Tuesday, March 29, 2011

Police forget about teens left in van locked for fourteen hours

Prof. Jonathan Turley is reporting today that Police in Fort Lee, New Jersey are accused of locking a group of teens in a police van without heat (temperature was in the 20s) for 14 hours. The teens were rounded up at high school house party over the weekend and apparently forgotten until a passerby heard them screaming. The kids had to go to the bathroom in the crowded van. How many different types of claims do you think the teens could support based on these facts? For more go here and here.

Monday, March 28, 2011

Supreme Court to hear case on preemption of claims vs generic drug manufacturers

This Wednesday the Supreme Court will hear oral arguments on PLIVA v. Mensing (09-993), Actavis v. Mensing (09-1039), and Actavis v. Demahy (09-1501) on the right to sue in state court when a generic drug maker fails to change its label to warn consumers of new harmful side-effects. For some background information on this case, go to my previous post on it here. For all the relevant documents, lower court opinions and briefs go here. The defendants claim federal law preempts state lawsuits because their effect could be to force the defendants to offer labeling that is different from what appears on the label of the brand-name drug. For more on the case go to Pharmalot and for a preview of the oral argument go here. Check back here by the end of the week for links to the transcript and the recording of the oral argument.

Friday, March 25, 2011

This week's top stories

Go here for the TortsProf Blog's list of this week's top stories and here for the Abnormal Use blog's "Friday links." In addition, go here and scroll down for my own selection of top news stories. Here is a short trivia bit from this weeks news. As some of you know, actress Elizabeth Taylor passed away this week. She had a very indirect connection with tort law. In 1975, she had a brief but celebrated close personal relationship with a guy called Henry Wynberg. The relationship generated many news articles and Wynberg sued the National Enquirer for one of them claiming defamation. The Enquirer replied by claiming that Wynberg’s reputation was so bad to begin with that nothing said in the article could have made it any worse. In Wynberg v. National Enquirer, Inc., 564 F.Supp. 924 (C.D.Cal. 1982), the court sided with The Enquirer developing what has come to be known as the “libel proof” defense. Although this may not have been the first case in which the argument was discussed, I believe it is the first one in which a court explains it in detail and provides the analysis to follow to determine if a plaintiff should be considered libel proof.

Monday, March 21, 2011

Supreme Court grants cert in yet another prosecutorial misconduct case

The Supreme Court just announced it has granted review in a case called Rehberg v. Paulk which asks "whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages." The lower court's opinion is available here. As usual, the Supreme Court blog has all the information and links here, including the Petition for certiorari, and all the briefs and replies. Make sure you keep that link handy, since they keep updating it with documents as they are filed. I have not had a chance to read the opinion or the petition for cert so I do not know the details but I have been speculating for a while that after all the prosecutorial misconduct scandals in 2009, the Court has been looking for opportunities to express itself on the subject. It first granted review in the Pottawatomie case which eventually settled, and then Connick v Thompson, for which it heard oral arguments in the fall. Rehberg, is therefore, the third case related to the issue of prosecutorial misconduct in two terms. For previous posts on Pottawatomie go here, here and here. For previous posts on Connick v Thompson, including links to the oral arguments, go here, here, here, here and here.

Sunday, March 20, 2011

Old Michigan statute prevents state from suing manufacturer

Remember those TV Commercials with Jeff Daniels inviting companies to come to Michigan? For quite some time, one of the more inviting aspects of that invitation has been the fact that Michigan has a unique statute that grants immunity to drugmakers if their products were approved by the FDA (unless that approval was fraudulently obtained). This has meant that, regardless of injuries or of how dangerous the product has turned out to be, state residents are very unlikely to succeed against a pharmaceutical company. Now that the state itself feels ripped off by one of these companies, it is realizing the consequences of its own law. Michigan sued Merck in an effort to recover millions of dollars spent on the Vioxx painkiller, which was pulled from the market in 2004 over heart attack risks but the Michigan appeals court has ruled that the lawsuit is barred by the state statute that grants immunity to the pharmaceutical companies. “We hold that where, as here, the drug in question was approved by the FDA, the state’s suit to recover Medicaid money premised on fraud by the drug company in its representations regarding the safety and efficacy of the drug is barred by (the statute), which exempts drug companies from product liability suits regarding FDA-approved drugs” Go here for a copy of the decision of the court.

