Thoughts on the concept of foreseeablity

Go here for a short comment by David Owen, (Professor of Law at University of South Carolina School of Law) on the concept of foreseeability.

Expert witnesses in the tobacco litigation

Here is a link to a very interesting article in The Nation magazine about the use of experts in the "big tobacco litigation" cases.

Simmons v Homatas and the possible liability of one who encourages another to drink and drive

I finally had a chance to read the Illinois Supreme Court’s decision in Simmons v Homatas, a case I have been following since I read the appeals court decision over a year ago. (go here, here and here).

In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own liquor, but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to drink heavily. When one of them got sick in the bathroom, employees of the establishment escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head-on with another car killing that car's driver (an 8 1/2 month pregnant woman) and his passenger, John C.

The defendant argued that the plaintiffs did not have the right to a cause of action because Illinois does not recognize social host liability and, since it was not authorized to sell alcohol, it could not be held liable under the Illinois Dramshop Act either. Based on this argument, the issue for the court was essentially whether a business with no dramshop liability could be found liable for the injuries caused by a patron that the business encouraged to consume alcohol.

Given that the answer to that question would probably have to be NO unless the Court created a new view of the doctrine regarding the possible liability of someone who provides alcohol under circumstances where the Dramshop Act does not apply, the Supreme Court approached the case from a different perspective. In the process, however, it may have opened the door to stronger attacks on the doctrine that protects social hosts from liability.

The Court first reaffirmed its position that Illinois does not recognize a cause of action against a person who provides or sells alcohol to another who later harms a third party while intoxicated unless the claim is recognized under the Dramshop Act. For this reason, the defendant was correct in arguing it should not be liable for its conduct of providing alcohol to the driver. The defendant was not subject to dramshop liability because it was not a licensed seller of alcohol and it was not subject to social host liability because Illinois does not recognize that basis of liability.

If the Court was going to recognize a cause of action in this case, thus, it had to find a different way to justify it. And it did so by approaching the facts of the case from a different perspective. It held that the relevant conduct upon which the claim was based was not providing alcohol but encouraging or assisting another in tortious conduct. In fact, for this approach, the conduct of providing alcohol is irrelevant. It is the conduct of getting the car for the driver, placing the driver in the car and encouraging him to drive away that matters.

The defendant, however, had a good argument against this view too. It cited a number of cases that hold that helping someone get into his or her car and “allowing” him or her to drive away intoxicated is not enough to impose liability. In response, the Court distinguished those cases suggesting a distinction between cases where the defendant “allows” an intoxicated person to drive – in which case there is no liability - and cases where the defendant “assists” an intoxicated person – in which case there could be liability.

To support this distinction, the Court cites section 876 of the Restatement (Second) of Torts which requires that the defendant give “substantial assistance or encouragement” in committing the tort. But the Court holds that merely failing to prevent another’s tortious conduct is not enough to show “substantial assistance or encouragement.”

The Court then concludes that the allegations that the defendant directed the driver to leave the club, brought his car to him, opened the door for him and directed him to leave were enough to support a claim. I think there are serious problems with the Court’s decision in this case.

First of all, the conclusion that the case is distinguishable from the other cases discussed in the opinion is simply not persuasive. The conduct involved in this case is not any different than that of the defendants in the other cases in which the Court had failed to impose liability. (Interestingly, the Court does not mention the fact that part of the defendant's business operation depended on encouraging heavy drinking. I think this would have helped the Court's position, but it chose not to take it into account.)

Second, given the similarities in the facts of these cases, the distinction between “allowing someone to drive drunk” and “assisting someone to drive drunk” is tenuous at best. Is there really that much of a difference between helping an intoxicated person drive by taking him to his car and letting him get behind the wheel and bringing the car to him and telling him to get in it?

Finally, and most importantly, these deficiencies open the door to claims against a social host. Although the Court was clear that “social host liability” is not recognized, it was also clear that this refers only to the conduct related to providing alcohol. Assume a social host (a private person hosting a party in his home) notices a friend is drunk and disruptive and asks him to leave. Instead of arranging for transportation, the host helps the friend out to his car and encourages him to go home. Wouldn’t that satisfy the requirements set out by the court in Simmons?

I think Justice Freeman would agree with me. In a separate opinion, he essentially argued that the Court needed to clarify the distinction between “allowing” and “substantially assisting or encouraging” tortious conduct. He argued that the Court should have found that there can be liability for "assisting" but that the allegations in this case were insufficient to support it. I think the Court here felt it would be unjust to find that the plaintiff had no remedy and simply tried to find a way to justify recognizing some kind of liability. Unfortunately, in doing it, it actually may have weakened the doctrine that protects social hosts from liability.

Damages for inconvenience? Why not?

