Having recently blogged about The Man in the Water, I was hooked rather easily on David Hyman's 2006 article, Rescue Without Law: An Empirical Perspective on the Duty to Rescue. Start here: "six times as many Americans lose their lives every year trying to rescue someone else than have lost their lives to a non-rescue in the past ten years combined."

Really? Are these numbers reliable? This is the most challenging issue for the paper. David taps various sources for accounts of rescues and non-rescues, but he readily admits the problem: "It is likely that there is under-reporting of both rescues and non-rescues, but the actual magnitude of such under-reporting cannot be quantified." On the other hand:

The number of verifiable instances of rescue exceeds the number of verifiable instances of non-rescue by approximately 800:1, and that ratio is based on multiple years and multiple independent data sources. It seems unlikely that the under-reporting ratio for nonrescues is so much larger than the under-reporting ratio for rescues to overcome this huge disparity in the number of verified cases.

Ok, I am not sure that will be convincing to all, but I am willing to play along. Assuming he is more-or-less right about the numbers, why do we care? Because they may change the way we think about this area of law:

The problem of non-rescue has attracted considerable scholarly attention over the past century. Every torts textbook features a section on the subject. More than a hundred law review articles and several books have been written on the subject, with dozens more touching on it in passing. These articles follow a consistent strategy of recounting the horrific details of a particular anecdote or two, and then offering vague generalities to the effect that the anecdotes illustrate a larger problem. None explore the typicality of such anecdotes, or attempt to specify the frequency of non-rescue and rescue. For most commentators, the inevitable conclusion is that there is a problem with non-rescue, for which “there ought to be a law.” The willingness of average Americans to rescue one another is typically discounted or dismissed entirely. Attention is called to the moral superiority of the European countries which have adopted a duty to rescue.

As you might imagine from the title, Hyman not only questions the existing scholarship on the duty to rescue, but he talks about Ellikson's Order Without Law, at least for a bit toward the end of the paper. Nevertheless, his conclusion there seems somewhat surprising: "'Rescue without law' is unlikely to be the result of social norms, because these patterns developed in the teeth of laws that encourage the opposite behavior, [and] they involve strangers who are unlikely to ever meet again.... Instead, research into behavioral psychology suggests that 'rescue without law' is most likely the result of 'hard-wired' altruism, which induces rescue even at significant personal risk."

There's lots more, but as you can see, I enjoyed reading this piece. Any law review article that calls into question the moral superiority of Europe is usually worth a little time.

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I mentioned last week that there were more interesting arguments raised in connection with the cert. petition in the Philip Morris case which bear on on my claim that Citizens United will be used to bolster arguments for more protection for commercial speech. As I observed, The Washington Legal Foundation and the National Association of Manufacturers asserted in an amicus brief that Citizens United supported their argument about commercial speech. Here it is:

(1) Because the health consequences of tobacco use is a matter of public concern; and

(2) Because much of the communication on which liability was predicated took place in the form of newspaper articles, op-eds, congressional testimony, press releases, and television appearances and was in response to public criticism the speech in question was speech on "a matter of public concern."

(3) Because it was speech on a matter of public concern it should have been fully protected.

[Notice that the same thing that makes something a matter of public concern is also was makes it a legitimate object of governmental regulatory efforts.  So it can't be enough to say that full protection follows from the observation that something involves a matter of public concern.]

The trial  appellate courts apparently failed to give this speech the protection to which, in the Foundation's view, it was entitled "because the speakers had an economic motive for their communications." (Brief at 6). The brief go on to say, "But economic motive is insufficient to transform fully protected speech into commercial speech. See Citizens United v. Federal Election Comm'n, 130 S.C. 876, 899 (2010) ('First Amendment protection extends to corporations.')."  (Id.)

It seems to me that the connection between the reference to economic motive and the observation about the rights of corporations is a non sequitur unless the Foundation is making the following assumptions: (1) "corporations" in this sentences = for-profit corporations; and (2) all speech by for profit-corporations has an economic motive. I make these same assumptions; so I think they are fairly reasonable and I understand why the authors believe Citizens United supports their cause. I think it does too, even though I disagree that commercial speech ought to be fully protected. However, I've often encountered objections to these same assumptions when I make them (i.e., "But not all corporations are for-profit!"; or "Not everything a for-profit corporation says is commercial speech!"). But as you can see; these arguments aren't original to me. I got them from the proponents of full First Amendment protection for commercial speech.

