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Risk and Tragedy from Vaping

A 38 year old Florida man, Tallmadge Wakeman D’Elia, was killed when a vape pen exploded and shot fragments of its casing into his skull.  Alexandra Ma, “A Vape Pen Killed A Man After It Exploded And Pierced His Skull,” Business Insider, May 16, 2018.

According to the medical examiners, the man died on May 5 as a result of a ‘projectile wound to the head.’  In addition, he was burned on about 80% of his body because when it exploded, the vape pen also started a fire.   This is the first reported death from an exploding vape pen in the United States, although deaths have been reported elsewhere, and many injuries have been caused in the States by vape pens exploding. US Fire Administration statistics show 133 injuries – 38 of them severe – dues to exploding vape pens.  This includes such injuries as holes in tongues, and lost eyes.

According to the article in Business Insider, it is not clear why the pen, manufactured by Smok-E Mountain in the Philippines, exploded.

Evidence of exploding vape pens comes on top of “conclusive evidence” that “exposing oneself to e-liquids, either from drinking or touching them, can cause seizures, brain injury, and vomiting.” Erin Brodwin, “11 Key Findings From One Of The Most Comprehensive Reports Ever On The Health Effects Of Vaping,” Business Insider, January 25, 2018

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JOIN US IN CELEBRATION

The Museum has stories about women who used tort law to 'right wrongs' that impact all of our health and safety. This Mother's Day we encourage you to hear about their stories while you enjoy delicious appetizers from Noujaim's restaurant and desserts from Hunny Bunns Bakery and Cafe.

 
 

13

May

Start at 10:30

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When Madness Walked the Earth

In 2012, the unspeakable happened. A madman, armed with rifle designed for war, slaughtered little children in a school in Sandy Hook, Connecticut. Butchered them. Left their small lifeless bodies bleeding. An act of horror.

The horror deepened when conspiracy theorists began claiming that the parents of the dead children were “actors in an elaborate scheme to enact stricter gun control laws.” The conspiracy theorists asserted that the grief-stricken parents, were, hoaxers; that there had been no slaughter; that the story was fake.

One of the loudest voices promoting this cruel theory has been Alex Jones, “a right-wing conspiracy theorist,” who is a popular radio host, and operates the “conspiracy theory website Infowars.” According to the New York Times, he “has long claimed the shooting was ‘completely fake’ and a ‘giant hoax’ perpetrated by opponents of the Second Amendment.” He “has questioned for years whether 20 children and six adults died in the school massacre in Newtown, Conn.” Haag, M. “Sandy Hook Parents Sue Alex Jones for Defamation, NY Times, April 17, 2018. (All quotes herein are from the Times article).

Now some of the parents are fighting back. On Tuesday, April 17, 2018, three parents whose children were murdered in the school sued Alex Jones for defamation. The tort of defamation is “the offense of injuring a person’s character, fame or reputation by false and malicious statements.” Black’s Law Dictionary, De Luxe Fourth Ed. (1951).

According to the Times, Jones issued “a rambling 10-minute response” to the lawsuit, in which he stated that he “believed Sandy Hook happened.” This comes, however, after repeated statements to the contrary. As the Times reported, the parent’s lawsuits claims that the statements from the Infowars site “were a continuation and elaboration of a years-long campaign to falsely attack the honesty of the Sandy Hook parents, casting them as participants in a ghastly conspiracy and cover-up.”

We will have to see how this lawsuit plays out in court. There is, after all, a right of free speech in the country, guaranteed in the Bill of rights. But it is well-established that there are limits to that speech – You can’t falsely yell “Fire!” in a crowded theater, for example. Did Jones act maliciously? Will he and the staff at Infowars fight this lawsuit, or settle?

By all means, let us protect, defend and preserve our Constitutional right of free speech. But let persons like conspiracy theorists beware of making false, malicious and defamatory statements of such cruelty.

