Sunday, May 31, 2009

Most interesting stories this week

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

Saturday, May 23, 2009

Tort reform in Oklahoma is now official

A couple of weeks ago I posted an update (and some criticism) on efforts to pass a tort reform bill in Oklahoma (see here). Today, TortsProf Blog is reporting that the bill was approved and the Governor signed it into law. For more on the story go here. Thanks to TortsProf for the info and link.

Another comment on Pres. Obama's memo on preemption

Consumer rights group Public Citizen has published a comment on Pres. Obama's recent memo on preemption here.

Friday, May 22, 2009

More on Pres. Obama's memo on preemption

Two days ago, I posted a note on a new memo issued by President Obama in which he makes clear his desire to step away from the Bush administration's views on preemption. Yesterday, I posted some links to comments on the memo. Here are some new links to comments in the FDA Law Blog, The Wall Street, The New York Times and

Most interesting stories this week

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

Thursday, May 21, 2009

Bill to Partially Overrule Feres Doctrine Approved by House Judiciary Subcommittee

I have posted numerous notes on issues related to claims by armed forces service members (see here). Of particular interest are the links to stories on the recent efforts to change the law that prevents members of the military to recover for most injuries suffered while in service regardless of the negligence of the government. Today, the TortsProf Blog is reporting that the House Judiciary Subcommittee on Commercial and Administrative Law approved a bill to allow armed services members and their families to sue for negligent medical care. The full House Judiciary Committee is expected to consider the bill by the end of July. For the full story and a couple of links go here.

Pres. Obama's memo on preemption

Yesterday I posted a note on a new memo issued by President Obama in which he makes clear his desire to step away from the Bush administration's views on preemption. Here is a link to the memo itself. Also, here are links to comments on the memo (all with more links) by the Drug & Device Law Blog, the Products Liability Profs Blog, Tort Deform Blog and The Wall Street Journal.

Wednesday, May 20, 2009

New York court gets assumption of the risk wrong, again.

Some time ago, I argued that an appellate court in New York got it all wrong when applying the concept of "assumption of the risk" in a case involving an injury on a golf course. (See here.) Now comes news of a new case, this time involving a skiing accident, in which a different division of the court makes the same mistake. Of course, it is not necessarily the court's fault in that it is simply applying the precedent in the jurisdiction, but at some point, someone should realize the precedent makes no sense.

Once again, the court was applying the so-called "primary assumption of the risk" doctrine. In this case, a 17 year old skier was injured while attempting to execute a maneuver over a rail on the "park" section of a ski area. He sued arguing that the rail posed a concealed danger to skiers because it was not "skirted," meaning its vertical support bars were not covered or cushioned. However, a unanimous 3rd Department panel held that under the doctrine of primary assumption of risk, the defendant's obligation was to make the conditions of performing an inherently risky maneuver like rail sliding as safe as they appear to be, not as safe as it could be.

That is the problem. The court is essentially holding that the plaintiff is unable to satisfy the prima facie element of duty. This has nothing to do with assumption of the risk, which is a an affirmative defense based on an evaluation of the plaintiff's conduct. Using the phrase "primary assumption of the risk" to refer to cases in which the issue is whether there is a duty is confusing (at least).

Here is another example: "If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty." Again, if the conclusion is that the defendant has performed its duty, then the court is simply saying that the plaintiff can't establish the element of breach of duty, which, again, has nothing to do with assumption of the risk.

Yet another example: "Claimants presented no evidence that the industry or any regulating body had adopted any standards regarding the use of skirting on rails or that ski parks normally adhered to the practice of placing skirting on all rails, including low difficulty rails such as that at issue." Here the court is going back to the question of duty. By looking at the lack of uniformity in the industry custom, the court is saying the plaintiff has no evidence to support the duty he wants the court to impose on the defendant... and, do I need to say it again?... this has nothing to do with assumption of the risk....

The case is called Martin v. State of New York.

Obama attempts to depart from Bush's administration views on pre-emption is reporting today that President Obama has distributed a memorandum to the heads of executive departments and agencies in which he states that "(The) general policy of my administration (is) that pre-emption of state law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis for preemption." This is, of course, a break from the approach of the previous administration which pursued and supported preemption on a massive and unprecented scale. Full story here.

Tuesday, May 19, 2009

Contributory negligence; and then there were three?

