Court recognizes claim against Boeing subsidiary for damages caused by violation of the law of nations

The 9th U.S. Circuit Court of Appeals has reinstated a lawsuit that claims a Boeing subsidiary helped the CIA transport prisoners to overseas prisons for torture. The trial court had had dismissed the suit claiming it could jeopardize national security and foreign relations, but on appeal, Judge Michael Hawkins wrote that "According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law." Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said. The opinion is available here. For more on this story go to the New York Times here and the San Franciso Chronicle here.

Sad story

When discussing the issues related to whether there is (or should be) a duty to help, I often use a hypo that involves a person walking along a lake watching someone struggling in the water because he or she can't swim. The sad reality of the dangers of this type of situation are brought to life in a report today in Prof. Jonathan Turley's blog. He reports that Washington personal injury lawyer Charles Schulze, age 73, died in his rescue of two drowning boys. Schulze was walking on the beach off Pompano Beach, Florida when he saw two boys (ages 9 and 12) in distress in the surf. He swam out and rescued the nine-year-old child first, went back and rescued the 12 year old. While onlookers made sure the boys were ok, Schulze collapsed. He gave his life to save the children. For the full story, click here and here.

Tort reform at the movies

The PopTort Blog is reporting today that the U.S. Chamber of Commerce is planning to show commercials before movies in Regal theaters (and maybe others) in Washington D.C.: "The U.S. Chamber, our country’s leading corporate lobbyist (at least they spend the most), tells why the biggest problem facing the country today isn’t the financial meltdown, record unemployment, two wars, swine flu, toxic peanut butter …. (need we go on?). It’s lawsuits – that’s right, legal proceedings by average working families, especially the ones against corporate executives who defraud and poison people. Laughing yet? . . . These folks at the U.S. Chamber are more than just ambassadors of happiness. They’re serving this nation’s fundamental goals of corporate immunity, wiping out everyone’s legal rights and making taxpayers pay more!"

Duty while playing golf?

Law.com has a story today about a case from New York that involved a number of interesting questions in the context of one of my hobbies.

The story starts when three friends went to play golf. After each had hit his first two shots toward the first hole they separated and went to look for their balls. According to the decision, the defendant then hit an errant shot that hit one of his friends in the left eye causing severe injuries. The defendant claimed he shouted out a warning when he realized where the ball was headed, but neither of his companions heard a warning. The Trial Court dismissed the case on grounds that the defendant was not negligent and that the plaintiff had, in any case, assumed the risk of injury through his voluntary participation in the sport. The New York state Appellate Division, Second Department, affirmed holding that a golfer did not have a legal duty to yell "fore" after taking a shot that eventually caused the plaintiff's injury.

Millions of people play golf in the US every year and accidents like this one are, actually, not unusual. To avoid them, golfers know, or should know, the universally accepted practice of yelling the word "fore" as a warning to others to protect themselves from errant shots.

One interesting question presented by this case is whether a golfer can be held negligent for his conduct on the golf course if his conduct creates an unreasonable risk of harm to others. I don't see why not, and there is case law that supports my position. The other interesting question is whether the voluntary decision to participate in the game means that golfers assume the risk of injury regardless of how the injury occurs. I don't think so; and, thus, I disagree with the ruling of the court here.

The 3-1 Second Department majority affirmed a lower court's dismissal of the claim, holding that, given the circumstances of the accident, the defendant could not have reasonably anticipated that the plaintiff was in any danger from his shot.

Although not very eloquently expressed, what the court is trying to say is simply that the defendant was not negligent. There was no evidence that showed he did not exercise reasonable care before, while or after taking his shot. If that was all, this case would be totally routine.

But, unfortunately, that is not all.

The Court then went on to say, that even if the defendant had been negligent, the case had to be rejected because the risk of being struck by a misdirected shot is an "inherent" part of golf and that the plaintiff "assumed the risk" because voluntary participants in sporting and recreational activities are deemed to have consented to "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation."

This is an example of confusion about the concept of assumption of the risk ... and about the game of golf.

First of all, sports activities do present risks to participants but that does not mean that other participants do not have a duty to act like reasonable people. In skiing there is an inherent risk of falling, but courts recognize claims against other skiiers if their negligence causes other skiiers to fall. The same should be true of golf.

Even if there is an inherent risk of getting hit by a ball on the golf course -- something I am not sure I agree with -- I don't think that means a golfer assumes the risk of getting injuried because of another golfer's negligence. ....UNLESS what the court is trying to say is that golfers simply have no duty to exercise due care when playing the game, which, in my opinion, would be contrary to public policy.

Yet, that is precisely what the court seems to be saying when it says that "to conclude that the defendant can be held 'liable' in tort for a poorly-executed golf shot because he may have negligently failed to shout 'fore' is inimical to the rationale underlying the doctrine of primary assumption of the risk, and at odds with the public policy goal for its adoption" -- to encourage "free and vigorous participation" in sports and recreational activities."

I disagree with that as a torts professor and as a golfer!

It is certainly not frivolous to argue that a golfer is negligent if he or she does not take proper care to make sure he or she knows where the other golfers in his or her group are before taking a shot and, if they are in the way, if he or she fails to warn them that he or she is about to take the shot. As a golfer, this is one of the first things you learn to do, precisely because you know how dangerous it would be to hit someone else.

Yet the court did not give this argument much importance. The Court found that the "carelessness" of failing to follow these procedures "does not rise to the level of creating a dangerous condition over and above the usual dangers inherent in participating in the sport of golf." Again, I disagree. Justice Cheryl E. Chambers argued in a signed dissent that there was a question of fact as to whether the defendant's violation of golfing procedures unreasonably increased the risks to other competitors.

The case is Anand v. Kapoor, available here.

UPDATE (Nov 18, 2010): The court of appeals heard oral arguments.  Take a look here for my reply to a reader's comments on the case.

UPDATE (January 31, 2011):  The Appeals Court has affirmed the lower court.  Go here for my comments.