Comment on med mal reform in New York

Here is a link to an Op-ed piece on medical malpractice in New York published today in the Journal News, a newspaper that serves the suburban counties just north of New York City.

Friday, March 18, 2011

This week's top stories

Go here for the TortsProf Blog's list of this week's top stories and here for the Abnormal Use blog's "Friday links." In addition, go here and scroll down for my own selection of top news stories.

Tuesday, March 15, 2011

Pennsylvania bill seeks to eliminate joint and several liability

Bad news for victims of injuries in Pennsylvania. A story in the Pittsburgh Post Gazette states that a new bill seeks to eliminate joint and several liability as the system for apportioning liability in the state. This is not news in and of itself since joint and several liability is a common target of tort reformers and the arguments for the attack are, of course, the same old/usual ones. For those who don’t remember, joint and several liability is a doctrine that allows a plaintiff to choose which defendant will be responsible for paying the value of the injuries. In many jurisdictions that follow this doctrine, it applies regardless of the level of negligence of any individual defendant. This is not the case in every jurisdiction, but let’s leave that aside for the moment - more on that later. The main argument upon which the attack on joint and several liability is based is that it is unfair to impose liability for the full amount of the injury on a defendant who "does not cause all of the injury." A recent article argued this by saying that a defendant found to be "1 percent liable in a lawsuit could potentially be held responsible for 100 percent of the financial verdict." The problem is that this argument is based on a fallacy. The origin of the argument is usually that courts can ask jurors to assign a percentage of negligence on all tortfeasors relative to each other. The problem is that when doing this the jury is not asked to find a level of "liability." Thus stating that a defendant found to be "1 per cent liable" is simply misunderstanding what a jury does. A jury may find that one defendant was more negligent than another, but that does not mean the jury is finding any one of them should be more liable than any other. Opponents of joint and several liability argue, however, that liability should be apportined according to the level of negligence assigned by the jury. Say, for example, that the jury finds that one defendant was 75% negligent while the other one was 25%. In a jurisdiction that follows joint and several liability, the plaintiff can recover 100% of the value of the injury from either defendant and the defendant who was found to be less negligent typically argues this is unfair. Here is the problem with the argument. The percentage numbers are an expression of the level of negligence each defendant was found to be relative each other. They do not refer to, or express, how much of the injury each defendant caused. By definition if we could determine what part of the injury each defendant caused, the liability of that defendant would be limited to that because it would be contrary to the law to impose liability for something the defendant did not cause. Joint and several liability, again, by definition, applies in cases where the injury is indivisible - when it can’t be determined which part of the injury was caused by any one defendant individually. The injury (all of it) was caused by the combination of the negligence of each defendant. Thus, each defendant caused all of it. The fact that one defendant was less negligent than the other does not eliminate the fact that we just can’t tell what part of the injury was caused by either one. That aside, because I am a reasonable man, I am willing to compromise (unlike most tort reformers). So, let’s consider some other options. Simply eliminating joint and several liability is not the only option. Let’s say for the sake of argument that it is unfair for a defendant who is found to be negligent at a very low level to have to pay the full amount of the injury. The first thing to note is that this is only unfair if the other tortfeasor is not available to pay (either because it is unavailable, was never identified or has no money to pay). If that tortfeasor is available/has money, then after all is said and done everyone pays what they owe according to the percentages of negligence. So what can be done to make it less unfair on the "low level negligent" defendant? One alternative is to adopt a threshold before which joint and several liability does not apply. That threshold would be, by force, arbitrary, but at least there would be a threshold. Illinois, for example, sets the threshold at 25%. A defendant whose level of negligence is below that is only liable for an amount equivalent to their percent of negligence. If the level of negligence is above that, then the defendant is joint and severally liable and can, in fact, end up paying for the full amount. If the concern is to protect defendants who were "not very negligent" when compared to the others involved in the claim, this is not a bad compromise. The important question becomes where to place the threshold. This alternative is suggested in the Restament of Torts. Another, alternative that is definitely more fair that simply eliminating joint and several liability and that still protects the interests of defendants from having to pay the full amount when other tortfeasors can’t contribute is to adopt a system that reapportions the amount that those unavailable defendants should have paid among all available tortfeasors. The Restatement of torts considers this the most appealing alternative because it apportions the risk of insolvency to all the remaining parties in proportion to their level of negligence, thus providing an equitable mechanism for dealing with the problem. Not surprisingly, at least according to the newspaper story, none of this is being discussed. That’s because the goal of the tort reformer is not to find a fair system but a system that provides the most protection possible to tortfeasors. The battle lines are drawn and the only alternatives mentioned are the ends of the spectrum. If those are the only alternatives, the question to ask is whether it is more fair to err on the side of the injured person or on the side of those who actually caused the injury. If those are the only alternatives, the answer is easy: err on the side of the victim. It may be better, though, to consider the alternatives available as a compromise.

