Court holds police can be liable for injury caused by taser

The Wall Street Journal is reporting today that the 9th Circuit Court of Appeals on Monday agreed with a lower court ruling that an officer from the Coronado, Calif., Police Department wasn’t immune to a damages lawsuit filed by a civilian after a Taser encounter in 2005. In fact, the court ruled, the officer violated the civilian’s constitutional right “to be free from excessive force.” Click here for the opinion, and here are stories from the Wall Street Journal Blog, Law.com, San Jose Mercury News and the SF Chronicle. Professor Jonathan Turley has chronicled many reported cases of shocking news involving questionable use of tasers. Here are just a few examples. If you go his website and search using the word "taser" you will find many others, many with actual video footage of the event: Colorado Police Taser Unruly 10-Year-Old Boy Because Using Pepper Spray Would Have Endangered Officer Shock Video: New York Officer Tasers Mother in Front of Children After Minor Traffic Stop Ohio Police Taser Man After He Runs Into Burning Home to Save Sister and Friends Police Officer Tasers 10-Year-Old Girl Who Refused to Take Shower Pennsylvania Man Dies After Hit By Multiple Tasers Texas Police Shoot Dog and Then Taser Dog’s Deaf Elderly Owner For Failing to Obey Commands Alaskan Police Taser 81-Year-Old Minister in Traffic Stop Shock Video: Utah Officer Tasers Man for Traffic Ticket in Front of Pregnant Wife Sheriff Under Investigation After Allegedly Giving Taser to Man Who Appears on Video to Shock Son as Joke

Another end of the year top 10 list

A few days ago I commented that this is the time of the year when you start to see "top ten lists"... Here is another one: New York Personal Injury Blog's Year in Review list. It has links to the blog's favorite items of the year. There is a lot of interesting stuff here. Some are related to torts, some are related to professional responsibility and ethics. Take a look.

CPSC to lift stay of enforcement of Consumer Product Safety Act

A few days ago I posted that the Consumer Product Safety Commission was likely to lift its stay of enforcement of certain testing and certification requirements under the Consumer Product Safety Improvement Act. Today, the FDA Law Blog is reporting that the Commission has in fact voted to lift the stay of the testing and certification requirements for certain products and extend the stay for others. Go here for the full story.

Another comment on med mal liability and the health care reform bill

For a short comment on med mal and the health care bill go here.

Lawsuit to test Mississippi tort reform

The TortsProf Blog is reporting on a case before the Mississippi Supreme Court that challenges the cap on non-economic damages imposed by a tort reform statute. In the case, a jury awarded actual damages to cover things like medical costs and additional non-economic damages with the total coming to about $4 million. The judge, however, lowered the non-economic damages to $1 million, which is the cap put into law by the Mississippi Legislature in 2004. The plaintiff is now challenging the constitutionality of the limit. Go here for more on the story. Thanks to the TortsProf Blog for the information and link.

Whistleblower who exposed pharmaceutical's illegal marketing of drug gets recognized as most influential person in business ethics

John Kopschinski, a former sales rep whose lawsuit led to the record breaking, eye rolling, jaw dropping $2.3 billion settlement, exposed pharmaceutical giant Pfizer's illegal sales and marketing efforts to promote its Bextra painkiller, was named the most influential person in the world of business ethics by the Ethisphere Institute. Go here for more on the story.

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.

Review of recent decisions on preemption

The FDA Law Blog has a long review of cases related to preemption here.

CPSC to lift stay of enforcement of Consumer Product Safety Act

The FDA Law Blog is reporting today that the Consumer Product Safety Commission is likely to lift its stay of enforcement of certain testing and certification requirements under the Consumer Product Safety Improvement Act. Go here for the full story.