About two weeks ago, the Illinois Court of Appeals decided a case that makes me question the concept of damages. The case, Mayer v Chicago Mechanical Services (available here), involved a lawsuit filed by a plaintiffs who were forced to leave their home because it was rendered uninhabitable due to the alleged negligence of the defendant which caused the home to be contaminated with mold. The plaintiffs were forced to live elsewhere for an extended period of time. The plaintiffs argued that they were entitled to compensation for the discomfort and inconvenience of being forced to leave their homes to escape the dangerous condition caused by the defendant’s negligence. The defendant argued that damages for inconvenience and discomfort are not recoverable as a matter of law. The lower court agreed with the defendant and dismissed the complaint. On appeal, the Court of Appeals held that, at least in cases where there is evidence of some interference with or deprivation of a possessory interest in the property in question as a condition precedent to obtaining damages for any resulting inconvenience, a claim for discomfort or annoyance is a "distinct grounds of compensation for which in ordinary cases the person in possession is allowed to recover in addition to the harm to his proprietary interests." (citing the Restatement (second) of Torts). Thus, the court concluded that, as a general proposition, it could not conclude that the type of injuries claimed by the plaintiffs were not recoverable as a matter of law. In short, the inconvenience of being forced to live out of one’s home is an injury, the value of which can be recoverable. Having said that, however, the court then surprisingly affirmed the lower court, finding that “plaintiffs have largely ignored the practical effects of being displaced from their homes, instead focusing principally on the abstract sense of satisfaction associated with one's home” and concluding that the plaintiffs’ claims were “vague and subjective” because they (the plaintiffs) “felt a sense of homelessness, and they did not like living out of a suitcase and having their normal living patterns disrupted.” As explained by the court: “[b]y virtue of this reasoning, one could seek recompense for displacement without regard to his or her actual living conditions. We cannot subscribe to such a sweeping view. The type of harm for which plaintiffs seek recovery is simply too nebulous to serve as a basis for an award of damages.” What the court is saying here is that the plaintiffs, who have been displaced from their homes because of the defendant’s negligence, can only recover for the inconvenience of having lost their home for a period of time if they can show that the alternative living conditions were bad. So if the plaintiffs decided to wait out the problem while staying in a luxurious resort, they can’t recover. I do not like this result. I think that no matter where you are forced to live there is a “loss” in having to deal with the inconvenience of being forced out of a home. Maybe you could say that the value of the loss is lower if the alternative living conditions are luxirious, but I don’t agree that we should say there is no injury at all. To me, this case raises a question as to the nature of the concepts of "injury," "damages" and "remedy." Often, we define a tort as "a wrong for which the law recognizes a remedy." And we say that the "remedy" is expressed in terms of "compensation for the damages suffered" or, in short, as "damages." Yet, we all know that the law does not recognize recovery for all damages, so one important aspect of tort law theory is to develop a way to figure out for which types of damages should a remedy be available. Sometimes the answer to this question depends on the type of damages we are talking about. The history of the development of causes of action for negligent infliction of emotional distress provides a good example of this. Sometimes the answer depends on the public policy concerns related to the conduct involved. The issue of whether we should recognize a cause of action for injuries that result of a social host's provision of alcohol to someone who will drive is an example of this. I am not sure, though, that the court in this case did an adequate job of placing the case in either category. It seems to me we should decide whether the inconvenience of being forced out of one's home is an "injury"; whether it represents a loss that has value. If so, we should allow the jury to determine what that value is. In this case the court decided that inconvenience is a compensable injury, but then it said the plaintiffs did not have a right to recover for it. Why not? If it is an injury and they can prove they suffered it, why not let the jury decide what the value of the injury is?

Judge rejects proposed settlement in 9/11 lawsuit

A week ago the federal judge overseeing the lawsuits filed by more than 10,000 Ground Zero workers seeking compensation for health problems triggered by their exposure to ash and dust spewed into the air after the 9/11 terror attacks rejected a proposed settlement to end the case. Here is the story from Law.com. The judge complained the settlement paid too little to victims and that its terms were confusing, making it difficult for some 10,000 individual plaintiffs to make a decision on whether to accept or reject payments. Here is an update.

Reaction to story about Avandia studies

A few days ago, I provided some links to a story that revealed that many of the academic reports on Avandia had been prepared by people with ties to its manufacturer. As you would expect, that story has generated some reaction from many different sources. AboutLawsuits.com states that "[i]n a blistering editorial, writers for the Journal of the American Medical Association (JAMA), lambasted GlaxoSmithKline’s activities in research over potential side effects of Avandia, which some say are responsible for tens of thousands of heart attacks and deaths. The authors are calling for new, stringent, medical and scientific journal reforms that would ensure integrity and minimize the ability of corporations to obfuscate scientific data." For that full story go here. The JAMA editorial is available here. In a similar story, Pharmalot is reporting that "[i]n a stern editorial, the editors of the Journal of the American Medical Association write that industry-sponsored research should be analyzed by researchers without ties to the drugmaker that is developing the medicine being studied." To read that story go here. Finally, a similar story- with more links - can be found in the Drug Recall Lawyer Blog.