I believe there are only four states that still apply the old common law rule of contributory negligence according to which a negligent plaintiff can't recover from a negligent defendant regardless of how insignificant the plaintiff's negligence may have been. Soon that number may be reduced by one. The Torts Prof Blog is reporting today that a Bill that would change North Carolina to a comparative fault jurisdiction was approved by the North Carolina House of Representatives last week. According to the bill, however, a plaintiff would be allowed to recover only if the plaintiff was less negligent than the defendant. Obviously, this is an example of a so-called "modified" comparative negligence system which I have always argued is no comparative negligence system at all. If anything, it is a modified contributory negligence system since all it does is modify the threshold for the application of the old contributory negligence rule to apply. In other words, jurisdictions that apply a "modified" system in reality are still applying a contributory negligence system, the only difference with the old common law system being the point at which the consequences of the plaintiff's conduct take effect. The only real comparative negligence system is the so called "pure" system, which still appears to be the minority rule among jurisdictions.

Update on the Feres Doctrine

The PopTort blog has published a comment on recent developments regarding the application of the Feres Doctrine to medical malpractice claims. The title of the comment is "Rampant Medical Malpractice in Military Hospitals - The Real Impact of Immunity" and it is available here.

Saturday, May 16, 2009

Comment on a bill that would eliminate the learned intermediary doctrine

Back in April, I posted a note about a pending bill in New York to eliminate the "learned intermediary doctrine" (see here), which says a drug manufacturer only has a duty to provide warnings to the doctors who prescribe the medication because the doctors are in a better position to provide the information to the patient.

This doctrine has been universally adopted but has come under attack in recent years in large part because of the changing circumstances regarding the contact between drug manufacturers and their consumers and doctors and their patients. Here is a link to a comment by the Drug &Device Law Blog on the bill. Those of you who are familiar with that blog will not be surprised that they think the bill is a terrible idea. Also, here is a link to a memo in opposition to the bill filed by NY Tort Reform

The bill is actually very simple. All it says is that manufacturers who engage in direct to consumer advertising have a duty to provide adequate warnings to consumers directly. They cannot avoid liability by claiming that they provided the warnings to the doctors and that it was the doctor's duty to provide them to the patients.

Opponents of the statute argue that this is a bad idea because it will result in "overwarnings" by manufacturers which the consumers will not understand or ignore altogether. Their analysis, however, is based on the flawed premise that (to quote from the D&D Blog) "abolishing the learned intermediary rule would only take the most knowledgeable person, the doctor, out of the equation" as if doctors would suddenly stop providing warnings and information to their patients. This would only be true if eliminating the doctrine were to relieve doctors of their duty to provide warnings, information and full advice to their patients, which is not the case. In fact, it would be absurd for doctors to stop advising their patients fully and just rely on manufacturers to provide the information to their patients (because it would increase the risk possible liability) which in turn means it would also be absurd for manufacturers to stop providing warnings and information to the doctors (for the same reason).

Friday, May 15, 2009

Most interesting stories this week

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

Thursday, May 14, 2009

Ninth Circuit dismisses claim vs gun manufacturer

In 2005, Congress enacted The Protection of Lawful Commerce in Arms Act to protect gun manufacturers from lawsuits for injuries caused by people using guns for criminal activity. Part of the motivation for the bill came from a case filed by the victims of a shooting rampage by a white supremacist who brought at least seven guns into a Jewish center and severak children and adults. The lawsuit claimed that the defendant made more guns than they could sell on the legitimate market with the intention of selling the remainder on the “secondary market” where criminals often buy their guns. In other words, the plaintiffs alleged that the manufacturer marketed the guns knowing they would be used for criminal activity. The lawsuit survived for a long time after the adoption of the Act, but was finally dismissed, in a 2-1 opinion, by a panel of the United States Court of Appeals for the Ninth Circuit. In dissent, Judge Marsha Berzon objected to the retroactive effect of the Act, which allowed Congress to defeat a case that had been filed before the enactment of the Act. The full text of the opinion is available here. Thanks to Jonathan Turley for the information and links.