Interesting new case about generic drugs

The Court of Appeals for the Eighth Circuit recently decided an interesting case that presented the following two questions: (1) can a brand name manufacturer be liable for an alleged inadequate warning on a generic drug, where the plaintiff never used the brand name product? and (2) are warning claims against generic manufacturers preempted by the FDCA requirement that generic drugs have the same labeling as their brand name bioequivalents. The court said NO to both questions. The case is Mensing v. Wyeth, Inc., No. 08-3850 (8th Cir. Nov. 27, 2009) (available here). Both holdings make sense to me. Although there is at least one case out there that decides the first question in the affirmative (Wyeth v. Conte -- see here and here), it is difficult to justify that result and I believe most, if not all, other courts that have addressed the issue have rejected the analysis in that case. The holding on the issue of preemption is more controversial, but not surprising. The defendant's argument was based on Bush-era FDA statements in the Federal Register that had no force of law. As, the Drug & Device Law Blog points out, "[t]he beating that the FDA's 2006 preemption preamble took in Levine pretty much presaged the same treatment for these other FDA statements about "sameness" and the ability of generic manufacturers to alter their warnings." For a long comment on this case, check out the Drug & Device Law Blog's post here.

Still waiting after all these years

The Illinois Supreme Court announced a few decisions today, but what made the news about the announcement was not so much the cases that were decided but one that was not. According to the Chicago Daily Law Bulletin, there was some indication that the Court would announce its eagerly awaited decision in Abigaile Lebron v. Gottlieb Memorial Hospital which will decide whether the cap on non-economic damages in medical malpractice cases is constitutional. The case was argued before the state's high court in November 2008. We'll have to wait just a bit more for an answer to that very important question. Note that if decided before the end of the year, the case is guaranteed a spot in what will be my "top ten" list (see my previous post....)

End of the year "top ten lists"

Tis that time of the year... As we get closer to the end of the year, we will see "top ten lists" pop up all over ... "top ten cases of the year"... "top ten worst decisions"... "top ten things to keep an eye on for next year" ...and so on In fact, I promise that I will prepare my own top ten list at some point and publish it here, but for now I am going to link to the ones that start coming up here and there. Here is the first list of the year. It comes from the very informative pro-defendant blog "Drug and Device Law" and it is called Top Ten Worst Prescription Drug/Medical Device Decisions Of 2009. Given that this blog is clearly pro-manufacturer/pharmaceuticals etc, you can bet the same list could be considered a "best decisions" list by consumer advocate groups. Whichever way you look at it, it is a good list of important cases in the area of products liability.

Should we recognize a cause of action for loss of a pet?

This is a question we discuss in class in a couple of different contexts. Courts have traditionally held that animals are "chattels" and that there is no cause of action for emotional distress, loss of companionship and the like when they are injured by others. Usually, if a cause of action is recognized, the injuries are valued based on the "market value" of the animal.

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.

Drugmaker has paid about $1 billion to settle cases and more cases are pending

Drugmaker GlaxoSmithKline has reportedly paid about $1 billion to settle Paxil lawsuits, including claims that their antidepressant caused birth defects, suicides, addiction and other problems. However, with another 600 Paxil birth defect lawsuits still pending, the company is likely to spend substantially more to satisfy jury verdicts or settle all Paxil cases. Go to AboutLawsuits.com for the full story.

Mother sues federal govt for letter that suggested her son had died in Iraq

The Minneapolis Star-Tribune has an interesting story about a Duluth woman who has sued the federal government for emotional distress because a letter that she wrote to her son stationed in Iraq was returned with the word "DECEASED" stamped on it. Fortunately, the mother was able to contact her son and quickly confirmed he was unharmed. For more on the story go here and here. There are a couple of interesting things about this story. First, it is not clear whose conduct is at issue. Obviously, someone stamped the letter with the word "deceased" by mistake, but it is not clear if it was an employee of the US Postal Service or someone in the military. Second, it is not clear to me whether the claim is barred by the exceptions to the Fedral Torts Claims Act. If the mistake was made by the USPS, the court will have to determine if the claim is barred by the exception that retains immunity for cases arguing injuries caused by the negligent handling of postal matters. If it was the military who made the mistake, the court may try to apply the infamous Feres doctrine which bars recovery for injuries incident to military service - although typically the doctrine applies to cases where the plaintiff is a member of the military.

Would an attack by a pet "Wolf-Dog" support a claim for strict liability?