Damages caused by water pollution in California?

As published in Pharmalot.... "To what extent did a Merck subsidiary pollute groundwater and soil in Beachwood, Ca.? Why was potentially damaging language about a clean-up plan written by a Merck consultant not included in a final draft sent to local authorities? And were residents actually harmed? These questions lie at the heart of a federal lawsuit that alleges Merck’s Baltimore Aircoil unit polluted a neighborhood for years with Chromium 6, a carcinogen linked to cancer and birth defects, causing sickness and death (this is the same pollutant that Erin Brockovich made famous)." To continue reading this story go 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. Go here for a list of links collected by Alan Crede of the Boston Personal Injury Blog. Finally, go here for my own selection of top news stories.

Common knowledge?

In class we discuss how a plaintiff can use the notion of "common knowledge" in support of an argument of duty and breach of duty. Is it common knowledge that it is dangerous to use aerosol sprays over fire? Watch this video and note how the dad's hair catches fire for a split second at the end. Do NOT try this at home; it is not funny. It's dangerous.

Posner on Tort Reform

While doing some research I saw this old (2005) short op-ed by Judge Posner on tort reform in which he concludes that "there is no compelling case for federal limitations on malpractice liability."

Health care and benefits for accident victims

Here is a link to an article on the possible effects of the health care bill on accident victims (at least in New York).

Update on Toyota

Here is a link to a short article on some issues related to the concept of causation that are likely to be important in the upcoming litigation regarding Toyota cars. The conclusion: "The truth is that it’s way to early to convict or acquit Toyota, so I’m not going to opine one way or the other as to whether driver error or Toyota is to blame. . . . Right now, there is a ton of smoke pouring out of Toyota. It’s probably safe to say that there is a fire. But it’s way too early to speculate as to what the cause of the fire is."

Supreme Court to review case on possible liability for failure to train prosecutors to perform their duties

The Blog of the Legal Times is reporting today that the US Supreme Court has agreed to review Connick v. Thompson, a case in which the U.S. Court of Appeals for the 5th Circuit affirmed a $14 million award for the wrongful conviction and death sentence of the defendant in a murder case. The basis of the claim was that the defendant district attorney's office failed to train its lawyers on their legal and ethical duty to disclose exculpatory evidence, which resulted in the then-defendant-now plaintiff wrongful conviction. The opinion of the Court of Appeals is available here. The BLT story states that current District Attorney Leon Cannizaro Jr. appealed the ruling to the Supreme Court, "asserting that upholding the 5th Circuit's decision "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct."" This is a strange argument since - according to the story - the claim is not based on vicarious liability. Someone here doesn't understand the concept of vicarious liability. That misunderstanding aside, the case will be interesting to follow as it may have important implications for the concept of prosecutorial immunity and the extent of the possible civil liability in tort and ethical responsibility of the DA's office and its prosecutors. The case also has another interesting connection to issues of professional responsibility: the original case against the defendant was the underlying case in In Re Riehlmann (La 2005) often discussed in connection with the duty to disclose attorney misconduct under Rule 8.3. This was the case in which a former prosecutor, upon learning he was dying of cancer, finally decided to unburden himself and confess to a friend (Riehlmann) that he (the prosecutor) had intentionally withheld exculpatory evidence in a case that resulted in the imposition of the death penalty. That case was the case against Thompson, the then defendant-now plaintiff who eventually got the $14 million for the wrongful conviction. So, let's recap. In 1985, a prosecutor withholds exculpatory evidence intentionally in a case against a man named Thompson, who is then convicted and sentenced to death. In 1994, the prosecutor confesses what he did to this friend Riehlmann (also a former prosecutor). Riehlmann does nothing about this for 5 years. After the exculpatory evidence is discovered in 1999, Riehlmann reveals what the former DA had told him. (Years later, Riehlmann is disciplined for his own misconduct in failing to disclose the information). Eventually, after spending almost 20 years on death row for a crime he did not commit, Thompson's conviction is vacated, he is re-tried and found not guilty. Thompson then sued for damages arguing a violation of this rights under 42 USC Sec 1983 and was awarded $14 million. The Court of Appeals affirmed and now the Supreme Court will review the case in the fall. Stay tuned... UPDATE 3/26: Here is the story in Law.com

Georgia Supreme Court strikes down cap on damages in med mal cases

The Georgia Supreme Court has been busy deciding cases related to tort reform initiatives. Less than a week ago, it decided to uphold a measure that made it more difficult for plaintiffs to support claims for malpractice against emergency room personnel (here) and a rule that forces a party to pay the other side's attorney fees in certain cases (here). Now comes news that the Court has struck down a cap on noneconomic damages in medical malpractice cases, declaring the cap to be a violation of the right to trial by jury. The case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt (available here). The Court ruled that by "requiring a court to reduce a noneconomic damages award determined by a jury that exceeds the statutory limit, OCGA Sec. 51-13-1 clearly nullifies the jury's findings of fact regarding damages and thereby undermines the jury's basic function." Thanks to Day on Torts for the information and link. UPDATE 3/23/10: Here is a link to an article on the subject from the Wall Street Journal Law Blog UPDATE 3/24/10: Here are links to the version of the story in Law.com and AboutLawsuits.com. UPDATE 3/25/10: Here is a link to the story in the Tort Deform blog.

