Friday, April 29, 2011

Possible attack on the Feres Doctrine before the US Supreme Court?

Alan Crede of the Boston Personal Injury Blog is reporting (here) that the US Supreme Court may hear yet another case attacking the Feres Doctrine in a new case in which an Air Force officer was killed as a result of medical malpractice in a military hospital. For more information on this case go here for a report by the Associated Press. For my previous posts on the Feres doctrine, including some news videos, go here, here, here, here and here. For all my previous posts on torts issues related to members of the military go here.

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." Go here for a list of top stories by the Boston Personal Injury blog. Finally, go here and scroll down for my own selection of top news stories.

Assumption of the risk at the ballpark?

I have commented before on the fact that defendants usually can use the defense of assumption of the risk to avoid liability for injuries suffered by spectators in baseball games. The typical cases invlove injuries caused by foul balls and bats flying into the stands (see here), but also, more recently, by flying hot dogs (see here, here and here). I have also commented on cases against aluminum bat manufacturers for injuries caused by batted balls based on claims that those bats generate much higher ball speeds than wood bats (see here and here). I am writing about this now because the Wall Street Journal law blog just published a comment on a case in New York that, as is typical in these types of cases, has dismissed a complaint against the New York Mets. As the article notes, "In an “ordinary” situation, there’s nothing all that surprising about the dismissal of such a case." But the article goes on to point out that not all cases about injuries caused by bats are alike precisely because not all bats are alike. The difference is that "[o]nce upon a time, nearly all major leaguers used bats made from Northern Ash. But in recent years, they’ve started using maple bats, which are much more prone to breaking (and sometimes shattering) than are ash bats." Is it time to start reconsidering the use of the assumption of the risk defense? Should cases be decided on a case by case basis now?

Thursday, April 28, 2011

New England Journal of Medicine on Tort Reform

Here is a link to an article in the New England Journal of Medicine on medical malpractice tort reform. It concludes, among other things, that the evidence reveals that, with few exceptions, traditional tort reforms have not proved to provide many improvements in as it relates to liability costs. On the other hand, the study also found that caps on noneconomic damages, which limit the amounts that juries may award for pain and suffering, constitute the main exception to the rule. The article claims that other studies have nearly uniformly found that caps are an effective means of reducing the size of indemnity payments. This second finding seems to me to be obvious. I don't think we needed a study for that! If there is a cap, payments will be lower and some cases will not be brought, so, obviously, the size of payments will be lower. The question we should be asking is not whether tort reform reduces how much defendants have to pay. The questions we should be asking is whether it is fair, whether it results in better care, whether it is better for patients and consumers, whether it reduces the overall costs of healthcare and so on. For different views on these and other questions, go to my sections on medical malpractice or tort reform and scroll down to find plenty of articles on the issue.

Tuesday, April 26, 2011

Pit bulls kill innocent bystander

Prof. Jonathan Turley is reporting today on a tragic event in New Mexico, where a 48 year old woman, was mauled to death by four pit bulls. The woman was just walking down the street when the dogs escaped their yard. Go here to read his comment in which he discusses the possible civil liability of the dogs owners.

Friday, April 22, 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.

Thursday, April 21, 2011

More on the recent legal actions regarding the BP oil spill

A couple of daya ago, I posted links to stories on claims against BP for damages caused by the Gulf oil spill. Today,, the New York Times and the Wall Street Journal law blog are reporting that BP itself is now suing the maker of the device that failed to stop last year's Gulf oil spill and the owner of the rig that exploded, alleging that negligence by both helped cause the disaster. For more on the story go here, here and here.

Tuesday, April 19, 2011

Oil spill, one year later - Updated

It's been a year since the Deepwater Horizon oil rig explosion and oil spill, so here are a couple of links on interesting news: The TortsProf blog is reporting that Terrebonne Parrish, located on the Gulf Coast in Louisiana, is filing suit against BP and other companies for damages related to the Deepwater Horizon spill. Go here for more details by The Tri-Parish Times. The New York Times has the story (here) of Gulf Coast residents trying to navigate the claims process following the BP oil spill. A number of families say the involvement of different law firms and attorneys has made the process even more complicated and confusing. (Thanks to the Blog of the Legal Times for the link.) Meanwhile, the PopTort blog has links to several articles on the current situation in the Gulf here. UPDATE (4/20/11): Here is a story from the Wall Street Journal law blog.

Monday, April 18, 2011

Medical errors may be more prevalent than previously thought

According to new research published in the medical journal Health Affairs, medical mistakes may be 10 times more common than previously believed, which could mean that one out of every three hospital patients have been the victim of an error. AboutLawsuits has the full story here.

