Wednesday, November 18, 2015

American Medical Association calls for an end of direct to consumer advertising

The American Medical Association, which represents 250,000 doctors, has called for an end to direct-to-consumer advertising for prescription drugs, a $4.5 billion-per-year industry in the United States, AdWeek reports.  The US is one of very few countries in the world that allows such a practice.  Of course, the AMA does not dictate policy for the FDA or Congress but its position may have some influence. 

Saturday, October 24, 2015

California court of appeals reaffirms view that universities do not have a duty to protect adult students from violent acts of other students

A couple of weeks ago, a California appeals court issued an opinion (with one dissenting judge) reaffirming the generally accepted view that state public colleges and universities do not have a general duty to protect adult students from violent acts by other students.  Obviously, with so many frequent stories of violence on college campuses, the question of whether an institution of higher education can be liable is important and timely. The case is called Regents of the University of California v. Superior Court of Los Angeles County and you can read the opinion here

The case involved a claim by a former student at the University of California at Los Angeles who in 2009 was stabbed by a fellow student in a chemistry lab. The suit charged that UCLA didn't do enough to protect students, even as it learned of the serious mental health issues faced by the student who committed the stabbing.

Finding that there is no general duty to help the court ruled that "While colleges and universities may properly adopt policies and provide student services that reduce the likelihood such incidents will occur on their campuses, they are not liable for the criminal wrongdoing of mentally ill third parties, regardless of whether such conduct might be in some sense foreseeable."

This approach is not surprising and appears to be the majority view on the issue, whether because the conduct of the actor is considered a superseding cause or whether because of the long standing (although often criticized) rule that there is no duty to help.

The dissenting opinion, however, argued that the University should be subject to liability because it had adopted a duty to help.  The dissenting judge quoted from university materials distributed to students and parents that included statements like "Welcome to one of the most secure campuses in the country."  The dissenting judge also pointed out that "[o]ther promotional materials assure prospective students and their families that ‘UCLA is committed to maintaining a safe and respectful learning environment and takes an unwavering stand against any act that violates the True Bruin values.’"  Based on these statements, the dissenting judge argued, parents and students are entitled to expect that the university would provide better safety measures.

The dissenting judge also argued that the university could be subject to liability under the exception to the no duty rule based on "special relationships."  Traditionally limited to common carriers or innkeepers, courts in many jurisdictions have disagreed on whether to expand the notion of a special relationship to include other types of relationships.  Again, many have held that the relationship between a university and its adult students should not be included within the exception, even if that of an elementary school and its students has been.  Usually, the fact that students in an elementary school are minors who are not entirely equipped to defend themselves and who are not as mature as adults justifies the distinction.

The dissenting judge, however, thought that this distinction should not be given as much weight as it has in the past saying that "I would find such a special relationship exists between a college and its enrolled students, at least when the student is in a classroom under the direct supervision of an instructor..."  In such cases, the dissenting judge would find that "the school has a duty to take reasonable steps to keep its classrooms safe from foreseeable threats of violence."

Inside Higher Ed has more on the story here.

Friday, October 16, 2015

Eighth Circuit reinstates wrongful death claim based on alleged defect on Remington rifle

A widow's wrongful death suit against the Remington Arms Co. is reinstated after a divided Eighth Circuit said sufficient circumstantial evidence pointed to a defect that could affect as many as 2 million rifles (O'Neal v. Remington Arms Co., 2015 BL 337378, 8th Cir., No. 14-2883, 10/14/15).

Wednesday, October 14, 2015

Wisconsin jury grants $5 million in case against gun store for negligent sale of a gun which was later used to kill two police officers

In 2005, Congress enacted a statute that gives gun dealers immunity from liability for injuries caused by guns sold by them unless the sellers knew or should have known the sale was illegal or likely to pose a danger.  (See the Protection of Lawful Commerce in Arms Act).  More than 30 states have adopted similar laws.

Since 2005 only one case against a gun seller had reached a jury and the jury found for the defendant.  That changed two days ago when a jury in Wisconsin awarded more than $5 million in damages to two police officers who had been severely wounded with a pistol that a local gun shop sold to a straw buyer in 2009.  The New York Times has more details here.  Slate has more here (including links to other sources).