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Another Step

The gigantic March for our Lives event on March 24, 2018 was, perhaps, a watershed moment in American efforts to get some measure of control over gun violence and the all-too-frequent mass slaughter of civilians.  Those efforts have been mischaracterized as an effort to repeal the Second Amendment, but that is too simplistic a view. The Marchers did not seek to repeal or eliminate the right to keep and bear arms, set out in the Second Amendment to the Constitution as part of the Bill of Rights.  Rather, they seek universal background checks on all gun sales; raising the federal age of gun ownership and possession to the age of 21; a restoration of the 1994 Federal Assault Weapons Ban; and a ban on the sale of high-capacity magazines in the United States.

That there are, and should be, limits to the rights to keep and bear arms is self-evident.  No-one thinks that there is a Second Amendment right for individuals to own nuclear weapons.  Likewise, no one would give randomly loaded guns to five year olds. Thus, this national dialogue about the scope and extent of the reach of the second amendment is a legitimate part of the evolution of our society. Indeed, the ideas put forth as part of the March are neither new, nor revolutionary, and fall fairly within the first part of the Second Amendment – “A well-regulated militia…”

In this regard, the New York Times ran an interesting Op-Ed on March 24th,  “Stop Shielding Gun Makers,” by Brad S. Karp, and H. Christopher Boehning. In it, the authors point out an additional way to reduce gun violence: Repeal the law that prevents negligent gun manufacturers from being sued.  The law they are talking about is the “Protection of Lawful Commerce in Arms Act” (PLCAA), 15 U.S.C. §§ 7901-7903, which essentially prevents gun manufacturers from being sued when their guns are used to kill civilians.

As the authors note,

A bedrock principle of the American legal system is accountability for wrongdoing. Businesses that cause harm may be held legally responsible in a court of law. Through the imposition of financial liability, our legal system encourages businesses to reduce harm to consumers by making their products safer and disclosing the risks associated with their use.

Thanks in part to the accountability imposed by lawsuits, society knows more about the dangers of smoking, and tobacco companies market their products more responsibly. Automakers continually develop and install new safety features, and these innovations deliver results: From 1975 to 2016, the rate of motor vehicle deaths decreased by nearly half. While motor vehicle deaths have declined over the last two decades, firearm deaths have not: According to the most recent statistics from the Centers for Disease Control and Prevention, more people now die from firearms than motor vehicle accidents.

This disturbing reality exists in large part because, unlike other industries, gun manufacturers and sellers are shielded from legal accountability. . . The law bars most suits against gun manufacturers and sellers for the harm they cause, immunizing the gun industry from accountability for the tens of thousands of gun deaths that occur in the United States each year.

This is bad policy and a bad law, for two reasons.  First, it permits the carnage to continue; Second, it deprives gun makers of incentives to make their guns safer, and implement policies to prevent gun violence.

As to the first point, the authors note the following data:

A recent study shows that firearms are now the third-leading cause of death for children ages 1 to 17 and, according to C.D.C. data, the leading cause of death for 15- to 24-year-olds. Numerous scientific studies indicate that keeping guns in a home endangers its residents. Studies have also shown that guns in the home are far more likely to be used in criminal assaults, homicides, suicides and accidental shootings than in self-defense.

As to the second point, there are technologies that would make guns less easily used, when transferred from the original owner.  And sellers could be trained to identify psychotic people and others who should not purchase guns.  But this law removes incentives to work to minimize the slaughter that guns can cause.

After the Parkland shooting, American Outdoor Brands, Smith & Wesson’s parent company and the manufacturer of the weapon used in the Parkland shooting, announced that it would not “manufacture and market” products with additional safety features (including trigger-locking technology) and that it does not “invest in R. & D. in this area” because doing so would be “irresponsible.” Perhaps the repeal of the law would change this cynical narrative.

The N.R.A. claims that the law is necessary to keep gun manufacturers from going out of business due to baseless lawsuits. That is not true.  As the authors of the Op-Ed note, “our legal system has multiple checks to filter out lawsuits that lack merit. There is no reason for the gun industry to have special protections that are unavailable to other businesses that sell products that pose far less risk of harm.”  Repeal of this harmful law would let manufacturers be held liable when they should be; and that would pose the very real threat of economic harm to them.  In turn, that risk would motivate them to take all necessary steps to reduce the carnage which has seen so many American killed.