I've also argued that many of these proponents are essentially arguing for a constitutional right to lie. See Grounding Nike: Exposing Nike's Quest for a Constitutional Right to Lie. Some think this overstates it. But the Washington Legal Foundation's brief seems to corroborate it. In footnote 2 the Foundation argues that although the Court of Appeals did not "explicitly label" the speech in question "commercial" that must have been the standard the Court was applying because it rejected the First Amendment defenses "solely on the grounds that the speech was (in the court's view) fraudulent" and that only commercial speech could be "punish[ed]" (?!) on that ground; fully protected speech "even if false - is entitled to 'breathing space'...."

Res ipsa loquitur.

A dear former colleague used to argue with me that the First Amendment didn't protect fraud and that there was no "right to lie" even under the strict protection offered in N.Y. Times v. Sullivan. There may not be an right in the abstract to lie. But that can be the practical effect of a high evidentiary standard. As any litigator can tell you (and I have been one), there is a difference between an abstract principle and how it plays out "on the ground." I will have more on that later. Suffice it to say that the "breathing space" the Foundation argues for here would cover an awful lot of fraud.

And that brings me to the next point. How do you prove that a corporation has the specific intent necessary for fraud?

The Foundation claims that the judgment below was flawed because the government did not show sufficient evidence of specific intent to prove fraud because the government relied on a collective intent theory. (Id. at 8). It argues that the court should have looked to the state of mind of the individual officer and employees because "a company - as opposed to an individual - can never entirely know what information it possesses." Just so. Sounds awfully close to an argument that the company, qua company, can never commit a fraud because it can never have specific intent.That certainly turned out to be the Achilles heel of the prosecution of the Arthur Andersen accounting firm in the wake of the Enron scandal.

I actually think there may be something to this argument and it is part (not all) of the problem I see with imposing criminal liability on entities like corporations. Without revisiting the whole issue of corporate criminal law though it is sufficient for my purposes here to note that this argument too would increase the difficulty in restraining fraud. I'm not sure that we should be too sanguine about throwing up additional legal obstacles to prosecuting fraud.

In any event, the record, all 1700 or so pages of findings of fact and conclusions of law, offers what seems to me to be ample evidence of specific intent and plenty of false statements (including that by now notorious false testimony before Congress. See some of it in this clip from 1994 here). For a summary of some of Judge Kessler's findings in this case, as well as a summary of tobacco company marketing efforts to children and the addictive properties of nicotine from the Campaign for Tobacco Free Kids see this.

Is it really a matter of constitutional significance that tobacco companies be able to advertise in Rolling Stone or market their products in pink packages or other specific trade dress?

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In Murphy v. Steeplechase Amusement Co., my favorite jurist Justice Cardozo wrote this famous short sentence while dismissing a case brought by a young man injured by "The Flopper" at an amusement park:  "The timorous may stay at home."

Well, it seems that Bob Cassily, the founder (artist, sculptor and "serial entrepreneur") of St. Louis' amazingly fun City Museum agrees and wishes there were more Cardozos out there. As the WSJ notes, lawsuits are not a rare occurrence against the unique children's museum.  And, in our modern comparative negligence jurisdiction, assumption of the risk isn't what it used to be!  You know at the start that this children's museum is different -- the website recommends you wear closed-toe, closed-heel shoes.  It also recommends long pants.  So, you're on notice that there could be a little rough-n-tumble there.  Then you drive up to the museum.  Half the museum is coming out of the side, a crazy play structure, climbing contraption made out of rebar and what seems to be a wecked airplane.  All of this adds up to our favorite museum anywhere.  And even non-personal injury attorneys should love it for another reason -- it's in the old International Shoe building!

But, it seems that every once in awhile someone gets hurt and sues them.  And the founder likes to fight these lawsuits, and the museum's insurance premium reflects this ($600,000 a year, or $1 out of every $12 ticket).  In fact, to fight these suits, the museum has installed cameras so that actual injuries are recorded along with the significant absence of many recorded injuries.  The museum even has a note about frivolous lawsuits and these cameras on their webpage.

We understand that by creating a place where kids and adults can run, jump, and play, that there is a risk for injury. We are constantly doing everything we can to mitigate that risk all the while trying to protect the integrity of the museum. What exhausts us are the people that see the museum as an opportunity to perpetuate insurance fraud. We would like to let everyone know that there are cameras in the museum and people are watching to make sure that everyone is safe. In the same vein, if you say you were injured, we'll be able to see that too.

