Wednesday, November 30, 2011

FDA appeals ruling on new cigarette labels

Back in June I reported that the FDA enacted a regulation to mandate new labels for cigarette packs with various graphic images and messages such as “Smoking can kill you.”  Some time later, after five of the nation's largest cigarette manufacturers filed suit against the FDA, the federal judge presiding over the case granted a preliminary injunction that prevents the FDA from enforcing the new rule. Now comes news that the FDA has filed notice that it intends to appeal the judge's order.  For more on this story, including links to some of the relevant documents go to the Blog of the Legal Times and the First Amendment Center.

Monday, November 28, 2011

Should we recognize a cause of action for loss of a pet?

Courts have traditionally held that animals are "chattels" and that there is no cause of action for emotional distress, loss of companionship and the like when they are injured by others. Usually, if a cause of action is recognized, the injuries are valued based on the "market value" of the animal.

I don't think anyone would question that owners feel affection for their pets and that injuries to pets can cause their owners sadness, grief and emotional distress. Thus, I really don't see why owners should not have to right to try to claim these types of injuries.

The reason I am writing about this today is that the TortsProf blog recently reported that the Texas Court of Appeals has held "that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet."  The case is called Medlen v. Strickland and it is available here.

For more on this story go to Courthouse News Service and the Animal Law Blog.

Comment on why Merck did not update the warnings on Propecia in the US even though it did so in other countries

Why didn’t Merck update its U.S. labels back in, say, 2008, when it updated the Swedish warning?  Maxwell Kennerly has a good comment on it here in which he discusses this issue.  He also argues that when, eventually, the company did change the warning, it adopted language that is "designed to make doctors and consumers ignore the warning."

New case on the Alien Tort Statute could result in the end of statute as we know it

As I reported a few weeks ago, the Supreme Court has agreed to review two cases on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  For more details, go here and scroll down to see multiple posts on the subject.

Now, a petition for certiorari has been filed with the court making a series of arguments clearly contrary to the majority trend among courts regarding other aspects of the application of the ATS.  Were the court to decide the case in favor of the petitioners, the result would essentially mean the end of the ATS as we know it.

The new case is Sarei v. Rio Tinto, PLC, a case that has been going up and down from the district court to the court of appeals (of the 9th circuit) for years.  In the most recent decision in the case, the Ninth Circuit voted (en banc) 7-4 to permit an ATS suit to proceed against a mining company accused of aiding and abetting the government of Papua New Guinea in violating the human rights of residents of the island of Bougainville.

The petition for certiorari, available here, lists the following issues:

1. Whether U.S. courts should recognize a federal common law claim under the ATS arising from conduct occurring entirely within the jurisdiction of a foreign sovereign, especially where the claim addresses the foreign sovereign’s own conduct on its own soil toward its own citizens.

2. Whether U.S. courts should recognize a federal common law claim under the ATS based on aiding-and-abetting liability, even absent concrete factual allegations establishing that the purpose of the defendant’s conduct was to advance the principal actor’s violations of international law.

3. Whether a plaintiff asserting a federal common law claim under the ATS addressed to conduct occurring entirely within the jurisdiction of a foreign sovereign must seek to exhaust available remedies in the courts of that sovereign before filing suit in the United States, as international and domestic law require.

4. Whether federal common law claims asserted under the ATS for violations of international human rights law norms may be brought against corporate entities.

None of these issues is new.  They have all been addressed by a number of courts in other cases, the vast majority of which have rejected the arguments of the petitoners.

Very recently, for example, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011), Judge Posner concluded that the argument that plaintiffs must exhaust legal remedies in the nation in which the alleged violation of customary international law occurred "border[s] on the ridiculous" and that there is no basis for the argument that the statute has no extraterritorial application except to violations of customary international law that are committed on the high seas.  As Judge Posner points out, "Courts have been applying the statute extraterritorially (and not just to violations at sea) since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially; and Sosa [the only case on the ATS decided by the Supreme Court] was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained. Deny extraterritorial application, and the statute would be superfluous . . ."

As to the second issue - on whether there can be a claim for aiding and abetting under the ATS - there is no doubt the established law recognizes the cause of action.  At one point in the past there was a debate as to whether the definition of aiding and abetting should be based on notions of national or international standards, but the clear trend now is to apply the international standard.  If the issue raised by the petitioners in Rio Tinto is merely whether the plaintiffs' allegation in the particular case actually meet the requirements of the standard, that's one thing, but if the petitioners are arguing that there should be no cause of action for aiding and abetting altogether, they are clearly swimming against the current.

Finally, the fourth issue is the one currently before the court in Kiobel.

Is it likely that the Supreme Court would decide a case in favor of petitioners making arguments that have been rejected by the majority of courts that have considered them?  It is not easy to say.  One thing I can say is that Justices Scalia and Thomas agreed in Sosa that the ATS should only be used to support claims based on the same type of conduct that had been recognized as supporting a claim when the statute was enacted in 1789, which did not include violations of human rights.  Unless they have changed their minds since then (2004), more than likely that's two votes against the plaintiffs' right there.