Monday, March 14, 2011

Consumer Product Safety Commission launches new database

The Consumer Product Safety Commission has finally launched its new product safety website where consumers will be able search a database of products that have been identified as having potential safety issues and file new reports about problems they have experienced. It can be accessed at SaferProducts.gov. For more on the story, go to AboutLawsuits.com. As you may recall from my reports from a few days ago, however, the future of the database is still in jeopardy. See here and here.

Sunday, March 13, 2011

Tort reform in Texas

I just posted a link to an article to tort reform in New York, so following on this theme... here is a link to an article on tort reform efforts in Texas. The article emphasizes a proposal to make the person who brings the lawsuit pay for the expenses and attorney fees of the other party if they ultimately lose their lawsuit. The article concludes: "That might sound fair to some, but the law is one-sided. The only time the loser pays is when the loser is the plaintiff. If the loser is the defendant, which is the case in a majority of lawsuits filed, the defendant is not required to pay expenses and not required to pay the winner’s attorney fees. Not anyone’s idea of fair. But fairness is not the point."

More comments on med mal reform in New York

I have been following the debate about medical malpractice reform in New York here, here, here and here. Th process appears to be well underway to approving some of the measures and here is another link to a post by popular New York blogger (and personal injury lawyer) Eric Turkewitz in which he provides summaries and links to several articles critical of the proposal from the New York Times, The Daily News, The PopTort blog and The Center for Justice and Democracy.

Friday, March 11, 2011

Team mascot (and team) are not liable for hitting fan with hot dog

Just about a year ago I reported on a lawsuit that argued that a hot dog thrown by the Kansas City Royal's mascot struck the plaintiff and detached his retina. The defendants argued the defense of assumption of the risk. (Go here for my original post and here and here for comments on the claim). As you probably know, it is often stated that spectators at a baseball game assume the risk of getting hit by foul balls. (Technically speaking, this is not necessarily correct since the issue is those cases is not really a question of assumption of the risk, but that is another story).

If we assume this is the starting point of the discusion, though, the issue in the case, at least in part, was whether the fans also assume the risk of getting hit by other flying objects not related (or necessary) to the game itself, like between innings entertainment.

 Now comes news that a jury reached a verdict on the case. After deliberating for about an hour, the jury found in favor of the team. For more on the case go here and here.

 Check out this video of the team mascot launching hot dogs (courtesy of Prof. Jonathan Turley). The woman taking the video yells at the mascot for a hot dog when the mascot is throwing them by hand, but listen carefully how, after watching the laucher send a hot dog off in the air, she sounds a little nervous about the possibility of the mascot sending one her way. She says "no, no, no. "We just want you to "toss" us a hot dog," and then seems to be telling her friend that "we are too close"...


Violence in professional ice hockey

By now you have probably heard the news (also here) that authorities are considering bringing criminal charges against a professional hockey player for a hit on an opposing player. Although, not a torts issue (yet!), the event reminds me of Hackbart v. The Cincinnati Bengals, which we discuss in class to cover the issue of consent to intentional conduct. In that case, a football player sued an opponent who hit him after the play was over. Here is more on the torts angle to the story.

