The relationship between crime and tort

Over at TortsProf Blog, Prof. Jason Solomon (University of Georgia School of Law) has posted an interesting short comment on the relationship between criminal law and torts using as an example claims by women against athletes for what would be considered "sexual assault" in criminal law. Among other things, he asks,"If the victim declines to complain to the police, or even if she had and the prosecutor declined to bring the case, shouldn’t that be the end of the matter? Is this the torts system run amok again, with a young woman seeing some deep pockets to go after?" and "What purpose do such lawsuits serve?." Go here to read the full comment.

Jury awards more than $300 million to smoker in case vs tobacco company

In what is believed to be the largest single plaintiff award to date against a tobacco company, a Florida jury has awarded a 61 year old smoker suffering from emphysema $56.6 million for past and future medical expenses as well as pain and suffering and $244 million punitive damage award against Philip Morris USA. I suspect the punitive damage award will be reduced or vacated on appeal but we'll have to wait and see. The jury found the smoker, who smoked for 25 years of her life was 10% at fault. Go here and here for more on the story.

New study on tort case statistics

The US Dept of Justice Bureau of Justice Statistics has issued a report on tort cases that concludes, among many other things, that state court tort suits that make it to trial declined steadily over a 10-year period ending in 2005. The study is available here. Some are arguing this shows that tort reformers' argument that courts are clogged down with frivolous tort suits is wrong. (See here for example) Although I think tort reformers are wrong, I am not sure that the findings in this study support that conclusion all that clearly. I think it is important to determine why torts cases are down. In fact, they may be down because of the effect of tort reform initiatives. Everyone knows that the goal of tort reform is to make it more difficult for victims to recover for their damages or to limit how much they can recover. If a tort reform initiative is effective, it will make the number of tort cases go down. The number of tort cases filed in any given year does not really tell us much, and the number of cases that go to trial tells us even less since everyone knows that most cases settle. On the other hand, tort reformers also try to overstate the case. They often assume that fewer cases filed means that tort reform initiatives have a positive effect by lowering the costs of having to deal with frivolous litigation. The problem with this argument is simiple: it assumes that fewer cases filed necessarily means fewer frivolous cases filed. (Or to put it more bluntly, it essentially assumes that all cases are frivolous - which, when you think about it is consistent with the policy behind tort reform, but I digress....) That is not necessarily the case. The fact that the number of cases filed has gone down could mean that there are fewer frivolous cases filed (which would be a good thing), or it could mean that there are fewer meritorious cases filed (which is a bad thing). And that is the problem with most (if not all) tort reform initiatives, they don't work to prevent the frivolous cases while allowing the valid ones. They simply make it more difficult for everyone. What I'd like to see is statistics as to how many cases are dismissed because the court specifically finds them frivolous, and on how that number has changed over the years.

Article on preemption part II

Two posts below this one, you'll find a note about a short article by Professor Benjamin C. Zipursky (Fordham University School of Law) exploring the state of the preemption doctrine in products liability cases. Several other commentators published responses to his article and now he responds to those comments here.

California Ct of Appeals upholds collateral source rule

California’s 4th District Court of Appeal issued an opinion last Monday holding that a prevailing plaintiff should be entitled to recover the full cost of her medical care, even if her private insurer paid a smaller, negotiated amount to cover all of her hospital and doctor bills. The opinion is called Howell v. Hamilton Meats, and it is available here. The Supreme Court of Illinois had held the same thing in a case called Wills v. Foster just last year.

Article on preemption in products liability cases

The TortsProf blog has published a short article by Professor Benjamin C. Zipursky (Fordham University School of Law) exploring the state of the preemption doctrine in products liability cases. See here. As Prof Zipursky argues, "the combination of preemption in Riegel and no-preemption in Wyeth does not present any truly sharp inconsistencies or paradoxes, but it nevertheless merits exploration."

More on ruling re Govt liability related to damages caused during Hurricane Katrina

I guess I was not the last person to report on this! Here is more on the subject, from AboutLawsuits.com. Go here for the full story.