Comment on the recent jury verdict in favor of Toyota

The Abnormal Use Blog has posted a short comment on the recently reported jury verdict in favor of Toyota in the first case to go to trial related to the company's recalls from a couple of years ago (Sitafalwalla v. Toyota Motor Sales, U.SA., Inc., No. 08-CV-3001 (E.D.N.Y. 2011)). According to the jury forewoman, after weighing all of the evidence, the jury "came to the conclusion that there was not a defect with the automobile." Go here for more on the story.

Comment on the recent GAO criticism of the FDA

A couple of days ago I reported (here) that Federal analysts testified in Cogress that the FDA is failing to protect the public from defective medical devices by allowing them on the market with little testing through an industry-exploited fast-track approval program. The Drug and Device Blog has posted a short reply to the report here.

Saturday, April 16, 2011

Drug safety bill introduced in the House

In response to yet another wave of criticism of the FDA, several House Democrats have introduced a bill designed to increase funding and authority for the FDA to monitor drug production. Pharmalot has the full story here.

Friday, April 15, 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.

Comment on tort reform

The Center for Justice and Democracy has published a short comment on tort reform in its blog The Pop Tort. It starts like this: "Let’s drop the pretense. Anyone working in state legislative politics these days knows what goes on: industries with money or clout line up each year to get their own special laws ensuring they are never held responsible for anything they do wrong. The people who are always hurt by this are everyday Americans who do not even know these law have passed until they are hurt and then learn there’s nothing they can do." Go here for the full comment. It comments on the North Carolina bill I mentioned in my previous post today and on a bill in Florida.

NC moves closer to approving bill that grants immunity to pharmaceutical companies if their products were approved by the FDA

About two weeks ago I reported (here) that the legislature in North Carolina was considering a bill that, subject to a few exceptions, would shield drug manufacturers from lawsuits by consumers if the product has been approved by a government agency. Today, Pharmalot is reporting that the North Carolina House Select Committee on Tort Reform voted to send the legislation to the full House for a vote, which may be held next week. Go here for the full story. You can read the draft of the bill here.

On the FDA's failure to protect the public

In February, I wrote about a new report published in the Archives of Internal Medicine that concludes that 70% of all medical devices recalled since 2005 had been approved by the FDA through a controversial “fast-track” process, which only requires the manufacturer to provide minimal data on safety and effectiveness. Go here for that story and links. In a related story, it is being reported now that Federal analysts testified this week that the FDA is failing to protect the public from defective medical devices by allowing them on the market with little testing through an industry-exploited fast-track approval program. Go here for the full story. Go here for a recent post on this subject. Crticism of the FDA as an inefficient agancy are nothing new, of course. If you go to the right side panel of this blog and click on the FDA section you can scroll down for many older posts discussing past criticism on the process to approve drugs, the lack of proper supervision of the drug industry, the FDA's failure to take drugs off the market and so on. Here are a couple of recent posts on this subject: here and here.

Monday, April 11, 2011

Pennsylvania legislature to vote on bill that eliminates joint and several liability

Last month I reported on a new bill under review in Pennsylvania to eliminate joint and several liability as the system for apportioning liability in the state. I posted my critique of the bill here. The Torts Prof blog is now reporting (here) that the bill is up for a vote today. I will update the story tomorrow with the result. You can read a copy of the bill itself by going here.

Sunday, April 10, 2011

Opposition to med mal reform bill before Congress

I have commented on the med mal reform bill before Congress here, here, here, here and here. A few days ago, Brian Wolfman, visiting professor of law at Georgetown University and co-director of the Institute for Public Representation, agreed with me in his testimony in a congressional hearing on the bill. He argued that the bill may appear to be pro-consumer, but that in reality it is a "very bad deal.” He argued that the bill would undermine public safety and would prevent lawsuits from being filed by patients who have been injured as a result of medical negligence.

Saturday, April 9, 2011

Med Mal in New York is approved

I have posted a number of links to stories on the proposed med mal tort reform proposal in New York recently. See here, here, here, and here. Now here is the latest: the state legislature has approved the state budget which, according to some, ensures that unsafe hospitals will no longer fully pay for their own negligence if something should go wrong during childbirth. Under the new system, victims of medical malpractice will be forced to go to a State Fund to pay for the child’s care. The money for this Fund will come from a hospital surcharge based on its obstetric revenue. This means, essentially, that obstetric patients will be charged a tax to subsidize the negligence of the medical providers - meaning that patients will be paying for the negligence of the doctors. Critics also claim that the fund is "grossly underfunded" For a critical look at the new system go to the blog of the Center for Justice and Democracy here.

John Thompson, the plaintiff in Connick v Thompson, writes about his case in the New York Times

Here is a link to a short article by John Thompson, the plaintiff in Connick v. Thompson, published today in the New York Times. The article starts like this "I spent 18 years in prison for robbery and murder, 14 of them on death row. I’ve been free since 2003, exonerated after evidence covered up by prosecutors surfaced just weeks before my execution date. Those prosecutors were never punished." Towards the end, Thompson adds "I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued." These are all valid questions, although it should be clarified that the prosecutor who withheld the evidence died and the one to whom he confessed but did not disclose was disciplined. Harry Connick, Sr., the original defendant, in charge of the prosecutors' office, retired I believe. To my knowledge, though, no one else has been disciplined.

