Sunday, December 30, 2012

More on the debate regarding the caffeine levels in "energy drinks"

Not too long ago I posted a series of posts on recent reports related to the debate on whether the so called "energy drinks" contained dangerous levels of caffeine.  See here, here and here.  Now comes news that the Journal of the American Medical Association has published an article on the subject, available here, detailing how the ingredients in energy drinks may be harmful to some individuals.  AboutLawsuits has more on the story here.

Sunday, December 23, 2012

New study on medical errors but no study on gun violence

I am taking a short break from grading final exams to post a few links to a couple of interesting items in the news from last week.

First, there was a new report on a new study quantifying how often surgeons make mistakes that should never happen -- such as leaving an object in a patient, performing the wrong procedure, or performing the procedure on the wrong body part. The Washington Post coverage is here (with charts), and the study press release is here.  AboutLawsuits has a comment here.  The PopTort has a comment here.  Thanks to Public Citizen for the links.

Second, there was the terrible news of the school shooting in Connecticut.  As you know the event has regenerated the debate on gun control and on whether there can be liability for the injuries suffered.  There is a lot of literature on this.  But Torts Today has published a piece on a part of the debate that I did not know about.  The fact that Congress has banned gun injury prevention research.  As explained in the article, originally published in the Journal of the American Medical Association,
Injury prevention research can have real and lasting effects. Over the last 20 years, the number of Americans dying in motor vehicle crashes has decreased by 31%. Deaths from fires and drowning have been reduced even more, by 38% and 52%, respectively. This progress was achieved without banning automobiles, swimming pools, or matches. Instead, it came from translating research findings into effective interventions.
Given the chance, could researchers achieve similar progress with firearm violence?  It will not be possible to find out unless Congress rescinds its moratorium on firearm injury prevention research.
Read the full article here.

Monday, December 17, 2012

New study challenges the premise upon which preemption of claims for inadequate warnings against generic drug manuracturers is based

As long time readers of this blog know, in PLIVA v. Mensing, the Supreme Court held that state-law damages claims based on inadequate warnings by a generic drug manufacturer were preempted by federal law because federal law prohibited the generic manufacturers are required to use the same labels as the branded labels. This ruling makes it extremely difficult for a plaintiff to support a state-law damages claim based on a generic drug manufacturer's failure to warn. A new study by an Indiana University medical school professor and two co-authors has found that nearly 78 percent of generic medicines have safety warnings that differ from labeling on equivalent brand-name drugs. The study is called "Consistency in the safety labeling of bioequivalent drugs." (Here is an abstract).  With a new case on the subject before the Supreme Court, this study is sure to become very important in the debate.  Pharmalot has more on the story here.  Public Citizen has more here.

Thursday, December 6, 2012

NY subway death generates debate on old (no) duty to help

As every law student knows, the longstanding rule in the US has always been that, subject to very few exceptions, there is no duty to help someone in need of help. In other words, there can be no liability for failing to help someone even if their life depends on it. The rule has been severely criticized over the years but it is still generally accepted and applied.

As I am sure you have heard by now, a few days ago a man pushed another man onto the tracks of the NY City subway and no one came to his aid. He was killed by a train while bystanders watched and at least one photographer took pictures. The incident has generated a new discussion as to whether the people watching should have helped. Much of the attention has been expressed as outrage at the photographer who decided to snap a few shots rather than to do something for the victim who was in danger and struggling for his life.

Yet, it is unlikely that the incident will result in any changes in the law. Courts have always been reluctant to impose a duty to help for a number of reasons. First, it is difficult to draw a line between a moral duty and a legal one. Second, it is generally thought that it might actually be better to discourage people from helping unless they know what they are doing (ie, have training to intervene) for fear that in trying to help, people might make things worse. Good Samaritan laws are usually enacted to encourage those with training to intervene in emergency situations to do so when they are not obligated to do so. Finally, Courts are reluctant to impose a blanket duty in all cases because it might force those who would have the duty to help to place themselves in dander. No one wants to force people to help if doing so will put them in danger.

For a good discussion of the subject go to Prof. Jonathan Turley's blog here and the NY Personal Injury Law Blog here.

 

US Supreme Court agrees to hear case on whether claims against manufacturer of generic drugs are preempted

Last May I wrote about Bartlett v. v. Mutual Pharmaceutical Co, a decision of the Court of Appeals for the First Circuit in which it recognized a cause of action against the manufacturer of a generic drug.  Go here for my original post and links to comments on the case.  You can read the full opinion here.