Strict Liability for animal attacks

Last February I saw two stories related to animal attacks. Instead of posting them then, I saved them until now when we covered strict liability for damages caused by animals in our class. The first story, originally published in the Miami Herald, about a snake attack in a Wal-mart store: "Wal-Mart is full of signs highlighting low prices, but there should be another warning customers that they might be attacked by snakes on the premises, a bitten shopper says." Note that this particular claim is not for strict liability. Do you see why? The second story is more dramatic and involved a brutal attack by a 14 year old/200 pound chimpanzee in Samford, Connecticut. The chimpanzee was someone's pet and, reportedly, "a veteran of TV commercials who could dress himself, drink wine from a glass and use the toilet." The victim lost her hands, nose, lips and eyelids in the 12-minute mauling. Many bones in her face were crushed, and the attack may also have left her blind and brain damaged. Do you think that the fact that the animal was a household pet and trained means the analysis should be the one we use when other, more common, pets attack? Or, does the fact that the animal is an ape, in and of itself, means we should follow the analysis related to a "wild animal'? Interestingly, in this particular case the question was irrelevant because there were reports that the chimp had exhibited violent behavior in the past and that the owner had been warned about it. About a month after the attack, while the victim was still in critical condition, her family filed a lawsuit seeking $50 million in damages against the primate's owner, saying she was negligent and reckless for lacking the ability to control ''a wild animal with violent propensities.''

Regulation of pitbulls?

Here is a story from back in March that I saved for our class discussion of damages caused by animals... Oregon is considering a bill to ban pit bulls from the entire state. Oregon may be the first state to declare owning pit bulls a crime, if the legislation passes. Pit bull owners insist that their dogs are not more vicious and that it is the fault of the owners. However, the Oregon legislation may become a model for other states. For the full story, click here.

Attempts to legislate pit bulls in Texas

A proposed Texas law that would make it a crime for children under 16 to handle or care for pit bull dogs has raised hackles amongst a number of individuals in the state. Such breed-specific legislation is routinely opposed by animal welfare groups, and the proposed law also covers animals with pit bull characteristics, a group of animals which presumably would be difficult to define, according to the Houston Chronicle. However the sponsor, State Rep. Harold Dutton (D-Houston), says a teen walking a pit bull down the block can be the equivalent of a teen displaying a holstered gun. “It may well never go off. It may never hurt anybody,” Dutton says, “but the potential there is so great that we need to look at it and prevent it.”

Most interesting stories this week

It's Friday, which means it's time for the lists of the most interesting stories for this week. For the TortProf Blog's list go here. The PopTort Blog has several lists this week: here and here.

Significant changes in products liability in Pennsylvania?

The 3rd U.S. Circuit Court of Appeals predicted Tuesday that the Pennsylvania Supreme Court will import negligence concepts into the strict liability doctrine by adopting Sections 1 and 2 of the American Law Institute's Restatement (Third) of Torts. For the full story go here. For a comment on this story by the Drug & Device Law Blog go here.

Arguments in Iraq v Beaty

A couple of days ago I posted a note about Iraq v Beaty, a case in which the Supreme Court will decide whether Federal Courts have jurisdiction over Iraq. The Court heard oral arguments Monday. Click here for a summary of the arguments. UPDATE: The Supreme Court issued its opinion on June 8, 2009 holding that federal courts do not have jurisdiction over Iraq. The opinion is available here.

Interesting (and confusing) Illinois Court of Appeals opinion about medical malpractice

As we all know, ordinarily the plaintiff in a medical malpractice action must introduce expert testimony to prove the standard of care and that the defendant breached it. However, there may be circumstances where a plaintiff could support the claim without an expert. When I ask my students to give me examples where this could be justified, someone invariably (usually the first example that comes to mind) says “when they leave something in the patient’s body during surgery.” Why? Because "everyone knows" that is not supposed to happen.

 Interestingly, a couple of weeks ago, the Appellate Court of Illinois (2nd District) decided a new case involving this exact situation. Unfortunately, the decision displays a significant confusion regarding some basic tort law principles. The case is called Forsberg v. Edward Hospital and it is available here.

 The facts of the case are very simple. Patient goes in for surgery. Patient comes out of surgery. Patient later discovers a sponge was left inside her body. Patient sues. Simple. The hospital settled, but the surgeon decided to take the case to trial. The doctor then moved for summary judgment, arguing that the plaintiff did not have any expert evidence to support her argument of breach, that he had acted with due care and that he could not be held liable for the conduct of the nurses who were in fact in charge of keeping track of the surgical sponges.

 In response to the motion for summary judgment, the plaintiff argued that she did not need expert testimony to prove negligence because it is “common knowledge” that leaving a sponge inside a surgical patient's body is a breach of the standard of care and that the surgeon can be vicariously liable for the negligence of a nurse (even if the nurse is not the surgeon's employee) if the nurse was subject to his control and supervision. The trial court granted the motion to dismiss and the court of appeals affirmed.

In support of its decision, however, the appellate court used a very confusing analysis and missed the chance to do one of two things: either to clarify what has become an unnecessarily confusing area of the law or to break new ground and establish new law. There are two interesting questions here: whether the plaintiff’s argument based on “common knowledge” is enough to support her claim of breach of the standard of care and whether a surgeon can be vicariously liable for the conduct of a nurse under his supervision if she is not his employee.

The problem with the first issue is that the court confuses the concept of an argument sufficient to establish a prima facie case and the process of proving that argument. The court correctly starts by pointing out that expert testimony is not required if the conduct is such that a layman can safely conclude it does not meet the medical profession’s standard of care and that this applies in a case where the conduct in question involves leaving a sponge inside a patient. From there, however, the court goes on to say that “the fact that the sponge was left in the plaintiff's body established a prima facie case of medical negligence and the burden shifted to the hospital to explain the nurses' failure to keep an accurate sponge count.”