It appears that the recent popularity over new hybrid dog breeds has spawned a more dangerous market for hybrid dog/wolf pups. Animal groups have expressed concerns about the growing hybrid population, warning that the creatures could present a danger to humans, particularly children, who experts say are seen as "prey" by the animals. In the US, where they have carried out a number of fatal attacks on children, hybrids are banned in some states and in others are only legal once they are five generations removed from wolves. In the United Kingdom the law only requires the dog to be three generations removed from the wild animal. For more on this topic go here and here.

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.

Another take on the GAO report on the FDA

The GAO report on the FDA I mentioned here yesterday has generated some comment in other blogs. Here is a link to an article in AboutLawsuits.com. Here is a link to a comment in the FDA Law Blog.

When cats attack?

Strict liability for this attack?

Debate on Iqbal continues

As the debate over whether Congress should act to overrule the pleading standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) continues in Congress, the University of Pennsylvania Law Review's online supplement PENNumbra is sponsoring an online debate between Professor Stephen Burbank (Univeristy of Pennsylvania) and the Jim Beck and Mark Hermann (better known as the guys who run the Drug and Device Law Blog). Prof. Burbank argues Congress should act while Beck/Hermann argue Congress should leave the cases alone. That debate will be published online in four parts. The first two installments are up already. Beck/Herrmann will post a "closing statement" on December 15 and Prof. Burbank will close the argument on December 22. Go here for the debate and check back in the coming weeks for the follow-ups.

New GAO report concludes what we knew already: the FDA is not efficient

A new Government Accountability Office report (available here) concludes that the FDA has not made enough changes in staff or procedures to better monitor drug safety, even though experts recommended several key changes back in 2006. For more on this story go here and here. UPDATE (12/10): another take on the report here.

Amendment to cap attorney's fees as part of health care reform defeated

The PopTort is reporting that an amendment to the Senate health care bill that would have imposed national wage caps on fees for attorneys' representing injured patients was defeated by a strong bi-partisan vote of 32-66. As the story in the PopTort states, "[c]apping . . . fees is a major agenda item of the so-called “tort reform” movement. The goal is to keep injured patients from getting decent legal assistance . . ." Go here for the full story.

Exam advice

Here is a link to a short article on exam advice from a few profs at the Wall Street Journal Law Blog.

Taking a break from blogging

Loyal followers of this blog may have noticed fewer posts during the past couple of weeks. That's because I have been busy wrapping up the semester (preparing and teaching the last few classes, writing exams, dealing with faculty committee assignments...) and family preparations for the holidays! I am almost done preparing my exams and will have a few days to try to catch up with my blogging before I start grading exams. Once I start grading, though, I will again take a break from blogging for a little while. So, don't worry if you don't see much activity in the coming weeks. I will catch up eventually. Thank you for your support!

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.

Possible cirminal charges vs Johnson & Johnson for off label marketing

More support for my prediction that 2010 will be the year of "off label marketing" issues... Law.com is reporting today that lawyers familiar with the investigation say a criminal charge against Johnson & Johnson for off-label marketing practices is under serious consideration. Go here for the full story.

Off label marketing

Just yesterday I ended my torts class this semester making the prediction that the next "hot" topic in Products Liability will be the issues raised by "off label marketing" of drugs. Now the FDA Law Blog is reporting that Allergan has filed a Complaint and a Motion for Preliminary Injunction in the United States District Court for the District of Columbia to prevent the FDA and the federal government from enforcing regulations on the dissemination of information about off-label uses of FDA-approved prescription drugs. The regulations would prohibit Allergan from sharing information with health care professionals on an off-label use of BOTOX. Go here for the full story. Interestingly, the FDA Law Blog also reports that the Washington Legal Foundation, a conservative think tank which for years dedicated a lot of efforts to oppose the use of IOLTA programs for funding legal services for the poor, has filed an amicus brief in support of Allergan, Inc.’s challenge to the FDA’s regulations. The lawsuit and the amicus brief raise important and very interesting issues. According to the FDA Law Blog story, "the WLF’s brief supplements Allergan’s complaint by expounding on two topics: (1) the importance of off-label uses to the practice of medicine and how overregulation of off-label speech is contrary to public health; and (2) the “three foundational First Amendment principles” necessary to resolve Allergan’s claims. With regard to the first topic, the brief stresses that manufacturers are in the best position to provide important off-label information because they – simply put – have the best access to and understanding of that information and the resources to disseminate it. In addition, the amici curiae argue that this information is critical to HCPs, because, among other reasons, off-label uses of prescription drugs often constitute the standard of care." Stay tuned. I am telling you. This is going to be THE topic in Products Liability in the coming year. I have blogged on this topic before here, here and here.