Court finds govt was negligent in New Orleans leading to damages during hurricane Katrina

I admit I must the last person reporting this news item, but I have been trying to work on my final exams so I have a decent excuse for being late. Also, being late allows me to give you more links for you to go get the original stories.... and I can get back to my exam writing.... So here is the, by now known by everyone, news: A federal judge in New Orleans has concluded that the flooding of St. Bernard Parish and the Lower 9th Ward during Hurricane Katrina was caused by “monumental negligence” by the Army Corps of Engineers for not maintaining the levees that collapsed. For the full story and commentary go here, here and here (all of which have even more links).

Why can't we all just get along, like they do in Hawaii?

This is a truly remarkable statistic: in the fiscal year ending June 30, 2008 there were only 17 civil jury trials in Hawaii's trial courts as parties on both sides of legal disputes seemed to seek faster and cheaper ways to resolve their differences. Is this a good thing? It is hard to tell. We need more information. After all, litigation, in and of itself, is not a bad thing. In fact, often, it is a very good thing. I don't know why there are so few trials in Hawaii. Maybe the legal system is too expensive, maybe they have rules that make it difficult for people to get access to the courts, maybe people can't afford legal representation... who knows. Or, maybe there are fewer accidents in Hawaii, fewer cases of malpractice, more attorneys adept at finding alternative ways to resolve disputes, etc. From reading the article, it sounds like a combination of factors. It would be interesting to find out more. Go here for the full story. Thanks to Tort Deform Blog for the info.

More on med mal and the health care reform debate

A few days ago, I posted a link to an article and a study that refutes the tort reformers' frequent argument that we need to institute draconian caps on damages awards because doctors are leaving their practices or moving to states where they have more protection. (see here). Here is a link to another short article discussing that same study that points out that the evidence seems to suggest that doctors prefer to practice where clients are insured regardless of whether they are protected from malpractice actions. It concludes, "Ask a doctor if they’d rather practice in White Plains, where everyone has health insurance and the doctor risks being sued, or if they’d rather practice in the California central valley (or any other poor, uninsured area) and be completely immune to malpractice lawsuits. Most doctors are going to pick White Plains because money matters."

Short article on medical malpractice reform

Here is a link to an article on med mal reform that appeared in the Cleveland Plain Dealer called "Medical malpractice reform can be unhealthy". Thanks to the TortsProf Blog for the link.

This Week's Top Stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here for my own selection of top news stories.

A way around the "case within the case" problem?

Here is an interesting fact scenario courtesy of the Legal Profession Blog: a client retained a lawyer to pursue an employment discrimination claim. The attorney did not respond to the employer's motion for summary judgment and the case was dismissed. The client then turned around and sued the attorney for malpractice arguing he was negligent in handling the case, but the trial court dismissed the complaint because the plaintiff could not establish the element of cause in fact. Because the original case appeared to be very weak, it did not look that the client would have won the original case had it not been for the negligent conduct of the attorney. As we all know, this is the so-called "case within the case" problem that legal malpractice plaintiffs face. They have to argue and prove that they would have won the original case and this is extremely difficult to do in most cases. Interestingly, the court found a way around it. The court remanded on a contract claim to consider damages for the lawyer's failure to do the work for which he had been paid. The opinion is available here.

Tort reform in the health care bill

The ABA Journal.com is reporting today that the health bill sponsored by House Speaker Nancy Pelosi has a provision that discourages caps on damages and attorney fees, but that the bill encourages a requirement that victims obtain a certificate of merit from an expert before suing and the enactment of rules to require "early offers" designed to encourage settlements. These are all awful alternatives, but insurance companies should be happy with Pelosi's choice. Talk about a case of "choose your poison"! Let me start with the basics. Anything with the label "tort reform" is looking to do one of two things: either to make it more difficult for victims to get compensation (by making it more difficult for them to get to court) or, if they can get compensation, to reduce how much they can recover. Caps on damages are examples of the latter approach to reform; requiring a certificate of merit is an example of the former. I am torn about which choice would be worse, but am leaning towards saying that caps are better (or, less bad, I guess) for consumers. I would prefer to see our system continue to work as it always has, but if I absolutely had to choose, I think I would vote for caps on damages before certificates of merit. With the cap, at least the victim does get some compensation and, as long as the cap is generous, many plaintiffs may not be affected. Of course, those who would be affected would be precisely those who need the compensation the most - those who suffer catastrophic injuries - but I as I said, I am being forced to choose between bad choices and with this one at least the victims get a chance to get something. In contrast, the approaches to reform that seek to make it more difficult for victims to find representation, to find expert witnesses willing to certify their claims, and to make it more difficult to file claims to begin with, if successful, leave the victims with no recourse and no recovery at all. On the other hand, if a cap is particularly low, it would be just as effective as any other measure in making it difficult for victims to find representation. So, again, pick your poison! Here is a link to an article that talks about how the number of medical malpractice lawsuits is going down, although not necesssarily for the right reasons.

