Monday, August 31, 2009

Former Toyota attorney claims Toyota destroyed evidence in rollover cases

A former high-ranking attorney for Toyota has alleged that the auto maker conspired to illegally conceal and withhold evidence in Toyota rollover lawsuits filed by consumers who claimed that vehicle design defects caused severe injuries. If true, this would be huge! Stay tuned. For the full story go here, here and here.

Saturday, August 29, 2009

Defense verdict in product liability case re Yamaha ATV is reporting today that a Texas jury has found that Yamaha Motor Corp. is not liable for the death of a 13-year-old boy in a Yamaha Rhino wrongful death lawsuit filed over fatal injuries suffered in a rollover accident, which the plaintiffs had contended were caused by design defects in the side-by-side ATV. Since it was first introduced in 2003, problems with the Yamaha Rhino have been linked to hundreds of ATV rollover accidents throughout the United States, often resulting in serious or fatal injuries. Following pressure from the U.S. Consumer Product Safety Commission (CPSC), which has indicated that the vehicles can rollover even at low speeds on level terrain, earlier this year Yamaha temporarily halted Rhino sales and agreed to make free safety modifications to about 145,000 Rhino ATVs already on the market. Go here for the full story.

Department of Veterans Affairs faces lawsuits is reporting that the U.S. Department of Veterans Affairs has mistakenly notified hundreds of veterans that they have Lou Gehrig’s disease, in the most recent of a string of VA medical errors that have plagued the agency. The notification error comes as the VA faces potential lawsuits from other veterans who may have been infected with HIV or hepatitis from unsanitary VA medical equipment, and veterans who were victims of medical malpractice at a VA cancer treatment center in Philadelphia. Go here for the full story.

Article on the Alien Tort Act

The Wall Street Journal published a short article on the Alien Tort Act today (available here).

Friday, August 28, 2009

New developments in Chrysler bankruptcy news

The PopTort Blog and the Tort Deform Blog are both reporting today that Chrysler has reversed course and agreed to accept product liability claims on vehicles built before the company’s assets exited bankruptcy on June 10. For the stories go here and here.

New verdict against tobacco company.

A California jury has awarded nearly $14 million in punitive damages to the daughter of a woman who died after a lifetime of smoking in a lawsuit against Philip Morris USA. Go here for the full story.

More on the Prosser Notebook

Yesterday I wrote about the "Prosser notebook"* (here) that is now available online. I mentioned that Prof. Chris Robinette studied the notebook and wrote an article about it. The article, The Prosser Notebook: Classroom as Biography and Intellectual History, is available through the Social Science Research Network (SSRN). You can access it here. *Technically it is the notebook of one of Prosser's students....

Most interesting stories this week

It's Friday, which means it is time for the TortsProf Blog's list of the most interesting stories for this week (availalble here.)

Thursday, August 27, 2009

Have you ever wondered what it would have been like to have had Prosser as your Torts professor?

Well, now you can get a little bit of a sense of what it would have been like... Professor Chris Robinette from Widener Univ. School of Law had a student recently whose grandfather had Prosser for Torts at the University of Minnesota Law School in 1938-39. The student had his grandfather's notebook for the class, which Prosser taught while working on his hornbook now known as "Prosser on Torts." Interestingly, the student's grandfather, Leroy S. Merrifield, went on to became a Torts law professor himself at George Washington University Law School. Prof. Robinette studied the notebook and wrote a law review article about it. As he points out, "the notebook provides the thoughts of an eminent torts scholar, in the process of creating arguably the most influential hornbook on torts, as channeled by a student who would go on to become a Torts professor." And now, the good news: we all have the unique opportunity to see the actual notebook! Thanks to the magic of digital photography and the work of Berkeley law archivist William Benemann, the notebook is now available online here. Go there, check it out and spend some time reading a piece of Tort law education history. Thanks to Chris Robinette for the link!