Repeal of this law would not be a panacea; probably nothing will prevent some level of gun violence, just as laws against murder do not prevent all murders.  But holding gun manufacturers accountable for their wrongdoing is a useful additional step that should be taken as our society debates the limits of the Second Amendment.

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Do You Want To Know Why Tort Law Is Important? I’ll Tell You

The Georgia Supreme court just upheld a $40 million dollar verdict against Chrysler in a case where a little boy burned to death in a Jeep Grand Cherokee. The problem was a plastic fuel tank, at the rear of the jeep, which ignited, so that the child died.  That, in and of itself, is tragic.  But it gets worse.

The Center for Auto Safety knew that the Jeep’s design was unsafe, and petitioned for a recall of the 1993-2004 model Grand Cherokees.  The National Highway Traffic Safety Administration, however, didn’t do that.  According to a present press release from the Center for Auto safety,

Had the . . . 2009 petition for a full recall of the 1993-2004 Jeep Grand Cherokee been acted on in a timely and effective manner, Remi would likely be alive today. Instead, he burned to death at the age of four in a vehicle that should have been designed for his protection, but was designed with a plastic fuel tank located behind the rear axle.

If the National Highway Traffic Safety Administration (NHTSA) had listened to the advice of its own internal experts in 2013, when they recommended the recall not only of the 1993-2004 Jeep Grand Cherokee, but of the 2002-2007 Jeep Liberty as well for the same fire risk, as many as 50 other deaths, including two just last summer in Ohio, probably would have been prevented.

Instead, in the summer of 2013, in a back room in an airport in Detroit, just weeks after career experts recommended a comprehensive approach to address this deadly defect, DOT failed. The agency’s political leadership negotiated with FCA CEO, Sergio Marchionne, to recall only a smaller group of vehicles, and approved what has again and again proven to be an ineffective “fix,” of attaching a trailer hitch to the back of the vehicle. Even Chrysler’s former Vice President of engineering testified under oath that the “tow package [which includes the trailer hitch] does not protect the [fuel] tank.”  The center for Auto Safety, “Georgia Supreme Court Rules Against Chrysler in Jeep Fire Case – Center for Auto Safety Renews Demand for Complete Recall,” March 16, 2018, https://www.autosafety.org/georgia-supreme-court-rules-against-chrysler-in-jeep-fire-case-center-for-auto-safety-renews-demand-for-complete-recall/

The original jury verdict was $150 million dollars, which the judge later reduced to $40 million.  Chrysler appealed, and lost.  Automotive News reports that Fiat Chrysler, which manufactures the Jeep, was “disappointed in the decision.” David Shepardson, “FCA loses appeal of fatal Jeep-fire case before Georgia Supreme Court,” March 15, 2018, Automotive news, http://www.autonews.com/article/20180315/OEM/180319788/fca-loses-appeal-of-fatal-jeep-fire-case-before-georgia-supreme-court

Here’s the kicker:  One of the grounds for the appeal was Chrysler’s claim that “it was prejudicial to raise Fiat Chrysler CEO Sergio Marchionne’s compensation, which totaled more than $68 million, during the trial. But the Supreme Court concluded that “the award was proper, in part because Marchionne was ‘alleged to have specifically interjected himself in a federal safety investigation to the detriment’ of [the boy’s] family.”

So here’s why tort law is important:  At a time when a CEO makes $68 million dollars from knowingly selling dangerous and unsafe motor vehicles, so that little kids burn to death; and the governmental regulatory agencies fail to do their jobs, tort law is the only remedy that people have, to protect their health, lives, safety, and the health, lives and safety of those they love.

Congratulations to James Butler, a Founder of the American Museum of Tort Law, for his untiring and inspiring devotion to the child’s family, and the cause of justice in this case.

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Something Wicked This Way Comes

The future is racing up on us with breathtaking speed. New products, new technologies are constantly being touted and developed, often before they are fully understood; often before safeguards are put in place.  Sometimes new technologies bring with them unintended harm.  And worse, sometimes that harm, even though it is unintended, is foreseeable.  Everyone who has considered self-driving cars has recognized one risk of this new technology – the risk that someone would be hurt, or killed.

