Here at Weil’s Product Liability Monitor, we keep a close eye on developments relating to hydraulic fracturing — more commonly known as “fracking.” In a nutshell, “fracking” is a well stimulation technique that employs high-pressure fluids to break up gas trapped in shale rock formations. My colleague, Sylvia Simson, is a frequent contributor on the subject. For a recent analysis Ms. Simson wrote along with Arvin Maskin on the subject of fracking in New York State, please click here.
Now comes news from the EPA that one of the controversies relating to fracking — air pollution from the release of the “greenhouse gas” methane during natural gas production – may be of less concern than originally estimated.
In what various legal observers have called a “landmark” decision, the Supreme Court of Italy recently upheld a lower court decision linking a business executive’s brain tumor to his significant cell phone use. While the available science and research has largely rejected the likelihood of such a causal connection, this decision could open the proverbial “flood gates” for cell phone and brain tumor-related litigation. Manufacturers and suppliers of mobile phones will want to pay close attention to this decision as its impacts could be far reaching. Indeed, as reported in The Telegraph, an oncologist and professor of environmental mutagenesis who testified for the plaintiff, Angelo Gino Levis, proclaimed that “[t]he court decision is extremely important. It finally officially recognises the link…It’ll open not a road but a motorway to legal actions by victims. We’re considering a class action.” Continue reading
Magnet manufacturers should take notice: the CPSC recently announced a Notice of Proposed Rulemaking to develop a new federal standard for small, high-powered magnet sets. The agency believes that some of these magnet sets–even though labeled “not for use by children”–nevertheless “have strong appeal to children and pose a potential for high-severity injuries.”
The magnets at issue are often sold as sculptures, puzzles, and stress relievers. According to the CPSC’s press release, if a child swallows the magnets, they “can link together inside a child’s intestines and clamp onto body tissues, causing intestinal obstructions, perforations, sepsis and death. Internal damage from magnets can pose serious lifelong health effects.” The CPSC further notes that such magnets “were associated with 1,700 emergency room-treated injuries between 2009 and 2011″ and that most of the injuries occurred to children between 4 and 12 years old. Continue reading
One of Benjamin Franklin’s most frequently cited quotations is that “nothing is certain except death and taxes.” As mass tort lawyers well know, there is another virtual certainty: a mass tragedy such as what recently occurred in Aurora, Colorado will spur civil lawsuits. There has been recent media coverage of some of the legal theories that plaintiffs may pursue in the wake of the tragedy in Aurora. See here and here. One common denominator among these theories has emerged–all will likely have little chance of success. In this post, we discuss some of the arguments that plaintiffs will likely advance as well as the hurdles that may thwart any chance of success.
- Lawsuits against the operator of the movie theater. Various press reports indicate that the gunman entered the theater through an emergency exit door that he had propped open. Plaintiffs will likely argue that the theater breached its duty to maintain the safety of its premises for patrons and otherwise acted unreasonably by not having some type of security system in place to prevent entry to the theater through the exit door. One of the hurdles to this argument, however, will be establishing that the theater operator was aware of the potential threat. For example, did the theater owner know that the exit door had been used previously for unauthorized entry? Moreover, is it reasonably foreseeable that someone might use an exit door to launch a vicious attack on an entire crowd of movie patrons–as opposed to simply watching a movie without paying? Given just how violent–and random–the incident in the movie theater was, plaintiffs may have a difficult time arguing that the theater failed to act reasonably.
- Lawsuits against the University of Colorado-Denver. According to media accounts, the University received and accepted packages from the shooter prior to the incident and never opened them. Plaintiffs will likely argue that the University was negligent in failing to inspect the packages–an inspection which may have revealed the gunman’s plans and provided an opportunity to alert authorities. This argument, however, may face governmental immunity hurdles in suing a State institution.
- Lawsuits against Warner Brothers (the movie studio that created the Batman movie). Claims of violence in movies leading to violence in real life are not new and may well be pressed here. Such arguments were (unsuccesfully) made in the wake of the Columbine shootings against video game makers. Such lawsuits are frequently met with little success in light of the free speech protections of the First Amendment. In addition, plaintiffs will likely have difficulty establishing causation: how is it that the violence in the Batman film led the suspect to act violently, yet did not similarly cause the millions of others who viewed the film to do the same?
- Doctors who treated the gunman. Press accounts indicate that the suspect was treating with certain mental health professionals prior to the shooting. Plaintiffs may argue that such doctors failed to report the suspect’s known violent propensities. The difficulty with this argument, however, will be in establishing that the suspect actually told his treating doctors that he planned to commit the crimes for which he is currently facing trial. Absent specific details of such a real threat, courts recognize that doctors loathe disclosing sensitive information that a patient believes and expects is privileged and confidential.
We will continue to monitor any developments regarding the civil lawsuits that will undoubtedly stem from the horrific shooting in Aurora, Colorado.
Yale University’s Rudd Center for Food Policy & Obesity has just published a report entitled “Cereal f.a.c.t.s. 2012″ (“Food Advertising to Children and Teens Score”). The report, available here, updates a 2009 effort to “document the nutrition quality and marketing of cereals to children” and announces that there has only been “limited progress” in this field in the past few years. As loyal readers of Weil’s Product Liability Monitor will note, we frequently monitor and report on studies like this since the obesity “epidemic” and related health care costs continue to appear on legislators’–and plaintiffs’ attorneys’–radar screens. A handful of such blog posts are available here. Only time will tell whether this recent Yale study will provide more “fuel to the fire” in terms of legislation and lawsuits targeting food content and advertising. Regardless, U.S. food companies should be aware of the study and some of its key conclusions. Continue reading