California jury awards $27.3 million in damages for second hand exposure to asbestos

AboutLawsuits is reporting (here) that a jury in California recently awarded $27.3 million in damages to a woman who developed mesothelioma as a result of "second hand exposure" to asbestos. As you probably know, mesothelioma is a rare form of cancer, which is only known to be caused by exposure to, and breathing of, asbestos fibers.

 

Most asbestos cases involve plaintiffs who were exposed to asbestos at work, but the plaintiff in this case was exposed to asbestos due to her contact with her husband who was the one exposed to the fibers at work. As a result of his work, the plaintiff's husband carried asbestos fibers home on his work clothes, which caused the plaintiff to develop mesothelioma years later.

 

These cases present the issue of whether the possible liability of the defendant should be limited to the person exposed to asbestos directly at work. In the end, the issue is one of proximate cause or duty. Should the duty of the defendant extend to include the injuries suffered by anyone exposed to the fibers, or just to the injuries of those exposed at work?

 

If we apply the traditional proximate cause analysis, the question is whether the injury is a foreseeable consequence of the risk created by the negligent conduct. If the answer is that reasonable people can disagree, then the case survives a motion to dismiss and goes to the jury.

 

Since asbestos fibers cling to clothes, it can easily be argued that exposure to others who come in contact with the contaminated clothes is a foreseeable consequence of the risk created. The problem with this, defendants argue, is that this subjects them to unlimited liability. What if a worker had the custom of going to a public establishment - a diner, restaurant, bar, etc - after work to meet with friends before changing? Should the defendant be liable to anyone who participated in those gatherings (as long as they can prove cause in fact)?

 

The concept of proximate cause was created precisely to achieve a level of fairness when it comes to possible unlimited liability. At some point we must draw a line - as Cardozo and Andrews agreed in Palsgraf v LIRR - and the key for the courts if figuring out how and where to do so.

 

In an asbestos second hand exposure case, the plaintiff will argue we should extend the possible liability to include the members of the exposed worker's household. The defendant will argue that there is no reason to extend the possible liability beyond the duty owed to the worker and that extending it to anyone else would be going too far.

 

The California case is similar to a case decided by the Illinois Supreme Court last year called Simpkins v. CSX. The allegations in Simpkins were essentially the same: a wife who was exposed to asbestos due to contact with her husband's clothes. The Court's opinion concluded that the complaint had not alleged sufficient evidence to support the claim that defendant owed a duty of care to the plaintiff but remanded to give the plaintiff the chance to do so. The court explained that in order for the claim to survive a motion to dismiss it would have to show specific facts relating to defendant's knowledge of the potential harms of asbestos. Only then would the court be able to answer the question on whether the injury was a foreseeable consequence of the risk created by the defendant. You can read the opinion here. For more on the case go here.

 

In other words, the case was remanded and allowed to continue, but I do not know what has happened since. If it is still being litigated, I am sure the recent verdict in California will provide the plaintiff with some support for her claims and approach. It may also influence the defendant to consider settling the matter before taking chances with a jury.

 

Short comment on alternative approaches to medical malpractice reform

If you are interested in medical malpractice reform, take a look at the latest post at The Pop Tort in which they ask "[i]f you wanted to reduce deaths, injuries, claims and lawsuits, how would you do it?  Implement proven safety measures [to prevent medical mistakes]?  Or provide immunity to doctors ...?    Go here to read the full comment...

Reminder: Google Reader will not be available but you have alternatives

If you follow blogs as much as I do, you probably know by now that Google Reader will be shut down at the end of the month. If you are looking for a new way to keep up with your favorite blogs I recommend you take a look at Feedly which is very similar to Reader and, so far, has been working very well for me.  I hope it will continue to work well after Reader goes away.  For those of you who want to keep up with this blog in particular (and I hope that's all of you), the other alternative, of course, is to subscribe by e-mail, which you can do here by signing up on the lower right hand side of the blog.  Doing this will not inundate your inbox.  You will get one message a day and only if there is new content added to the blog. 

Oklahoma Supreme Court rejects med mal reform legislation

The Oklahoma Supreme Court recently invalidated a tort reform package related to medical malpractice claims. The PopTort praises the court for watching out for the interests of malpractice victims, the Legal Profession blog also celebrates the decision, while The American Tort Reform Association offers its typical unconvincing rhetoric in response. The case is called Wall v. Marouk and it is available here.

 

Vermont Supreme Court holds no recovery for emotional distress in legal malpractice cases, although maybe there could be

The TortsProf blog is reporting on a recent case from the Vermont Supreme Court reversing an award of damages for emotional distress in a legal malpractice case. However, the court did not hold categorically that emotional distress can't be recovered in a legal malpractice claim, but its conclusion is quite confusing:

 

"...Assuming without deciding that Vermont law follows the modern trend of allowing damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness. In many ways, this case is less compelling than the loss-of-home cases cited above; plaintiff here did not lose his home but, rather, faced a threatened loss of his home which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast to the loss of liberty or one’s child—very significant losses for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected—what plaintiff ultimately lost in this case was money. We consider plaintiff’s losses in this case to be economic, and reverse the trial court’s award of emotional distress damages to plaintiff."

