New York's erroneous approach to assumption of the risk in golf cases

Golf fans probably enjoyed watching the duel between Phil Mickelson and Bubba Watson this weekend. (Watson won by one stroke, in case you care.) Mickelson played very well and could have won, but he missed a couple of close putts and at one point hit a ball off the tee that went off target and hit a spectator. What does this have to do with torts? It reminded me that I had not yet reported on the decision of a case I have been following for over a year!

Long time readers of this blog will remember that back in April of 2009 I reported on a case called Anand v. Kapoor in which the court discussed the issue of whether a golfer can be liable for his conduct on the golf course if this conduct creates an unreasonable risk of harm to others. In the end, the court held that the voluntary decision to participate in the game means that golfers assume the risk of injury. As I said last year in my original post on this case, I disagree with this holding as a torts professor and as a golfer!

The court's decision is available here. My original comments about it is availble here and here. The case was appealed and last December the Appeals Court issued its ruling. In a 2 page long opinion that adds nothing to the one by the lower court, the court affirmed. I still don't like the result, but because the new opinion adds nothing, I will not repeat my objections to the analysis here. You can read my older posts on the subject mentioned above. For more go to the Wall Street Journal Law Blog and to Jonathan Turley's blog.

Ninth Circuit Court of Appeals holds against preemption claim by manufacturer of generic drug

As we wait to see how the Supreme Court will approach the generic prescription drug manufacturers’ preemption defense in Actavis Elizabeth, LLC v. Mensing, which is scheduled for argument on March 30, the Court of Appeals for the Ninth Circuit has issued an opinion in anew case in which it agrees with the Fifth and Eighth Circuits in rejecting the generics’ preemption defense. The case is called Gaeta v. Perrigo Pharms. Co., and the opinion is available here. For the background information on this issue and lots of links to more information, go to my previous post here and to Pharmalot, FDA Law Blog, AboutLawsuits.com and the Drug and Device Law Blog.

Avandia lawsuit settled on the eve of trial

GlaxoSmithKline has reportedly agreed to settle an Avandia lawsuit just before it was scheduled to go to trial in Philadelphia. The case was scheduled to be the first trial out of thousands of lawsuits that claim the drug maker failed to warn that side effects of Avandia increase the risk of heart attacks and death. Go to AboutLawsuits.com for more details.

General Counsel for the American Tort Reform Association suggests claim that reform bill protects vs "frivolous lawsuits" is not accurate

Yesterday, I commented on the lack of credibility in the arguments advanced by Mayor Mike Bloomberg in support of tort reform. Today, thanks to the PopTort blog, I can add to the criticism of the typical tort reform "buzz words" some comments by none other than the General Counsel for the American Tort Reform Association, Victor Schwartz himself. You know your argument for reform is in trouble when the ATRA would discount it!

NYC Mayor Bloomberg says lawyers should support tort reform

In a speech to the New York State Bar Association on January 26, Mayor Mike Bloomberg asked the city's bar association to support tort reform and even seems to suggest we should go back to the days when contributory negligence operated as a complete ban to recovery. The Mayor's arguments are nothing new and they are, as usual, lacking in support. Based on vague and unsupported allegations that tort reform will, somehow, improve the economy, tort reformers have been making the same claims for years. The buzz words are always the same: litigation is a "lottery", doctors are leaving town, defensive medicine, we need medical courts, frivolous lawsuits, etc etc.... all in a effort to make it more difficult for victims to be able to recover for their injuries. What is missing is proof of a basic concept of tort law (ironically): causation. For example, we keep hearing that doctors are leaving town and that we should limit the rights of victims to sue. Yet, I have not seen evidence that doctors are leaving town because victims are suing. This is so because there are many reasons why people move away and "fear of litigation" is probably not high on the list. A study cited by popular New York blogger Eric Turkewitz in his response to Mayor Bloomberg, found 6 percent growth in the number of doctors practicing medicine in NY from 2001 to 2005 and that while newly licensed doctors flock to New York City, Long Island and Westchester County, far fewer choose to practice in the vast upstate region. During the years the study was conducted, Essex County in the Adirondacks lost 22 percent of its doctors, while there was a 19 percent increase in Nassau County, on Long Island. Why? Probably because economic conditions in upstate NY are worse. That has little, if anything, to do with medical malpractice costs. In the end, pretty much all the ideas the Mayor presented were old and have been tried, discredited or debunked. Unfortunately, we keep hearing them as if they were based on fact rather than anecdotes. Take a look at Turkewitz reply to the Mayor here in which he replies to many of the Mayor's points in detail.