Interesting recent case regarding the so-called "rescue doctrine"

About a month ago, the Illinois Court of Appeals (third district) decided a case called Strickland v. Kotecki (available here) in which the court decided that a person could recover for the injuries he suffered while attempting to prevent the defendant from comitting suicide.

Although the court bases its decision on what it calls "the rescue doctrine" which is a label that has been used for a long time in Illinois, the case is incomplete in its analysis. First of all, I have to say that I hate the use of "labels" like "the rescue doctrine". Such a label does not explain or add anything and in fact makes it sound like it refers to a distinct rule that can be applied without analysis. In reality, the so called rescue doctrine is nothing other than the application of the proximate cause analysis developed by Justice Cardozo in Palsgraf v. Long Island Railroad and in Wagner v. International Railway.

But enough about that, let's talk about the case. Here, fearing that her husband could have gone out to try to kill himself, a woman called her brother in law for help. They found the husband's car parked in a fenced-in business property behind a locked gate. The vehicle had a hose running from its exhaust pipe to the passenger window.

The brother in law jumped over the fence to try to rescue the guy in the car, he injured his right foot and later sued his sister in law and her husband. The trial court granted a motion to dismiss and the plaintiffs appealed. Citing another Appeals Court decision from 1996, the court starts by stating that the rescue doctrine "provides that it is always foreseeable that someone may attempt to rescue a person who has been placed in a dangerous position. . ."

This statement, unfortunately, is wrong. The rescue doctrine [if I must use the label] does not provide that a rescue is always foreseeable. Not noticing its mistake, the court in Strickland contradicts the quoted statement by then affirming that "whether the rescue doctrine applies is generally a question for the jury", which, of course, means that a rescue attempt is, by definition, not always foreseeable. If it were, there would be no reason to send the question to the jury.

The misconception contained in the statement from the 1996 case comes from Cardozo's famous words "danger invites rescue" in Wagner, but even he explained in that case that there are exceptions. Yes, danger invites rescue, but not all rescue attempts are foreseeable. As Cardozo explained, it is not foreseeable that someone would engage in what he called "foolhardy" conduct in an attempt to rescue. Likewise, it is not foreseeable that someone would place him or herself in a high degree of danger in an attempt to rescue someone (ie, it is not foreseeable that someone who does not know how to swim would jump in the lake to help someone drowning).

Because we can't determine beforehand (and for all cases) at what point the rescuer's conduct becomes "foolhardy" is why we have to leave it up to the jury to decide.

So, okay, now that we get this straight, let's move on to the real problem with the case. The facts of this case present an interesting question that had not been addressed by courts in this state before, namely whether a rescuer can bring a cause of action against a defendant who places himself in danger. Obviously, a cause of action of this sort is brought against the person whose negligence created the need for the rescue in the first place, but most cases involve the rescue of an innocent third party (often also a plaintiff) against the person who causes an accident. Here, the person who arguably created the need for the rescue and the person who needed rescuing was one and the same.

The court could not find any cases in Illinois that addressed this question but stated that all other cases in other jurisdictions have held that the rescue doctrine allows a rescuer to recover from defendants who place themselves in danger. It seems logical to me that it would be so.

The problem is that this is all based on a very important point the court seems to forget. This is a negligence claim. For the rescuer to have a cause of action against the person who created the need for the rescue in the first place, not only must the rescue attempt be foreseeable, the plaintiff needs to establish that the defendant was negligent in the first place. And this, the court does not do. Instead, the court then turns its attention to determining whether people attempting suicide "owe a duty to those attempting to rescue them."

This statement shows a fundamental misunderstanding of the issue here. Whether there is a duty depends on whether the injury is a foreseeable consequence of the risk created by the negligent conduct. In other words, it depends on whether the rescue attempt was foreseeable, which the court already said is a question for the jury. After some discussion of the duty argument, the court then concludes that there is a duty and states, that "[t]his analysis follows the simple logic of the rescue doctrine."