At the time I wrote that "what makes the case controversial is the question of whether the decision is contrary to the holding in PLIVA v Mensing, the US Supreme Court decision holding that inadequate warnings cases against generic drug manufacturers are preempted because federal law requires the warnings for generic drugs to be identical to those of branded drugs."

Following that line of reasoning, the defendants appealed and last week the Supreme Court announced it would review the case.  Go here for links to all the relevant documents in the case.

In my original post,you will find a number of links to comments on the case after it was decided by the Court of Appeals.

For a more recent comment, go to Litigation and Trial where Max Kennerly discusses the case in detail and offers his opinion on the issue of preemption in general. 

AboutLawsuits and Public Citizen also have more information.

Court will not grant rehearing on cigarette warnings case

I have been following the litigation related to the constitutionality of the government regulations on cigarette warnings.  See here for the most recent post and here (and scroll down for all the rest).  Here is the latest:  AP reported yesterday that the court of appeals denied the federal government's request to reconsider the decision that declared the regulation unconstitutional.  As you recall, the regulation requires tobacco companies to put large graphic health warnings on cigarette packages to show that smoking can disfigure and even kill people.  It is fair to assume the case is working its way to the Supreme Court.  Go here for the AP story and here for short report (with links) at The Jurist.

Harvard International Human Rights Clinic argues in favor of recognizing causes of action against corporations under Alien Tort Statute

It has been a while since I last posted something on the case pending before the Supreme Court on whether corporations can be sued under the Alien Tort Statute.  So, here is a link to a short article in which the Harvard Law School's International Human Rights Clinic argues the ATS does apply to corporations.  To catch up with my previous posts on the subject go here and scroll down...

Thanks to How Appealing for the link.

Saturday, December 1, 2012

New report on statistical information regarding tort litigation

The Center for Justice and Democracy has published Tort Litigation and Juries: By the Numbers (available here). The briefing summarizes recent statistical analysis of tort filings, trials, and awards.

 Thanks to the TortsProf blog for the link.

Sixth Circuit Severely Limits FTCA Claims With Broad Interpretation of Discretionary Function Exception

As I am sure you know, the Federal Torts Claims Act preserves immunity for the Federal Government in cases in which the conduct can be considered a "discretionary function."  But, the case law has made it clear that not all conduct that is discretionary deserves immunity.  Only that conduct which is discretionary in order to pursue a public policy based on economic, political or social concerns is considered the type of discretionary function that should be protected from possible liability - all in the name of protecting separation of powers.  This distinction is key because otherwise the government could claim immunity for any and all conduct that was not mandated by regulations of some sort.

Day on Torts is reporting, however, on a recent case which appears to eliminate the distinction thus recognizing immunity for a ministerial decision which, although discretionary, should not be considered to be the type of discretionary decision that should provide immunity for the state.  The case is called Kohl v US and it is available here.

Monday, November 26, 2012

Another comment on the ruling in the 9/11 litigation

The Jurist has a short post on the recent ruling granting a motion for summary judgment in the In re September 11 Litigation case here.  In my previous comment (here) I pointed out the fact that the recent ruling seems to contradict the ruling on a similar motion filed back in 2003.  The Jurist points out the new ruling also "deviated significantly" from a previous ruling by the judge back in September of this year.

Did the Founders' Constitution Permit Federal Tort Reform?

Randy Barnett has this post today at "The Volokh Conspiracy," linking to two contrasting views on the subject that you can access here and here.

Thanks to How Appealing for the links.

Federal judge grants motion for summary judgment in favor of United Airlines in September 11 litigation

Five days ago, the federal judge who has been overseeing the torts claims based on the terrorist attacks on September 11, 2001, granted a motion for summary judgment in favor of United Airlines holding that the injury was not a foreseeable consequence of the risk created by United's negligence. In other words, the plaintiffs could not support the element of proximate cause. (And, by the way the Judge cited Cardozo's opinion in Palsgraf v Long Island RR in support of his conclusion). The New York Times has the story here. The case is called In re September 11 Litigation and the opinion is now available on Westlaw at 2012 WL 587014.