Bad news for injury victims in Wisconsin

Wisconsin's governor recently signed into law a statute that makes it more difficult for plaintiffs to obtain punitive damages for those cases in which plaintiffs do obtain punitives, the new law places a cap on them. The law also places a cap on noneconomic damages in suits against nursing homes. Read more about it here and here. The cap on damages in cases against nursing homes is particularly disturbing. Since nursing home residents typically do not work or have other significant sources of income, most of the value of the injuries they suffer for mistreatment in the facilities that are supposed to provide them services is in the nature of non-economic damages. Unless the amount of economic ("out of pocket") damages is significant enough to counter the costs of litigation, limiting the ability of plaintiffs to recover for non-economis damages makes it unlikely that plaintiffs who suffer damages will attempt to sue at all. This eliminates some of the incentive for the facilities to provide quality care and is unfair to a whole population of possible victims many of whom are not in a position to protect themselves. Thanks to the TortsProf blog for the update.

Memo to the President

In response to the President's remarks about medical malpractice during the state of the union address, the Boston Personal Injury Lawyer Blog is offering a comment entitled "Memo To President Obama: Seven Ways To Reduce Health Care Costs Without Hurting The Victims Of Medical Malpractice" (available here).

This week's top stories

In my opinion, this week's top story was the fact that the President commented on medical malpractice during his State of the Union Address (see here), but as usual, there is more. Go here for the list of this week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here and scroll down for my own selection of top news stories. Also, go here for today's Friday links installment at the Abnormal Use blog.

Could a superhero be liable for taking a day off?

It is a well known principle of tort law that, as a general proposition and subject to only a few exceptions, there is no duty to rescue. But should this principle apply in the case of a superhero like Superman or Batman who have, or at least it seems they have, imposed on themselves a duty to help those in need? This oddly interesting question is the subject of a recent entry in a blog dedicated to discuss legal issues surrounding the lives of superheroes and supervillains called Law and the Multiverse.

The President's misguided comments on medical malpractice

During yesterday's state of the union address President Obama stated that he is "willing to look at other ideas to bring down [health care] costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.” As usual, it is more than likely that there will be no follow through on this comment (it is not the first time), but it is very unfortunate that he keeps mentioning it. Comments like this will continue to give credibility to the already thoroughly discredited notion that taking away injured patients' legal rights will help reduce health care costs and will result in better and more efficient health services. There is simply no empirical support for this conclusion, and plenty of support for the opposite. For previous posts on this and more information and sources go here, here, here, here, here, here, here, here, here, here, here, here, here, here and here OR just click on the "medical malpractice" tab on the right side under the heading "search for posts by topic." According to a story in the Blog of the Legal Times, Obama’s remarks were welcomed by Rep. Lamar Smith (R-Texas), the chairman of the House Judiciary Committee, but criticized by the Center for Justice and Democracy which called Obama’s remarks “disgusting” and said the President has decided "to throw victims of medical negligence under the bus." See here.

New report shows sharp increase in number of injuries caused by dogs

As reported by The New York Times, a new Department of Health and Human Services report reveals that the number of people hospitalized for dog bites almost doubled over a 15-year-period, increasing to 9,500 in 2008 from 5,100 in 1993. The increase vastly exceeded population growth, and pet ownership increased only slightly during the same period, said the report’s author, Anne Elixhauser, a senior research scientist with the Agency for Healthcare Research and Quality. “It’s really kind of frightening, and unfortunately, we’re at a loss to explain it,” Dr. Elixhauser said. Thanks to the Boston Personal Injury Lawyer Blog for the link.

Safety design for power tools, part 2

Last August, I posted a link to a comment about a $1.5 million jury verdict against saw manufacturer Ryobi for failing to equip its table saws with some form of flesh detection technology. That post included a short video of a saw that claimed to offer such technology. Now here is a video of a TV segment in which the technology is put to the test.