Note that the WSJ article mentions a lot of adult plaintiffs -- and so does the website.  This isn't a place where kids seem to get hurt a lot because of too much danger -- this may be a place where adults begin to act like kids and then are embarassed when they get hurt.

We find it interesting that 75% of all injures involving lawsuits are adults. Adults who run and jump into a ball pit that says both “Do not jump” and “For 6 and under”. Adults who go down a slide no less than six seconds after another adult when the sign says “One at a time” and “Wait until bottom is clear.” (These are actual things we are dealing with now.) Adults who know better or adults that don't know their limitations.

So, does our family find the City Museum to be a dangerous place? No. We find it very fun. That being said, we lost one shirt there (ripped when climbing by snagging on something). And I have to say that I fell on the skateless skate park. I would say the clumsy middle-aged should stay on the sidelines there.  But, here are some pictures to try to give you a glimpse of the three-story indoor slide and the outside climbing structure. (My only picture of the skateless skate park makes me look fat, so I'm not posting it.)  Notice we wore sneakers, but I think the long pants recommendation is new.

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Though corporate law is the subject of my research, I teach Torts for fun, and one issue that fascinates me is why folks litigate losses, particularly insured losses.  Another topic that interests me during the year is "underlitigating" -- the choice to litigate an intentional tort as negligence, presumably because negligent acts are insured acts.  (My favorite case is one known to Texans in my age cohort -- Boyles v. Kerr, in which a young woman whose high school friend intentionally made a certain kind of videotape of them unbeknownst to her and then showed it to all his friends sued him unsuccessfully for negligent infliction of emotional distress.  Texas does not recognize direct NIED.)

These two interests are aligning as Valerie Hunter, the widow of the IRS employee killed when Joseph Stack intentionally crashed his plane into IRS offices, has sued Stack's widow under a theory of negligence.  As we learn in the first weeks of Torts, Stack seems to have committed an intentional battery against Vernon Hunter.  Of course, Stack's estate seems to be light on assets now that he burned down his house and crashed his plane.  But negligence?  Against Sheryl Stack?  The theory seems to be of the duty to control/duty to warn type (Remember Tarasoff?):  Ms. Stack knew that Stack was on the edge because she took her minor child and left him the night before, staying at a hotel for her safety.  I would hesitate to put my money on this cause of action unless we know that Stack told his widow the night before that he was specifically going to do harm to the IRS or the government, or some other identifiable victim.  The facts seem to suggest that the widow was worried for her safety, not the safety of a specific third-party.  (And I have no idea how the rules of evidence fit in here --someone else will have to advise me on spousal privilege in this type of civil case.)

Hunter's attorney claims that though her heart goes out to Ms. Stack, she needed to file the lawsuit to (1) see what types of insurance are available in Stack's estate (probably not homeowner's insurance after the time Stack burned his house down, I would guess) and (2) get an injunction so that Vernon Stack's autopsy report would not be released.  Hmmm.  I wonder what's in that report?

So this leads me to my other curiosity -- why?  Is it just the money?  There doesn't seem to be a lot of money to go around here, and Ms. Hunter, whose children are grown and is also an IRS employee, would seem to a little better off financially than Ms. Stack, who has a minor child but no home or personal possessions to her name and possible lingering mortgages and debts.  Possibly Ms. Hunter could have become very irritated by Mr. Stack's grown daughter (from a former marriage) calling her father a "hero" on Good Morning America and seeing facebook and twitter messages repeating the same misguided meme.

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So, I switched Torts books this year to Twerksi & Henderson's Torts:  Cases and Materials (2d ed. 2008).  I felt like using the same book for years was tricking my brain into a narrow view of the universe of Torts, so I thought switching books would freshen up my perspective.  So, in the Introduction, I find this sentence:

"Tort liabilities that run in the hundreds of billions of dollars have forced entire industries into bankruptcy."

So, here's the quiz:  Name two.

Putting aside the logical problem of concentrating on outliers and not medians, I went up and down my hall this morning asking my colleagues to name two industries.  The first one is obvious -- asbestos.  But what is the necessary second to get us to the plural of "industries"?  I guess it depends on how you define "industry."