I find the result surprising because this is the opposite conclusion the same judge reached when deciding the first motions to dismiss in the case back in 2003. See, In re September 11 Litigation, 280 F.Supp.2d 279 (S.D.N.Y. 2003). In that case, the airlines, the airport security companies, the airport operators, the airplane manufacturer and the operators and owners of the World Trade Center argued in their motions to dismiss that the plaintiffs could not support their arguments of duty and proximate cause because "the defendants could not reasonably have anticipated that terrorists would hijack several jumbo jet airplanes and crash them, killing passengers, crew, thousands on the ground, and themselves."

In deciding to deny the motions to dismiss back then, the judge concluded that "[a]t this early stage of the case and in the absence of a factual record, I find that plaintiffs have pleaded sufficient facts to allege legal proximate cause. . . . I . . . decline at this stage to find that the acts of the terrorists qualify as “extraordinary” intervening cause . . . The defendants may well be able to show at a later stage in this litigation that the conduct of the terrorists [was unforeseeable]. . . . Discovery will either supply evidence to substantiate or eviscerate the parties’ divergent claims about foreseeability. . . . At this point, however, both plaintiffs and defendants should be allowed to proceed to discovery on these issues of causation."

Apparently, discovery did help at least one of the defendants after all. At first I found the two decisions difficult to reconcile because the new one did not make clear to me that it was based on any new facts found in discovery. The decision, which is really short, discusses the same issue it addressed in 2003 - even suggesting it refers to whether the plaintiff can establish a prima facie case-, approaches the question with the same analysis, but reaches the opposite conclusion. Citing Palsgraf, the judge simply concluded that "[i]t was not within United's range of apprehension that terrorists would slip through the PWM security screening checkpoint, fly to Logan, proceed through another air carrier's security screening and board that air carrier's flight, hijack the flight and crash it into 1 World Trade Center, let alone that 1 World Trade Center would therefore collapse and cause Tower 7 to collapse."

Given this conclusion, now it seems to me, that the difference between the two decisions relates to the fact that this particular defendant seemed to be arguing more intervening events happened between its conduct and the end result than the defendants in the older opinion. In other words, the defendants in the older opinion argued that the terrorists' conduct was an intervening event and the judge found that that alone was not enough to defeat the claims. Here, it appears United was arguing a number of additional intervening events made a difference.  And what is even more interesting is that reasoning the plaintiff can't satisfy proximate cause because of the number of intervening events that also contributed to the end result is the basis for the analysis suggested by Judge Andrews - not by Cardozo - in Palsgraf

The judge, however, does not make this distinction clear and his new opinion does not discuss the old one at all.


UPDATE 11/26/12: The Jurist has a short post on the recent ruling granting a motion for summary judgment in the In re September 11 Litigation case here. Interestingly, The Jurist points out the new ruling "deviated significantly" from a previous ruling by the judge back in September of this year.

Sunday, November 25, 2012

Excellent comments on discovery practice and litigation management

Over at the Litigation and Trial blog, Max Kennerly has published two excellent comments on issues related to discovery and litigation management.  In the first one (here), he concludes that "when courts forbid plaintiffs’ lawyers from sharing relevant discovery evidence amongst themselves, they inadvertently enable the defendants to engage in discovery fraud by cherry-picking which evidence they produce in each case."  In the second article (here), he reviews a new article by the federal judge (and the special masters he appointed) who oversaw the 9/11 Responders litigation which reveals another critical component of a successful and fair resolution of high-stakes litigation: judges need to make sure the cases move forward.  Professional Responsibility:  A Contemporary Approach also has a comment on the article here.

Thanksgiving torts

Here is a link to Prof. Jonathan Turley's annual compilation of Thanksgiving themed torts. And here are two links (here and here)to some videos on how not to prepare a turkey....   Enjoy!

Thursday, November 15, 2012

Can too much caffeine cause death (part 3)? FDA discloses report on yet another "energy drink" mentioned in multiple deaths reports

Following up on the two stories I recently posted on the FDA's reports on the possible risks associated with so called "energy drinks" which contain high levels of caffeine, the New York Times is reporting today that the FDA has released records on fatality and injury filings that mentioned the possible involvement of three top-selling products. In my previous post I mentioned the report on "5-hour energy" (see here).  The NYT article focuses on the report on a product called "Rockstar Energy."  You can read the full article here.   In addition to the reports on these two products, last October, the F.D.A. confirmed that it had received five fatality reports that cited Monster Energy.

UPDATE (11-19-12): About Lawsuits has more on the story here.      