This week's top stories

Go here for the TortsProf Blog's list of this week's top stories and here for today's installment at the Abnormal Use blog. In addition, go here and scroll down for my own selection of top news stories.

The King of Torts is in trouble

Here is a report from about 2 weeks ago in The Wall Street Journal Law Blog on the saga of attorney Stanley Chesley, a very successful plaintiffs' lawyer who became rich and famous for collecting billions of dollars for his clients in various lawsuits throughout his career - many of them huge mass dissaster/multi-district litigation type cases. I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case. I remember him as a nice guy. He was more involved in the negotiating part of the case, rather than the day to day preparation and discovery work - what I was working on mostly. I like to say that he was one of those guys who is into "practicing facts" rather than "practicing law", but that is another story. In any case, here is what bothers me the most about this: here is a guy who has done a lot of good work over a long, successful career. He has helped many people. He also made lots and lots of money. At this point in his life, he does not need any more money, or fame or anything. Now his career and his reputation are in jeopardy. Say it ain't so, Stan! As reported in the WSJ, Chesley’s attorneys said they planned to appeal to the Kentucky Supreme Court, which will make a final determination on the commissioner’s recommendation. The attorneys cited a federal probe of the case, which didn’t result in charges against Chesley. “His findings are directly contrary to the findings of federal authorities, who fully investigated this case and never considered Mr. Chesley a target of their investigation,” they said in a statement. For more on the story go to the Abnormal Use blog.

Should experts in legal malpractice cases be limited to practincing lawyers? -- UPDATED

The Legal Malpractice law review blog is reporting on a recent case from Georgia that holds that expert witnesses in a legal malpractice case must be practicing lawyers. The court apparently ruled the expert in question was not qualified because he did not (1) represent entities or individuals in court; (2) draft or file pleadings in judicial proceedings; or (3) prepare the type of documents or perform the legal tasks at issue in the litigation. Here is the link to the story. The case is called Wilson v. McNeely. The ruling in the case, however, is not as broad as the cited report makes it to be. The decision is based on a Georgia statute that states that the testimony of an expert “shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time [.]” In the case, the court found that the expert in question was not practicing law at the time of the alleged malpractice. When I read the report by the legal malpractice law review blog, I thought the case had held that there was a strict rule banning non-practicing lawyers from serving as experts. For this reason, I argued that this was a bad decision. I argued that I did not think that a strict rule would be a good idea because it would preclude the use of testimony from knowledgeable people who could englighten the court and jury even if they did not practice. For that reason I argued the better approach would be to rule on the matter on a case by case basis. Evidently, the text of the statute does not preclude academics from testifying, so my initial objection about the case was unnecessary. I do think the text of the statute is peculiar in other ways, though. Why limit the expert to someone who was practicing at the time of the conduct? Couldn't someone who was admitted later have an expert opinion on the matter? Also, the statute requires that the practicing lawyer be admitted in the state where the conduct happens, but seems to say an academic can be based anywhere. Why the distinction? Again, I think the effect of these kinds of details should go to credibility rather than to admissibility, or, at least, should be dealt with on a case by case basis.

Wednesday, March 9, 2011

Comment on the recent Supreme Court preemption cases

Long time readers of this blog will remember that the Abnormal Use product liability blog publishes what it calls "Abnormal Interviews" with law professors, practitioners, and other commentators in the field. (I was interviewed in November of last year - here.) The most recent interview features New York University law professor Catherine Sharkey, who provides short but very insightful comments about the U.S. Supreme Court recent preemption jurisprudence. Go here for the full interview.