Was there a first-generation IUD industry?  I think of that more as a product line, not an industry, but it is clear that the American birth control industry did not develop new products for this market for quite awhile.  Whether this was a product of tort litigation or political pressure (morning-after-pill) is a toss-up.  Saline breast implants -- same.  Nuclear power?  Close -- but I'm not sure we can blame (the threat of) tort litigation when regulation was the death knell.

Two thoughts.  One, for cases other than asbestos, where the tort judgment does not create the insolvency, there is one problem.  Huge tort lawsuits probably send a message to the market not to purchase the product or other products from the manufacturer.  (Tobacco being the anomaly, being an addictive product with inelastic demand.)  Second, do we bemoan the fate of the first-generation IUD?  Would we have preferred that product stay on the market?

Keep your industry examples coming.

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So, let's say that you are a very large defendant who is a repeat-player in the torts litigation arena.  You lose a very big case that sets a particularly bad precedent for you.  The payout is substantial, but doesn't affect your bottom line -- unless you multiply it by future cases that can rely on the bad precedent.  You appeal, and you're not sure which way the panel is going to decide.  This isn't the kind of case that would probably be granted cert by the Supreme Court, so whichever way the case comes down, you're stuck.  So, you make an offer to settle, maybe at an even greater amount than the trial court verdict.  But then you still have that silly federal district court decision for years to come, until the line of cases may or may not be reversed.  What do you do?

What if you could make a settlement offer and get the circuit court to remand the case back to the district court judge, who has agreed to vacate all of the opinions in the case, including his opinions that upheld the jury's verdict?  Who wouldn't love that, but what judge would do it?  Well, this judge apparently.

So, for all you Torts professors out there who would have loved a fun case on attractive nuisance, I hope you saved copies of the documents.  Lexis and Westlaw has agreed to remove all the opinions from their databases, standard procedure when cases are vacated.  (I don't know if the opinion is old enough to have hit the F. Supp. hard volume/index.)  In this case (Klein v. Amtrak), two teenagers (almost 18), climbed on a railcar owned by one defendant in the railyard owned by Amtrak.  Electricity was left on for the car for 4 days.  Although employees are trained in avoiding electrocution in wired cars (which seems trickier than I originally would have thought), no signs were posted.  They were trespassers, yet the presence of a large amount of graffiti in the railyard seemed to indicate that the frequent presence of trespassers was probably known by the landowner, Amtrak.  The jury returned a $24 million verdict for the severe injuries sustained by the plaintiffs, which was upheld by the district court judge.  The two defendants appealed, and the Third Circuit heard oral argument on what exactly is the state of the law as it applies to older teenage trespassers and railcars.  But, we'll have to wait to find out the state of the law for now.

UPDATE:  After looking around Westlaw (Klein v. National Passenger R.R.), I'm a little confused.  Most of the documents have no text anymore, except for one, which is the district court granting summary judgment to  Norfolk Southern Corp., the owner of the railcar, on all claims against it (2006 wl 1997369).  According to news reports, this defendant was involved in the trial, received a judgment against it, and argued on appeal.  So, I would think that the dismissal by summary judgment must have been overturned at some point.  However, I can't find a Third Circuit opinion (or citation) for that.  Could the settlement have vacated opinions against the defendants, but not opinions for them?

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So, in order to write this post I have to admit that I love The Biggest Loser.  I'm fairly obsessed with it, actually.  I've never seen any of the other season-long reality shows where people get voted off, so this is my first foray into the strange game theory of the survival reality show.  This season, the contestants were in teams of two (married couples, sisters, cousins, brothers, best friends, engaged couples, parent/child teams).  The point of the show is to exercise a lot with a personal trainer and eat better in order to lose weight each week at the "weigh-in."  The people that lose the least are in jeopardy of getting voted off.  I missed the first part of the season, but by the time that I started watching how this voting off happened varied from week to week.  For awhile, the lowest couple had one of their team voted off.  Then, all couples were either on the Blue or the Black team, and the lowest losing team had to vote one of their own off.  Now, with 8 left this week, the "bigger losers" vote to decide which one of the two "lowest losers" will go home.  The last one standing wins $250k.  At this point, most of the contestants left have lost substantial amounts of weight (100-plus pounds).  The strategy is very interesting.

Anyway, this week poses some interesting Torts questions (spoiler alert below -- I know my friend Tracy McGaugh hasn't watched it yet because she's with Touro law students in NOLA, so Tracy -- stop reading.)