IL Supreme Court decides case on possible liability for alcohol related injury

A few days ago, I posted a reminder that the Illinois Supreme Court was about to decide an important case on the possible liability of a commercial establishment that allowed (and encouraged) its customers to drink their own alcohol for injuries caused by patrons who later left the premises under the influence. The Court DID decide the case and it is available here. I will post my thoughts on it as soon as I get a chance to read it carefully.

Most scientists that have defended Avandia have financial ties to the drug's manufacturer

According to a paper published by a team of Mayo Clinic Researchers, most scientists who published articles supporting GlaxoSmithKline’s Avandia diabetes pill after it was linked to a risk of heart attacks in 2007 had financial ties to the drugmaker. Surprise, surprise! Go here for the story in Pharmalot. Go here for a copy of the paper. UPDATE (3/22): Here are links to other versions of this story in AboutLawsuits.com, Fierce Pharma and Bloomberg news

Colorado Appellate Court Adopts Learned Intermediary Doctrine

See the full story (with links to the case) 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.

Happy Birthday William Prosser!

Last Monday would have been William Prosser's 112th birthday - a fact I would not have remembered had it not been for my friends at the TortsProf Blog! As everyone knows, his influence on Tort law in the United States was invaluable and the textbook inspired by his own original one is still one of the most popular ones (if not the most popular one) in American law schools. In honor of the ocassion, I am copying an entry I posted here last year: 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. 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. 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.

Class action argues Pfizer did not warn about suicide risks

A class action lawsuit has been filed in Canada by three women from British Columbia who say that Pfizer did not give enough warning about the risks of suicidal conduct caused by the smoking cessation drug Champix, which is sold as Chantix in the United States. Go here for the full story.

New reports re problems with Honda cars

AboutLawsuits.com is reporting today that a recall is being issued for approximately 412,000 Honda Odyssey minivans and Honda Element sport utility vehicles (SUVs) due to brake problems that have caused a number of crashes. AboutLawsuits.com, by the way is a great source of information on recalls, consumer protection and class action cases and news. Go here for the full story.

Illinois Supreme Court to announce important case on Thursday; maybe?

On December 2008, I reported on what I thought was one of the most interesting cases of that year - a case called Simmons v Homatas. In that case, the Illinois Court of Appeals considered the possible liability of a third party for damages caused by a drunk driver. Typically, cases that present that issue fall into one of two categories: cases where the defendant is a commercial establishment whose liability is covered by a Dram Shop Act or cases where the defendant is a social host - a private individual who provides alcohol to someone else at home and whose conduct is evaluated under general principles of negligence. Usually, liability is imposed in the first type of case and not recognized in the second. What was interesting about Simmons was that it involved a commercial establishment that encouraged its patrons to drink alcohol while not actually selling it to them. I am writing this little note to remind you of this case today because I just heard that the Illinois Supreme Court is expected to issue its decision on the appeal on Thursday. I am very curious to see how the Court will deal with the issue. Now to refresh your memory.... In this case, two individuals (John H. and John C.) went to an establishment that does not have a liquor license but that encourages its patrons not only to bring their own hard liquor (no beer allowed), but to consume it in large quantities. To make a long story a bit shorter, the two individuals drove to the place and proceeded to get very drunk. When one of them got sick in the bathroom, management escorted them out, got their car (which they had parked for them in the first place), put them in the car and told them to leave. John H. was driving. A few miles down the road, he left his lane and collided head on with another car killing that car's driver (an 8 1/2 month pregnant woman) and his passenger, John C. The issue in the case is essentially whether a business with no dram shop liability (because it is not licensed to provide alcohol and in fact did not provide it) can be found liable for the injuries caused by a patron that the business encouraged to consume alcohol. The Court of Appeals said yes. The opinion is available here. The court decided the case based on a relatively straighforward analysis of the elements of the cause of action. In the end, the question was whether the injury was a foreseeable consequence of the risk created by the negligent conduct. The negligent conduct was facilitating the consumption of alcohol and then encouraging someone who was known to be intoxicated to drive. Once argued this way, it was easy to conclude that the injuries are a foreseeable consequence. In its petition for review before the Illinois Supreme Court, the defendant argued that "...the Appellate Court failed to recognize the need for judicial restraint when considering liability as a result of alcohol-related injuries'' and that ''[p]roviding the plaintiffs with a new remedy for alcohol-related injury when the legislature has declined to do so … puts the law into a state of flux because it forces courts to resolve these issues in a confusing and haphazard case-by-case manner.'' In other words, the defendant apparently argued that because the plaintiffs' claims are alcohol-related, any cause of action must emanate from the legislature or not at all. To this I replied on this blog by asking: "Why should the courts exercise restraint when considering alcohol related injuries? . . . There is nothing unusual about courts recognizing possible liability for damages caused by conduct related to the use of alcohol. The defendant in this case seems to be arguing that the Legislature preempted the claims by enacting the Dram Shop Act, while at the same time arguing they are not covered by the Act because, in fact, they did not serve the alcohol in question in the case. You can't have it both ways." I think the decision in this case is going to be very interesting regardless of what it decides. The Court is faced with an argument that asks for the Court to exercise judicial restraint when judicial action is not only common but a good idea. Yet, recognizing the cause of action without distinguishing the facts of the case from those typically found in a social host type case could have unintended consequences for a whole different category of possible defendants. I think the court should recognize the claim by recognizing a new category of defendants - neither a commercial host nor a social host, but something in between. Stay tuned....