Federal judge overseeing Toyota litigation says first trial won't be until 2013

The federal judge overseeing the Toyota litigation over sudden acceleration problems has indicated that the first trial in the federal multidistrict litigation (MDL) will likely not begin until early 2013, even though that may result in the first Toyota trial occurring in state court, outside of the MDL. There are about 200 Toyota lawsuits that have been consolidated for pretrial proceedings in the U.S. District Court for the Central District of California and all of them involve similar allegations. Go here for more on this story. Although there are a lot of claims, it seems that this is a very long time to have to wait for a case to go to trial, particularly since the trial will only involve 4 or 5 of the claims. I should go back to check the timing of the trials related to the Dupont Plaza Hotel fire MDL in the late 80s (at the time the largest MDL to date in the US, involving thousands of plaintiffs and several hundred defendants scattered all over the US and Puerto Rico). I worked with the Plaintiffs' Steering Committee back then and I don't remember it taking that long.

Glaxo sets aside $3.4 billion to cover costs over Avandia

The drug maker GlaxoSmithKline PLC has indicated that it will set aside $3.4 billion to cover costs associated with Avandia lawsuits and a federal investigation into their actions surrounding the disclosure of potential side effects of Avandia, which has been linked to an increased risk of heart attacks and heart failure. Go here for the full story.

Comment on the "learned intermediary doctrine"

I have argued that it may be time to revise the notion of the learned intermediary doctrine (see here); and I am not alone in this (see here). In contrast, the folks at the Drug & Device Law Blog defend the doctrine and make a strong argument (here) that courts should not only adopt it, but that there should be no exceptions to it.

This week's top stories

Go here for the list of this week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here and scroll down for my own selection of top news stories. Also, go here for today's Friday links installment at the Abnormal Use blog.

Federal District Court for Southern District of Florida finds manufacturer has no duty to provide bilingual warnings

The Abnormal Use Blog recently reported on a very interesting case out of the Southern District of Florida on the issue of whether there is a duty to provide warnings about products in languages other than English. The case is Farias v. Mr. Heater, Inc. (Westlaw cite: 2010 WL 4814660).

Here is a summary. The plaintiff purchased two heaters from a Home Depot in Miami to heat her home. Plaintiff spoke little English and could read almost no English. She could not understand any of the words on the heater's packaging or read the users' manuals although she understood words like "caution" and "danger." One night one (or both) of the heaters she had purchased started a fire in her living room. She sued the two manufacturers of the heaters and Home Depot arguing, among other things, negligent failure to warn. The court dismissed the claim, however, finding that the defendants had no duty to provide warnings in Spanish.

The Court distinguished the facts of the case from a previous case, Stanley Industries, Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992) in which the court imposed such a duty, because in Stanley, the product had been marketed specifically to a Spanish-speaking population. The Court also took into account the fact that the plaintiff had failed to investigate the proper use of the heaters, despite her understanding of the word "caution" in the instructions. The Court found that "it would be improper to find such clear warnings inadequate because Plaintiff here was not well-versed in English and did not investigate the danger to which she had been alerted in the use of the Heaters."

I have mixed feelings about this case, so let's talk about different issues one by one. First, it is clear that if a manufacturer markets a product specifically or directly to a target audience of non English speakers there should be a duty to warn in the language of the intended audience. There appears to be little debate about this, and the precedent case mentioned above so holds.

The more difficult question is whether there ought to be a duty to provide warnings in cases in which the product is not marketed in this way. As expressed by the Abnormal Use Blog, "if manufacturers are required in the future to provide bilingual instructions and warnings, what languages are included? Spanish might be the obvious first step, but where would the line be drawn? If warnings are posted in Spanish and French, for instance, but the injured party is Korean, will the manufacturer be found negligent in a failure to warn case? Courts and legislatures need to be wary of imposing overly burdensome requirements on manufacturers in this area."

I don't disagree with this, but I think that the issue goes back to the marketing of the product. If we are ready to say that we should recognize a duty if the product is marketed to a specific audience, is it that much of a leap to say we should recognize a duty if the product is marketed in a particular market. By this I mean, there are specific areas in this country that are known to be centers of foreign populations. And if there is a great example of this it is Miami!

Let's face it, Miami is a bilingual city. A portion of the city is known as "Little Havana." Everyone knows this. So is it really that burdensome to suggest that labeling should be different for that market?