So, explain this to me. The court seems to be saying a number of different things and it is not clear which is more important. For example, the court seems to say that there should be no recovery here because the emotional distress was not severe. If that is the case, that is all it needed to say, period... But it then goes on to talk about whether the representation was about a "personal" or "emotional" matter. Why would that be important? The question should be whether the plaintiff suffered the emotional distress he claims to have suffered and whether he can meet the elements of the cause of action. Then, as if that was not enough, the court seems to say that an emotional distress claim can't be based on a monetary injury.

 

None of this makes much sense to me. If the jurisdiction recognizes recovery of pain and suffering in cases of personal injury, then why not allow the recovery for emotional distress as long as the plaintiff can prove the elements of the cause of action?

 

As it is, however, it does not seem to me the plaintiff would be able to show the elements of the cause of action: there is no evidence that the distress was severe, and there was no "impact" nor a "near miss".

 

Liability for Boston marathon bombings?

Could someone other than those who conspired to bomb the Boston marathon be liable for the injuries caused? Probably not, and here is why.

Should there be a cause of action against someone who sends a text to someone who is driving at the time?

The TortsProf blog is reporting on an interesting case before the New Jersey appellate court. In the case, the plaintiffs were injured by a driver who was distracted by a text message. The interesting part is that the plaintiffs sued both the driver and the sender of the text message. The plaintiffs argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving."

 

The argument sounds reasonable to me, and it is consistent with tort law principles. However, the argument of the defendant is also valid. A text message (like an e-mail message) is sent so that the recipient can read it whenever he or she can, not necessarily immediately. The defendant-texter apparently argued that she could not control when the message was going to be read.

 

Now, here is the thing. Both arguments are right. The question is what are the circumstances. You can't generalize here. If the plaintiff can prove that the texter knew the driver was driving at the time and would pay attention to the text immediately, I have no problem recognizing a possible cause of action. Why? Because I think reasonable people would disagree as to whether a reasonable prudent person would have sent the text under those circumstances.

 

New study concludes something we already knew: medical malpractice litigation does not increase health care costs

The TortsProf blog is reporting (here) on a new study that concludes something we already knew: medical malpractice litigation does not increase health care costs.  AboutLawsuits has more on this story here.  The reason no one should be surprised by this finding is that it is consistent with every other study on the subject.  You can go here for more links to similar studies. 

San Francisco files claim related to Monster Energy drink

With all the negative publicity so-called "energy drinks" have been getting lately (see here for recent stories and links), it is perhaps not surprising that the City of San Francisco has filed a lawsuit against the makers of Monster energy drink, alleging that the company is endangering youth by marketing the highly caffeinated energy drink to children despite the potential health risks of energy drinks.  AboutLawsuits has more on the claims here.

Wisconsin considers bill to change definition of "material risk" in lack of informed consent cases

Last week, the Wisconsin legislature passed a bill to nullify the effect of a decision of the state's supreme court on the standards that apply in informed consent cases. 

As you know, a cause of action for lack of informed consent is based on the argument that the defendant breached a duty to disclose information about material risks to the patient which deprived the patient of the opportunity to opt not to undergo a medical procedure.  Jurisdictions differ, however, on how they determine what a material risk is, which in turn determines when there is a duty to disclose the information.

Some jurisdictions hold that a risk is material if the plaintiff would have liked to have known of it in order to make a decision.  Others hold the risk is material if a reasonably prudent patient would have liked to have known.  Finally, other jurisdictions hold the risk is material if the standard in the medical profession is to provide information about it.  The second of these approaches is usually referred to as the "reasonable patient" standard, while the last one is referred to as the "reasonable physician" standard.

The reasonable physician standard is consistent the general tort law doctrine in that it is an objective standard based on the practice in the profession.  However the reasonable patient standard is more consistent with the policy behind the cause of action for lack of informed consent which is to respect the right to autonomy of the patient.  Obviously, plaintiffs prefer the reasonable patient standard while defendants prefer the reasonable physician standard. 

Last year, in Jandre v. Wisconsin Injured Patients and Families Compensation Fund, Wisconsin's supreme court ruled that the standard that should be applied was the reasonable patient standard.  But the bill approved last week (Assembly Bill 139) would change the law from a “reasonable patient” standard to a “reasonable physician” standard.  

Specifically, the bill states that a physician need not provide a patient with information about alternate modes of treatment for conditions he or she already has ruled out, thus empowering the physician to make decisions for the patient.

The bill now heads to the GOP-controlled Senate.