Comment on decision re higher burden of proof in cases against ER doctors

Commenting on a story I mentioned yesterday out of Georgia, the blog Tort Deform posted a note called "Emergency Room Doctors In Georgia Can Now Make Medical Mistakes With Impunity." With a title like that, I guess I don't need to tell you what side of the debate they are on... You can read the comment here.

New article on Toyota

Here is an interesting article called Toyota Finally Gets Around to Blaming the Victim on allegations by Toyota and others attempting to divert attention from the problems with Toyota cars by trying to place blame on others. Among those getting blamed are the drivers themselves, (particularly older drivers) and the "liberal mainstream press." But, those would-be culprits aside, who are everyone's favorite scapegoats?... You got it.... Those darn plaintiffs' lawyers! When all else fails, blame the lawyers. Listen, I am not naive enough to believe that there aren't some opportunist lawyers out there. There are; just are there are incompetent lawyers and dishonest lawyers. However, that has nothing to do with the issue here. And it certainly does not deny the fact that the history of tort litigation in this country has probably contributed to more safety features in cars than anything else, saving countless lives. I wish someone would write about that!... Oh wait. Someone has! I guess Toyota's apologists missed it. Take a look at this article in The Los Angeles Times.

More claims vs Toyota

According to a story published yesterday in Law.com, plaintiffs lawyers spearheading the litigation against Toyota on behalf of consumers whose vehicles have been recalled have added racketeering claims. They allege that the Japanese automaker falsely denied for the past decade that its vehicles are subject to sudden unintended acceleration and other defects. The announcement came Monday, days after Orange County, Calif., District Attorney Tony Rackauckas filed suit accusing Toyota Motor Sales USA Inc. of engaging in deceptive business practices that have harmed the public. That suit was the first consumer protection action brought against Toyota by a government agency. The latest claims were added by a consortium of 29 law firms in more than 20 existing lawsuits and accuse Toyota of violating the federal Racketeer Influenced and Corrupt Organizations Act (RICO). Go here to continue reading the story in Law.com.

Another tort reform provision upheld in Georgia

In a case called Smith v. Baptiste, the Supreme Court of Georgia divided 5-2 to uphold a fee shifting rule that is supposed to deter the filing of frivolous suits and encourage settlements -- although whether it does have this effect is open to debate. The case addressed a provision that states that a party can be ordered to pay the other side's attorney fees if it rejects a settlement offer but doesn't fare much better than the offer when the case is decided in court. The lower court had declared the provision unconstitutional holding that it hinders access to courts. In reversing the lower court, the majority opinion concluded that the part of the state Constitution that says "no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state," was not intended to provide a right of access to the courts generally but to provide only a right of choice between self-representation and representation by a lawyer. Again, I have not read the full opinion, so I can't comment on how this conclusion was supported but given the language quoted in the story, I don't think this conclusion is very convincing. Do you? The dissenting opinion challenged not only the majority's interpretation of the constitutional language but also its sources. Go here for the full story in Law.com.

Georgia Supreme Court upholds higher burden of proof in ER med mal cases

Yesterday, in a 4-3 decision, the Supreme Court of Georgia upheld the constitutionality of a rule that requires a higher burden of proof in cases of negligence on the part of emergency room personnel. The rule requires the plaintiff to show "gross negligence" on the part of emergency room doctors in order to sustain a medical malpractice claim. The case is called Gliemmo v. Cousineau. The majority concluded that to be constitutional, the law needs only to bear a reasonable relationship to a legitimate state purpose and that "promoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are certainly legitimate legislative purposes." I have not read the actual opinion so I can't comment on how the case was presented or on how this conclusion was reached, but the conclusion is disturbing because I have never seen any evidence that proves convincingly that making it more difficult for plaintiffs to maintain a cause of action results in lower insurance rates for doctors or in affordable health care for consumers. I have posted numerous articles that refute the court's implied conclusion. You can find these posts - with numerous links to other articles - by going here and scrolling down. Go here for the full story.