Well, of course, it follows, because this whole argument is just a repetition of the first one. It is all a big circular argument that leads to the same place.... Why? Because the question of proximate cause and the question of duty are really two sides of the same coin as any student of Palsgraf v Long Island Railroad knows.

What is missing from the decision of the court is a discussion of a really difficult question in this case. Was the defendant negligent? Is attempting suicide, in and of itself, an example of negligent conduct, or are there circumstances where it can be said that a person used all reasonable care in attempting to end his or her life. This depends on the facts, and I don't think we have enough of them to decide the question in this case.

It is interesting to note that in support of its conclusion regarding the duty argument, the court cites a Torts treatise that states: "[A] person who carelessly exposes himself to danger or who attempts to take his life in a place where others may be expected to be, does commit a wrongful act towards them in that it exposes them to a recognizable risk of injury." Note how this cite supports my concerns. The author makes it clear that everything depends on whether the defendant acts carelessly and on whether the suicide attempt takes place "in a place where others might be expected to be."

Assume a person decides to end his life and to do so takes his car and parks it in an isolated area in the woods, connects a hose to the exhaust, etc and just sits there. It just so happens that on that day a jogger decided to cut through the woods and sees what's happening, tries to help and gets injured in the process. Can't the defendant say that even under the logic of the famous treatise cited by the court, he did not act negligently? He has a right to end his life, he decided to do it in an isolated area, quietly, not bothering anyone, not placing anyone in danger in the process... At the very least, wouldn't it be a question for the jury?

In the Strickland case the question may not be as difficult, though. Although we don't have all the facts, I got the sense that the rescuer found the defendant relatively easily, and the court hints at this at the end of the opinion by stating that the defendant attempted suicide "in a location where his wife, sister-in-law and brother-in-law might find him." Yet, the court never actually states that the defendant acted negligently. It certainly can be argued that he did* -- and maybe the court is just assuming it. But I think it has to be determined.
*You could argue, for example, that his conduct can be distinguished from the one in my hypothetical because he created an unreasonable risk of harm to foreseeable rescuers by attempting suicide in a location where he would have been found easily and from which it would have been difficult to retrieve him without the rescuer risking injury.

Friday, August 21, 2009

Most interesting stories this week

It's Friday, which means it is time for the TortsProf Blog's list of the most interesting stories for this week (availalble here.)

Tuesday, August 18, 2009

A different take on the good samaritan law in California

A couple of days ago, I reported that California adopted new legislation to protect "good samaritans" which presumably would encourage people to help others in need of emergency assistance. Today the TortBurger blog has published a short post criticizing the law (available here). It concludes: "This bill does not protect good samaritans, it protects the good samaritan’s insurance company and prevents the injured party from recovering from the insurance company to pay for their medical expenses. Good job protecting ”helpless” insurance companies . . . "

Should the person who provides beer to teenagers for a party be liable when one of the teenagers hurts another during the party?

The Washington Court of Appeals has decided an interesting case that asks whether civil liability should be imposed upon those who plan and furnish beer for a high school graduation keg party where criminal violence erupts. The appellant was the mother of a boy who died as a result of being assaulted at the party. She argued that the assault was a foreseeable result of providing unlimited beer to teenagers in a remote location without supervision. The Court, however, found that the trial court did not err in dismissing the case on summary judgment. The opinion is available here. Thanks to the Legal Profession Blog for the tip.

Monday, August 17, 2009

Third Circuit rules against preemption

The FDA Law Blog is reporting today that the Court of Appeals for the Third Circuit recently decided that a consumer fraud claim against the manufacturer of a beverage that is labeled as “all natural” even though it contains high fructose corn syrup (HFCS) is not preempted by federal law. The opinion is available here. According to the appellate court, neither FDA’s policy statement on the use of “natural” nor correspondence issued by FDA that addresses the use of “natural” in the labeling of foods that contain HFCS “have the force of law required to preempt conflicting state law.” The appellate court held that plaintiff’s claims are thus not impliedly preempted. Go here for the full story.

