Monday, October 22, 2018

Supreme Court hears oral argument in asbestos case under maritime law

A couple of weeks ago, the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment. Because the injuries in question occurred at sea it arises under the general “maritime” law, judge-made federal law for which the Supreme Court is the final authority. The lower court found that the manufacturers could be liable because the injuries were foreseeable. 

The SCotUS blog has analysis here.  You can also access all the relevant documents in the case here.

Saturday, October 20, 2018

Interesting case in the Fifth Circuit Court of Appeals regarding false imprisonment

Suppose a person is charged of and convicted of a crime he or she did not commit and is later exonerated.  Should that person have a claim for false imprisonment?  against whom?  and when would the statute of limitation begin to run? 

These are some of the issues addressed by the US Court of Appeals for the Fifth Circuit in a recent decision in which it  reversed and remanded dismissal of a false-imprisonment claim against the city and county of El Paso holding that false imprisonment is a continuing tort in Texas.  The case was brought by a man who spent 17 years in prison for a sexual assault he did not commit.

You can read the opinion here.

Judge dismisses defamation suit against Trump

By now you have probably heard that a U.S. District Judge has dismissed a defamation lawsuit filed by Stormy Daniels against Donald Trump based on a “tweet” in which Trump suggested Daniels lied. 

The judge concluded that the tweet "constitutes 'rhetorical hyperbole', and that because the tweet displays “an incredulous tone,” it was not meant to be understood as a “literal statement about the plaintiff."

You be the judge.  The statement in question is this:  "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

Does that sound to be a statement of fact, an opinion or a rhetorical hyperbole?  Do you think reasonable people would disagree about the answer to that question?

The judge also found that Daniels failed to show that Trump "acted with actual malice or reckless disregard for the truth," which is ironic since Trump is famous for having reckless disregard for the truth.

NPR has more about the court's ruling here.  Politico has more here.

Sunday, October 7, 2018

California Supreme Court says defendants in products liability cases may use evidence of industry custom

Strict products liability was born in California and many states still look to California law for guidance on products liability law issues.  For that reason, it is worth noting that late last August, the California Supreme Court issued its decision in Kim v. Toyota Motor Corporation in which it was asked to determine whether, in a strict products liability action, evidence that a product’s design conforms with industry custom and practice is relevant and admissible.  Several appellate decisions in California had previously had held that such evidence is categorically inadmissible, but the lower appellate court in Kim had taken a different approach, saying "it depends.”

In a 5-2 decision, the court acknowledged that evidence that a product was manufactured following the custom does not, by itself, prove that the product is not defective, but the court held that evidence of industry custom and practice may be relevant for other purposes, “including the jury’s evaluation of whether the product is as safely designed as it should be, considering the feasibility and cost of alternative designs.”  In other words, the court held that the evidence can be used together with other evidence as part of the analysis to determine whether the product is defective. 

This result is actually not that surprising and it follows the general approach developed by courts following the Restatement 2d's approach to products liability (as opposed to the one in the Restatement 3d, which is followed by a minority of jurisdictions.)

You can read the opinion here.

You can read more about the case here.

Tuesday, August 14, 2018

Kentucky Supreme Court hears oral arguments in case challenging med mal panel review procedure

As reported in the TortsProf blog: Last year, Kentucky enacted a law requiring medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial.  The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial.  Last week, the Kentucky Supreme Court heard arguments over the constitutionality of the law.  Plaintiffs claim the law obstructs the right to a jury trial, in violation of the state constitution.  The Courier Journal has the story.

Friday, August 3, 2018

Comment on documentary "Bleeding Edge" and the medical device industry

Netflix recently released a documentary called "The Bleeding Edge" which details many problems with medical devices today, with emphasis on the suffering of thousands of people due to Bayer’s Essure contraceptive, DePuy’s ASR hip implant, Johnson & Johnson’s transvaginal mesh, and the Da Vinci surgical robot.  Most medical devices aren’t tested with clinical trials. The medical devices which are tested can pass with a minimal showing, and Congress has adopted laws that shut the courthouse doors on injured victims. 

You can read a good comment on the documentary and the issues it raises by Max Kennerly at Litigation and Trial.

Sunday, July 15, 2018

Third Circuit: US is immune from liability for intentional conduct by TSA officers because they are not "law enforcement officers" under the FTCA

As you probably know, the Federal Torts Claims Act retains immunity in a number of very specific circumstances.  Thus, according to the Act, the United States generally enjoys sovereign immunity for intentional torts committed by federal employees.  However, this rule is subject to an exception which waives immunity for a number of intentional torts if they are committed by employees who qualify as “investigative or law enforcement officers.” 28 U.S.C. § 2680(h).  This means that a plaintiff does not have a right to recover from the US Government if a mail carrier commits battery; but may have a right to recover if an FBI agent does.

In a recent case decided by the Third Circuit Court of Appeals, the court decided that TSA agents do not qualify as "law enforcement officers" and, therefore, the Government is protected by immunity.

The case is Pellegrino v. The TSA (available here), and the facts are what you would expect given the topic:  a passenger alleged intentional torts related to the conduct of TSA officers during a "screening" at an airport.  The details of the event are described here.

Be careful when reading comments on the case because some of the discussion is a bit inaccurate.  For example, some of the stories state that the officers are immune.  This is not entirely accurate because the FTCA deals with the immunity of the Federal Government, not of the individuals. 

Simple Justice has a comment here.

Tech Dirt has a comment here.

Tuesday, July 10, 2018

Parents who allowed child to die for religious reasons plead guilty

A number of years ago, I posted a number of comments on the possibility of imposing civil liability on parents whose refusal to provide medical treatment to a child for religious reasons causes the child to suffer an injury (or death).  See here, here and here, for example.

I had not seen the issue in the news for a long time, but today I saw an item in the news that caught my eye:  As reported in the Daily Beast, "[t]wo members of an Oregon church that believes in faith healing pleaded guilty to negligent homicide this week in the death of their newborn daughter, who spent hours struggling to breath without ever receiving medical treatment."  You can read the full story here.

This is, of course, a criminal law matter; but it does raise the question I have asked before.  If the parents can be criminally liable for this conduct, should we recognize a civil cause of action against them for wrongful death also? 

Sunday, July 1, 2018

Wisconsin Supreme Court upholds validity of cap on non-economic damages

As the TortsProf blog recently reported, the Wisconsin Supreme Court recently held that the state's cap of $750,000 on non-economic damages in medical malpractice cases is constitutional. 

The plaintiff in the case lost her arms and legs as a result of a medical error and the jury determined that her pain, suffering, and disfigurement had a value of $16.5 million.  However, Wisconsin’s highest court deferred to legislation limiting such awards to a maximum of $750,000 in all cases, regardless of the severity of the injuries.

In a dissenting opinion, two justices argued that the cap had a perverse effect on plaintiffs because only those with the most catastrophic injuries will be denied a full and fair damages award and it "makes no sense that those who are injured most get the least.”

You can read the entire opinion here.

Wednesday, June 27, 2018

Med Mal statistics and other information

The Center for Justice and Democracy has just published its most recent update to the Medical Malpractice briefing book with all the latest statistics about medical malpractice litigation, cost, access to doctors, insurance, and patient safety.  Here is a summary. You can download the full report (free) here.