 This sentence can be interpreted in two different ways – both of which are problematic.

First, it can be interpreted to mean that the fact that the sponge was left in the body is sufficient to conclude that the plaintiff has enough support to survive a motion to dismiss. This means that the argument is enough to suggest that reasonable people might disagree as to whether the conduct of the defendant was negligent and that, thus, the case should go to the jury for the jury to decide if in fact the defendant was negligent.

Interpreted this way, the second part of the statement is wrong because the fact that the prima facie case is established does not shift the burden of proof. The plaintiff still has to prove that the defendant was, in fact, negligent. And, in this case, the plaintiff could not do that. She simply did not have any evidence to suggest that it was the doctor who had not acted with due care.

On the other hand, the sentence could be interpreted to mean that the fact that the sponge was left in the body is sufficient to prove someone’s negligence – that the plaintiff does not have to present evidence of conduct to the jury at all. This interpretation might justify the shifting of the burden of proof, but it would make sense only in a jurisdiction that has adopted that effect to the application of the doctrine of res ipsa loquitur which the court did not mention at all.

Should the court have invoked the res ipsa doctrine? 

On the one hand, maybe you can say that the presence of the sponge establishes that someone was negligent, but even then, that fact alone does not necessarily mean that it was the doctor who was negligent.   On the other hand, the court could adopt the analysis developed by the California Supreme Court in the famous case Ybarra v. Spangard back in 1944, which recognized the possibility of invoking the res ipsa loquitur doctrine in a case in which a surgery patient could not identify the person who probably caused him an injury nor the conduct that caused the injury.  Having said that, though, for reasons explained below, even if the court had adopted this approach, I think the result would have been the same.

The court in Forsberg, however, does not talk about any of this which makes it difficult to figure out the basis of its analysis or whether it simply confuses the concept of the prima facie case and the way in which a plaintiff proves the prima facie case. 

Now, in all fairness, it must be stated that the court did not make these mistakes on its own. It cites a number of old cases that apparently have been dragging this unnecessarily convoluted type of analysis along for a number of years. It is unfortunate, though, that the court did not break away from that analysis and take a more logical view of the issues.

The court says that its decision is that the "common knowledge doctrine" does not apply in this case. The problem is that, even after reading the case, what the "common knowledge doctrine" holds is still a mystery. It is not clear if it is a doctrine that determines whether a plaintiff needs to present expert evidence or whether the plaintiff supports an argument in order to survive a motion to dismiss or whether the plaintiff proves her argument. (Quite frankly, I am not sure why it is called a "doctrine" at all, but that is another issue.) 

I don't think the big issue in this case was about common knowledge; it was about proof.  The court should have forgotten about the so-called "common knowledge doctrine" - whatever that means - and should have focused on the possible application of the principles of res ipsa loquitur.

The case was not about common knowledge because I think the court would have been justified in finding that the plaintiff should not have to present an expert to testify as to whether leaving a foreign object in her body constitutes a breach of the medical profession’s standard of care.

I think the case was about proof and res ipsa because, even if it is fair to conclude that the fact that the sponge was left in the patient's body showed that someone was negligent, it does not show that it was the surgeon who was negligent.  This, in my mind, opens the door to the use of res ipsa.

On the other hand, given that the surgeon presented uncontroverted evidence that he had used all reasonable care, that door was closed pretty quickly.  Under those circumstances, the plaintiff simply was unable to establish that there was a genuine issue of material fact as to the surgeon's negligence.

In the end, the case can be reduced to this: the plaintiff was arguing that the fact that the sponge was left in the body creates a genuine issue of material fact as to whether the surgeon acted negligently. Unfortunately for her, though, given that the surgeon had undisputed evidence that he acted with due care, absent evidence of negligent conduct on the part of the surgeon, the plaintiff's argument was not sufficient to survive the motion for summary judgment. That is all the court needed to say about that. All those references to the "common knowledge doctrine" and the shifting of the burden of proof were unnecessary.

But the problems do not end there. Remember that there was a second issue here.

Given that the plaintiff could not prove the doctor’s own negligence, she made a second argument: that he should be vicariously liable for the conduct of those who were allegedly negligent - the nurses under his supervision.

Again, on this second issue the court's conclusion is also very confusing. It is important to remember that vicarious liability refers to circumstances where someone can be liable for someone else's conduct even if the person who is ultimately liable was not negligent at all. The most common example of this is a case where an employer is liable for the conduct of an employee. The basis for liability is not the employer's conduct but the relationship with the person who was negligent. The employer's liability is not based on anything that the employer did or did not do, it is just based on the fact that he or she is the employer and that the employee was negligent while in the course of employment.

In the Forsberg case, the surgeon argued that he was not negligent - and thus could not be liable for his own negligence - and that he was not the nurses' employer - and thus could not be vicariously liable for their negligence.

The only problem with this argument is that vicarious liability is not limited to the employer/employee relationship. Many jurisdictions have held that a surgeon can be vicariously liable for the negligence of an assisting nurse not in his employ if the negligent act is done while the nurse is under the surgeon's direct control or supervision. Often courts refer to the application of vicarious liability to a situation like this as the doctrine of the "captain of the ship."

The plaintiff here argued that the court should apply this doctrine but the court rejected the argument. Citing Foster v. Englewood Hospital Ass'n, 19 Ill. App. 3d 1055 (1974), the court concluded as follows: "The import of Foster here is plain. If defendant is not liable for his own negligence, then he is not vicariously liable for the nursing staff's negligence. Instead of extending vicarious liability via the "captain of the ship" doctrine, Foster held that a surgeon may not be held liable for the nursing staff's negligence without proof that the surgeon was independently negligent in relying on the nursing staff."

This statement does not make any sense. The import of Foster is plain, but it is not that. The import of Foster is that the captain of the ship doctrine does not exist in Illinois; period.