Sunday, November 27, 2011

Missouri Supreme Court considers challenge to state's cap on punitive damages

According to The Kansas City Star (here) about three weeks ago, the Missouri Supreme Court heard oral arguments in a case that challenges the punitive damages cap in Missouri.  The case is called Estate of Max E. Overbey and Glenna J. Overbey v. Franklin.  The plaintiffs argued that the state’s punitive damages cap is unconstitutional because violates the constitutional separation of powers, the right to trial by jury, the right to equal protection of the law and due process, among other things. Go here for more information.

Friday, November 18, 2011

Video quiz

Here is a video that raises a few interesting questions. Take a look first and keep reading below.

Obviously, we don't have all the necessary information, but we can see the guard hits the button to close the gate and then walks away before it is completely closed. Assuming the guard was too far to notice what was happening to the woman, is this negligence by the guard?

Then let's talk about the woman. She seems to be aware the gate is closing and decides to chance it anyway. Is this negligence on her part? Is it assumption of the risk? How do you distinguish between conduct that is negligent (which may allow the plaintiff to recover some value of her injury) and conduct that is assumption of the risk (which will eliminate her right to recover entirely)?

Thanks to Prof. Jonathan Turley for the video.

Thursday, November 17, 2011

Video on the Penn State sex scandal -- UPDATED (to add a podcast)

The Wall Street Journal law blog has a video discussing the legal issues related to the Penn State sex scandal here.

UPDATE:  The Legal Talk Network has a podcast discussing the case issues here.

For previous comments on the issue, go here.

Tuesday, November 15, 2011

Archdiocese of Chicago agrees to settle sexual abuse lawsuit for $3.2 million

Archdiocese of Chicago, Cardinal George, and the Catholic Bishop of Chicago have agreed to settle a claim based on the sexual abuse of a minor boy by former Rev. Daniel McCormack in the amount of $3.2 million dollars.  The victim had alleged that the Archdiocese and the Cardinal failed to remove their priest, Rev. Daniel McCormack, from access to children although they had knowledge that he had sexually abused minors. McCormack was arrested in January 2006, charged with multiple counts of criminal sexual assault and subsequently pleaded guilty to those charges in 2007.  For more on this story go here.

Monday, November 14, 2011

Supreme Court to hear case on possible immunity

The Supreme Court has announced its schedule for oral arguments during the month of January and it includes a case on the law of lawyering and torts. The case is called Filarsky v. Delia is about there private lawyers should have the benefit of immunity for the consequences of their conduct while working temporarily for the government. I have mentioned the case before here. For more information and links to all the relevant documents, including the lower court's opinion and the parties' briefs go here.

Comments on the Penn State's sex scandal - UPDATED

Originally posted Nov 12, 2011; the update appears below:

Because I was so busy getting ready for my trip to Switzerland (see my previous post), I missed most of the build up regarding the Penn State sexual abuse scandal.  I did try to catch up a little bit before I left, but I am not sure I got all the details.  So I will let others do the blogging on this one and provide you with some links instead.

The New York Times claims Penn State and Joe Paterno could face civil liability.

Professor Jonathan Turley has a detailed explanation of the issues here.

The PopTort reports on an article in the Philadelphia Inquirer here about Penn State's potential liability.

Eric Turkewitz has a comment here.

The only thing I would like to add to the discussion is the possible relationship between mandatory reporting statutes and negligence per se.  The Prosser Torts Casebook which I use in my class has a very interesting case right on point called Perry v. SN.  In that case, the parents of abused children sued the employees of a day care center arguing that they had a duty to disclose suspected abuse to the authorities under a specific statute and that the violation of the statute constituted negligence per se.  In other words, the plaintiffs argued that the text of the statute was an expression of the duty in tort law and the violation was evidence of breach.  The court declined to apply the negligence per se analysis, however, because it did not want to create a duty to help when the Common Law has already rejected such a duty.

UPDATE (11/13/11):

In case you don't get the comments to this blog, let me highlight the comment (below) and article by Max Kennerly of the Litigation and Trial blog (available here) in which he points out that there are cases in Pennsylvania that take the position rejected by the court in Perry v SN.  Thank very much for the comment!  The article itself if well worth reading.  It covers this and several other issues very well.  I have not read the cases, but will add a comment on the issue in general at the end of this update.

The TortsProf blog reports that Donald Gilliland of the (Harrisburg) Patriot-News wrote a column about the school's potential legal troubles.

The question of whether a court should allow the plaintiff to use a statute as an expression of a duty and its violation as evidence of breach is interesting given that there are so many statutes out there can be argued to express a duty.  If a violation of such a statute causes an injury, should courts recognize a remedy in tort?  Courts have been inconsistent on this question.  I can see the logic in saying that given that the common law has closed the door to imposing liability to for failure to help, a plaintiff should not be allowed the right to go through a "back door" by using negligence per se.  On the other hand, I don't see any problem in saying that a legislature has, by adopting a statute, decided to express what the legislature would want to be considered a duty to act under certain circumstances.  Of course, judges who prefer the first view, would say that if the legislature had really wanted to create a new duty in tort, it would have recognized a cause of action for the violation of the statute in the statute itself. Also, the court in Perry expressed a concern in not exposing a defendant to civil liability which would be disproportionate to the level of liability expressed in the statute itself. I will take a look at the cases in Pennsylvania to see how they deal with the issue.