Wednesday, November 14, 2012

Can too much caffeine cause death (part 2)? FDA reveals "5 Hour Energy" drink mentioned in 13 deaths reports

Yesterday I posted a comment on a recent case filed against the manufacturer of an "energy drink" that alleges the high level of caffeine in the drink contributed to cause someone's death.  Go here for that story. 

Today, the New York Times has published a story (here) discussing the fact that the FDA have received reports of thirteen deaths over the last four years that cited the possible involvement of 5-Hour Energy, a highly caffeinated energy drink.

One might think that thirteen incidents in four years may not sound like much.  But, as the NYT story states, that has to be looked at in the context of the number of fatality reports filed with the F.D.A. that relate to all products.  In 2010, for example, the F.D.A. received a total of 17 fatality reports that mentioned a dietary supplement or a weight loss product, two broad categories that cover more than 50,000 products.

So, as I said in my post yesterday, can too much caffeine cause death? Perhaps manufacturers of "energy drinks" should be concerned.

UPDATE (11/15/12):  The blog Injured has more information here.

UPDATE (11/18/12):  About Lawsuits has picked up the story here.

Tuesday, November 13, 2012

On the dangers of texting and ______...

We all know (or should) about the dangers of texting and driving.  But, quite frankly, at this point we should be talking about the dangers of texting, period.  The other day, I saw a woman literally walk into a lamp post because she was not paying attention while texting and walking.  And now, to quote the folks at Lowering the Bar, from the world of terrible ideas comes the ski goggles that let you see texts and emails on the goggles while you are skiing.  'Cause nothing says "fun" like skiing down a mountain at high speeds around other skiers - let alone trees - while reading your mail...  Lowering the Bar has more (it is worth it).

The goggles let you read emails on the slopes, as well as listen to music and make phone calls.  For more information on the product go here.



Okay maybe not quite -- the second one is from Lowering the Bar -- but you get the idea.

Now, I know what you are going to say...  This is for people to use while taking a break, while at the lodge sipping hot chocolate, etc.  Noone would be dumb enough to read emails while skiing.   Yeah, that's the same thing they said about driving.... but now we know better, don't we?:

Can too much caffeine cause death? Perhaps manufacturers of "energy drinks" should be concerned

Friends of the blog at Abnormal Use have posted a short update on an issue that has been raised before regarding so called "energy drinks." According to a recently filed claim, the parents of a 14-year old are arguing that their daughter went into “cardiac arrhythmia due to caffeine toxicity” after two drinking two 24-ounce cans of Monster Energy on consecutive days. According to the report, the high caffeine level of the drink complicated an existing heart valve condition in the teen. She was taken to the hospital but died six days later.

Obviously, the big question is going to be whether the Monster Energy drink should be considered to be unreasonably dangerous given its high level of caffeine. This is one of the main allegations in the lawsuit. Simply put, that the product is defective in its design because it simply contains too much caffeine.

Accoring to Abnormal Use, one can of Monster Energy contain 240 mg of caffeine, while a single venti (20oz) cup of regular coffee from Starbucks contains 415mg of caffeine.

This seems to suggest that the level of caffeine in the drink is actually not that high.  But this, in my opinion, does not take into account what I think is the most interesting part of the issue:   the marketing scheme for the product. This is a product that is clearly targetting younger consumers. For example, it sponsors “X-games” type activities. For that reason, the question that needs to be explored is not whether the level of caffeine is OK when compared with a cup of coffee, but whether the level of caffeine is too high for younger consumers. I don’t know the answer to that….

Also, the Monster drinnk cans contain a warning that states: “Limit 3 cans per day. Not recommended for children, pregnant women, or people sensitive to caffeine.” 

Apparently it is unclear whether this warning was on the cans when the plaintiffs’ daughter consumed the Monster Energy, but assuming that it was, the question remains whether the warning should be considered to be adequate under the law. 

Pfizer settles case for $67.5 million

Pfizer has agreed to pay $67.5 million to settle a class-action litigation in which the plaintiffs alleged that adverse side effect data for its Pristiq medication was not disclosed properly.  Pharmalot has more details.

Statute of limitations and the Federal Torts Claims Act

In my torts class, last week we discussed defense based on a statute of limitations.  This week we will discuss the Federal Torts Claims Act.  This post relates to both. 