One of the contestants, Laura, has suffered a stress fracture in her hip.  Laura has probably lost the least weight (both absolute and as a percentage) of any of the other viable contestants; however, she was immune from elimination for awhile because she has a very strong partner and then was on the stronger team (Blue), which never lost a weigh-in.  Anyway, much of the TV time that Laura receives focuses on how lazy her trainer thinks she is.  Jillian, the trainer, yells at her and gets in her face and has her other team members tell her that she is the weakest member of their team.  When Laura says she's going to pass out or that she can't breathe, Jillian mocks her.  Jillian often tells the camera in the "monologuing sessions" that Laura obviously has some mental issues to work through.  All that being said, in the last few of the 15 weeks, Laura seems to have turned the corner.  Until this week.

Laura was found to have this stress fracture and told not to do anything that hurt.  This seemed to translate (possibly for good television) into her not walking anywhere and being carried.  So, she gained weight and was booted off my her fellow contestants who told her it was so she could go home and get well.  The host of the show told her that The Biggest Loser was not going to let her go home and face this alone -- she would receive the best doctors, etc., blah, blah, blah.

So, all of you out there thinking about writing Torts exams, is there a cause of action?  I assume that Laura will get much more out of NBC by not suing, but let's play this out.  I'm sure she signed a waiver.  Here is the short-form application with the waiver that applies to just the audition, but I also assume that there are more to be signed once you are a contestant.  And, I'm sure that Laura signed several things before she actually left the Ranch!  (Here is the American Gladiator release, which may be is drafted by the same NBC attorneys.)  Did Laura assume the risk of injury?  What if she relied on Jillian's judgment the way she would a doctor who told her something was not risky?  (I like the way page 24-25 of the AG release affirm that the contestant is solely responsible for deciding whether she is capable of any activity, and that the NBC doctors are no substitute for their own judgment, or the judgment of their own doctors (who of course aren't staying at the Ranch)). 

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I am an admitted L&O junkie, and everytime the "all persons portrayed herein are fictional" disclaimer pops up, viewers know that this means that the plot will be "ripped from the headlines."  Although some of these episodes are really cheesy (i.e., ones that mirror the lives of Anna Nicole Smith), some of these episodes are my favorites.  The earliest one that I remember recognizing was from Season One and centered around a character reminiscent of Hedda Nussbaum.  However, not everyone loves these episodes.  For the first time, someone has sued the producer, Dick Wolf, over an episode from November 2003:  Floater.

In Floater (IMDB page here), a bald family law attorney, Ravi Patel, repeatedly bribes a Brooklyn judge, Ruth Alexander, to receive favorable treatment for his clients in divorce cases.   A court clerk is also being paid to make sure that Patel's cases are heard by Judge Alexander more frequently than random assignment would allow.  However, one party in a divorce case is not happy about this and is killed by the judge in order to silence her.  Both Patel and Alexander ultimately confess to the crimes.  (The victim's body in the river is the "floater.")  Real life bald Manhattan attorney Ravi Batra finds this plot too close to home.  Batra, who has never been charged with a crime or confessed to one, was implicated in a Brooklyn bribery scandal shortly before the Floater episode aired.  In the real new story, Judge Gerald P. Garson was charged with accepting bribes from Paul Siminovsky, a divorce lawyer.  Garson, however, wore a wire to gather evidence for the police regarding a judicial bench seat-buying scheme and captured an Assemblyman on tape.  An attempt to capture Batra, a noted political heavy weight and colleague of the Assemblyman, on tape during a meeting with Garson was unsuccessful.  Not content with being vindicated in the law, Batra now wants to vindicate himself on TV.

Batra has filed a lawsuit on the theory of "libel-in-fiction."  Because Ravi Patel is so close in appearance and name to Ravi Batra, Batra attests that viewers will assume that Batra is as crooked as Patel was in the similarly-depicted bribery situation.  Although this theory is not generally a winner, a judge in NY has allowed Batra to proceed over a motion for summary judgment.  Will this mean the death of "ripped from the headlines" plot lines?  NYT story here and New York Law Journal story here.

Interestingly, I never would have recognized the similarities here because the underlying case is a local NY one. 

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As my two-week guest blogging stint is now over, I want to thank Gordon for inviting me and hope that readers found some of this stuff interesting. If you did, I invite you to continue reading over at my regular blog, the Chinese Law Prof Blog. My final post here will be on an interesting aspect of Chinese tort law: the absence of a direct tie between lost income and tort damages for wrongful death.