Having said all that, assuming the evidence is there to show the defendants had enough knowledge and that the circumstances where such that they could be liable under the reporting statute, I would vote to hold them liable.

UPDATE 11/14/11: 

WSJ law blog has more on the possibility of civil claims here.  It cites an ABC News available here.

Saturday, November 12, 2011

Why is tort reform on the agenda...?

The PopTort has an interesting story (here) about the fact that the small business lobby group called the National Federation of Independent Businesses spend a great deal of time and resources on "tort reform" when its members don't think it is a priority.  In a recent survey by the group listing the 75 issues that are most important to NFIB’s members, tort reform came in at #65.  Read the full story here.

Greetings from Europe

I am coming to you "live" today from Lucerne, Switzerland!  I came here to teach a class on International Torts at the University of Lucerne's Law School, with which my law school has an exchange program.  If you are interested in what I will be covering in that course, go here.  The book I put together for the course is about 150 pages long right now, but it will be shorter next summer when the Supreme Court decides some of the cases I have in the book.  For more about that go here, here and here.

Monday, November 7, 2011

Judge grants injunction stopping the implementation of the new FDA rules regarding cigarette warning labels

Back in June I reported that the FDA enacted a new regulation to mandate new graphic labels for cigarette pack with various images accompanied by messages such as “Smoking can kill you.”   Some time later five of the nation's largest cigarette manufacturers filed suit against the FDA challenging the new regulations.  For more on the background story and links to more information go here.

Today, the federal judge presiding over the case sided with the tobacco companies and granted a preliminary injunction that prevents the FDA from enforcing the new rule. The judge said the companies were substantially likely to prevail in their arguments that the new rule unconstitutionally compels speech in violation of the First Amendment.  You can read the order here.

Here are some links to more coverage on this latest development:

Public Citizen

First Amendment Center

Drug and Device Blog

Jonathan Turley

Happy Birthday to the Blog!

This blog is three years old today!  I started it on November 7, 2008.  Since then I have posted 1145 posts! A few days later, I started my Professional Responsibility blog (which is available here).  I thank you for your support and hope you will continue to follow the blog in the years to come.

Thursday, November 3, 2011

Maryland court clarifies that locality rule does not apply anymore

According to the so-called "locality rule," the conduct of a doctor should be evaluated by comparing it to the standard of care specific to the community in which the medical care was given. Although this doctrine has been abandoned, courts often still use confusing language that might suggest it still applies in some jurisdictions.  Apparently, this is the case in Maryland where a statute still mentions that a medical malpractice expert must give testimony that the care given by the defendant doctor "is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities."

A few weeks ago, however, the notion that the locality rule still applies in Maryland was dispelled by a Maryland District Court judge in a case called Willison v Pandey (available here).

Thanks to the Maryland Medical Malpractice Attorney Blog and the Maryland Injury Lawyer Blog for the links.

Negligence claim for injuries caused by roaming animal requires proof of negligence

In our class last night, we discussed strict liability claims for injuries caused by animals.  Interestingly, here is a report from Day on Torts on a case involving a roaming horse. In this case, the plaintiff was injured when her vehicle collided with a horse on a dark roadway. The defendant landowner proved that he had fenced in the horses and had no explanation for how or why the horses had escaped. Neither did the plaintiff and, since plaintiff must prove that the horse owner was negligent in allowing the horse to be on the road, the court held the defendant was entitled to summary judgment. The plaintiff simply failed to prove one of the elements of the cause of action.

There is nothing strange about this ruling. The question I have is why did the plaintiff not sue under a theory of strict liability?  I assume the answer to my question is somewhere in the law of Mississippi.  For example, I wonder if whether by statute or common law, horses are considered domesticated animals or pets in Mississippi.

The case is called Ladnier v Hester and it is available here.

Comments on Wisconsin's proposed preemption bill

A few days ago, I reported (here) that a state Senate committee has proposed a bill that would protect drug and device makers from liability in state lawsuits, so long as their products were approved by the FDA, unless the manufacturer committed fraud against the FDA.

In response to the bill, the Center for Justice and Democracy has published a report, available here, explaining why the bill is a bad idea.

According to the CJ&D press release, "[t]his legislation would be devastating to Wisconsin residents. It would prevent them from seeking compensation for real injuries, no matter how severe, caused by dangerous drugs and devices. And it would leave drug and device companies completely off the hook for marketing products that harm or even kill, once the under-resourced FDA has approved them.” . . . “Despite . . . the terrible impact of Michigan’s drug immunity law on victims and taxpayers in that state, Wisconsin may be headed in the same direction, stripping away residents’ access to the civil justice system and granting negligent companies extensive immunity.  This is terrible legislation and it should be stopped.”

For more comments on the proposed bill go herehere and here.