Saturday, August 15, 2009

Hold your wee for a wii

When discussing the concept of "common knowledge" as a source of the duty of care (or as a way to determine what the reasonable person would do under the circumstances), I always ask my students to give me some examples of things that are common knowledge (that would relate to the class). Invariably someone says "fire burns" or "gravity makes things fall downward" -- which in turn means a reasonable person would not do things that create an unreasonable risk of injury by fire or by dropping something from above, etc. And then I go through a series of "less commonly known" facts. Sometimes students are surprised to hear some of them, including the fact that you can die if you drink too much water too fast. To illustrate, I tell them two true stories: one about a a runner who died because she drank too much water right after she finished the Chicago marathon and the now infamous "hold your wee for a wii" contest. For those of you who did not hear about this, in a nutshell the story is as follows. Some "Menlove type" genius at a radio station somewhere thought it would be funny to hold a contest to see who could hold their need to pee the longest. The contestants were given water at regular intervals and then were eliminated as they left to relieve themselves. A 28 year old mother determined to win the Wii for her son held on for so long she actually died. Other surviving contestants and the family of the one who died sued and reports are just coming in that some of the cases have settled and the rest are headed for trial. See reports here, here and here. One question I have not seen asked about the claims in this case is whether there has been a discussion of comparative negligence on the part of the plaintiffs. After all, if we are going to take the position that water poisoning/intoxication is common knowledge, then this knowledge can be applied to the plaintiffs also, no? Thanks to the TortsProf Blog for the update and the links.

California adopts immunity for good samaritans

The TortsProf Blog is reporting today that Governor Arnold Schwarzenegger has signed two bills that extend legal immunity to good samaritans. You may remember that these bills were introduced in response to a case I wrote about last December (and then again in January). See here and here. The case recognized a cause of action against a woman who caused an injury to a friend when trying to help her after a traffic accident. I have not seen the final bills that were approved, but the original bills are available here and here. They extend immunity to any good samaritan offering emergency care at the scene of the emergency unless it is a place where emergency medical care is available (ie, a hospital or clinic, etc). This approach obviously encourages people to help victims of accidents by providing them immunity in case they cause, or aggravate, an injury in the process. On the other hand, this approach is rather unusual. The rule in most states is that medical personnel who cause an injury in an attempt to help a person they don't have a duty to help are immune from claims for having caused the injury, but that any other person could be liable. This approach is essentially based on the notion that rescue attempts should be left to those with training to perform them. Is it really a good idea to encourage people with no training whatsoever to try to help others in need of medical attention? I suppose the question is open to a good debate. For one side of the argument check out Prof. Anthony Sebok's column on the subject, in which he sugggests that "California should be wary of providing blanket tort immunity to rescuers attempting either medical or non-medical aid." His column on this subject is available here.

Most interesting stories this week

It's Friday, which means it is time for the TortsProf Blog's list of the most interesting stories for this week (availalble here.)

Friday, August 14, 2009

Comments on the report re med mal

The PopTort Blog has a couple of posts commenting on some of the findings in the new report about medical malpractice. One of them is about the problems in California (here) and the other is about the problems in Texas (here).

New report on medical malpractice

Here is a link to a series of stories that the PopTort blog is calling "the most comprehensive and compelling national investigative series about medical malpractice that any news organization may ever have produced." The link includes in-depth statistical analysis, victims’ stories, slide shows, videos, state-by-state analysis of "adverse event" reporting policies, and much, much more. The report makes clear that, as Tom Baker argues in his book The Medical Malpractice Myth, the so called medical malpractice isn’t a crisis of lawsuits—the crisis is that there is so much medical malpractice.