More lawsuits vs pharma for alleged injuries caused by birth control pills

About 300 other women have filed a similar Yaz lawsuit or Yasmin lawsuit against Bayer, alleging that the company failed to adequately research the birth control pills and warn about an increased risk of various health problems, such as strokes, heart attacks, blood clots in the legs (DVT), blood clots that travel to the lungs (pulmonary embolism), gallbladder disease and sudden death. Story here. I have blogged about this topic before here.

Ct of Appeals for the 7th Circuit decides suicide case

The Court of Appeals for the Seventh Circuit has issued its opinion in Johnson v. Wal-Mart Stores Inc.  In this case Wal-Mart 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. The lower court granted the motion to dismiss and the plaintiff appealed. On appeal, the court finds that the decedent's conduct did operate as a superseding cause.

More on tort reform and health care reform

Here is a link to a cloumn from The Modesto Bee (November 29, 2009 edition) discussing how attorney’s fees may play a role in the national health care debate going on in Congress. For more on the story and some comments go here.

Looking for Proof Tort Reform Reduces Health Costs?... Keep looking...

In last week's Houston Chronicle, Prof. Jennifer Bard (Texas Tech) had an interesting op-ed piece, "There's No Proof Tort Reform Reduces Health Costs." In this essay, Bard explains why tort reform is not a necessary part of health care reform. Also take a look at the comments below the article. Thanks to the TortsProf Blog for the information.

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.

Jury finds Louisville Slugger liable in case about aluminum bat

I remember having read and heard debates about the safety of aluminum bats used in baseball at the high school and college levels (they are not allowed in the professional leagues). I remember reports saying that the bats provide a tremendous level of force to the ball which then travels at a much higher rate of speed toward the fielders. Under such circumstances, players in the infield, particularly pitchers and third basemen are very vulnerable because of the very limited time they would have to react to a sharply hit line drive.

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.

Jury awards $16.6 million in "Hold your wee for a wii" wrongful death case

Readers of this blog may remember that I have been following the story behind the "hold your wee for a wii" radio contest which ended in a contestant's death from water intoxication. If you don't remember what this case was about, go here and here first. Now comes the news that the trial is over and the jury has awarded $16.6 million to the family of the victim. Go here for the full story. 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.

Should suicide be considered superseding cause?

On November 4 at 10:00 am the Court of Appeals for the Seventh Circuit will hear oral arguments in case called Johnson v. Wal-Mart Stores Inc. the issue of which is 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 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).

Article on the US Chamber of Commerce and its pursuit of tort reform

Here is a link to a recent article on the US Chamber of Commerce's pursuit of tort reform. The article discusses how, in 1998, the U.S. Chamber created something called the Institute for Legal Reform to pursue the Chamber's "so-called "tort reform" agenda: protecting corporations from liability, weakening the civil jury system and blocking the courthouse door for sick and injured Americans" and that this week the ILR issued some easy-to-follow instructions for states seeking to wipe out the legal rights of people injured by corporate wrongdoing, as well as a "how to" guide to make sure that states appoint the right kind of judges, saying judicial selections shouldn't be "political."

New report concludes FDA is inefficient; is anybody surprised?

A new congressional report from the Government Accountability Office (GAO) indicates that the FDA has failed to follow up on unproven drugs that are put on the market through an accelerated approval process, and has no mechanism in place to remove those drugs when they prove to be unsuccessful or dangerous. Go here for the full story.