On the one hand, I think courts can make a distinction based on the market and the market strategy. I would not have had a problem if the court had decided there is a duty to provide warnings in Spanish in Miami. But, on the other hand, I understand the difficulty of making the necessary distinctions among different markets because there is definitely a risk of a slippery slope. Once you say there is a duty because of the "market" itself, you have to figure out how to determine at what point a certain market requires warnings in different languages. Would it be based on population, size of the market, location, tradition, etc? Would we limit it to city limits or subdivide the city (and the duty) based on neighborhoods?  At some point, the notion of using "the market" as the way to determine the duty would simply not be practical.  (Think of New York, for example.  What would be the duty there?)

There is some literature on this subject out there, but I, unfortunately, have not had time to review it recently. (Off the top of my head, I know of one article by my friend Glenda Labaddie Jackson published in 11 Harvard Latino Law Review 85 (2008)). I am sure the issue will continue to arise as the US continues to become more multi-cultural.

 Lastly, I have to comment on a different aspect of the case. The Court does appear to make a big mistake in its discussion of the plaintiff's conduct. The Court is wrong in suggesting that the fact the plaintiff was negligent herself in not attempting to get a better understanding of the product is relevant to the issue. It may be relevant to the question of liability but not to the question of duty. These are two different issues. The issues related to the duty to warn or to the adequacy of the warning depends on the warning itself.

UPDATE: The Abnormal Use Blog has posted a follow-up to my comment here.

Tort Reform bill in Wisconsin may cap punitive damages

According to a recent report, the Wisconsin Senate judiciary committee recently voted 3-2 to cap punitive damages at $200,000 or twice the amount of compensatory damages, whichever is greater. Current state law does not lay out any caps on punitive damages. The committee voted to approve the bill as a whole, clearing the way for a vote before the full Senate. The bill is a centerpiece of what Republican Gov. Scott Walker has called his jobs creation agenda. Doesn't it sound strange to you to say that to create jobs it is a good idea to eliminate incentives for companies to act responsibly? For a comment on how tort reform has not resulted in more jobs in one state go here. Go here for more.

This week's top stories

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

Oil spill was due to "systemic failures in safety"... Is anyone really surprised by this finding?

Government investigators have determined that responsibility for the Gulf of Mexico oil spill rests squarely on the shoulders of BP, Halliburton and Transocean, in what they say is a sign of systemic failures in the safety culture of the oil drilling industry. Did we really need a study to figure this out? Read about it here.

Comment on medical malpractice reform

Joanne Doroshow, of the Center for Justice and Democracy, has published a short article on medical malpractice in which she laments the fact that the new U.S. House Judiciary Committee Chairman Lamar Smith (R-Texas) has announced once again that he'll be convening hearings soon to examine, among other things, "the role medical malpractice reform can play in reducing health care costs." As she suggests, this will continue to repeat all the already thoroughly discredited notion that taking away injured patients' legal rights will help reduce health care costs and will result in better and more efficient health services. Too bad there is no empirical support for the conclusion. For previous posts on this and more information and sources go here, here, here, here, here, here, here, here, here, here, here, here and here OR just click on the "medical malpractice" tab on the right side under the heading "search for posts by topic."

Lawsuit filed vs Johnson & Johnson

Just before the holiday break, an interesting lawsuit was filed charging Johnson & Johnson board members and high-ranking execs with malfeasance, incompetency and indifference to patients and shareholders. And the 111-page complaint reads like an indictment as it delves into off-label marketing of prescription drugs, kickback schemes and manufacturing failures that led to those infamous product recalls of tens of millions of over-the-counter meds and surgical devices. Go here for more on this story.

New TV show: Harry's Law

Back in June of last year I posted a preview of three new law related TV shows that were announced for the fall season. One of them (Outlaw) was cancelled after three or four episodes. Thankfully, I may add! It was absolutely terrible. Another one (The Defenders) became my favorite. I have blogged comments on several episodes. The third one (Harry's Law) did not make it into the fall TV season at all. I was wondering if, having seen the failure of Outlaw, the network had decided to can it even before it got started. But, no, it was only postponed. I just heard Harry's Law will premiere on January 17. Here is the program's official website. Here is a link to some video previews of the show.