If you tortiously injure someone in China, the damages are as you might expect: medical expenses, lost income due to missed working time, and maybe even something for emotional distress. (Article 119, General Principles of Civil Law.) Thus, given identical injuries and identical fault, you pay more for punching a doctor than for punching a taxi driver. (I mention these only as examples of high-income and low-income professions, and mean no disrespect to taxi drivers.)

If you go a bit further and end up killing the person, however, in which case they will (if young) have a lot of missed working time, the calculation of damages changes completely. Lost income drops entirely out of the picture, and there is no attempt even to estimate it. Instead, the law switches to an attempt at a need-based standard. The tortfeasor is to pay medical expenses, funeral expenses, "necessary living expenses of the deceased dependents," and "compensation for the victim's death."

These last two terms were specifically defined in an interpretation issued in 2003 by the Supreme People's Court (which has the power to interpret and clarify laws by general rulemaking). "Necessary living expenses" are "calculated on the basis of the average consumption expenditure of those living in the city where the court is located, or the average cost of living for rural residents where the court is located, as the case may be." Clearly, this calculation takes no account of the actual lost income of the decedent; instead, it tries to estimate what the dependents will need to survive at a relatively decent standard of living until they can fend for themselves. Thus, compensation is not apparently paid to adults who have the capacity to work; it is paid only to minors on the basis of the number of years until the minor turns 18, and to other adults unable to work and with no other source of income on the basis of 20 years.

"Compensation for the victim’s death" is, according to the interpretation, "calculated on the basis of 20 times the previous year's average net income of urban residents in the city where the court is located, or the average net income of rural residents where the court is located." As with "necessary living expenses," the actual lost income of the decedent has nothing to do with the amount awarded under the Interpretation.

This system has been criticized in China on the grounds that it discriminates against rural residents by valuing their lives more cheaply than that of urbanites; all lives, say the critics, should be valued equally. To be sure, China does indeed have official discrimination against rural residents; they are explicitly intended to be underrepresented in the National People's Congress, for example. But the problem with this rule is not that it values lives unequally; it is that it values lost income equally: at zero for everyone. Thus, the compensation for lost income is the same (nothing) for wrongful death where the victim is a doctor and where the victim is a taxi driver.

I have heard it argued that this is due to cultural differences: that Chinese (and some civil law jurisdictions) simply view it as wrong to give different amounts of compensation for death. But this misses the point: giving equal compensation for the death itself - in which case there is an argument for treating all lives equally - does not preclude also giving compensation for lost income. And civilian lawyers I have questioned assure me that killing a doctor in their countries does cost more than killing a taxi driver.

Thus, far from being too inegalitarian, the rule in China can be seen as too egalitarian: the dependents of the deceased Shanghai doctor get exactly what the dependents of the deceased Shanghai taxi driver get, even though they have been deprived of much more money. And of course, you get equally inappropriate results when the dependents of urbanites with small earning capacity get more than the dependents of wealthy rural entrepreneurs, for example.

A recent case brought out the importance of location, as well as some of the ambiguities associated with it. A migrant worker living in Beijing was killed in a traffic accident, and because of his rural domicile registration (something that's not easy to change, even though geographical mobility itself has increased greatly in the last several years), the award to his family included only 70,000 yuan (about $9,764) as compensation for death. They appealed, asserting that he should be treated as an urbanite because he was actually living and working in Beijing. The higher court agreed, awarding 170,000 yuan ($23,713), in addition to enhanced amounts under other heads. The case was welcomed by many as an example of "same life, same price," but of course it was just an application of the existing rule, not a negation of it. It showed a willingness to be flexible about which standard to use, but it didn't suggest that the rural-urban distinction was in any way illegitimate.

Although it's not my place to give advice to China's legislators, it seems to me that this problem could be solved relatively easily by allowing courts to include an estimate of lost income in damages for wrongful death - just as they now do in damages for injuries short of death - while separately stipulating another amount to be paid as compensation for the loss of life per se, just to make it clear that the former amount is not compensating for the lost life, and thus carries no offensive implications in being different for different people.

For the time being, though, the moral of this story is: don't pull your punches.