The captain of the ship doctrine allows for the imposition of vicarious liability. This would allow the plaintiff to support a claim against the defendant even if the defendant was not negligent. To say that the plaintiff has to prove the surgeon's negligence in order for the captain of the ship doctrine to apply does not make sense because if the plaintiff has evidence of the negligence of the defendant, the plaintiff does not have any need to argue the captain of the ship doctrine in the first place.

What the court is saying here is that a claim against a surgeon must be based on the surgeon's negligent conduct. It can't be based on the negligence of a nurse, unless the surgeon is the nurse's employer. Again, that is simple enough and all the court needed to say about that.

A more interesting question and the one reason the Illinois Supreme Court may want to consider an appeal is whether Illinois should adopt the captain of the ship doctrine. Assume the doctor here exercised all due care but the nurses did not. Should the doctor be liable? That is the question.

Supreme Court hears case on whether federal courts have jurisdiction over Iraq

Foreign states cannot normally be sued in U.S. courts. The Foreign Sovereign Immunities Act (”FSIA”), however, carves out several exceptions to this general rule, including one that permits lawsuits against state sponsors of terrorism “for personal injury or death that was caused by,” among other things, torture and hostage-taking. Today, the Supreme Court heard arguments in Republic of Iraq v. Beaty and Republic of Iraq v. Simon, two cases in which the Court must consider whether U.S. courts have jurisdiction over Iraq for claims involving hostage-taking and torture that occurred during Saddam Hussein’s regime. For a detailed description of the case and links to the briefs go here. Thanks to the TortsProf Blog for the citation.

Compensation for nuclear waste fallout

The other day in class I recommended the book Justice Downwing by Howard Ball which tells the story of the claims by citizens living downwind of the Nevada Testing Site in Nevada in the 1950s. Today, what a coincidence!, the PopTort Blog has a story about the residents of Apollo and Parks Township Pennsylvania who were just awarded compensation for injuries caused by radioactive contamination from nuclear power plant and its “clean up.” Full story here.

Most interesting stories this week

It's Friday, which means it's time for the lists of the most interesting stories for this week. For the TortProf Blog's list go here. The PopTort Blog has several lists this week: here, here and here.

Lead paint market share bill fails in Maryland

A bill that attempted to recognize market-share liability for lead paint in Baltimore has failed to pass the Maryland General Assembly. Full story (very short) here. Thanks to TortsProf Blog for the info.

Riss v New York

The famous case Riss v New York tells the story of Linda Riss and Burton Pugach who eventually got married even after he hired a thug to throw lye in her face. The case is about the concept of a limited duty of care of the state to provide police protection or whether the state should be liable for failing to provide police protection to a specific person. The real life story of the main characters is now the subject of a documentary called Crazy Love. Here is the trailer:



UPDATE 1-26-13:  Linda Riss passed away this week and The New York Times published a short article on her life (here).

New argument in the old video game/causation debate

The issue of whether there is a causal connection between violence on television, movies and, more recently, video games and actual conduct of people exposed to them has been the source of a vigorous debate for years. Now comes news of a new counter-argument: violent video games that encourage you to engage in criminal conduct are good because they allow children "to obtain the fulfillment of their fascination with that lifestyle without being in it." This statement comes from TV's "Judge Mathis" who is marketing his own video game to compete with popular game "Grand Theft Auto." "I know that the most popular game out there is Grand Theft Auto IV and I know that a lot of young video game players like the (virtual) action of criminal activity," said Mathis. "In this game, we're giving them that action and adding the option of living a mainstream, successful life." "I see this game as a way for young players to be part of the glamorous thug life that is so popular in the hip-hop culture without them actually indulging in the life," explained Mathis. "Video games allow you to obtain the fulfillment of their fascination with that lifestyle without being in it. We're not going to stop the violent genre of video games like Grand Theft Auto, so instead you try to engage it in a way that allows them to obtain the fulfillment they're looking for but also give them the choice of going the mainstream successful life." For more on this story go to Prof. Jonathan Turley's blog here and here.

Comments on the Feres Doctrine

The Feres Doctrine prevents military personnel from suing the government for injuries that occur in service — even in peacetime. There is a good deal of literature and criticism on this subject. Here is a link to a comment by Jonathan Turley which includes useful links to other sources including videos. Last year, the doctrine got some attention from CBS news when it covered the story of a young marine who died of cancer after he was misdiagnosed by a government doctor. Here are two videos of the CBS stories on the case (after short commercials). The stories mention an attempt to pass legislation to eliminate, or at least amend, the Feres Doctrine. To check the status of the proposed bill go here.

Last March, Congress held a hearing to discuss possible legislation that would reverse the Feres Doctrine. The Congressman who proposed it told the panel the bill was needed to give soldiers the right to sue for medical malpractice that all others have. Here is a CBS report:

Inherently dangerous activities?

As you probably remember, a child's conduct is usually evaluated by a special standard of care unless it involves an "inherently dangerous activity." And, as you might expect, the question of what is an "inherently dangerous activity" is highly debated particulary as it refers to activities in which kids participate but that do create risks like hunting, motorcycling and skiing. I have posted comments and examples of this debate here and here. Today Prof. Jonathan Turley is reporting in his blog of a case in which the divorced parents of a 9 year old boy are fighting over the father's desire to teach the boy how to use a shotgun. A Judge has granted a temporary restraining order against the father. The mother's argument was based, in part, on the assertion that “Guns are unquestionably dangerous.” The father's attorney responded by noting that “Skiing downhill . . . is inherently dangerous [for a child this age]. We don’t have people coming in here asking for restraints on that. . . . “You don’t see people coming in saying (the) child can’t go swimming in the lake at 9 because he might drown. Essentially what they are saying, with no facts, (is) ‘restrain him from letting his father teach him to be around and supervise his use of a firearm because he might get hurt.’ Show me the facts beyond speculation and this opinion of fear.” Full story here. In other, child dangerous activities news, .... South Dakota recently moved to lower the age for hunters to 10, here.