Thursday, April 7, 2011

Washington Post editorial on Connick v Thompson

The Washington Post has published a short editorial criticizing Connick v. Thompson that starts like this: "A court decision may be legally correct but ultimately fall far short of justice. That is the case with the decision rendered last week by the Supreme Court in Connick v. Thompson." To continue reading go here.

Monday, April 4, 2011

Message to manufacturers: don't sell cheap dangerous products!

The Abnormal Use blog has a good short comment (here) with excellent advice to all manufacturers out there: "Do not sell devices designed to combust in the middle ear. It is not worth the $2 you will generate in revenue. Sell something else." The comment is about a recent product liability claim related to a product used for "ear candling" - an alternative medicine practice that claims to improve general health by lighting one end of a hollow candle and placing the other end in the ear canal. Sounds crazy but it is true. Follow the links in the comment for more information. The Abnormal Use's advice is right on point. The case, you see, presents this interesting problem: assume you have a product designed to - and the sole purpose of which is to - place hot wax right over your ear. Hot wax can burn your skin. That's common knowledge. The plaintiff uses the product exactly as it was meant to be used and suffers a burn as a result. Was the product fit for its intended use? I guess so, but its intended use was more than likely going to cause more harm than good. So how should we react to the product? Just as Abnormal Use suggests, just please don't bother manufacturing anymore! There are products out there that, although they may provide some benefit to society, are so dangerous that we'd rather see them taken off the market. This seems to be one of them. Use your candles for romantic dinners, keep them out of your ears!

Illinois Supreme Court reaffirms doctrine that denies right to punitive damages in death cases

Under Illinois law, any right to common law punitive damages is lost if the injured party dies. This means that plaintiffs in those cases where the claim is wrongful death do not have a right to recover for punitive damages regardless of how reprehensible the defendant's conduct may have been.

This is an unusual position that should be abandoned. Taken to the extreme in a "worst case scenario", it means a defendant may be better off killing his victim than allowing him to survive with serious injuries.

Unfortunately, the Supreme Court of the state just issued a new decision affirming the doctrine. In a case called Vincent v Alden-Park Strathmoor, Inc. (available here), the Court was asked to decide whether a claim for punitive damages based on allegations of willful and wanton violation of the Nursing Home Care Act survives the death of the nursing home resident on whose behalf the cause of action was brought. The Court held that although common law punitive damages are available for willful and wanton violations of the Nursing Home Care Act, and although causes of action based on the Nursing Home Care Act survive the death of the nursing home resident alleged to have been injured as a result of violation of the Act, it does not necessarily follow that common law punitive damages may be recovered in a Nursing Home Care Act case where the nursing home resident is deceased "because of another basic principle of Illinois law: as a general rule, the right to seek punitive damages for personal injuries does not survive the death of the injured party."

I don't understand why Illinois does not recognize punitive damages in death cases while allowing them in other cases. I know there are states that have eliminated or capped punitive damages as part of tort reform efforts, but I don't know of any other jurisdiction that recognizes punitives in some cases but not in death cases. I do confess, however, I have not researched the question. If you know of another state that uses the same approach please post a comment here or send me a message.

Will GE be liable for defective design of the nuclear plants in Japan?

Here is a link to an Op-Ed piece published in the Los Angeles Times on this question.

Saturday, April 2, 2011

Another comment on Connick v Thompson

Lisa McElroy of the SCOTUS blog writes: "Connick v. Thompson was the classic case in which the Justices were sharply divided on ideological lines: Justice Thomas wrote an opinion for the majority that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito; meanwhile, Justice Ginsburg felt so strongly about her dissent (which was joined by Justices Breyer, Sotomayor, and Kagan) that she read it from the bench, an action that a Justice will rarely take unless she is well and truly peeved by the majority’s decision. Indeed, the facts of Connick are pretty upsetting and powerful: Thompson did not testify in his own defense at his murder trial because he was afraid that the prosecution would bring up an earlier conviction for armed robbery to try to make him look less believable. He was convicted of the murder, sentenced to death, and served seventeen years in prison, where he came very close to being executed. The catch? Prosecutors never told Thompson’s lawyers that they had blood evidence that would have exonerated him from guilt in the armed robbery case. Had he not been convicted of armed robbery, he could have testified in his own defense in the murder case and possibly been found not guilty; in fact, after the blood evidence came to light, he was acquitted of the murder in a new trial. So it is no surprise that Thompson and the dissenting Justices were upset with the majority’s holding in Connick. Although the prosecutors should have given Thompson the blood evidence, the Court held, when misconduct by prosecutors leads to a wrongful conviction, the district attorney who supervises the prosecutors can only be held liable for his employee’s actions if he was aware of a pattern of similar bad behavior in the office but still did not start a training program for prosecutors. But the dissenters disagreed emphatically, pointing to the fact that several prosecutors acted together to withhold the blood evidence from Thompson’s lawyers. Connick should have been able to see that his office’s failure to train prosecutors could have led to this kind of failure to follow the law, the dissenters contended, and Thompson should be allowed to recover damages for the harm he suffered – including many years on death row and several near executions."