Illinois Supreme Court rules no need for experts in NIED case

In a decision released TODAY, the Illinois Supreme Court holds that a plaintiff does not need to support a claim for negligent infliction of emotional distress with expert testimony. Specifically, the court stated that "[w]e hold that expert testimony, while it may assist the jury, is not required to support a claim for negligent infliction of emotional distress" and that "[t]he absence of medical testimony does not preclude recovery for emotional distress. Rather, “[t]he existence or nonexistence of medical testimony goes to the weight of the evidence but does not prevent this issue from being submitted to the jury.”" The court concluded, therefore, that the jury can reasonably find whether the circumstances of a case cause emotional distress based on personal experience.

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.

Illegal promotion of products that caused injury results in indictment

Stryker Biotech and its top management have been indicted by the U.S. Department of Justice (DOJ) on charges that they committed fraud and illegally promoted medical devices used for bone surgery, which resulted in serious medical problems for some patients. Go here for the full story.

Zicam lawsuit reinstated

A Zicam class action suit that was originally filed in 2004 was wrongly dismissed and should be reinstated, according to a federal appeals court. The lawsuit claimed that Matrixx Initiatives, Inc. hid evidence from investors that certain types of Zicam Cold Remedy could cause people to lose their sense of smell. Go here for the full story.

Fleeing the scene of an accident

Here is another interesting little video courtesy of Prof. Jonathan Turley:

Liability for allowing friend to drive drunk?

Here is a link to the disturbing story of a woman who killed a child while driving drunk a few days ago. According to the story, a 31 year old woman got drunk at a party and then drove away with seven little girls in the car. She crashed the car, took her own daughter out of the car and ran away leaving the other six girls to fend for themselves. One of them, an 11 year old, died on the side of the road. The driver had more than one and half times the legal limit in her blood stream. The torts issue arises out of the fact that reportedly, more than one person at the party confronted the woman about driving in her condition but aparently noone tried to actually stop her. The story states that one of the woman's friends told her boyfriend that she was not fit to drive. The boyfriend confronted her and when she insisted on driving, he pulled his 14-month-old boy out of the car. Obviously, the driver should be liable for her conduct. In fact, a torts claim may be the least of her worries as she will be charged with manslaughter. But should the other people in the party who knew she was drunk and intended to drive a car full of kids be liabile in tort? Usually, courts do not impose liability on social hosts for allowing friends to drive drunk, but this is so, at least in part, because it is assumed that social hosts are not experts at determining when someone is intoxicated or incapable of driving. In a case like this one, when the evidence shows those people did know enough to confront the driver, shouldn't the court allow the case to survive a motion to dismiss and give a chance to the plaintiff to bring their case before a jury? Or, should we limit the possible liability to that of the driver? According to the story, the district attorney is considering bringing criminal charges against the bystanders who did not stop the woman from driving. If their conduct is in fact a violation of a criminal statute, doesn't that provide support for a claim in tort law? On the other hand, there is this question, raised by someone else, "what if the adults at the party took away [the woman's] keys or otherwise prevented her from driving, and she turned not to be legally intoxicated, would she have a claim against them?" Go here for the disturbing details of the story (I have left out some details that make the woman's conduct even more reprehensible) and here for some commentary and links to more information. This has been an interesting year for stories related to issues of liability for alcohol related injuries. For the other stories I have discussed on this issue go here. Thanks to Prof. Jonathan Turley for this story.

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.

The battle to undo Iqbal heats up

I already commented on how the battle lines over the consequences of the decision in Ashcroft v Iqbal have been clearly drawn. (See my posts on August 9, August 14, September 8, September 19, September 21, October 12 and October 22). The Drug and Device Law Blog is reporting today that on Tuesday, October 27, the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties will hold a hearing on the pleading standard established by Ashcroft v. Iqbal under the title "Access to Justice Denied -- Ashcroft v. Iqbal." Evidently, the title suggests the initial take on the case is not going to be positive. More on the story here.

Off road vehicle accidents lead to new federal standards

Following concerns about the number of serious injuries and deaths with Yamaha Rhinos and other recreational off-highway vehicles (ROV), the U.S. Consumer Product Safety Commission (CPSC) indicated Thursday that new safety standards will be enacted. The federal regulators published advance notice of proposed rulemaking (ANPR) to invite comments from the public about the risk of injury associated with these vehicles. Go here for the full story.