Videos on preemption from NYU Conference

Earlier this year, NYU Law School held a conference called "Annual Survey of American Law" which included a discussion of the issue of preemption. Here is a link to videos of some of the presentations. Thanks to Drug and Device Law Blog for the link.

Article on workplace defamation

Here is a link to an article in today's National Law Journal on workplace defamation that claims that defamation lawsuits "are on the rise in the workplace as employees take on employers over the right to reputation, suing over being labeled as damaged goods after losing their jobs." Here is a different link to the same story in case the first one does not work.

Article on Consumer Product Safety Improvement Act

Here is a link to an article in today's National Law Journal on the Consumer Product Safety Improvement Act. It starts like this: "The lawmaking process is normally where heated debate and lobbying over a wanna-be law take place. When that wanna-be becomes law by overwhelming vote margins and a presidential signature, the heat normally dissipates. But there is nothing normal, yet, about the Consumer Product Safety Improvement Act.Products liability defense lawyers call it a mess. Consumer lawyers say it's a success. And as they duke it out in press releases, blog posts, rallies and other avenues, businesses — from at-home handcrafters to large toy makers — are flooding the U.S. Consumer Product Safety Commission (CPSC) with requests for guidance on, or exemptions from, the new law's demands."

California Court finds doctor has no duty to third parties injured by patient

Here is a new case out of the Court of Appeals in California discussing an issue we have talked about in class and here on the blog. In this case, a teenager who was under the care of the defendant psychiatrist killed several of his neighbors. The decedent's surviving family members sued the doctor arguing he was negligent in prescribing a series of drugs knowing that they "have adverse side effects in teenagers, including homicidal and/or suicidal propensities," and that this negligent prescription of medication "increased the risk that . . . [the teenager] would exhibit violent behavior, and . . . proximately cause him to shoot and kill" other people. The teenager did shoot and kill his neighbors. The defendant moved for summary judgment, arguing he owed no duty of care to third party strangers to the psychotherapist-patient relationship. The lower court denied the defendant's motion for summary judgment holding he might owe a duty to the plaintiffs even though they were strangers to the doctor/patient relationship. The Court of Appeals reversed. The Court correctly points out that the issue in the case is whether the defendant "owed plaintiffs a duty of care when making medical decisions regarding the treatment of his patient." And the answer is NO. The Court explains that the concept of duty exists to "limit the otherwise potentially infinite liability which would follow from every negligent act" and that it is not good policy to extend the reach of possible liability to include the plaintiffs' claim. A psychiatrist acting in good faith should not owe a duty of care to third parties foreign to the psychotherapeutic relationship. The Court goes on to explain that to determine whether to impose a duty, Courts should balance many factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm. Analogizing the application of the factors to the analysis used in a similar case in the past, the Court found relevant that the transaction between the defendant and the patient had not been intended to affect or benefit the plaintiffs in any way, that the transaction was intended to benefit the patient by providing him with therapy for his mental problems and that it was not reasonably foreseeable that the patient would harm the victims. I think the Court reaches the correct result here, but it could have made it made its discussion of the concept of duty a bit more clear. The problem is that the Court initially states the issue is one of duty (and that it can be decided by imposing a clear-cut no duty rule), but eventually seems to suggest that the case should be decided using a proximate cause analysis based on the foreseeability of the injury. These two approaches to limiting the scope of possible liability are not the same and the court does not seem to make the distinction particularly clear. If the result is based on a "no-duty rule" then there would be no liability regardless of whether the conduct of the patient or the injury to the victims is foreseeable. I may be overstating what the Court says, but it appears to suggest that there could be a cause of action if the conduct had been foreseeable. Given what the Court says about the concept of duty at the beginning of the opinion, however, I don't think that is what it really wanted to say. The opinion is available here.

Should a plaintiff be allowed to recover if his illegal conduct contributed to his injury?

Even after the adoption of comparative negligence in most jurisdictions, there are still some that recognize some complete defenses based on an evaluation of the plaintiff's conduct. One such defense is based on the doctrine of "in pari delicto," which essentially states that a plaintiff should not be allowed to recover if the plaintiff’s illegal activity was the reason the plaintiff got hurt - if the injury is the result of the risk the statute was enacted to prevent in the first place. Here is a recent case that discusses this doctrine. The facts of the case are essentially these: A woman got a prescription for a diet pill, bought the pills but did not use them all. Her husband, who did not have a prescription for it, took the left over pills. Years later, he was diagnosed with a fatal condition that arguably can be traced to the use of the pills. The widow filed a wrongful death action and the question is whether she should be allowed to recover since it can be argued that either her conduct in allowing the decedent to take medication was illegal, or that the conduct of the decedent in taking the medicine without a prescription was illegal. The court decided that the issue was for the jury stating that "we cannot say that, as a matter of law, plaintiffs are barred from relief. This is a question for the jury to decide. The Latin phrase “in pari delicto” literally means “in equal fault.” We simply cannot conclude at this stage of the case that [the decedent], who took his wife's prescription drugs, was in pari delicto or inequal fault with [defendant]." In other words, the court applied a comparative negligence approach by suggesting the application of the in pari delicto doctrine depends on a comparision of the relative culpability of the parties. For a comment on this case, go to the Drug & Device Law Blog.

Illinois Appellate Court expands liability in wrongful birth case

Addressing what appears to be an issue of first impression in ''wrongful birth'' lawsuits (a claim by parents that they would not have had a child but for the negligence of doctors handling genetic or prenatal testing), the 1st District Illinois Appellate Court held yesterday that the parents of a severely disabled child can recover damages for his care after he reaches the age of majority. The Illinois Supreme Court has recognized actions for wrongful birth previously, but has limited recovery to the extraordinary costs of caring for the child during his childhood. In this new decision, a unanimous appeals court held the parents can recover for those damages past the age of majority, saying such damages ''rightfully compensate the parents for the costs they will incur for caring for their disabled child.'' The court stressed in its 18-page ruling that it was not deciding whether the defendants in this particular case are liable, but merely whether certain damages are available. The case is called Amy Clark and Jeff Clark, etc. v. Children's Memorial Hospital, et al., and is available here.