Congress considers bill that would eliminate preeption in medical device cases

Two days ago, the House Energy and Commerce subcommittee heard testimony on the Medical Device Safety Act of 2009, a bill that proposes to overturn the Supreme Court's 2008 ruling in Riegel v. Medtronic, Inc. which prevents patients injured by certain federally approved medical devices from seeking redress via state product liability suits. Not surprisingly the American Tort Reform Association adamantly opposes the bill while The American Association for Justice supports it. Here is a short list of the names and affiliations of the witnesses who testified before the House Subcommittee; and here is a link to the testimony given at the hearing. (Thanks to Drug and Device Law Blog for these links.) For a comment on some of the testimony in support of the bill by the PopTort Blog, go here.

Update on tort reform in Oklahoma; what makes a frivolous lawsuit frivolous?

Back in March I posted a short update on tort reform efforts in several states, including Oklahoma. (See here.) Today, the TortsProf Blog has posted (here) that Republicans in the Oklahoma legislature have reached out to trial lawyers and patient advocacy groups to forge a tort-reform compromise that the governor will likely sign. Reportedly, the bill targets the typical tort reform's agenda (eliminating or modifying joint and several liability and capping compensation for non-economic damages (subject to at least one exception), for example), but it also proposes to redefine "what constitutes a frivolous lawsuit" and to strengthen summary judgment rules "to make it easier for a judge to dismiss a lawsuit that has no merit before it goes to trial." Now, that I find interesting. How can you redefine a frivolous lawsuit as anything other than "frivolous"? How exactly do you determine that a claim has "no merit" other than by using the current rules and doctrines of procedure, evidence and the analysis of whether a case meets the elements of a prima facie case? Thanks to Chris Robinette for the information and links for the full story here and here.

Tuesday, May 12, 2009

Contrasting views on tort reform and the campaign at the movies

A few days ago I posted a note on a new tort reform campaign that will play short commercials before movies in certain theaters (see here.) If you want to see some of the commercials, go here. The videos are uninformative and manipulative and do not provide the whole picture; essentially exactly what you would expect them to be. At the other end of the spectrum, you can go to a website called which, as the name suggests opposes tort reform efforts and, particulary, preemption, as a means to protect corporations from lawsuits by injured victims. The videos in this website are also uninformative and do not provide the whole picture. The truth lies somewhere in the middle, I guess. There are frivolous lawsuits out there - just like there are unethical lawyers - but they are not the problem the Chamber of Commerce wants us to believe they are. There also are cases where reform would be valid and fair.

Friday, May 8, 2009

Changes at the FDA?

I just finished my torts course with a short discussion of the issue of preemption as it relates to the FDA. I mentioned that the Obama administration recently withdrew the government's brief in Colaccico v Apotex, a case about whether the FDA's attempt to impose preemption through comments not included as part of its regulations themselves. I suggested this was a sign that the Obama administration would move away from the Bush era views. More recently, according to a story published by Reuters, President Barack Obama proposed a 19 percent hike in the Food and Drug Administration's budget to strengthen inspections and increase the number of generic drugs on the U.S. market. (Story here.) These are all good news for consumers. However, we should not expect a lot of change -at least not so quickly. Today, published a story that argues that the FDA “is still doing business as usual." The story is avaiable here.

Wal-Mart pays $2 million in relation to trampling death

Last November, I speculated whether there should be liability on Wal-Mart over the death of a worker when he was crushed by a mob rushing into a store the morning of the Friday after Thanksgiving. I am not sure what has happened in terms of civil liability but apparently the state of New York thought the matter was worthy of criminal liability and now comes news that the giant retailer has agreed to pay nearly $2 million and to improve safety at its 92 New York stores as part of a deal with prosecutors to avoid criminal charges in the trampling death of that worker last year. For the story in go here.

How does the mouse get in the bottle?

In class I sometimes use the classic law school hypo of a mouse in the bottle of soda to discuss any number of issues (including the doctrine of res ipsa loquitur and products liability in food products cases)... Here is an interesting real life tale of a mouse in a hamburger that turned out not to be a problem and a snake's head that may be... For the story go here.

New car safety standards

The TortBurger blog is reporting today that the Federal Government is mandating new safety standards for automobile roofs, the first such new standards in thirty years, according to the New York Times Wheels Blog. Full story here.

Report claims preemption is good for consumers

A new study by two MIT professors concludes that eliminating FDA's preemption protection would decrease patients' access to life-enhancing medical devices, increase health care costs and reduce medical device industry employment. It must be noted, however, that the study was paid for by the Advanced Medical Technology Association (AdvaMed), the leading trade organization for the medical device industry - the industry that stands to lose the most if Congress passes legislation eliminating preemption in these types of cases. A summary of the study is available here. PopTort blog has a comment on this here.