Health care, medical malpractice and tort reform

There are a lot of new comments on the "blawgsphere" today on healthcare, med-mal and tort reform. Here are the headlines (and links): Defensive Medicine Doesn’t Lead To Unnecessary Medical Treatment The One Group That Was Not Made Whole: Injured patients (in Maryland) More evidence that there isn’t a medical malpractice crisis Emergency Room Immunity Picks Up Support Will The Georgia Supreme Court Overturn Medical Malpractice Damage Caps?

Punitive damages and tort reform

Here is a short comment on some of the complaints that have been raised about punitive damages in the tort reform debate.

Missing deadline results in malpractice verdict (but maybe it shouldn't have?)

The Legal Profession Blog is reporting today on an interesting case that illustrates a problem that has bothered me for a long time. The story starts with a high school English teacher sitting in her living room when a small plane hit the roof of the second story of her home. She suffered no direct physical injury but went into a state of shock, which led to health problems. She retained an attorney to file suit against the pilot.

The attorney missed the one-year statute of limitations despite reminders and also failed to comply with discovery obligations and court orders. The suit was dismissed. The teacher then sued her attorney for malpractice.

A jury returned a verdict in her favor for over $5 million and the lawyer appealed. The Kentucky Court of Appeals affirmed the jury verdict of malpractice and punitive damages against the attorney but vacated some aspects of the damage award. In particular, the teacher's "case-within-a-case" proving negligence on the part of the pilot could not sustain a claim for punitive damages because of Kentucky's "impact" rule. The decision is available here.

I am very sympathetic to the plaintiff and I literally yell at my students that losing a case for a client by missing the statute of limitations deadline is one of the worst things they can do, but I have to say the court's conclusion here is not very convincing. The court essentially contradicts itself.

While saying that, to satisfy cause in fact, the plaintiff has to show that she "would have prevailed in the underlying case," it finds that the plaintiff meets the burden by showing that she "had a viable claim" and that she "lost the opportunity to maintain" it.

I am sorry but you can't have it both ways. If the law is that you have to show you would have won the case, you don't meet that burden by showing that you "lost the chance to try to win it." It is clear that the lawyer was negligent, but all that shows is that the plaintiff can show breach of duty. The court essentially gave the evidence of breach more value than it deserved. It held that evidence that proves breach can be used to prove causation. That, simply, makes no sense. I have always thought that the standard should be that the plaintiff show he or she lost the chance to win (and that the injury should be an amount equivalent to the value of that lost chance), but, as far as I know, that is not the law in any state.

National Patient Safety Awareness Week

From the PopTort Blog: "You may not have heard, but it’s National Patient Safety Awareness Week. Certainly, who could argue with any group working to stop needless deaths and injuries due to unsafe medical care (which kills up to - or at least - 98,000 people a year, according to the Institute of Medicine)? But strange doesn’t half describe the way some are commemorating this week...." To continue reading go here.

Possible constitutional amendment re med mal caps in Illinois?

In response to the Illinois Supreme Court's decision overturning the state's cap on medical malpractice awards, state Sen. Dave Luechtefeld, R-Okawville, has introduced a constitutional amendment that would prevent the state's high court from overturning future medical malpractice reform laws. Illinois voters could be asked in November to allow the General Assembly to adopt caps on medical malpractice awards if one Republican state senator has his way. Go here and here for more on this story. Thanks to TortsProf blog for the links.

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 a list by the New York Personal Injury Blog and here for my own selection of top news stories.

Toyota prosecution

The Orange County, California District Attorney has filed the first case against Toyota, this one against its U.S. sales division, Toyota Motor Sales USA -- "to enjoin them from continuing to endanger the public through the sale of defective vehicles and deceptive business practices." According to Reuters. Go here for more on the story.

CNN report regarding Toyota

Here is a short video (after a commercial) from CNN on an important aspect of the Toyota affair. It discusses the possibility that Toyota failed to disclose important and relevant documents in product liability cases.

Looking for proof that tort reform reduces health costs?.... Keep looking, part IV

Here is yet another article (with many links to others) about the lack of proof that tort reform reduces health costs.