As reported in Circuit Splits:

The doctrine of equitable tolling is a “drastic remedy” which allows a court, under extraordinary circumstances, to overlook a plaintiff’s failure to file a complaint within the statutorily allotted period of time. Under the Federal Tort Claims Act this period of time is “six months after the date of mailing . . . of final denial of the claim by the agency to which it was presented.”  However, there is a split among jurisdictions as to whether the remedy of "equitable tolling" is available for plaintiffs who fail to file in time. 

This question is back in the news because last week the Court of Appeals for the Second Circuit issued an opinion in Goldblatt v. Nat’l Credit Union Administration holding that, “[i]n this Circuit, it is an open question whether equitable tolling is available for tort claims brought pursuant to the FTCA.”  The court further noted that “[o]ther circuits are split on this issue. Compare Santos ex rel. Beato v. United States, 559 F.3d 189, 194-97 (3d Cir. 2009), with Adams v. United States, 658 F.3d 928, 933 (9th Cir. 2011), and In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011).”

As with all other cases where the circuit courts are divided, there is a chance the Supreme Court might take an appeal to resolve the split.

Monday, November 5, 2012

Update on the Aurora theater shooting fund plan

According to a protocol engineered by "special master" Ken Feinberg, whose handling of the BP oil spill fund was quite controversial (see here and here), the families of the twelve people who died in the Aurora theater shooting and the victims who were brain injured or paralyzed will split 70 percent of the $5 million left in the Aurora Victim Relief Fund, while those who suffered less severe physical injuries will share the remaining 30 percent. Torts Today has more details and links here.

Wrongful death of a fetus

Just days after we finished discussing pre-natal torts in class, comes news that a lawsuit has been filed in Nebraska asking the court to recognize a claim for the wrongful death of a fetus for the first time.  At issue in the case is the applicability of a state statute that extended legal protections to fetuses at any stage of development.  Although the law is not a wrongful death statute itself, the plaintiffs are arguing it should be taken into account when deciding the wrongful death case.  For more on this story go to The San Francisco Chronicle and the ABA Journal.com.

The issue, of course, is not new.  You may remember that last February, the Alabama Supreme Court decided in a case called Hamilton v. Scott that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.  See here.  And, as you may also know the wrongful death statute in Illinois recognizes a claim for the wrongful death of a fetus.  It is not clear whether this is a majority approach or even a "trend" among jurisdictions.  Last time I checked, the majority view on this subject was to "draw the line" at viability.  The third option, followed by another minority of states, is to recognize the wrongful death claim only if the child is born alive, survives for an instant on his or her own and then dies.  Those states draw the line at birth.  

Military contractors, the Feres Doctrine and The Good Wife

Last Saturday I posted a note about a recently decided case against a military contractor for injuries to soldiers from exposure to dangerous materials.  See here.  I also posted a separate note on the continued reports on sexual assaults on female cadets at the Air Force Academy and the effect of the Feres doctrine on the possible liability of the state for those injuries.  See here.

Today, the PopTort blog has posted a note that relates to both issues based on last night's episode of the TV show "The Good Wife."

Before going any further, though. let me say two things: I did not see the episode and, the reason I did not see the episode is basically because I think that show sucks.  I have seen a couple of shows in the past and all I can say is that they really need some legal consultants.  For a show about lawyers, at least in the episodes I saw, they got the law and the practice of law wrong every time; although that is not unusual when it comes to law related shows...

But I digress...

According to the PopTort, last night's episode was about a male defense contractor accused of sexually assaulting a female officer, who then sued him for civil damages.   The storyline had the contractor trying to assert absolute immunity under the Feres doctrine.  So, I might try to give this episode a try at some point this week...

On the legal question itself, as quoted by the PopTort, in a report by the Congressional Research Service:
The Feres doctrine currently does not bar suits against government contractors working for the military, although some contractors have argued that it should be extended to preclude such suits, and some commentators have asserted that the Feres doctrine leads service members to seek damages from contractors that they could not recover from the government. Contractors have also attempted to assert derivative Feres or “intramilitary” immunity, although with little success. Where a party is immune from suit, the court cannot exercise jurisdiction over the claim against it.
 Go here for the PopTort's full comment.