The jury found that the store had been negligent in selling the gun because there were signs that the person seeking to buy the gun was fronting for an 18-year-old who accompanied him to the store. One month after the purchase, the 18-year-old shot the plaintiffs, leaving one of them with brain damage and a destroyed eye.

The decision is surprising for a couple of reasons.  First, usually the effect of the federal statute, and of similar state statutes, is to prevent liability of gun sellers for the consequences of the conduct of those who use the guns. 

Second, typically, defendants in this type of case will argue that the conduct of the person using the gun should be seen as a superseding cause that severs the connection between the negligent conduct upon which the claim is based and the injury for which the plaintiff seeks recovery. I've always thought that courts tend to be receptive to this argument. If the argument was raised, I wonder if maybe, given the string of recent school shootings, opinions are starting to shift on the issue.  I don't know if this argument was made in this particular case, but I can't imagine it wasn't.  The defendant would have argued that even if it was negligent, the conduct of the person who got the gun was unforeseeable.  If the argument was raised, the court probably concluded that was for the jury to decide, and now we know how they decided it.

Saturday, October 10, 2015

Louisiana Supreme Court finds medical provider write off does not fall within the collateral source rule, which means it can be taken into account when determining value of compensation

In a recent decision, the Louisiana Supreme Court has held that a writeoff from a medical provider, negotiated by the plaintiff‟s attorney, may not be considered a collateral source from which the tortfeasor receives no set-off. Applying Louisiana law and the principles set forth in our Civil Code, the court found that such a write-off does not fall within the scope of the collateral source rule. The TortsProf blog has more information.  You can read the opinion here.

North Charleston SC agrees to pay $6.5 million in settlement for shooting of unarmed black man by Scott by police

North Charleston, S.C., has agreed to pay $6.5 million as a settlement with the family of Walter Scott, an unarmed black man shot in the back and killed by a white police officer in April.  The incident captured national attention because it was captured on a cellphone camera by a passerby. The officer, Michael Slager, was fired and eventually charged with murder.  NPR and Slate have more information.

Nevada upholds compensation cap

Jurisdictions continue to rule differently when it comes to the constitutionality of legislative caps on compensation for non-economic injuries.  Some, including Illinois, have found them unconstitutional.  Others, most recently Nevada, have rejected that position.

As reported in the TortsProf blog, a few days ago, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages.  A lower court had ruled the cap violated the constitutional right to trial by jury.  The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant.  The Las Vegas Review-Journal has the story.

Tuesday, September 15, 2015

Yet another disturbing video of football violence

Watch the defensive end of the team in the black uniform rip an opponent's helmet's off and then use it as a weapon against him.

According to, this happened last weekend during a game between New Jersey high schools Immaculata and Linden. According to the story, the player who was hit with the helmet received 10 stitches after the game. Local police is looking into the incident.

Monday, September 14, 2015

Pac Man Jones will not be suspended for violence on the football field

Sunday I commented on the conduct of Bengals corner Adam “Pacman” Jones on the football field to illustrate the recurring issue of whether conduct while participating in sports could give rise to a claim for battery.  As an update, it is now being reported that Jones will be fined but not suspended.

South Carolina redefines when the clock starts for purposes of the statute of limitations in a claim for legal malpractice

Last week, the South Carolina Supreme Court overruled prior precedent and held that the statute of limitations in a legal malpractice claim starts to run after the underlying case that gives rise to the malpractice action is resolved on appeal.

In this case, everyone agreed that the statute starts to run when the affected party knew or should have known that it had a legal malpractice claim against its trial counsel.  The question was whether the party 'knows or should have known' at the time they lose the case at the trial level, or at the time the higher court affirmed the decision of the trial level.

Overruling prior precedent on the issue, the court held as follows:  "We overrule Epstein and now hold that the statute of limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal. We find this rule comports with the discovery rule and effectuates the purpose of the statute of limitations."

The case is called  Stokes-Craven Holding Corp., v. Scott L. Robinson and Johns on McKenzie & Robinson, LLC, and it is available here. The Legal Profession Blog has more information here.