UPDATE  May 6, 2011: The Illinois Supreme Court reversed the decision of the lower court.  Go here for more on the story.

No duty to help

Jonathan Turley reports today about a new case in New York regarding the infamous no duty to help. The case relates to an incident that occurred four years ago when a young woman was pulled down the stairs of the NY subway in full view of a subway clerk and then raped even as a subway train pulled into the station. The clerk and other transit worker did nothing beyond notifying a superior that police assistance was needed. For the full story go here.

Comment on the FDA's review process for medical devices

The folks over at the PopTort Blog are reporting that "the Food and Drug Administration (FDA) is reportedly asking manufacturers of some of the oldest and most dangerous medical devices on the market (like pacemakers) to offer assurances that their products are safe." As they point out, in light of the recent study by the Center for Justice & Democracy, there is data to suggest that the FDA's review process is really not that rigorous. This contradicts the reasoning of the Supreme Court's Riegel v. Medtronic decision, which held state claims are preempted precisely because we can rely on the FDA to conduct a rigorous review process. See the full comment here.

Most interesting stories this week

It's Friday, which means it's time for the lists of the most interesting stories for this week. For the TortProf Blog's list go here. For the PopTort Blog's list go here.

Statute of limitations issue

Here is a new case from the Ninth Circuit Court of Appeals that is worth keeping an eye on. In Pooshs v. Phillip Morris USA, Inc., ___ F.3d ___ (9th Cir. April 1, 2009), Nikki Pooshs brought suit against the defendants based upon her terminal lung cancer, alleging a variety of theories, including negligence and product liability. Pooshs was diagnosed with lung cancer on January 31, 2003. However, she had been diagnosed with chronic obstructive pulmonary disease in 1989 and periodontal disease in 1990. She filed suit just under a year after she was diagnosed with lung cancer. The issue was whether the statute of limitations started to run on all claims for tobacco-related physical injuries in 1989 and 1990, in which case her claim for lung cancer would be barred. Although the California Supreme Court had alsready answered a series of certified questions from the Ninth Circuit concerning the application of California's statutes of limitations in tobacco-related cases in Grisham v. Philip Morris,151 P.3d 1151, 1161 (Cal. 2007), the court has not answered the specific question at issue in Pooshs. Thus, the Ninth Circuit in Pooshs certified the following issues to the California Supreme Court: (1) Under California law, when may two separate physical injuries arising out of the same wrongdoing be conceived of as invading two different primary rights? (2) Under California law, may two separate physical injuries-both caused by a plaintiff's use of tobacco-be considered “qualitatively different” for the purposes of determining when the applicable statute of limitations begins to run? This note is an edited version of a comment originally posted by Michael Steenson over at the Products Liability Blog.

Suicide attempt that injures someone else

When we talk about res ipsa loquitur in class we often joke about things falling from buildings on innocent bystanders. Today I saw this story which is no joke: Last week a woman in Queens, NY, decided to attempt suicide by jumping from the top level of an indoor shopping mall into the open courtyard below. She landed on a 17 year old who was briefly knocked unconscious and sufferend a large gash on his head which required him to go to a hospital. At the time of the incident, the lower level of the Mall was packed with high school students on spring break. The account of the story I saw does not state if the woman died from her attempt.

Cases vs the Vatican

Here is a link to an article published today (online) by the National Law Journal on the recent cases against the Vatican related for damages caused by alleged sexual abuse by priests. If you can't access the article online, you can look for it in next week's print edition of the NLJ. Last December I posted that the Sixth Circuit Court of Appeals had decided the appeal on a case called O'Bryan v Holy See recognizing a claim against the Vatican for its conduct in handling allegations of sexual abuse by certain priests. The plaintiffs sued The Vatican as a foreign governmentt and as the head of an international religious organization arguing vicarious liabilty for the acts of certain bishops and priests. Because the Vatican is considered a foreign state, it challenged the jurisdiction of the court under the Foreign Sovereign Immnunity Act. The Court dismissed some of the claims but allowed others to continue. The Court dismissed the claims for the alleged conduct of The Vatican itself, because that conduct occured outside the United States and the claims based on vicarious liability because of the conduct of the alleged sex abuser because, under state law, a priest is not an employee of The Vatican. The Court, however, did recognize a claim against The Vatican for the conduct of the achbishops, bishops and other high ranking officials of the Church because they could be considered employees. Since then, the Ninth Circuit Court of Appeals has issued a similar decision in a case called Doe v Holy See. The Court’s decision in this case, however, is different in one very important respect. Applying Oregon law, it finds that the alleged abuser is an employee of The Vatican and, thus, it recognizes a possible claim against The Vatican itself for the conduct of the priest. After Doe was decided, the lawyers who represented the plaintiffs held a long press conference which can be found in YouTube in three parts here, here and here.

Emotional Distress for mishandling a body

A few days ago, we discussed in class the cases related to emotional distress due to the "mishandling of a corpse." Today, Law.com is reporting that the California Supreme Court has tossed the lawsuit of a widow who claimed that a University of California scientific research program had misused and misplaced her husband's body. The body had been donated to the school and was delivered to UC-Irvine as intended. Shortly after her husband's death, the plaintiff read troubling newspaper accounts that suggested the school was using cadavers for unauthorized purposes, including private, for-profit tutoring classes and out-of-state sales to researchers. It was never clear how the program used or disposed of the body but the court concluded there was no evidence to prove the body had been used in a private tutoring class, transported or dismembered for profit, or used in a manner other than what plaintiff contended had been authorized by the donation agreement. For the full story, go here.