Parents sue after employers zapped children during bring child to work day

The ABA is reporting today (story here) that "at least one parent of a Florida schoolchild has sued over "Take Our Daughters and Sons to Work Day," after guards at three separate state prisons zapped visiting children with electronic stun guns . . . to demonstrate how they worked." Shockingly, (excuse the pun!) this comes just a day or two after Prof. Jonathan Turley reported in his website that a 41 year old man in Oregon was arrested for putting an electric dog collar on each of his four children and then shocking them because he “thought it was funny.” (Story here). Prof. Turley also reported on similar stories of officers or parents to view tasers as a fun distraction here and here and here and here.

Law firm is found liable for injuries to client who fell off a chair

An affiliate of ABC news is reporting today (story here) that a jury in Palm Beach County jury awarded more than $2 million to a plaintiff who suffered an injury when he fell off a chair in a law firm. The plaintiffs filed the lawsuit against the store that sold the chair to the law firm and the law firm where the accident happened. Ironically, the plaintiff was visiting the law firm to discuss filing a possible claim for injuries suffered in a car accident. Expert witnesses testified that the chair was defectively manufactured, but they couldn't determine where it was made or what company made it. After two days of deliberations, the jury found the law firm 32.5 percent at fault and Brandon Home Furnishings 67.5 percent at fault. The ABC story says the law firm issued the following statement in response to the faulty-furniture verdict: "The man sat in a defective chair. The manufacturer should have been responsible for it entirely." That statement either shows a complete misunderstanding about the reason for which the law firm was found liable or, totally the opposite, a totally correct assessment of the situation that should result in a reversal. Here's why: the law firm could not have been found liable in a product liability claim. The firm is simply not a seller of the product which means that the claim against it must have been for its negligence in failing to notice the chair was broken or, knowing it was broken, for failiing to replace it, or something like that. In other words, if the firm is liable there must have been some evidence of negligence on its part. If so, the statement by the firm makes no sense. The firm was not liable for the defect in the product. The firm was liable for its negligent conduct, whatever it was. On the other hand, if there was no evidence of negligence on the part of the firm, then its statement makes perfect sense, it simply cannot be liable for a defective product because it is not a seller in the business of selling chairs.

Most interesting stories this week

It's Friday, which means it's time for the lists of the most interesting stories for this week. For the TortProf Blog's list go here. For the PopTort Blog's lists go here, here and here. The lists include a few high profile cases, including: The mother of a deceased infant whose body was lost by a northern New Jersey hospital has filed suit against the hospital. (Story available here.) Ed McMahon settled his medical malpractice suit against Cedars-Sinai Medical Center. Wal-Mart will pay an unspecified sum to victims hurt in the “Black Friday” stampede that left one temporary worker dead and several others hurt in Nassau County, NY.

Thursday, May 7, 2009

Judge recognizes claim vs. Shell Petroleum for aiding and abetting crimes against humanity

Just a few days ago, I posted the news that the 9th U.S. Circuit Court of Appeals reinstated a lawsuit that claims a Boeing subsidiary helped the CIA transport prisoners to overseas prisons for torture. See here. Today, is reporting that a federal judge has cleared one of the last obstacles to a May trial for families of Nigerian environmental activists who are seeking to hold a Dutch oil company liable for violations of international law committed by the Nigerian military government. In what will be one of the first times, if not the first time, that a corporation goes on trial for crimes against humanity, Southern District of New York Judge Kimba Wood rejected all but one motion to dismiss by Shell Petroleum, N.V. and other defendants in Wiwa v. Royal Dutch Petroleum, 96 Civ. 8386 and Wiwa v. Anderson, 01 Civ. 1909. Filed under the Alien Tort Statute (ATS) and the Torture Victim Protection Act, the complaints in the two cases contend that the defendants, Shell Petroleum, N.V., recruited Nigerian police and military to attack villages and crush opposition to the company's development in the region. While the plaintiffs are seeking to hold the company vicariously liable, they are attempting to hold directly liable Brian Anderson, the head of the company's Nigerian operation. For the full story go here.