Comment on issues created by triangular relationship and the appointment of independent counsel to represent an insured

The New York Personal Injury Law blog has a good short comment on the duties of an attorney hired by an insurance company to represent one of several insured parties involved in a medical malpractice claim.  The case scenario discussed in the comment is not too uncommon.  The plaintiff sued two physicians (and "attending" and a "resident") for injuries during a procedure but it is not clear which one of them actually caused the injury.  The both want to claim it was the other, but their actions are covered by one same insurance policy.  The insurance company assigns the case to two separate attorneys to represent each individual defendant separately.  Also, and again not unusual, the insurance company retains the right to agree to the terms of any settlement.  What happens when the insurance company wants to agree to a settlement that includes placing the blame on only one of the doctors?  How can it determine which one to blame and what are the rights of that doctor in the negotiating process?  What happens if the insurance company does not invite the attorney for one of the doctors to participate in the negotiation of a settlement?  These are some of the issues discussed.  You can read the comment here.

I think the comment is correct in the end - the bottom line being that the attorney assigned to represent the insured has a duty to demand to be part of all negotiations and a duty to defend the client's interests even if they are contrary to those of the insurance company.  The comment argues that even if the client does not have a financial interest at issue in the negotiation of the settlement, there are other interests at stake that require that he or she be represented fully.

I agree with the bottom line.  However, I think the comment is not entirely accurate in one small point.  It starts from the premise that the resident does not have a financial interest in the settlement negotiations "because the hospital has vicarious liability for its resident."   In other words, according to the premise, the insurance company justifies not inviting the attorney for the resident doctor to participate in the settlement process because the resident does not have to contribute to the settlement from her own funds," or because he or she "has no out-of-pocket responsibility to pay any part of the settlement amount."

It is true the resident doctor has no responsibility to contribute to the settlement amount, but that does not mean that he or she does not have a financial interest at stake.   It is not entirely correct to say that because there is vicarious liability, the resident does not have to contribute to the settlement.  The fact that there is vicarious liability allows the plaintiff to recover the full amount of compensation from the employer but it does not relieve the actor/tortfeasor from his or her liability to the employer.  The employer has the right to be indemnified in full.  The fact that employers rarely, if ever, decide to exercise that right does not mean the right does not exist.

Thus, unless the employer has agreed beforehand to waive the right to indemnity, the resident does have a duty to repay the employer for what the employer pays in the settlement.  And, for this reason, I would say that the resident can clearly argue that he or she does have a financial interest in participating in the negotiation. 

In other words, I agree there is duty on the attorney to represent the interests of the insured in the negotiation but that duty is based not only on the insured's personal interests but also on his or her financial interests at stake.

NOTE I posted this in my Professional Responsibility blog too.

Saturday, November 3, 2012

$85 Million verdict against Kellog Brown & Root (KBR), a US Iraq War contractor, for exposing soldiers to toxins

Back in January of 2010, there were many reports on possible health hazards American soldiers were getting exposed to in Iraq and Afghanistan as a result of the burning of hazardous and medical waste.  See here and here.  A  number of lawsuits were filed. One lawsuit was filed by a group of Indiana National Guardsmen who alleged that a mission to help clean up a water treatment plant in southern Iraq left them with fatal illnesses. (See here.)

Another case, filed by Oregon Guardsmen, has now been decided.  Torts Today is reporting that after a three week trial, a jury deliberated two days before it found KBR liable for negligently exposing soldiers to sodium dichromate, a cancer causing toxin substance containing hexavalent chromium. The jury returned an $85 million verdict against Kellog Brown & Root (KBR), a US Iraq war contractor.  The Washington Post has more on story here.

A similar lawsuit is now pending in the US Court in Maryland alleging that KBR, and others, exposed US soldiers to toxins from burn pits that were built, constructed or maintained for waste disposal.

New report on ATV injuries and children



A new report on injuries suffered by children riding all-terrain vehicles (ATVs) indicates that manufacturer warnings and parental supervision are doing little to keep underage drivers off ATVs resulting in a disproportionate number of severe injuries among children from ATV accidents.  The American Academy of Pediatrics issued a statement last week, warning that labels placed on ATVs that indicate they are only to be used by those older than 16 are ineffective. The academy also indicated that dealer-sponsored training is infrequent and generally ignored by young drivers.  Drivers ages 16 and under make up 40% of all ATV accident injuries, AAP noted. However, less than 35% of those young people involved in such accidents were wearing helmets at the time. AboutLawsuits.com has more information and links here.