More recent articles on Ashcroft v. Iqbal and related issues

Here is a link to yet another recent article on recent developments in the area of proper pleadings in torts cases. I have blogged before about this on August 9, August 14, September 8, September 19, September 21 and October 12.

Patient safety and the health care bill debate

Go here for a comment and several links to more articles on the topic of medical malpractice and the health care debate.

Limits on testimony of experts witness in med mal case

The other day I mentioned in class that one way in which medical malpractice "reformers" have attempted to limit plaintiffs' claims is by making it difficult for them to find experts willing to testify for them. Here is an example: the Maryland Court of Appeals has decided a case holding that a proffered expert witness in a medical malpractice case was properly prevented from testifying at trial "when the expert devoted annually more than 20 percent of his professional activities to activities that directly involved testimony in personal injury claims." Here is the link to the case. Thanks to the Legal Profession blog for the info.

Warning added to Super Poligrip while manufacturer is sued for products liability

A new insert has been added to Super Poligrip warning users that the denture cream contains zinc, and that use of excessive amounts can cause “serious health effects”. The warning comes as the manufacturer, GlaxoSmithKline, faces a number of Super Poligrip lawsuits filed by individuals who claim to have suffered severe and debilitating injuries as a result of zinc poisoning from the denture adhesive. Go here for the full story.

A video is worth a thousand words

Today's video brought to you courtesy of Prof. Jonathan Turley:

Article on tort law theory

Here is a link to a short article that laments the seeming absence of critical theory as an influential approach to current tort theory (which seems to be domintated by “law and economics” and “corrective justice.”) The author discusses her book, The Measure of Injury: Race, Gender and Tort Law in which she tries to connect critical theory more closely to tort law by exploring how race and gender have shaped contemporary U.S. tort law.

Dram Shop/Social Host Liability?

I have discussed elsewhere issues related to possible liability for injuries casused by intoxicated persons, including the question of whether there should liability on social hosts. See here for a list of posts on these issues. As is widely known, most jurisdictions do not recognize a cause of action against a social host for the injuries caused by guests who leave the hosts' house intoxicated. Many courts have stated that, in part, this result is justified by the fact that social hosts are not experts at determining who is intoxicated. Should this be left to be decided on a case by case basis? Would you be inclined to impose liability on a social host who allowed the guy in the video below to drive away from their parties?

Article by Ralph Nader on Medical Malpractice

Here is a link to an article by consumer advocate Ralph Nader in response to the CBO's flawed report on medical malpractice.

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.

Mattel and Fisher Price agree to settlement over lead paint toys

Mattel Inc. and its Fisher-Price subsidiary have agreed to settle a consumer lawsuit for what could total more than $50 million over the 2007 recall of millions of toys made in China that were found to contain high levels of lead, the company said Tuesday. The proposed settlement will resolve 22 suits filed against Mattel and Fisher-Price and major retailers on behalf of millions of families who purchased or received the defective toys as gifts before they were recalled or withdrawn from market. Go here for the full story.

Verdict in important defamation case

Back in March I commented on a decision by the Court of Appeals for the First Circuit that which, applying Massachusetts law, found a plaintiff can sustain a defamation claim even though the statement upon which the claim was based was true (here, here and here). The case was remended for trial and earlier about a week ago the jury issued a verdict in favor of the defendant. Go here and here for the full story.

Ford sued, again, for defect in gas tank placement; Recall of other models

For years the Ford Crown Victoria, which is used by police agencies throughout the United States, has been linked to the deaths of police officers in fires after crashes. A few days ago, the family of an Ohio police officer has filed a product liability lawsuit against Ford, saying that the defective design of a Crown Victoria led to the officer’s death. Among other things, the complaint alleges that Ford the car is defective because its gas tank is placed in the vehicle’s rear crush zone. Wasn't this the same allegation that resulted in the Pinto fiasco in the 70s? Go here for the full story. In more bad news for Ford, the company has announced it has recalled 4.5 million vehicles due to a faulty cruise control deactivation switch, which may cause the vehicles to catch fire even when turned off. The recall is the largest recall in the company’s history, and the eighth recall connected to the cruise control deactivation switch. To date, 16 million vehicles have been affected by a Ford cruise control recall, making it the overall largest automotive recall in history. Go here for the full story.