Tuesday, May 5, 2009

NY Times story re FDA approval process

The New York Time’s Science section had a disturbing story today about a urinary incontinence device marketed to women that has caused devastating injuries for hundreds if not thousands of women. One of the more problematic implications of the story is that the Food and Drug Administration approved this dangerous device based on it being “substantially equivalent” to a sling that had already been recalled; which the FDA apparently claims is not a problem. The agency told the Times in an email that, “Any legally marketed device can serve as a predicate for a premarket submission.” Even if it’s been recalled! For a comment on this go here.

Do caps on damages work to reduce health costs?

Whether imposing a cap on the amount of money a plaintiff can recover in a medical malpractice case has an effect on health care costs, the cost of malpractice insurance and the practice of medicine is one of those debates that never end. (For a great little book on this debate go here.) Adding fuel to the fire, the TortBurger blog is reporting today on a a new story on which discusses new evidence that malpractice damage caps are not a fix for high health care costs. Texas passed a medical malpractice lawsuit cap in 2003, limiting the amount of general damages (non-economic damages such as pain and suffering, loss of enjoyment of life, and mental anguish) to $250,000, no matter how egregious the harm done to the patient. According to the article, the law produced a 30 percent drop in doctors’ mapractice insurance premiums. However that has not translated into lower medical costs for consumers. The cost of medical insurance premiums rose faster than earnings in Texas. A study published in December 2008 in the journal Health Sciences Review, found that “(t)ort reforms have not led to health care cost savings for consumers.” The study asks the question “(a)re there other benefits (from tort reform) to consumers? If these cannot be identified, it is difficult to see a justification for the loss of legal rights.” The Blog's comment concludes that "the benefits [of imposing caps] acrue to the insurance companies who do not have to pay for the damages covered under their policies. Those hurt are not people who have small injuries and heal up from the malpractice done to them. Those who are damaged by the cap are the severally injured, who then become a burden on society, because the person who caused their injury is not having to pay for the damage they have done."

More on the Arkansas Supreme Court decision declaring tort reform unconstitutional

Here is another article on the Arkansas Supreme Court decision that declared much of its tort reform statute unconstitutional. In a previous post, I commented on the Court's decision as it related to the "empty chair defense." The second aspect of the tort reform statute the court invalidated was an attempt eliminate the collateral bar rule. I am very glad that these tort reform initiatives have been defeated.

Article re Michigan Supreme Court and consumer protection

The PopTort Blog has published today a short comment on an article in the Detroit Free Press about how Michigan's Consumer Protection Act has been rendered all but toothless by the state Supreme Court, which the PopTort folks call "the most anti-consumer, anti-environment, anti-victim, precedent-disregarding court in the country." The comment is available here.

Obama names new CPSC chair and commissioner

President Obama has finally named a new head of the Consumer Products Safety Commission (CPSC). Obama’s choice is Inez Moore Tenenbaum, the former elected State Superintendent of Education in South Carolina. Obama is also adding a new commissioner and his choice is Robert S. Adler, a longtime consumer advocate.

Monday, May 4, 2009

Supreme Court decision on failure to warn

The U.S. Supreme Court has decided to allow a state products liability suit to go forward against the canners of Chicken of the Sea tuna (Tri-Union Seafoods LLC) over charges that it failed to warn consumers that ingesting the product could lead to mercury poisoning. For the full story, go here.

Palsgraf v LIRR

Thanks to David Mills and his website Courtoons.

Friday, May 1, 2009

Nevada considering eliminating caps on medical malpractice claims?

Apparently an outbreak of hepatitis C caused by a hospital’s practice of reusing syringes may casuse the Nevada legislature to re-think tort reform. Specifically, the Nevada legislature may revoke a cap on non-economic damages passed in 2004 as part of the “Keep Our Doctors in Nevada (KODIN) Act.” For more of the story go here.

Arkansas Supreme Court eliminates "the empty chair defense" and more

In a defeat to tort reformers, the Supreme Court of Arkansas has declared two provisions in the state’s 2003 “tort reform” law unconstitutional. The opinion is available here. The opinion examined a section of the law that required factfinders to consider the fault of non-parties (the so-called "empty chair defense") or as The PopTort Blog describes it "a provision which allowed wrongdoers who are sued to point the finger at others who aren’t named in the suit (i.e., the “don’t look at me, it was some other guy who isn’t here,” defense). The court also disallowed a provision, which limited the kinds of evidence a court could hear holding that those decisions are for a judge to decide—not a legislature. For more on the story go here.

Most interesting stories this week

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