The reach of the Iqbal decision continues to spread reported yesterday that "In a 34-page ruling (pdf) that one defense lawyer describes as "a sweeping review of the Alien Tort Statute," a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld a Miami federal district court's dismissal of four cases claiming that Coca-Cola and its two Colombian bottling subsidiaries were liable for the murder and torture of trade unionists by Colombian paramilitary forces. Citing the Supreme Court's now-infamous May 2009 ruling in Ashcroft v. Iqbal (pdf), the court concluded that the plaintiffs' complaints "fail to sufficiently plead factual allegations" to establish subject matter jurisdiction and state a valid claim." For the rest of the story go here.

Sunday, August 9, 2009

Two views of Iqbal

There has been a lot of talk recently about the consequences of the U.S. Supreme Court case Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). In this case, the Court decided 5-4 that the plaintiff's claim should be dismissed because he had neglected to present concrete factual evidence of his claim at the time that he filed it. The debate has centered on whether the decision would be expanded to any kind of case. It appears that it has. The case is being used in support of motions to dismiss with increasing frequency in all types of cases. The PopTort blog has cited an article on the New York Times stating that the Iqbal decision has already been cited “more than 500 times” in dismissal decisions involving anything from a breach of contract case to a disability discrimination suit. Other sources state it has been used in support of orders to dismiss in torts cases also. Consumer advocates criticize this development arguing that there’s good reason to make sure the discovery process can go ahead before a case is dismissed. As the PopTort blog states, "wrongdoers aren’t always forthcoming with information about their screw-ups, and filing lawsuits can be the only way injured parties can get to the bottom of what happened." Conversely, defendants and their representatives love the expanding interpretation and application of Iqbal. The Drug and Device Law Blog has highlighted it with a series of posts (here and here) arguing "in ninety percent of pharmaceutical product liability complaints, plaintiffs plead claims for manufacturing defect and design defect. And those claims are almost always hokum -- plaintiffs plead 'em, but plaintiffs don't have any facts to support 'em, and those claims eventually disappear."

Friday, August 7, 2009

Most interesting stories this week

It's Friday, which means it is time for the TortsProf Blog's list of the most interesting stories for this week (availalble here.)

Wednesday, August 5, 2009

Crocs Settles Design Defect Suits

I remember reading a while back about incidents where people were getting their feet caught in escalators while wearing "Crocs" shoes (or are those considered sandals? clogs? I am not sure). In any case, the TortsProf Blog is reporting today that the company (whcih has been described elsewhere as being "financially troubled") has been settling these cases pretty quickly. At least 11 cases were filed since early 2008 and five were settled in less than a year. For more on the story go here and here. Thanks to TortsProf Blog for the update and links.

Monday, August 3, 2009

Product liability claims against denture adhesive manufacturer

There is a growing number of lawsuits alleging zinc poisoning and neurological injuries linked to Fixodent denture adhesive cream. Procter & Gamble insists that there is no connection between its product and these injuries. With more than 35 million Americans using denture creams, the potential level of liability is considerable. The two most obvious claims would be a warning defect and design defect in the use of zinc. However, the science is not quite there yet to show the linkage conclusively. These case may also raise interesting “foreseeable misuse” elements if the company argues that patients are overusing the cream. For the full story, click here. For the full story go here. Thannks to Prof. Jonathan Turley for the information

Article on so-called "defensive medicine" and tort reform

One common argument used by those who propose tort reform in the medical malpractice area is that the fear of litigation results in doctors practicing so-called "defensive medicine" which, in turn, results in higher costs. So the question is: is so-called defensive medicine really motivated by liability concerns? There is evidence that even if it is, there are other interests at play: the interest of some physicians in making more money off their patients. The PopTort has a story here on an article published in the Washington Post on the issue and a comment on the fact that President Obama stated recently that doctors ordering unnecessary tests to insulate themselves from lawsuits “is a very small, maybe not even a measurable factor in the reason healthcare costs are going up.” For this second story, go here.

Sunday, August 2, 2009