Lindsay Lohan sues E-trade

Lindsay Lohan has sued E*Trade Financial Corp for $100 million, arguing that the "milkaholic" baby girl who appears in the commercial below was modeled after her. I have not seen the complaint in the case, but according to news reports I have read, Lohan alleges E-trade's use in the ad of the girl in the ad improperly invokes her "likeness, name, characterization, and personality" without permission, violating her right of privacy. The lawsuit is asking for $50 million in punitive damages and demands that E*Trade stop running the ad and turn over all copies to her. Here is a link to a good article about the case and some of the issues it raises. Among other things, it explains that Lohan faces a significant burden of proof because she needs a consumer survey that is methodologically sound, showing that a significant number of people understand the use of the single name 'Lindsay' to be a reference to her. But wait.... maybe it is not just the name.... Maybe it is the reference to a girl name Lindsay who is identified as a "milkaholic." Uhmm. So Lohan is going to have to argue that if people refer to an addicted Lindsay, others who hear the conversation would think they are talking about her. In response to the criticism over the lawsuit, Lohan's lawyer has stated: "They're using her name as a parody of her life. Why didn't they use the name Susan? This is a subliminal message. Everybody's talking about it and saying it's Lindsay Lohan." Are you? Is that whay you thought when you saw the commercial? I have to say, I saw it during the superbowl. I laughed at it, actually... but not once, not for a minute did I think of Lindsay Lohan... I wonder who this "everybody" is that the lawyer is talking about.... I guess I can poll my students and get back to you on that... Here is the commercial:

More information on the vaccine preemption case

As published in Pharmalot: "The US Supreme Court has agreed to determine whether a federal law on vaccine injuries shields vaccine makers from certain types of product-liability lawsuits. The court will review a Pennsylvania lawsuit filed by a couple who allege their 6-month-old daughter developed residual seizure disorder after being vaccinated with a DTP vaccine made by Wyeth. . . . . A federal appeals court ruled last year the lawsuit was preempted by the National Childhood Vaccine Injury Act of 1986, which created a national compensation program for vaccine-injury claims, but also shielded vaccine makers from some lawsuits . . .

[In contrast], two years ago, the Georgia Supreme Court allowed a family to pursue a lawsuit claiming their son suffered a severe disability after receiving several vaccines . . .

The White House is siding with vaccine makers in the Georgia case [arguing] in a brief [by the Solicitor General] that the [decision of the] Georgia court . . . could impede vaccine development and production . . . [Similarly, in the Pennsylvania case, Wyeth has argued tha] the supply of childhood vaccines could be threatened by increased litigation if the Supreme Court decides in favor of the family.]

Comment on the importance of the vaccine preemption issue

A couple of days ago (two posts below this one) I announced that the Supreme Court agreed to review a challenge to the scope of the pre-emption provision of the National Childhood Vaccine Injury Act of 1986. Go here for a comment on the importance of that issue from the Drug and Device Law Blog.

Toyota Lawsuits Could Cost Auto Maker $3 billion

According to an Associated Press report, litigation related to the unintended acceleration problems in Toyota cars could end up costing the company $3 billion or more. Go here for the full story. Another version of the story is available here.

Supreme Court grants review to important product liability preemption case

The Supreme Court announced this morning it was granting review in Bruesewitz v. Wyeth, a test of the scope of the pre-emption provision of the National Childhood Vaccine Injury Act of 1986. The Court will likely try to resolve a split between the pro-preemption Third Circuit, and the anti-preemption Georgia Supreme Court regarding whether the Vaccine Act expressly preempts design defect claims. Thanks to the Blog of the Legal Times and Drug & Device law for the info.

Comment on the claim for damages caused by flying hotdog at the ballpark

Last month I posted a note about a recently filed claim against the Kansas City Royals for damages caused when its "mascot" (an unnamed performer in a lion suit) threw hotdogs at the crowd. See here. I don't think the case is frivolous and I also don't think that the defense of assumption of the risk should apply. Today Prof. Michael McCann (Vermont Law School) posted a short comment on the case at TortsProf Blog (available here and it includes a link to the original complaint). In his comment, Prof. McCann essentially argues that the notion that spectators assume the risk of injury by foul balls during baseball games should not apply to the case because it is premised on dangers from actual baseball play, as opposed to between innings entertainment. He also argues that using the defense of assumption of the risk is questionable because fans should not necessarily be obligated to pay attention when the game isn’t being played.

Another story on Avandia

Here is another version of the story I mentioned a few days ago which states that financial analysts estimate that GlaxoSmithKline could face up to $6 billion in liability as a result of Avandia injury lawsuits. Go here for the full story.

Illinois legislature

I recently reported that because of a “non-severability” clause, when the Illinois Supreme Court recently struck down the cap on damages in med mal cases a number of other medical malpractice insurance regulatory laws were thrown out as well. (Go here and here, for my previous posts on this, and here for links to stories about the Illinois Supreme Court decision.) In response, the Illinois legislature has created a subcommittee to handle legislation intended to restore some of the medical and insurance provisions that were struck down -- but, unfortunately, it sounds like it may try to enact caps on damages again. Stay tuned....