Comments on oral argument in case re preemption on claims for damages caused by generic drugs

As I mentioned a few days ago, the Supreme Court heard oral arguments on PLIVA v. Mensing, Actavis v. Mensing, and Actavis v. Demahy 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.

For the transcript of the oral argument go here. To listen to the oral argument, go here.

Steven Schwinn has a good summary here at the SCOTUS blog.

Obviously, the oral argument has generated a lot of attention. Here are some of the links:

The FDA Law Blog has a short comment. Bloomberg’s Greg Stohr notes that “[t]he case may turn on which of of two precedents the court concludes should apply — the 2009 ruling in a case involving Wyeth or a 2001 decision that barred suits claiming FDA product approval was obtained by fraud.” The New York Times, CNN, and the Associated Press have additional coverage of the argument.

The Drug and Device blog has a long comment on the case, which they start by admitting that they are "conflicted" on the issue.

Kali Borkoski of the SCOTUS blog reports that At the Constitutional Accountability Center’s Text and History blog, Elizabeth Wydra suggests that – just as it did in its 2009 decision in Wyeth v. Levine, which dealt with a similar question for brand-name drugs – the Court seems likely to divide five-four. The Times-Picayune and the ABA Journal also have coverage of the case, with both reporting that the Court seemed “evenly divided”; both also focus on a question by Justice Sonia Sotomayor, who asked PLIVA’s counsel whether he thought that ”Congress really intended to create a market in which consumers can only sue brand-name products? Because if that’s the case, why would anyone ever take a generic?” Finally, the Minneapolis Star Tribune (thanks to How Appealing for the link) has a story on the case that focuses on Gladys Mensing, the respondent in the case.

US Supreme Court decides Connick v Thompson on the possible liability of a DA's office for failing to train its staff

Last Tuesday the US Supreme Court announced its decision in the highly awaited case Connick v. Thompson. For my previous posts on the case, including links to the oral argument go here, here and here. In a five-four opinion by Justice Thomas that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito, the Court held that a local government decision not to train employees about their duties under Brady v. Maryland may rise to an actionable policy, but the failure to train must reflect a deliberate indifference to the rights of persons. A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference. In this case, the defendant conceded that the prosecutor in a case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before the truth came to light. In a dissent joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg stated that "The evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record in the §1983 action reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical. From the top down, the evidence showed, members of the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Officebears responsibility under §1983." As usual, the opinion has generated much attention in the media. Here are some of the links I have seen, most of which are courtesy of the SCOTUS blog: The legal ethics forum has some comments here. Bob Barnes of the Washington Post reports that Connick is “the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench.” Barnes adds that the decision “marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence.” The New York Times, USA Today, Constitutional Law Prof Blog, the Los Angeles Times, CNN, JURIST, Crime & Consequences, Courthouse News Service, and ABA Journal have additional coverage.

North Carolina considers immunity for damages caused by prescription drugs

Lawmakers in North Carolina have proposed a bill that, subject to a few exceptions, would shield drug manufacturers from lawsuits by consumers if the product has been approved by a government agency. The exceptions contained in the proposed legislation refer to those who (1) continue to sell a product after a government agency has ordered its withdrawal, (2) alter the product in a way that would have avoided an alleged injury, (3) intentionally withheld or misrepresented info that led to approval by a government agency, or (4) bribed a government official in order to obtain product approval.

You can see a draft of the bill here. It is part of a larger tort reform package that seeks to cap noneconomic damages, such as pain and suffering, at $250,000 from each defendant in a tort lawsuit and to make part of any punitive damage award be assigned to the government.

For more information go to Pharmalot and

Friday, April 1, 2011

New report on punitive damages

The Bureau of Justice Statistics (of the Department of Justice) has just released its most recent report on punitive damages which contains statistics for the year 2005. Not surprisingly (at least not surprising to those who actually pay attention to the facts), contrary to what tort reformers usually argue the numbers do not paint a picture of a system gone crazy. Two interesting main findings are that (1) Punitive damages were awarded in 700 (5%) of the 14,359 trials where the plaintiff prevailed and (2) the median punitive damage award was $64,000. You can access the report here. For more information go here.