Report on Health Care, Med Mal and Tort Reform

The Center for Justice & Democracy has published a response to the Congressional Budget Office's memo which estimates that a $500,000 cap on punitive damages and a $250,000 cap on pain-and-suffering damages would save $54 billion over ten years and lower liability insurance premiums by 10%. The CJ&D's report concludes that the Congressional Budget Office's memo is based on a small handful of studies, several of which are noted to contradict each other. It also finds that the CBO's memo only finds an extremely small percentage of health care savings and that the CBO virtually admits that to the extent defensive medicine exists as all, it can be controlled through simply managing care correctly as opposed to taking away patients’ rights and possibly killing and injuring more people. Finally, the report concludes that tort reforms can increase costs rather than save them. "The only logical conclusion", says the CJ&D's report, "is that not only should Congress not enact this measure, but states should repeal these laws, as well." The CJ&D's report is available here.

Bankruptcy Judge has had enough

US Bankruptcy Judge Alan Jaroslovsky has had enough incompetent lawyers appearing in his courtroom; so he has given them the following notice: NOTICE TO BAR REGARDING INDIVIDUAL CHAPTER 11 CASES There has been a recent spate of individual Chapter 11 cases filed by attorneys who have neither the experience nor the education nor the competence to venture into Chapter 11. I believe that there are very few bankruptcy lawyers other than State Bar certified specialists who should be contemplating representation of Chapter 11 debtors in possession. I see rampant errors being made in issues relating to cash collateral, conflicts of interest, and compensation. The use of cash collateral without permission, even for necessary expenses, is usually fatal to Chapter 11 cases. There are procedures in place to obtain emergency permission to use cash collateral. If you don’t know them, you should not be taking Chapter 11 cases. A Chapter 11 is not just a big Chapter 13. If you represent a Chapter 11 debtor in possession, your client is the estate, not the debtor personally. Failure to understand this results in serious liability exposure. Forget about trying to fix your compensation. You will be paid what I allow, period. I suggest you not spend retainers until your fees are allowed to avoid having to return money you have already spent. I see frequent malpractice in individual Chapter 11 cases and I am quick to note it on the record. Your employment will not be approved unless you have substantial current malpractice insurance. If you are going “bare,” don’t even think about taking a Chapter 11 case. For the Judge's official home page go here. The link to this letter appears at the very bottom. Thanks to The Legal Profession Blog for the information.

Res Ipsa Loquitur? Are farmers liable for cow that falls from the sky?

In Spanish the word "res" means cattle and the Latin word "loquitur" sounds like it would be related to "loco" which means crazy, and "ipsa", well, I guess that just sounds fast... so in Puerto Rico, law students remember the concept of "res ipsa loquitur" by translating it as "la vaca corre como loca" -- which absurdly means "the cow runs like crazy". In the US, law students remember res ipsa loquitur from the famous old case of the barrel of flour that falls on the plantiff. Well, now comes today's crazy story about torts combining both of these, sort of... What if a cow, running like crazy, falls off a cliff and lands on the plaintiff? Like I tell my students, I don't make these things up! The story is available here and this is the first paragraph: "A cow fell about 200 feet off a cliff Sunday and landed on the hood of a minivan passing by Rocky Point about one mile east of Manson, officials said." In response, Prof. Jonathan Turley, who brought the story to my attention first, offers other bizarre bovine airborne stories here.

Maryland Ct of Appeals to review constitutionality of damages cap

About a month ago I reported that the Georgia Supreme Court was going to review the validity of the state's cap on damages in med mal cases (here). Now comes news that the Maryland Court of Appeals will hear an appeal that challenges the constitutionality of a damage cap that limits the amount of compensation plaintiffs can be awarded for non-economic damages in personal injury lawsuits. The cap has survived several challenges in the past. The Maryland damage cap was established in 1986, and specifies that a jury’s award for non-economic damages cannot exceed an amount that increases modestly every year. Interestingly, when awarding damages in Maryland lawsuits, jurors are not informed about the cap. Go here for the full story.