Pres. Obama To Cave On Tort Reform — Adding Provisions to Health Bill That Could Kill 4,800 a Year

That is the title of a comment by Prof. Jonathan Turley, available here. In it, he argues that "While an estimated roughly 100,000 people die each year from malpractice, the Administration is about to make it more difficult to sue doctors and hospitals. . . . The Congressional Budget Office says that the reforms will save $54 billion over 10 years, but it also notes that it could cost thousands of lives. Moreover, $54 billion over 10 years is not a lot of money in the context of $2.5 trillion we spend each year on health care . . ." For more on whether tort reform will reduce health care costs, go here, here, here and here. According to The PopTort, one of the items the President has decided to endorse comes from Senator Tom Coburn (R-OK), who is also a doctor. His idea is to give states the option of enacting either of two ideas, both of which, not surprisingly are designed to make it much more difficult for victims of medical malpractice to be able to get to courts or to recover for their injuries. The first proposal would force patients to present their case before a “screening panel” made of up representatives from the health care industry and attorneys before they would be allowed to present their cases in court. Aside from the fact that there is very little, if any, evidence that med mal reform will have any effect whatsoever on health care reform - other than protecting doctors from having to face lawsuits for their malpractice, there are a number of problems with this idea. First, there's the composition of the panel. Our judicial system is based on a very basic notion of impartiality of the judge and jury system. How can you have a panel composed of members of the "health care industry" judging whether other members of the health care industry should stand trial? And who are these "attorneys" who will be on the panel? Would they be attorneys with experience in medical malpractice claims? Would they be attorneys for the health care industry? ... plaintiffs' attorneys? How would they be chosen? Second, there is the issue of the rules of and standards used by these panels to decide which cases would go forward? How would these rules be enacted and enforced? One major problem with screening panels is that, as everyone knows, in many cases, plaintiffs are forced to file their claims before they have had a chance to clarify all the details needed to eventually prove the case. This is why plaintiffs need to go through discovery. Granted, plaintiffs can't file a claim simply as a means to harass or as a fishing expedition, but this does not happen as often as tort reformers (and doctors) claim because there already are important mechanisms in place to prevent it including the fact that attorneys are subject to severe penalties if they file fraudulent, baseless or improper claims. This idea was tried in New York many years ago and eventually abandoned in what has been called "a resounding failure." For a short comment on some of the problems that resulted in this failure go here. The second proposal, which is similar but not quite the same, is to require patients to go before specialty "health courts." "Health courts” have been proposed many times before and have had little support at the state level. Consumer groups and victims are usually opposed to them. Go here for a report by Americans for Insurance Reforms and here for one by the Alliance for Justice Proposals for health courts I have seen in the past take away injured patients’ right to a jury trial without providing an alternative system that offers equal or better protection than the civil justice system does. Essentially, they force all medical malpractice cases into an administrative system. After that, "the devil is in the details," as they say, and as far as I know there are no details offered yet. Again, there are considerable questions related to the rules that will apply, the standards used to make decisions, the burden of proof, the composition of the court, the right to appeal. Also, eliminating the right to a jury trial would be enough to declare the health care court system unconstitutional in many states right off the bat.

Glaxo could face $6 billion in liability for Avandia

According to this article, Glaxo could face between 1 and 6 billion dollars in liability for damages caused by Avandia.

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.

1,100 cases -and counting- over Yaz, Yasmin and Ocella birth control pills

According to an annual report released by Bayer, the number of birth control lawsuits over Yaz, Yasmin and Ocella filed against the pharmaceutical company has risen to about 1,100 cases, and that number will likely continue rising rapidly as thousands of other women are considering claims for serious injuries that may have been caused by side effects of the birth control pills. Go here for the story in AboutLawsuits.com.

Payments for medical malpractice lawsuits are at an all-time low

According to a new report from Public Citizen, payments for medical malpractice lawsuits are at an all-time low and have fallen steadily throughout most of the last decade, contrary to popular belief. Go here for the story in AboutLawsuits.com and here for the report itself.

Update on Avandia

A few days ago I posted that GlaxoSmithKline has released a 30-page rebuttal to the U.S. Senate report that accused the company of intentionally trying to conceal potential heart problems with Avandia. Here is another article commenting on Glaxo's document (the title probably gives you an idea of its conclusion): Glaxo Strikes Back at Drug Critics, But It's a Big Swing and a Miss. The article states that "The company cites nine studies . . . and makes the case that none of them showed significant risks of various types of heart problems. At first glance it seems convincing. But, as always, the devil is in the details. If you read the studies themselves — rather than GSK’s summary of them — you find that . . . [s]even of them showed either that there were some increased side effects in patients taking Avandia, including heart attacks, or that Avandia wasn’t as effective as other treatments." Meanwhile, Pharmalot is reporting that according to a story in The San Jose Mercury News, Santa Clara County in California has filed what appears to be the first governmental lawsuit against GlaxoSmithKline over links between its Avandia diabetes bill and cardiovascular risks, namely heart attacks. The suit charges Glaxo falsely advertised the pill and concealed risks, and seeks compensation on behalf of patients and providers. Go here for the Pharmalot story. Go here for the San Jose Mercury News story. UPDATE (3/2/10): Here is a link to a similar story in AboutLawsuits.com UPDATE (3/3/10): Story in Law.com