What to expect in 2011

Here is a link to a short comment on the Drug and Device blog in which the authors predict what they think are going to be the most important developments in 2011. They include: Generic drug litigation will be more important. The era of pharmaceutical mega-mass torts may be coming to a close. There will be a rise in economic loss litigation. Without preemption as a deterrent, more plaintiffs will assert more theories that directly challenge FDA approvals. Eventually, things will get bad enough and the Supreme Court will resurrect preemption, but until that happens, there will be a dramatic increase in non-warning based theories of liability in the cases we litigate. Go here for the full article.

Trial schedule set for consolidated claims against manufacturers of birth control products

Thousands of lawsuits seeking compensation for a variety of injuries allegedly caused by birth control products Yaz and Yasmin are pending in various courts throughout the United States. The complaints involve claims filed by women who allege that they suffered pulmonary embolism, deep vein thrombosis, stroke, gallbladder injury or other health problem as a result of the popular birth control pills. In federal court, all the cases have been consolidated in a Multi-District Litigation procedure, which is centralized in the U.S. District Court for the Southern District of Illinois. In state court, cases have also been consolidated for pretrial proceedings in Pennsylvania and in New Jersey. The cases in Pennsylvania are now set to go to trial according to a newly set trial schedule which closely mirrors the bellwether trial schedule in the federal multidistrict litigation. The first trials expected to begin in September 2011. For more on this story go to AboutLawsuits.com.

First of its kind settlement for wrongful death associated with chewing tobacco

The Abnormal Use blog is reporting that according to The Associated Press and Reuters (here and here) a maker of smokeless tobacco products Skoal and Copenhagen, reached an agreement with a plaintiff in December that is believed to be the first-ever wrongful death settlement involving chewing tobacco. The Big Tobacco manufacturer paid $5 million the family of the North Carolina man, who died of mouth cancer at age 42, but was quick to point out that "[the company has] no intention of settling cases such as this in the future." According to the report, the plaintiffs' case was supported by by "incredibly damning documents" including previously undisclosed letters from the 1980s that the company sent to minors, thanking them for their business and sending them free samples. In once instance, he said, the company even sent a child a can opener to aid him in opening the chewing tobacco containers. For more on the story, including helpful links to more information, go to the Abnormal Use Blog here.

Arbitrator rules against former Toyota attorney who claimed Toyota had failed to disclose documents

As you know, Toyota has been in the news repeatedly because of claims of defects in its cars that cause sudden acceleration problems. A side story to that on-going litigation is the litigation against one of its former lawyers who accused the company of hiding important and relevant documents in product liability cases. Back in March I posted this short video (after a commercial) from CNN on the subject. In addition, you can go here for a video of a conversation with the lawyer in question and here for a six page long article on the subject. In September, an arbitrator ruled the former lawyer/whistleblower could use documents that otherwise would be protected by attorney-client privilege because he made a prima facie showing that a crime-fraud exception applies. See here. However, the lawyer has now been ordered to pay Toyota $2.5 million in compensation and $100,000 in punitive damages for publicly revealing the confidential information. Go here for Toyota's official press release. Go here for the story in the Wall Street Journal law blog, which has more helpful links.

Top ten lists

The Drug and Device law blog has posted its lists of "Best" and "Worst" decisions of the year. Of course, since this blog is defendants oriented, "best" and "worst" are relative terms. For them, a decision that finds for the plaintiff is likely to fall in the "worst" category. But the lists are interesting and informative and their comments on the cases are worth reading even if you don't agree with their position. The list of "best" decisions is available here. The list of worst decisions is avaiable here.

Toyota settles sudden acceleration suit

Toyota Motor Corp. has reportedly paid $10 million to settle a wrongful death lawsuit brought by the family of a California state trooper and three relatives who died when a Lexus vehicle they were in started accelerating out-of-control. Go here for the full story.

Defense counsel complain about insurance companies' tactics

Here is a link to an interesting story in the product liability defendants oriented blog Drug and Device law blog on how an insurance company's tactics can threaten to turn discovery into a road map for the underlying tort claimants. It concludes that "it is unfortunate – and even more unfortunate that it is hardly unexpected – that some insurance companies engage in tactics that can prejudice their insureds to avoid covering claims."

More lawsuits against Toyota over sudden acceleration claims

Seven more insurance companies have followed Allstate in filing a lawsuit against Toyota Motor Corp. to recover damages they paid out for auto accidents allegedly caused by sudden, unintended acceleration. Go here for the full story.