Illinois to hold hearings on nursing home safety

State Senators in Illinois are preparing to hold hearings on how to fix a growing nursing home problem in the state. A recent series of stories by the Chicago Tribune into the high number of assaults, rapes and murders inflicted on Illinois nursing home residents has sent local and state officials scrambling for answers and solutions. The Senate human services and public health committees have scheduled a joint hearing in Chicago for November 5, to discuss the problem and possible legislation to address it. For the full story and some links to more information go here.

$2.5 million verdict in case vs Pharma for birth defects caused by drug Paxil

In the first jury verdict out of more 600 Paxil lawsuits pending against GlaxoSmithKline, a Pennsylvania jury has found that use of the antidepressant during pregnancy resulted in birth defects for a three year old child and awarded $2.5 million in compensation. Go here or here for the full story.

Closing arguments in "Hold you wee for a wii" trial

Go here for the full story. Thanks to TortsProf Blog for the link.

Recent articles on Ashcroft v. Iqbal and related issues

I have blogged before on the controversy created by the Supreme Court's decision in Ashcroft v. Iqbal related to the level of proof needed to support a plaintiff's claim. See my posts from August 9, August 14, September 8, September 19 and September 21. Adding to this reading list, the Drug and Device Law Blog has posted a list of recent scholarship on the subject here.

Should there be a cause of action when parents fail to seek medical help for religious reasons?

At the beginning of the year, I posted some comments on the issue of whether there should be a cause of action for injuries to a child when parents refuse medical services for religious reasons. (see here). That post was based on an article about a criminal case that had been filed in Wisconsin against the parents of a child who died when they refused to seek medical treatment for her.

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.

Update 7/10/18:  Here is another case with the same issue, this time in Oregon: another guilty plea by the parents of a newborn baby who died after they refused medical treatment.

Last 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.

Ct of Appeals for the 2nd Circuit issues important opinion re Alien Torts Statute

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."

Court of Appeals for the 7th Circuit interprets Illinois law related to Res Ipsa Loquitur

Earlier today I posted a quote from a new case out of the Court of Appeals for the 7th Circuit on the importance of preserving evidence and making sure the judges have a clear picture of the facts, so to speak (here). At the bottom of that note, I mentioned that the case was about the possible application of the doctrine of res ipsa loquitur. Here is a comment about that part of the case.

 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.

Battery with dog...?

Prof. Jonathan Turley is reporting today on the criminal law implications of throwing a dog at somone else in Nebraska. Could that same conduct be the basis of a tort claim for battery? As you read the statement below remember that "assault" is the word used in criminal law to describe what we would call "battery" in torts. Here is Prof. Turley's comment: "A woman in Lincoln, Nebraska has been charged after she allegedly threw a Jack Russell Terrier at an officer. It appears, however, that in Lincoln a charge of assault requires a dog as large or greater than a Bulldog to constitute assault on an officer. Instead, she was arrested on suspicion of domestic assault. The charge itself is due to her alleged throwing of a cell phone that hit her boyfriend in the face. That would suggest throwing live animals is technically permissible while electronics falls squarely under the criminal code. Under the Nebraska code, a toy poodle is a misdemeanor. A Boxer is a simple felony of assault. A Mastiff is an aggravated felony. Many Nebraska residents, however, keep a small dog in the glove compartment for traffic stops and a larger breed at home for no-knock searches."

More lawsuits vs pharma for alleged injuries caused by birth control pills

Two pension funds for firefighters and city employees in Pennsylvania have filed a lawsuit against Bayer, saying that the drug maker hid health risks and misrepresented the effectiveness of its popular birth control pills Yaz and Yasmin. The complaint joins over 300 other lawsuits pending against the pharmaceutical company over problems with Yaz and Yasmin. For more on this story (including links to more information) go here.

Pharmaceutical kept information from doctors in order to market drug

Internal documents disclosed during the litigation over Seroquel suggest that AstraZeneca continued to promote the antipsychotic drug as weight neutral, years after clinical evidence demonstrated significant Seroquel weight gain problems for users, which could lead to diabetes and other serious side effects. For the full story (with lots of links to more info) go here.