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Lawyers are often accused of botching the science, but if anything, it looks to me like the lawyers for Merck litigated their way around the science in Vioxx, the heart drug prescribed to 20 million Americans, and subsequently pulled from the market after further studies concluded that it increased the risk of heart attacks and strokes.  That led to 45,000 lawsuits.  But Merck just settled them all for the cheap price of $4.58 billion.  Merck appealed every case it lost.  It pushed the patient lawyers hard and made them look sleazy, identifying some plaintiffs who hadn't taken the drug when they got sick, had plenty of other health problems, and so on.  It won most of its trials, and sold the juries on the quality of the warnings that accompanied the drugs.  God knows how much it cost, but would you have bought Merck stock when the clinical study was released?  You should have.

EPA, on the other hand, wasn't going to let the science get in the way of its efforts to extend zero tolerance to Cryptosordium in drinking waters.  Perhaps mindful of the beating the agency took when it permitted minimal levels of arsenic to stay in reservoirs, in its latest national rule on water quality, EPA totally banned this other, little known toxin.  Some city water suppliers screamed that the rule wasn't based on the "best available science," as required by the statute.  But how is an appellate court supposed to figure that out?  The D C Circuit just assured itself that the agency had explained why it relied on the science it did use in developing the ban.

I don't claim to know the science any better than the lawyers involved with either dispute (indeed, I assure you that I know it worse).  But I think that perhaps the difficulties of these sorts of scientific inquiries don't undo the value of more traditional sorts of lawyering - like hard litigation or fully reasoned rulemaking.

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Yesterday, I blogged about the Overstock.com suit that has had some success in California state court.  This suit alleges that a short-seller and an "analytical reporting service" conspired to issue false reports to drive down the share price of Overstock.com and profit from the difference.  Gradient, the reporting service, kept a list of companies that suffered a 20% or more price decline after the issuance of its negative reports and used this list to recruit other customers who could request such reports.  The complaint alleges, among other things, libel.  As you may expect, the financial reporting on this case has centered around the free speech element.  If this case results in a judgment against the defendants, then how will bona fide stock analysts and financial reporters know where to draw the line between pointing out negative flags at publicly-held companies and libel?  (Mike McKee has two articles in The Recorder here and here.)

Bethany McLean, for example, dismissed the Overstock.com suit as "paranoid fantasy" in a November 2005 Fortune article.  Of course, McLean may be predisposed against lawsuits that name analysts and journalists who speak negatively about public companies.  Remember that McLean wrote a seminal article in Fortune (Is Enron Overpriced?) in March 2001 that is often cited as the article that began to unravel the Emperor's New Clothes (or New Financial Statements).  However, two things probably distinguish McLean's type of financial reporting from Gradient's.  The first, and most obvious, is that McLean had no direct interest in Enron's stock going down.  We know of no economic interest she held by way of owning or shorting Enron stock.  Therefore, it would be hard to show malice on the part of McLean for anything she said about Enron.  Furthermore, I would assume that McLean could back up her financial analysis.  In the Overstock.com case, the court went over many statements in the Gradient report that were simply false:  False facts about Overstock's business model and false conclusions that certain practices were not in accordance with GAAP.  Gradient's defense is that these were opinions.  However, the court made clear that merely saying "I am of the opinion that" before stating a verifiable fact or a verifiable conclusion is not an opinion.  If an analyst says that a business practice does not conform to GAAP, but that practice obviously does and is backed up by opinions from accountants and outside attorneys (no hoots here), then that is not merely an opinion.

Instead of rallying around the flag of free speech, I would think that reputable analysts and reporters would condemn this type of scheme.  (By the way, Gradient's reports were prepared by college graduates with no additional schooling or licensures; they were not CPAs or other licensed financial professionals.)  Gradient's reports make all analyst reports look suspect and biased.  In this age of "no analyst conflicts," there should be more policing of one's own.  (Again, legal documents in this case are collected here.)

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Over at TortsProfBlog, professors, students, and practitioners are opining on what should be taught in Torts -- interesting reading!  Start here.

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If only we could sue politicians this easily.  As Ted Frank at Overlawyered predicted, a class-action lawsuit has now been filed against the author and publisher of A Million Little Pieces under a consumer fraud cause of action.  Tip:  WSJ Blog.  As a buyer of the book, I guess I can wait for the notice so I can opt in or out for my $6 coupon for a new Random House book.  (That's my prediction, anyway.)

