without fear for their own safety. According to some, such as University of North Carolina professor Fred Mueller, this has led to more concussions and other head injuries not fewer.
All of this seems to pose an interesting question: Assuming that the modern football helmet leads players to play more violently, causing more head injuries overall, is the football helmet a defective product? Could a football player who suffers brain damage from repetitive concussions caused by a style of play that is encouraged and enabled by the modern helmet sue the helmet manufacturer and win under Massachusetts law?
These are interesting questions. And in our next post we’ll take a closer look at Massachusetts product liability law to try and come up with some answers.
You have probably seen a lot of ads on TV about the link between Reglan, a prescription drug used to treat heartburn and other gastrointestinal disorders and a disorder known as tardive dyskenesia. The FDA recently required the makers of Reglan and other drugs containing the compound metoclopramide to include a warning advising patients about some of the long-term or high-dosage risks associated with the consumption of metoclopramide.
While I think these ads perform an important public service in informing the public about risks associated with metoclopramide, I don’t think they do a good job of illustrating what tardive dyskenesia is. Normally the commercials just describe tardive dyskenesia in vague terms, saying it’s a neurological disorder.
This is another reason why YouTube is so great. There are a number of videos on YouTube that illustrate everything from moderate to severe tardive dyskenysis, such as the following, which shows a middle-aged women about a year after the onset of symptoms:
This week’s Massachusetts Lawyers’ Weekly newspaper features a story about Massachusetts’ biggest medical malpractice verdict of 2009: a $15 million dollar verdict awarded to the parents of a three year old boy who died from complications from a heart surgery.
As sad as this tragedy is, someone might see it as just another large medical malpractice verdict and not a very remarkable story. After all, the case did not establish any new precedent in the area of medical malpractice or garner any media attention outside of trade periodicals.
The Lawyers’ Weekly story, however, shows that the case is noteworthy in at least two respects.
First, the parents of the boy apparently could not find a medical malpractice lawyer in Boston or Massachusetts. Four different law practices in Boston rejected the case. Some of the Massachusetts medical malpractice attorneys that the parents contacted begged off the case because the doctors involved had been expert witnesses in their other cases. Other medical malpractice attorneys in Massachusetts turned down the case because, in the words of Lawyers’ Weekly, it was “seen as a loser” by the medical malpractice community. Fortunately, the father of the child had a cousin in California who was a medical malpractice lawyer and that California lawyer, James Fox, agreed to take the case.
Another noteworthy part of this case is how some diligence and unconventional tactics turned a “loser” of a case into the biggest Massachusetts medical malpractice verdict of 2009. Fox took forty-four depositions in the case, about four times the average in Massachusetts medical malpractice cases.
This sweat-of-the-brow approach did not uncover any smoking guns about what the doctors did in the operating room but it did turn up evidence that certain Intensive Care Unit notes had been falsified and that certain other documents had vanished.
The discovery that documents had been tampered with enabled Fox to, in his words, try the case as an “obstruction of justice”-type case instead of a “battle of the experts” medical malpractice case, as is common in Massachusetts.
The tale of this case should be an unsettling one for Massachusetts medical malpractice lawyers. Massachusetts medical malpractice lawyers need to examine their own practices and see whether they’ve become too complacent in the tactics they use to try cases and whether they’ve become too ensnared in conflicts of interests with the doctors they use as expert witnesses. Med-mal win suggests lawyers rethink strategy: Jury awards $15M in case seen as loser, masslawyersweekly.com, January 18, 2010
In yesterday’s blog post, we discussed why the estate of Taylor Meyer might be able to prevail in its wrongful death claim, or at least why the case might be able to reach a favorable settlement.
In today’s post we will discuss some of the challenges that the Meyer estate will face under Massachusetts law. The first challenge was alluded to by Kathi Jean Taylor who said at the press conference: “No one forced [my daughter Taylor] to drink alcohol that night,” and that Taylor “absolutely” bears some responsibility for her accident.
These statements raise another possible issue here: comparative negligence. Under the Masachusetts comparative negligence statute, if the party that is injured bears more than 50 percent responsibility for her injuries, she is not allowed to recover anything.
Comparative negligence will definitely be an argument that the defense lawyers use in this case. But Massachusetts courts have been reluctant to fault minors for their consumption of alcohol. In the important case of Tobin v. Norwood Country Club, 422 Mass. 126 (1996), the Massachusetts Supreme Judicial Court, emphasized that minors “are thought to be peculiarly susceptible to the effects of alcohol and less able to make decisions about what amount of alcohol they may safely consume in various situations.” (The court in that case went on to conclude that a driver who had been injured by a minor who consumed alcohol at a country club could sue the country club for his injuries.)
In light of the fact that Massachusetts courts have been reluctant to heap blame on minors in liquor liability cases, comparative negligence might not turn out to be such a big issue in the Meyer case. A judge might refuse to instruct a jury on comparative negligence in light of the forgiving tone of some of the case law.
A much more effective defense in this case – at least for the homeowner defendants – will be a lack of causation defense. In any Massachusetts case for negligence, the plaintiff must prove not only that the defendant was negligent, but that the defendant’s negligent actions caused her injuries.
So, for example, if a drunk driver is careening down the street at 100 mph per hour but brakes to a stop before coming into contact with you, his actions are negligent but you will not have any claim against him (unless you suffer very serious emotional distress) because his negligence did not cause your injuries.
Consequently, the adult party hosts in this care are likely to get a lot of mileage out of the legal argument that their actions, even if negligent, did not cause Taylor’s death. The adult defendants in this case will likely argue that Taylor’s death was attributable not to her consumption of alcohol but to the intervening cause of the teenagers who (apparently) purposefully misdirected Taylor into the swampland as some sort of joke.
They will likely argue that the actions of the teens who allegedly directed Taylor into the swampland were not foreseeable and that therefore they should not be held liable.
Who will prevail? We will see when this case reaches its ultimate conclusion – whether that be a pretrial settlement, a jury verdict, or an appeals court decision.
Hopefully, whatever the resolution in this case, it will discourage irresponsible drinking, incentivize parents to better supervise their children and reduce tragic deaths like Taylor’s. Mother sues party mates of dead teen, boston.com, January 14, 2010 Mother files lawsuit after daughter’s drowning death at party, bostonherald.com, January 13, 2010