Elementary Teacher Sues Eight-Year-Old Boy For Running Recklessly for Ice Cream

Prof. Jonathan Turley reports today that Rosanna Tomack, a former New York teacher’s aide, is suing a student from her Queens grammar school for running into her with an ice cream cone in the halls. The boy, Joseph Cicack, was eight years old at the time. He is now an eleven-year-old torts defendant. The report states, in part: "Tomack, 62, insists that the kids were specifically told not to run for ice cream and that eight-year-old Joseph didn’t follow the rules. Imagine that. An eight-year-old boy ran for ice cream. Tomack was injured by the fall and required surgery on her back. However, if the standard is a reasonable eight-year-old in the presence of ice cream, I (with for kids ten and younger) would volunteer as an expert. My conclusion (free of cost)? There is no such thing as a reasonable eight-year-old boy — particularly in the presence of ice cream. Chakmakian said the suit was aimed at recovering damages from an insurance policy that covers his parents’ home. Tomack’s lawyer, Edmond Chakmakian, insists that “It’s a legitimate case,” Chakmakian said. “It’s not silly.” In New York, an eight-year-old can be sued for torts."

New York proposes to do away with the learned intermediary doctrine

The Drug and Device Law Blog is reporting that a bill recently introduced in the New York State legislature proposes to eliminate the learned intermediary doctrine for prescription drugs or devices that are promoted through direct-to-consumer advertising. Here's a link to the description of the bill. I tend to think that this is a good idea. Obviously, however, because eliminating the learned intermediary doctrine would increase the possibility of liability of pharmaceutical manufacturers you can expect a tremendous level of opposition and lots of lobbying. Stay tuned; this will be one interesting fight. If you want to see the pharmaceutical manufacturers' argument in favor of the learned intermediary doctrine, follow the links in the Drug and Device Law Blog. Here is an example.

Some of the most interesting stories of the week

As usual on Fridays, here are the lists of links to the most interesting stories of the week. For the PopTort Blog's list go here. For the Tort Deform Blog's list go here.

Article criticizing Wyeth v Levine

Courtesy of Public Citizen's Blog, here is a link to an article by American Enterprise Institute scholar Michael Greve in which he explains why he thinks the Supreme Court's recent no-preemption decision in Wyeth v. Levine fundamentally misunderstands principles of federalism and is a disaster for the economy. The article is available here.

More summaries and audio webcasts of the Wake Forest conference on the Restatement of Torts Third

Yesterday I posted a few links to summaries and audio webcasts of a Conference currently underway at Wake Forest University on the Third Restatement of Torts. Here are the links to today's sessions: Risk Creation and Foreseeability: audio ; summary by TortsProf Blog Intentional and strict liability torts: audio ; summary by TortsProfBlog Land possessor liability: audio ; summary by TortsProfBlog

Public Nuisance

The National Law Journal has published a short article on the tort of "public nuisance" interestingly called "The tort that refuses to die." Here is the first paragraph: "The tort of public nuisance has seen its fortunes rise and fall dramatically during the past several years. It was once hailed by the legal literati as the next big tort. More than one court described it as a monster threatening to devour tort law because of its propensity for reaching conduct that other tort theories could not. . . . Recent events confirm that analogy to a degree. Public nuisance resembles nothing so much as a zombie — a mindless creature perhaps not particularly dangerous at first glance but incredibly difficult to kill once and for all." The authors then discuss how the recent reversal of a case against former lead paint manufacturers alleging that lead paint was a public nuisance in Rhode Island, suggested public nuisance would not be an effective legal theory. But there have been many other cases that have challenged this conclusion. The article can be found here (although I am not sure if the link works if you don't have a subscription to the NLJ. If it doesn't, you may have to wait for the print version or search for it on Westlaw).

On the relation between the rules of professional conduct and the concept of duty

When we covered legal malpractice in class I mentioned that most states' rules of professional conduct state that they are not meant to illustrate duties in tort law, but that many (perhaps most) courts ignore this in the sense that they look at the rules as illustrations of proper conduct. In a new opinion from the Kansas supreme court, the court attempts to clarify the relation between the rules of ethical conduct and the concept of duty by stating that the rules of professional conduct do not create or recognize a claim in tort: "An attorney's violation of the ethics rules cannot create a cause of action to adverse litigants or even to clients. This is because the ethics rules do not impose a legal duty on the attorney owing to either a client or a third party. Occasionally, attorney conduct which violates an ethics rule may also violate an independent legal duty and a cause of action may ensue. It is the violation of the independent legal duty, not the ethics rule, that gives rise to a cause of action." The opinion is available here. Thanks to the Legal Profession blog for the information.

Comments on the Congressional hearing on the CPSIA

The PopTort has published a short comment on some aspects of the hearing on the CPSIA held last week. It includes a disturbing statement by Toy Industry Association President Carter Keithley, who apparently claimed that there are no health impacts from lead in toys. In response, Consumer Reports is reported as stating: "... it’s not okay when industry challenges the effects of lead on children’s health. It is absurd and flies in the face of good science. The American Academy of Pediatrics has repeatedly said there is no safe level of lead." For the full story go here.

Comments on products liability case vs sperm bank

Yesterday I commented on a decision recognizing a products liability claim against a sperm bank (see here). Today Jonathan Turley comments on the case here.

More on the recent case re preemption of claims for damages caused by vaccine

Last Friday I posted a note on a recent preemption case out of the 3rd Circuit. Today Law.com published a short article on the case - available here - arguing the ruling could prompt the Supreme Court to take up yet another significant pre-emption case in the area of products liability. The case held that children allegedly injured by vaccines are barred from pursuing any design defect claims because Congress expressly prohibited such suits in an effort to guarantee immunity to manufacturers.