Today, that fear came true.  Today, the world changed.

News reports are stating that a woman in Tempe Arizona died today, after being struck by a self-driving car.

Expert have been warning about the dangers of self-driving, or autonomous, cars for a long time now.  Safeguards, rules, and legislation must be put in place, to ensure that we are protected from the dangers of these untested technologies.  And tort law must remain available to hold the wrongdoers accountable for unleashing untested or unsafe technology on the world. 

While technology holds promise, it also holds great risks and new dangers.  Let us develop technology to make the world a better, safer place, but let us not sacrifice people’s lives or health in the meantime.

Not All Is Lost – There Is Much To Be Gained

The Berkeley Law School at the University of California announced the creation of a major new consumer center, funded by a generous 3.5 million dollar grant from noted attorney Elizabeth Cabraser.  The Berkeley Center for Consumer Law and Economic Justice is intended to become a national leader in the study, research, and practice of consumer law.

Elizabeth Cabraser is nationally known as a leading advocate for consumer rights.  She has “served as court-appointed lead, co-lead, or class counsel in scores of federal multi-district and state coordinated proceedings, including multi-state tobacco litigation, the Exxon Valdez disaster, breast implants, Fen-Phen (Diet Drugs), Vioxx, Toyota sudden acceleration, numerous securities/investment fraud cases, and Holocaust litigation.” https://www.law.berkeley.edu/our-faculty/faculty-profiles/elizabeth-cabraser/

Here is some information about the new Center from her law firm’s website:

“Consumer law is at work all around us, every day. But it’s almost invisible in law schools,” says Cabraser. . . “This center will actively help protect people in the modern marketplace.”

The new Berkeley Center for Consumer Law and Economic Justice will deliver research and analysis to fuel meaningful policy change. It will file amicus briefs in consumer cases in appellate courts nationwide, provide input to legislatures and regulatory agencies on behalf of low-income consumers, increase student opportunities for hands-on consumer policy work, and produce white papers.

https://www.lieffcabraser.com/2018/02/berkeley-law-launches-path-breaking-consumer-law-center/

This is a remarkable and important development.  As one author has noted, “Part of the center’s mission will be to help define the sometimes hazy parameters of consumer law—which can include everything from debt collection abuses and inflated drug prices to false advertising and sub-prime auto lending—and to identify key issues that demand attention.”  Cohen, A, “Major Gift Launches New Berkeley Center for Consumer Law and Economic Justice,” February 13, 2018, https://www.law.berkeley.edu/article/major-gift-launches-new-berkeley-center-consumer-law-economic-justice/

All of us are consumers.  And all too often, law which protect us from unscrupulous practices are weak, unenforceable or non-existent.  As Cabraser put it, “Every one of us lives a daily life as a consumer, and marketplace fairness is a universal right; for those struggling economically, it is a basic necessity.”

Congratulations to Berkeley Law, and to Attorney Cabraser for her vision and generosity.

How would you like to reduce gun violence in the USA?

Everyone knows that there has been terrible carnage in America, caused by heavily armed shooters massacring unarmed citizens, including, tragically, school children.  America leads the world in gun violence (among nations not engaged in civil war), and the number of deaths is terrifying, and terribly, heartbreakingly sad.

We have the Second Amendment to the Constitution, contained in the Bill of Rights.  The Second Amendment reads as follows:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

It is not a model of clarity, since the first part (“a well-regulated militia…”) doesn’t seem to directly tie in with the second part (“the right to keep and bear arms shall not be infringed.”) There has been litigation about how to interpret the Second Amendment   (See District of Columbia v. Heller, 554 U.S. 570 (2008), for example); and legislation passed to protect gun makers from being sued.  See Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§ 7901-7903.

The issue of the right to keep and bear arms is divisive and polarizing the nation. 

Recently, in a letter to the editor, the Washington Post put forward a bold suggestion:  Amend the Constitution.  Peter M. Storm, “Amend The Constitution To Restrict The Flow Of Guns,” Washington Post,  February 22, 2018. 