Link between tort reform laws and where doctors want to practice?

Tort reformers often argue that medical malpractice lawsuits drive doctors away from practice or from living in certain communities. Is there any evidence to support this claim? Not according to this article.

Class Action vs Toyota for defects/sudden acceleration

Two drivers in California have filed a class action lawsuit against Toyota Motor Corp. over design defects that may have caused over 2,000 Lexus and Toyota cars to suddenly accelerate out of control. The problem has reportedly resulted in at least 16 deaths and 243 other injuries attributed to sudden acceleration of Toyota or Lexus vehicles. Go here and here for the full story.

New report argues connection between Accutane and IBD

Last July, I noted that Roche Holding AG pulled its Accutane acne medicine from the U.S. market (see here). I noted that, not surprisingly, there were different reactions to the story. On the one hand some thought that was a victory for consumers (for example here), while, on the other hand, some argued that it was an example of the cost of litigation driving a beneficial drug off the market (see here.) The article that held this last positon focused only on the lack of evidence to support the claim that Accutane caused inflammatory bowel disease. Interestingly, today Pharmalot is reporting that a new study shows Accutane users, which remains available as a generic, have almost twice the odds of developing IBD as those not taking the drug. The full story is available here and it includes a link to a report in the The Los Angeles Times.

Senators propose "loser pays" legislation for med mal cases

The TortsProf Blog is reporting that Senators Lindsey Graham (R-SC) and Saxby Chambliss (R-GA) have introduced a bill that would require the loser to pay the winner in some medical malpractice suits. Go here and here for the story. This is a spectacularly bad idea. It is based on the faulty notion that just because a case is lost or because the jury award is lower than expected it means the case is by definition "frivolous." There is always a risk in taking a case to trial and this bill would just make it more difficult for patients-victims of medical malpractice to find representation. Like all tort reform measures the bills seeks to make it more difficult for victims of accidents to get access to compensantion. It will achieve that goal, but not for the right reasons or in a fair way. For comments on the bill go here and here.

Another Big Pharmaceutical Co in trouble for off-label marketing of drug

The PopTort Blog is reporting that AstraZeneca has joined the ranks of drugs companies that have admitted to trying to cash in on popular drugs by promoting their off label use. According to its recently released third-quarter earnings report, AstraZeneca agreed to settle “two federal investigations and two whistle-blower lawsuits” for $520 million over misleading marketing practices involving the “blockbuster psychiatric drug Seroquel.” Other similar cases include Eli Lilly's agreement to a $1.4 billion payment over the marketing of its drug Zyprexa and Pfizer's payment of $2.3 billion (including a record $1.195 billion criminal fine) related mostly to its marketing of painkiller Bextra. Go here for the full story.

More on the RI hospital fined for 5th surgery on wrong part of the body

Yesterday I posted a note on the news that a Rhode Island hospital has been fined by the state after it was reported that its surgical staff performed surgery on the wrong part of the body of a patient. This was the fifth time this same thing had happened in two years. After the third incident, the hospital was fined $50,000 and ordered ordered to tighten up its procedures and required to report to the state every time a doctor fails to follow the rules. The hospital reportedly also took unspecified ‘corrective action’ against the doctors and nurses. Evidently, that was not enough to prevent two more incidents. Now the hospital has been fined $150,000. Here is another article on this from The PopTort blog

This Week's Top Stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here for my own selection of top news stories.

Negligence in eating a sandwich?

So how do YOU eat a sandwich? What is the appropriate way to eat a sandwich?

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.

More on the Alien Tort Statute claim vs Pfizer

At the end of last January I reported that the Court of Appeals for the Second Circuit revived a claim filed under the Alien Torts Statute by Nigerian against Pfizer claiming the company subjected their children to medical experimentation without their consent during a 1996 meningitis outbreak. The opinion is available here. Today, Pharmalot is reporting that the US Supreme Court has asked the Justice Department’s Office of the Solicitor General to file a brief in the case. Go here for the full story.