More on med mal reform in New York

I have been following the debate about medical malpractice reform in New York, which, oddly, came out of a commission created by the state's governor to reform Medicaid or Medicare. Questioning how it is that stripping patients of their legal rights to recovery for medical malpractice has anything to do with Medicaid cuts and arguing that it shouldn’t have been part of the process one commentator called the process "self-dealing [by] lobbyists and hospital executives." See here, here and here. Now, here is the latest development. Yesterday, the Center for Justice & Democracy filed an ethics complaint with New York’s Commission on Public Integrity, asking it to investigate several key individuals on Governor Cuomo’s Medicaid Redesign Team. The gist of the complaint is that these individuals were supposed to be working to achieve Medicaid reform but instead advanced medical malpractice reform in order to benefit their specific employers. The complaint generated a quick response by the chair of the Medical Redesign Team and a reply by the Center. Go here to take a look at that exchange.

Friday, March 4, 2011

Open letter to the New York legislature on medical malpractice reform

I recently blogged about efforts in New York to institute reforms in medical malpractice cases, including a cap on damages, some of which were being conducted in secret by what one commentator called "self-dealing lobbyists and hospital executives." See here and here. Unfortunately for New Yorkers, the process appears to be well underway to approving some of the measures. Here is a link to a "An Open Letter to the Legislature" by popular New York blogger (and personal injury lawyer) Eric Turkewitz.

How safe are the pharmaceutical companies' plants?

The FDA makes only an average of 0.9 visits to each US pharmaceutial manufacturing facility each year. A report published in Pharmalot this week reviewed almost 10,000 of those inspections between 2000 and September 30, 2010. It shows that some of the biggest drugmakers do not have a good track record when it comes time for FDA inspectors to visit their plants. Overall, the FDA found violations at 54 percent of plants inspected last year, up 20 percent from a decade low in 2007 and 80 drugmakers failed more than half of their inspections. Abbott Labs failed 59 percent of 111 inspections; Pfizer flunked 57 percent of 202 inspections; Merck bombed out on 52 percent of 134 visits and Johnson & Johnson failed 48 percent of 161 inspections. For more go to Pharmalot.

Yasmin, Yaz Lawsuit Filings Continue to Mount

The number of lawsuits over Yaz and Yasmin continue to increase nationwide, with thousands of complaints filed on behalf of women who suffered severe or life-threatening health problems from the popular birth control pills. For more on this story go to AboutLawsuits.com.

More on Snyder v Phelps

The SCOTUS blog offers the following update: In an article for the Washington Post, Robert Barnes cites Justice Alito’s dissent in Snyder as another example of his willingness to “strike out on his own,” especially with regard to First Amendment issues. And Barnes also suggests that Justice Alito is likely to vote to uphold the constitutionality of a California law banning the sale of violent video games to minors in another First Amendment case pending this Term, Schwarzenegger v. EMA. At TIME, Sean Gregory has a lengthy discussion of the opinion in Snyder, including reactions from the petitioner, Albert Snyder. At the Los Angeles Times, David Savage also discusses the decision in Snyder and notes that it “does not appear to affect the laws in 43 states that seek to keep the protesters away from military funerals.” At Balkinization, Jack Balkin analyzes the issues of informational privacy implicated by the Court’s in Snyder; describing the Chief Justice’s opinion as “an important enhancement of the distinction between matters of public and private concern that may lead to important new doctrinal developments in the area of personal privacy in the future.” And the Room for Debate blog of The New York Times features six opinion pieces on the decision, focusing on the question whether “emotions have a place in the First Amendment.” Amanda linked to more news about Snyder here.

This week's top stories

Go here for the TortsProf Blog's list of this week's top stories and here for today's installment at the Boston Personal Injury blog. In addition, go here and scroll down for my own selection of top news stories.