11th Circuit rules certain medical devices are not exempt from FDA pre market approval

The United States Court of Appeals for the Eleventh Circuit has issued its opinion in United States v. Endotec, Inc. The central issue on appeal was whether various ankle, knee, and jaw implants manufactured and distributed by Endotec qualified as “custom devices” exempt from the FDC Act's premarket approval requirements. In the district court, FDA had sought a permanent injunction against Endotec and its officers to preclude further manufacture and distribution of such devices without the necessary premarket approval. Siding largely with the company, the District Court held that Endotec’s ankle and jaw implants, but not its knee implants, were exempt “custom devices.” But a couple of days ago the Eleventh Circuit affirmed in part and reversed in part, concurring that the distributed jaw implant was a custom device, but not the knee or ankle implants. The full opinion is available here. The FDA Blog has the full story here.

Conference on the Third Restatement

Wake Forest Law School is currently conducting a conference on the Third Restatement of Torts. The TortsProf Blog is providing short summaries on the sessions and lots of links to articles and webcasts of the sessions. There is a lot of interesting stuff to look at and listen to there. Here are a few links: Duty in the Third Restatement: for a short written summary go here, for audio of the full session go here. Negligent infliction of emotional distress: short written summary, audio of full session. Causation in the Third Restatement: written summary, audio of full session Negligence in the Third Restatement: written summary, audio of full session Thanks to the TortsProf blog for the information and links.

Consumer Products Safety Commission chair wants out

The PopTort reports today that Nancy Nord, the current head of the Consumer Products Safety Commission (CPSC) wants out. She has been the center of much controversy and there are many who want her out, actually, including some members of Congress (see here and here), the New York Times editorial board and consumer groups. See the full story here.

Federal court interprets New York law to allow product liability case for sale of defective sperm

Law.com is reporting that a federal judge has ruled that a sperm bank may be sued under product liability laws for failing to detect that a sperm donor had a genetic defect.

A significant issue in the case was whether the court should apply Pennsylvania or New York law. For a case involving sperm, the differences between Pennsylvania and New York tort law are significant. While Pennsylvania bans products liability suits stemming from blood, blood products and human tissues (the Restatement approach), New York's statute only mentions blood and blood products.

The plaintiff argued that New York law should apply because New York's interest in regulating its corporations outweighed Pennsylvania's interest in providing redress for wrongs committed against one of its citizens. The defendant argued that Pennsylvania law should apply because the semen was sold in Pennsylvania and the injury took place in Pennsylvania.

The court held for the plaintiff saying that New York had a stronger interest in seeing its laws applied because most of the significant conduct took place in New York (the screening of the sperm donor and the formation of the contract).

On the other hand, the decision dismissed all claims brought by the mother finding that the statute of limitations had expired because genetic tests showed in 1998 that the sperm donor was the source of the Fragile X genetic defect in her daughter. The plaintiff urged the judge to apply the discovery rule and to toll the statute of limitations alleging fraudulent concealment by defendant. But the court found that the mother should never have relied on the defendant's doctors. The mother should have questioned the defendant's statements especially in light of the fact that the daughter had been diagnosed by an independent hospital. The case is called Donovan v. Idant Laboratories. For the full story go here.

Another case vs elementary school related to how the school handled "temper tantrum"

About a month ago I posted a comment about a case brought by the parents of child against a school for false imprisonment due to a "time out." See here. Today, the ABA Journal.com is reporting that a similar case has been filed in Florida. The report states that the mother of a 5-year-old handcuffed by police after other efforts failed to calm the girl down during a kindergarten temper tantrum has filed suit over the incident. The claim seeks damages from the County School Board and Elementary school for alleged negligence, malicious prosecution and a civil-rights violation. The complaint alleges that the child, now 8, was so traumatized by the handcuffing that she is still afraid of school and the police and will need long-term therapy. More on the story (and lots of comments) here.

Top torts stories

Tort Deform Blog has posted its version of the top stories of the last month here.

More on whether there is a duty to beneficiaries for failing to prepare a will in time

A few days ago I posted a comment on a new case on the issue of whether there is a duty to third parties for not acting quickly enough in the preparation of a will. See here. The most recent installment of the ABA/BNA Lawyers' Manual on Professional Conduct has an article on the case. It is available here, although I am not sure if the link will work if you don't have a subscription to BNA. If it doesn't, look for the article with this citation: 25 Law. Man. Prof. Conduct 161.

Comment on preemption, legislation proposal and the report on medical devices

Yesterday I reported on a new report on injuries caused by medical devices. Today, here is a link to a comment on it published in The Huffington Post. It states in part: "According to a report released yesterday by the Center for Justice and Democracy, a shocking 573 recall notices were issued between 1992 and 2002, covering more than two million implants which had already been sold to doctors--and in many cases implanted into patients. Every one of these recalled devices were approved by an FDA approval process which is wholly inadequate to the task of protecting American consumers without significant help from private lawsuits. The FDA can barely keep up with the volume of work it faces. In 2005 alone, the FDA approved nearly 3,200 applications to market a new device to physicians and patients. . . . Lacking sufficient resources to monitor thousands of medical devices on their own, the FDA relies on the industry itself to disclose potential problems in the devices it regulates. Needless to say, device manufacturers are not always forthcoming. . . . As unwilling as the industry is to disclose damning information about their products, there is a simple way to learn the secrets that medical device makers do not want doctors to know: lawsuits. When an injured patient--or their begrieved survivors--sues a medical device maker, they have a right to discover how the company's product is made, and to uncover evidence that it is defective. They can find information that was long kept secret from the FDA, and they can often provide this hidden information to consumers and the medical profession. If they win their case, they impose a financial consequence on the manufacturer--sending an important message to profit-driven companies: if you hide key facts from the public, you will pay for it. Shockingly, however, a recent Supreme Court decision declares that medical device makers have almost total lawsuit immunity--meaning that one of the most reliable means of dislodging information from secretive companies no longer exists. . . . Fortunately, there is a way to fix this problem. Congress is currently considering a bill called the Medical Device Safety Act, . . . Until this bill passes, the FDA's lackluster screening process is the only thing standing between the millions of Americans who rely on medical devices to save their lives . . ."