Having read the book with the benefit of hindsight, I'm kind of surprised that the book was that inspiring to anyone, including Oprah.  I can't imagine a true story in which a 23-year-old crack addict comes off looking so well.  From the moment James arrives at rehab, he always says the right thing, he's always right about everyone's character, he is caring to the most unsavory individuals at rehab, and he takes full responsibility for his actions.  He runs away from rehab to rescue his girlfriend, who has been kicked out four hours earlier, finds her at a crack house in about 10 minutes with his remarkable street savvy, and snatches her from the literal clutches of prostitution.  He brings her back to the rehab to the now-familiar strains of the rehab counselors:  You were right, James.  We were wrong.  Most importantly, he convinces the veteran counselors at the country's most successful rehab center that AA is junk and that he will conquer his ten year addiction through self-control and a pocket guide to Taoism.  The real plaintiff here should be Alcoholics Anonymous, for defamation.

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Being from Texas and having driven  around Texas last week, I am slightly more interested in the Texas (and Oklahoma and now New Mexico) fires than some people.  The loss is enormous:  hundreds of thousands of acres of land, over 250 homes burned, and four deaths.  Because I have been reading various accounts of these fires, I have been struck with the almost universal silence on the "human error" element of this story.  Fires are generally not confined to "acts of God" in the sense that they only strike out of the blue, like a hurricane or a tsunami.  Some fires may be caused by a chance event, such as a power line spark, but these fires that are happening were for the most part the result of some original act by a human.  Texas State Fire Marshal Paul Maldonado has said that he "believes most of these fires were the result of some human action."  However, in the news accounts, you have to dig fairly deep before any reporter is asking about or reporting information about human error.

For example, here are the NYT, Houston Chronicle, CNN, and ABC News accounts, none of which mention human error (as they did not yesterday).  The only references I could find to the human error in print were from the Guardian and the Austin-American Statesman.  I did hear on a local radio news program in Texas on December 27th that a fire that was being discussed was started by a child setting off a firecracker (the speaker was Traci Weaver of the Texas Forest Service) and I heard on NPR yesterday a local mayor (and volunteer firefighter) in Eastland County being pressed into saying that it looked like from the start point of the fire there that it was caused by someone throwing a cigarette out of a car along the highway.

I find it interesting that the media seems so uninterested in the cause of the fires.  The media focuses on the high winds, low humidity, drought conditions, and high temperatures, but these are factors that lead to the rapid spread of the fire and the difficulty of containing the fire, not the factors that caused these fires.  During Hurricane Katrina, questions were swirling in the media -- Why didn't people evacuate?  Why weren't they forced to evacuate?  Who decided to have inferior levees?  Who could have prevented this?  Why isn't anyone asking these questions about the Texas fires?

I heard Forestry spokesperson Weaver say (on Dec. 27th) that only half of the counties in Texas had imposed burn bans at that time.  Why isn't anyone asking whether these counties affected were under a burn ban?  And, if so, then who violated the burn ban?  What is the penalty for violating the burn ban?  Can one child (or the child's parents) be liable for 120 houses for setting off a firecracker during a burn ban?  If the affected counties weren't under a burn an, then why not?  Why isn't anyone asking these questions?

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At Prawfs, Ekow Yankow breaks in to ponder whether teaching Torts has made him overly sensitive to media that may encourage tort-like behavior (i.e., a squelched Gap ad).  Ekow's post reminded me of an extremely dangerous video game that could destroy my homelife, but also the various large objects that surround my home:  Katamari!

For those of you who have never played Katamari, I would encourage you not to do so.  However, if you must, be aware that this video game is extremely addictive.  The premise is so silly it's almost stupid, and you can imagine a group of young people in a room saying things like, "Hey, let's make up a game where you're just a giant ball of tape, rolling stuff up!"  "Yeah, and when your ball is big enough, it becomes a star!"  "And as the game progresses, your ball rolls up people!"  "And animals!"  "And cars!"  "And skyscrapers!"  Yeah.  That's the game.  You roll this ball around, picking up various objects until you achieve a certain sized ball.  Sounds stupid and boring, but it's actually really fun and really addictive.

And dangerous and tort-inducing!  Apparently one woman fell into a Katamari-state in her (real) car and tried to roll up a (real) mailbox.  My brother-in-law introduced us the game with this explanation:  "I bought this game after reading an article that said it was so addictive that a woman almost wrecked her car trying to roll up a mailbox."  I'm glad he didn't read an article on heroin.

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