Thursday, March 3, 2011

Update on comments about Snyder v Phelps

As expected, the comments on Snyder v Phelps keep coming in. Go here for my previous post and here are a few new links: In the New York Times "Room for Debate" Six scholars discuss "when free speech feels wrong." The Wall Street Journal law blog has an article here. Finally, SCotUS blog offers this summary of the latest: The Court’s opinion in Snyder, a case the Washington Post’s Robert Barnes predicts is “likely to define the Term,” has produced a deluge of coverage and commentary. By a vote of eight to one, the Court held that the First Amendment shields from tort liability individuals who stage a peaceful protest on a matter of public concern near the funeral of a military service member. Chief Justice Roberts wrote the majority opinion, Justice Breyer filed a concurring opinion, and Justice Alito, the lone dissenter, filed a dissenting opinion. The opinions are available here. SCOTUSblog’s Tom Goldstein calls the decision “a resounding affirmation of the right to engage peacefully in speech, even terribly hurtful speech, on matters of public import,” and the editorial boards of many major newspapers and most commentators seem to support the outcome. But the sentiment was certainly not shared by all. Mark Sherman of the Associated Press highlights Justice Alito’s dissent — “his second solo dissent in a free-speech case in as many years” — as elevating “privacy over free speech.” Katie Couric of CBS News interviews Albert Snyder, who believes that yesterday was “a sad day for our military men and women, and their families,” and “a sad day for all Americans.” Devin Dwyer of ABC News reports that leaders of the Westboro Baptist Church have “vowed to ‘quadruple’ the number of protests at military funerals around the country” in light of the Court’s ruling, but Joan Biskupic and Kevin Johnson of USA Today note that “veterans groups and other opponents [are] vowing to step up efforts to block church followers from demonstrating at high-profile funerals and interfering with grieving military families.” The New York Times, the Los Angeles Times, the Washington Post, the Christian Science Monitor, the Baltimore Sun, the Boston Herald, the San Francisco Chronicle, the Kansas City Star, Fox News, the WSJ Law Blog, NPR, Reuters, The BLT, CNN, the Associated Press, Bloomberg, Reuters, TIME, The Atlantic, JURIST, ACSBlog, Concurring Opinions, Cato-at-liberty.org, Constitutional Law Prof Blog, Courthouse News Service, and FIRE, are just some of the media outlets and blogs that have additional coverage of, and commentary on, the decision.

Wednesday, March 2, 2011

Supreme Court decides Snyder v Phelps: Right to protest at funerals is protected by the First Amendment

The Supreme Court announced today its decision in Snyder v Phelps. This is the case that asked whether the First Amendment allows the family of an American soldier, killed in Iraq, to recover damages for intrusion and intentional infliction of emotional distress from the Westboro Baptist Church. Members of the Church routinely demonstrate at funerals and other events to promote their message that God is punishing the United States for its acceptance of homosexuality using their now well known slogan "Thank God for Dead Soldiers." Snyder sued for intentional infliction of emotional distress and ultimately was awarded $5 million in damages. But a federal appeals court overturned the judgment on First Amendment grounds, saying the Constitution protected Westboro’s speech. Today, the Supreme Court affirmed this ruling. As distateful as it sounds, this is the correct decision and it is consistent with First Amendment jurisprudence and the values it stands for. The Court's opinion is available here. For background information, including links to articles and videos on the case go here, here and here. To listen to the oral arguments before the Supreme Court go here. As for today's ruling, the Blog of the Legal Times reports (here) that Chief Justice John Roberts Jr, who wrote the majority opinion, announced it from the bench in an almost sorrowful tone, as if regretting that the Court was in the position of protecting such offensive speech. But he said that "as a nation we have chosen ... to protect even hurtful speech on public issues to ensure that we do not stifle public debate." Justice Samuel Alito was the court’s lone dissenter. He concluded that “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” As expected there are a lot of comments out there already and I am sure there will be a lot more in the next few days. I will keep updating the list as I see them. For the moment, here are a few links: Analyzing Alito's dissent, Jonathan Turley points out: "It is precisely the type of extreme analysis that led some of us to object to Alito’s confirmation. . . . Alito does not show how we will distinguish between types of speech that he finds brutal and acceptable. It is precisely the type of slippery slope of analysis that we sought to avoid. Alito offers little compelling analysis in erasing the bright line protecting free speech. Indeed, his conclusion appears driven more by anger than analysis. His approach comes close to a content-based approach that would deny free speech protection to those who are most in need of it. We do not need the first amendment to protect popular speech. It is there to protect those who speak against the majority — those viewed as brutal and obnoxious by people like Alito." SCotUS blog's First Reactions to Snyder Another comment on the SCtoUS blog For more updates go here CNN (in print) CNN video: