Wednesday, December 30, 2009
Tuesday, December 22, 2009
Monday, December 21, 2009
Sunday, December 20, 2009
Whistleblower who exposed pharmaceutical's illegal marketing of drug gets recognized as most influential person in business ethics
Friday, December 18, 2009
Thursday, December 17, 2009
I always ask my students how many of them own pets and ask them to talk about whether they would be affected if their pets were hurt by others (whether intentionally or negligentlly). Invariably a majority of them raise their hands to say they own or have owned pets, that they definitely feel affection for their pets and that injuries to pets do cause their owners sadness, grief and emotional distress.
Now comes news that Vermont's Supreme Court is being asked to decide the issue. In this case, a couple let their dog wander into the defendant's yard and the defendant fatally shot it. The plaintiffs are asking the court to hold that a dog's owners can sue for emotional distress and loss of companionship. For more on the story go here.
Tuesday, December 15, 2009
Friday, December 11, 2009
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Monday, November 30, 2009
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Thursday, November 5, 2009
All kidding aside, this second question may be very important in a tort action in Chicago. The facts of the case are simple: the plaintiff, who suffers from severe allergies, ordered a turkey sandwich without any of the ingredients he is allergic to. By mistake he was given a tuna sandwich with a lot of ingredients he is allergic to. The sandwich was completely wrapped in paper which made it impossible to know a turkey sandwich from a tuna one just from looking at it. The plaintiff peeled some of the paper and took a bite out of the sandwich which was enough to cause him to suffer severe consequences because of his allergies.
In response, the defendant argued the plaintiff was negligent by not unwrapping the sandwich and inspecting it before he took a bite.
Quite frankly, I think the defendants have a good point - but not the one they apparently have argued.
The defendant apparently argued that "a reasonable person removes the sandwich from its wrapping, inspects it, and only then bites into it." That's nonsense and it misses the point.
The question is not what the proper way to eat a sandwich is. The question is what should a person with severe food allergies do to protect himself. Someone who suffers from severe allergies needs to learn to be very careful when eating out. The plaintiff in this case, in my humble opinion, was negligent not because there is an objective "correct" way to eat a sandwich, but because the plaintiff should have known that he needs to be careful when eating out.
Believe me, I know. My daughter has a severe food allergy. We have to be very vigilant about it and, at age 3, she is now old enough to understand it. She knows she has to be careful and has learned already to ask "does that have _____" (what she is allergic to) before she tries anything she is not familiar with and whenever we eat out. Quite frankly, if a three year old can learn to ask, I have to say an adult has to learn to be careful. Go here for more on this story.
Wednesday, November 4, 2009
Sunday, November 1, 2009
Friday, October 30, 2009
Yesterday, I saw in several sources around the internet a story that a jury in Montana imposed liability on Louisville Slugger, the baseball bat manufacturer, for failing to provide adequate warnings about the dangers posed by aluminum bats and awarded $850,000 to the family of an 18 year old who died when hit with a baseball while pitching in a game in 2003. Go here for the full story and some interesting comments criticizing the decision. This site has the story and links to other related stories. More versions of the story are linked here.
The arguments against this type of verdict are not new: that kid assumed the risk, that a warning would not have made a difference, that plaintiffs lawyers are just using the system to bring frivolous lawsuits, that cases like these result in ridiculous warnings on all products, etc etc.
I think these arguments miss the point. First of all, no one has ever argued that a warning makes a product safer. A warning just provides information that the consumer can then use to make decisions on how to protect him/herself given the risks involved in using the product.
Second, it is true that there are some products (and some activities) that are inherently dangerous, but this does not mean that everyone understands the level of risk they pose.
Finally, and I think most importantly in this case, sometimes we need to ask whether a product is so dangerous that it should not be used at all, period. I understand you can't play baseball unless the hitters use a bat...duh! But it does not have to be an aluminum bat! Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won't eliminate all the risk, but it is safer.
Now, some argue the result would have been the same even if the bat had been made of wood. I have no expertise on that question, but I can concede that may be true in some cases. I am sure it is not true in all cases, though, and it is those cases that matter.
Also, if it is true that the death in this case would have happened even if the bat used had been a wooden bat, I wonder how come the defendant did not get the case dismissed early on arguing that the plaintiff could not establish cause in fact. Did they not have an expert ready to testify? Aluminum bats are probably ok for very little kids who do not generate the bat swing speed necessary to make much of a difference (and for many of whom a wood bat would be too heavy), but as the kids get bigger and stronger the leagues should move to wooden bats.
Thursday, October 29, 2009
This is a particularly timely and interesting development given the fact that just yesterday we began our discussion of negligent infliction of emotional distress in my first year Torts class!
In class, we discussed the development of the tort from the days where courts felt we did not know enough about emotional distress to recognize a claim at all, to the days when courts said we don't know enough about it to allow the claim absent physical manifestations and so on. Illinois had abandoned the requirement of showing physical manifestation already years ago. With this decision, Illinois has moved the history of the tort even further.
The case is Thorton v Garcini and it is available here.
Monday, October 26, 2009
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Sunday, October 11, 2009
The Wisconsin case was finally decided last week, just within a day of another similar case in Pennsylvania. In both cases the courts imposed light criminal penalties on the parents. In both cases, it is likely that the children would have recovered fully had they been given medical attention, but the parents declined to get medical attention in favor of engaging in prayer. (For a comment on the issues raised by the fact that courts often impose light sentences in cases like these go here and here.)
If states have the authority to impose criminal sanctions for conduct that the actors claim is based on religious faith, couldn't states recognize a cause of action in tort against the parents, or the church they belong to, in a case like this?
I have not updated my research on this subject recently, but as far as I remember, the last time I taught the subject, there were very few cases that imposed civil liability in similar cases. Two cases cited often on this issue are Lundman v McKown, 520 NW2d 807 (Minn App 1995) and Quigley v First Church of Christ Scientist (Calif App 1998). In both cases, the courts rejected the cause of action against the church itself, but in Lundman the court recognized a claim against some members of the church who, according to the court, owed a duty to the child.
If you are interested in this subject you may also want to take a look at a short article called Life and Death Laywering: Dignity in the Absence of Autonomy by Theresa Stanton Collette, published in the Journal of the Institute for the Study of Legal Ethics in 1996, which explores the duty of the attorneys appointed to represent children whose parents want to deny them access to medical treatment.
UPDATE 4/25/13: The parents in the Wisconsin case have just been arrested again after another one of their children died. See here.
Saturday, October 10, 2009
Thursday, October 8, 2009
There has been a lot of litigation under the Alien Torts Statute in the past few years. (Go here for posts on some of those recent developments.) The statute, which was enacted in 1789 and is codified in 28 U.S.C. §1350, provides jurisdiction to federal district courts over claims filed by aliens for injuries allegedly caused by conduct that constitutes a violation of the law of nations.
As the use of the ATS as a remedy for damages became more popular, some plaintiffs began to argue that aiding and abetting the violation of international law is itself a violation of international law and, eventually, courts recognized the validity of a cause of action for "aiding and abetting" the commission of a violation of the law of nations. The recognition of this new type of cause of action under the ATS created the need to address yet another difficult question: whether the concept of aiding and abetting should be defined according to international law sources or according to the law of the US.
One of the best discussions of the different approaches to this question was provided by the concurring opinions of two judges of the Court of Appeals for the Second Circuit in a case called Khulumani v. Barclay Nat’l Bank, decided in 2007. In a per curiam opinion the judges recognized the validity of a claim based on a theory of aiding and abetting under the ATS but they disagreed as to the analysis that should be used to resolve those claims. In separate concurring opinions, Judges Katzmann and Hall debated the issues and argued for the different approaches. In doing so, they openned the door to a debate that the Court finally resolved just a few days ago.
In his concurring opinion, Judge Katzmann argued that the proper source to define the requirements of a cause of action for aiding and abetting a violation of the law of nations should be international law. For this reason, following the formulation of aiding and abetting in several international law sources, he also argued that to support a claim for aiding and abetting under the ATS, a plaintiff would have to prove that the defendant provided practical assistance which had a substantial effect on the perpetration of the crime, and that the defendant did so with the purpose of facilitating the commission of the violation of international law at issue in the case.
Judge Hall, on the other hand, argued that the proper standard for aiding and abetting claims under the ATS should be the US federal law and that, following that view, a plaintiff would only have to show that the defendant furthered a violation of a clearly established international law norm by knowingly & substantially assisting the principal tortfeasor to commit the act. In other words, in contrast with Judge Katzman’s analysis, which would require proof of intent on the part of the defendant, Judge Hall would have found a showing of knowledge sufficient.
The question of whether a plaintiff has to show intent or can get by showing just knowledge was not settled until six days ago when the court issued an opinion in The Presbyterian Church of Sudan v. Talisman Energy, Inc. which is available here.
In this new opinion, the court explicitly adopts Judge Katzmann’s proposed rule/analysis in his concurring opinion in Khulumani as the law of the Circuit, stating that: "Thus, applying international law, we hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone. Even if there is a sufficient international consensus for imposing liability on individuals who purposefully aid and abet a violation of international law . . . no such consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law."
In the case, to support its argument that the defendant breached its duty of care, the plaintiff tried to rely on the doctrine of res ipsa loquitur, which allows a plaintiff to prove negligence by showing that even if there is no direct evidence of negligence, the circumstances of the accident indicate that it probably would not have occurred had the defendant not been negligent. The Court then proceeds to interpret Illinois law on the subject as it relates to two very important aspects of res ipsa loquitur: the so-called "requirement" that the instrumentality that causes the injury be under "exclusive control" of the defendant and the procedural effect that the application of the doctrine should have.
As to the issue of "control", the court adopts what has been the modern trend: to minimize the importance of this factor -- or to eliminate it entirely -- from the analysis. The notion that the object that causes an injury has to be under the exclusive control of the defendant can't be read strictly because doing so would limit the application of the doctrine too much. Courts have never required a strict application of this factor. At most, it can be said that the control must refer to control at the time of the possible negligence (not at the time of the accident -- which is the interpretation the defendants always argue since usually it is the plaintiff who is using the product when the accident happens).
Coming just short of saying the question of control is irrelevant, the court states the following: "The black-letter statement of the doctrine is that the thing that caused the plaintiff’s injury must at the time of the accident have been under the defendant’s control. But as the Prosser treatise points out. . . this formulation (like so many blackletter statements of rules) should not be taken literally, as it implies that the doctrine could not be invoked in a case in which the brakes on a new car fail and the manufacturer is sued. . . ." It should be noted that the Restatement 3d of Torts eliminated the element of control from its "blackletter" description of the doctrine.
As to the question of the effect of the application of the doctrine in Illinois, the court had this to say: "The parties manage to avoid telling us what the effect of the doctrine is in a lawsuit governed by Illinois law. Does the doctrine merely allow the trier of fact to infer negligence—is it in other words just an illustration of the use of circumstantial evidence to create a prima facie case? Or does it create a presumption of negligence that entitles the plaintiff to judgment unless the defendant presents evidence in rebuttal, or that even shifts the burden of persuasion to the defendant? In Illinois, as in most states, . . . it is just a type of circumstantial evidence (which raises the question, why treat it as a separate doctrine?)."
Note the little challenge thrown in there by the judge... can we really explain why we treat RIL as a "separate doctrine" if all it is is a form or circumstantial evidence with a fancy name? The case is Aguirre v. Turner Construction Company.