Supreme Court hears oral arguments in case re prosecutorial immunity

Yesterday, the Supreme Court heard oral arguments in Pottawattamie County, Iowa v. Harrington, which deals with whether prosecutors should be granted absolute immunity for their conduct in the process of investigating (rather than prosecuting) a case. For a summary of the facts and the issue take a look at my previous post here. For a very good summary and comments on the oral argument go to the Wall Street Journal law blog here amd Law.com here.

Hospital fined after fifth incident of surgery on the wrong part of the body in two years

As reported widely over the internet by now, Rhode Island Hospital was fined $150,000 by the state of Rhode Island and is required to install new monitoring equipment in operating rooms following a violation of safety policies that resulted in surgeons operating on the wrong finger of a patient last month. The surgical mistake was the at least the fifth wrong-site surgery at the hospital since 2007. Go here for more on this story.

Jury awards $2.5 million in lead paint poisoning case

A brother and sister who grew up in a Baltimore City row house that contained toxic lead paint have been awarded $2.5 million in damages through a Maryland lead poisoning lawsuit. This is surprising because, to my knowledge, only one other case had found for the plaintiffs (in Rhode Island) in a lead paint case and that case was eventually overturned also. Go here for the full story.

Oral Argument in case regarding suicide as a superseding cause

As I reported a few days ago, the Court of Appeals for the Seventh Circuit has before it a case called Johnson v. Wal-Mart Stores Inc. which deals with the issue of whether, under the facts of the case, the decedent's conduct in committing suicide was a superseding cause that should relieve the defendant of liability. The court heard oral arguments on the case earlier today and you can now listen to that oral argument by clicking here (about 14 minutes). The alleged facts of the case are as follows: Wal-Mart Stores Inc. sold a woman firearm ammunition without asking her to produce an Illinois Firearm Owners Identification Card. Selling ammunition to anyone who does not have such a card is illegal under Illinois law. The woman did not have such a card because she had been a mental patient within the previous five years. After she purchased the ammunition, she returned to her residence, loaded a revolver and shot herself in the chest. She died the next morning. Her husband filed a wrongful death lawsuit against Wal-Mart and Wal-Mart replied by filing a motion to dismiss arguing the plaintiff's allegations did not meet the element of proximate cause because the suicide was an unforeseeable event that relieved Wal-Mart of liability for negligence in selling the ammunition. The lower court granted the motion to dismiss and the plaintiff appealed. The lower court's decision is reported in 587 F.Supp.2d 1027 (C.D.Ill. 2008).

On the issue of "off label" marketing of pharmaceutical products

Last year's "hot" issue in products liability was preemption. I think the next "hot" issue is going to be possible liability for "off label" use of pharmaceutical products (whether prescription or over the counter). I just posted a story on this subject -- see the post just below this one. Here is a link to a story on a trial New Jersey involving a former sales rep for Johnson & Johnson who says she was fired after complaining about pressure to illegally sell one of the company’s products for a non-FDA-approved (or “off label”) use. go here for that story.

South Carolina settles with Pfizer for $45 million for off label marketing of drug

The TortsProf Blog is reporting that South Carolina has settled with pharmaceutical company Pfizer for $45 million for Pfizer's off-label marketing of the anti-psychotic drug, Zyprexa. Interestingly, South Carolina did not participate in the collective suit by 32 states based on the same allegation. If South Carolina has joined that suit, it would have received around $4.5 million. Instead, it brought its own lawsuit. The Post and Courier has more.

New bill to override Iqbal

As I have already commented on several posts, the Ashcroft v. Iqbal decision makes it harder for plaintiffs to defeat defendants’ motions to dismiss (see posts on this subject from August 9, August 14, September 8, September 19, September 21, October 12, October 22 and October 23). The Wall Street Journal Law Blog is now reporting that three Democratic lawmakers plan to introduce a bill next week that would override it. One of the representatives working on the bill is quoted as saying that "[t]he Iqbal decision will effectively slam shut the courthouse door on legitimate plaintiffs based on the judge’s take on the plausibility of a claim, rather than on the actual evidence.” The bill will be similar to one introduced earlier this year in the Senate by Sen. Arlen Specter (D., Penn.) but will spell out the new standards more specifically. Go here for the full story. More on the Congressional hearings from Law.com here and from the PopTort here.