As he wrote,

Perhaps it’s time to recognize the Constitution for what it is: a user’s manual for organizing a government. It has served us well, but we have made many needed changes over the years. Many were bitterly opposed, and some may have been a mistake that had to be righted, but they were made and the nation survived. Now is the time to make a needed change in the types of weaponry one may legally possess.

The letter did not specify what language to the amendment the author had in mind.  Maybe to link the right to bear arms to some form of well-regulated militia; maybe simply language that would remove high capacity semi-automatic rifles such as the AR-15 from the hands of civilians.

Other options are available.  Congress could repeal its immunity for gun makers who negligently let their guns fall into the hands of unsafe, untrained users.

The law could require that guns be treated like cars:  Owners must be trained, tested, licensed and insured.

Anyway, here is the question of the day (Hint: It’s a one-question survey):

[polldaddy poll=9954962]

They’re Up to No Good

The White House Fiscal Year Budget for 2019 contains proposals that would gut the ability of injured patients to hold healthcare providers accountable for the consequences of medical errors.  It would also usurp state laws, and eliminate constitutional rights.  And cost taxpayers money, while resulting in more injuries and death.

Fortunately, the Center for Justice and Democracy has come out with a detailed, point-by-point analysis of why this budget proposal is so terrible, unfair, and entirely unnecessary, “A ‘Retort” to the White House Budget’s Medical Malpractice Proposals.”  Here is a link to the article:  https://centerjd.org/content/retort-white-house-budgets-medical-malpractice-proposals

This White House budget proposal is an attempt to drive seriously injured people out of the courtroom, while protecting bad, or negligent, or incompetent doctors and hospitals.  Take a look at the Center’s excellent article to learn more.

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Banning Football to Tackle Children’s safety

It is well-established that football causes C.T.E. a devastating injury responsible for dementia, and even death.  See last week’s note, “Football Settlement Excludes Players”. The NFL has even created a billion-dollar fund to pay the claims of players who suffer from CTE as a result of playing football.

And yet, the pipeline is full:  Hundreds of thousand of high school players want to play college football;  many of those seek a career playing football professionally.  Each of those athletes will have to decide if the risk is worth it; whether the significant risk of irreversible brain jury is outweighed by the minute chance of playing football in the NFL.    They, at least, are adults, capable of making their own decisions.

But who will protect children from the brain injuries associated with tackle football?  Who speaks for them?

One New York State assemblyman, at least, is trying.  On January 24, 2018, the New York Times reported on the efforts of New York Sate Assemblyman Michael Benedetto to ban tackle football for children. K. Belson, “New York Legislator Renews Effort to Bar Tackle Football for Children,” NY Times, January 24, 2018. 

It is unlikely that the bill will pass – it doesn’t even have co-sponsor in the State Senate. Yet it is worth doing.  Since he first introduced the bill in 2013, the link between repeated trauma to the head, from football, and C.T.E. has gotten stronger.  “I firmly believe that when we see evidence of the danger to children, we need to act on that,” Benedetto said. “There are laws that you need to use a car seat, wear a bicycle helmet. It’s the same principle.”

Tackle football is a big problem for children for three reasons.  First, the link between tackle football and C.T.E. is now well-established.  Second, lots of kids are at risk:  The article reports that over one million boys play high school football.  And finally, children have a particular risk for C.T.E.: “Doctors note that head hits absorbed by young players are more damaging because their brains are not fully developed, and are less capable of fully repairing themselves. Younger players also have weaker neck muscles, and therefore are less capable of bracing for impact and supporting the weight of a football helmet.”

Fortunately, there is a safer alternative to tackle football, and it is growing:  Flag football.  “[T]he N.F.L., USA Football and other organizations have also begun promoting flag football as a safer alternative for children interested in the game. Flag football participation rates have risen sharply.”

As the article notes, other sports have taken steps to prevent or minimize the likelihood of head trauma to child-athletes.  Because of it’s unique characteristics, though, tackle football remains very dangerous to children.  Because there is a good alternative, in the form of flag football, it is difficult to see who could oppose this effort to protect children from entirely unnecessary, entirely preventable traumatic brain injuries. Perhaps the pendulum will continue to swing in favor of protecting children from injuries of this sort.