Sexual assaults at the Air Force Academy still a big problem

In just a few days we will begin our discussion of the Federal Torts Claims Act and, in particular, of the Feres Doctrine which prevents military personnel from suing for injuries while in service.  This doctrine has been severely criticized over the years but it continues to be validated by the courts.  One of the types of cases it has been used to block are claims by female cadets at the Air Force Academy for injuries caused by sexual assaults.  A few years ago, there were a number of high profile reports on this problem, but the Academy said it would take steps to correct the situation.  A new article in the New York Times from a few days ago suggests the problem is still rampant.  Go here to read the full article.  For more information on the Feres Doctrine go here.  my posts on issues related to the Feres Doctrine go here

Plaintiffs' reply to NFL motion to dismiss in case about concussions

Torts Today is reporting that the plaintiffs have responded to the NFL’s motion to dismiss in the case related to the injuries related to concussions, arguing that they deserve to have their day in court. According to the report, "[t]he plaintiffs used this as another attempt to convince Judge Brody, and the public, that their claims have nothing to do with the collective bargaining agreements. At the heart of the preemption issue, the plaintiffs have to show that their purported state-law claims are not substantially dependent upon or inextricably intertwined with the terms of the CBAs. (This is legal jargon meaning that Judge Brody can toss aside the CBAs and adjudicate the players’ claims without resort to the players’ contracts.)" Go here for the full report.

Statute of limitations extended because of hurricane Sandy

The NY Personal Injury Law Blog is reporting that Gov. Andrew Cuomo has issued an Executive Order suspending the statute of limitations in a wide variety of cases, both civil and criminal. The term of the suspension is indefinite. This affects the time to bring a suit, the time to file an appeal, and the time to bring criminal prosecutions. The Second Circuit Court of Appeals has acted also, extending the time to file a notice of appeal to some litigants.  For more information go here.

Monday, October 22, 2012

Pfizer pharmaceuticals settles case on suicide allegedly caused by use of its drug Chantix

Following several attempts to postpone the start of the first Chantix product liability trial, which was set to begin on Monday, Pfizer has reportedly reached an agreement to settle the case.  The lawsuit had been brought by the family of a man who committed suicide while taking the stop-smoking drug. This is only one of an estimated 2,500 Chantix cases, with all federal lawsuits consolidated as part of a multidistrict litigation, which has been centralized before U.S. District Judge Inge Johnson in the Northern District of Alabama.  For more information and links go to AboutLawsuits.com.

Sunday, October 14, 2012

Two updates on the constitutionality of damages caps

On October 5 the Kansas Supreme Court upheld the constitutionality of a statute that places a cap on damages in Miller v. Johnson.  Go to Torts Today for more details.  

Meanwhile, the Fifth Circuit has asked for supplement briefs in a case addressing the constitutionality of Mississippi's $1 million cap on non-economic damages.  The Mississippi Press has more information. (Thanks to TorsProf blog for this link).

One interesting thing is the vast difference in amount used to determine the cap in the two states.  In Kansas, the limit is $250,000 while in Mississippi it is $1 million.  As everyone knows, I am not a supporter of caps on damages but I have to say that a $1 million cap is pretty generous when compared to the vast majority of similar statutes around the country. 

This reminds me of the silliness of the argument tort reformers often make when supporting the use of caps.  They argue that the legislature should be allowed to set he limit for recovery because it is not possible for jurors to determine the value of "pain and suffering."  "How can you put a price on pain and suffering?" they ask. 

It is a funny question, since their proposal is to allow the legislature to do just that... and under circumstances where it has not had a chance to examine the evidence needed to do so...

Having said that, though, it should be clear that the amount of the cap, although relevant for the public policy discussion, has little to do with the issue of the constitutionality of the statute.

More on the report on civil rights abuses in New York

A few days ago, I posted a comment on a recently released report that reveals a 28 percent increase in claims against New York City in large part because of civil rights violations claims against the police department.  See here.  Less than a week later, Professor Jonathan Turley posted a comment on a video that shows an example of such conduct. Go here to watch the video and read his comment.

Monday, October 8, 2012

Update on case against Chicago White Sox pitcher on duty to help

About a month ago, I posted a note on a recently filed complaint against Chicago White Sox pitcher John Danks for failing to help a guest at his condo after an accident. See here. I argued then that, at least from the newspaper report, the allegations seemed weak since there was no indication that the plaintiff argued the court should not follow the general rule of "no duty to help."  The Chicago Tribune has now published this short update on the case. 

Oral argument in Kiobel is now available

The audio of the oral argument in Kiobel v Royal Dutch Petroleum is now available.  For the original argument from last term go here; for the re-argument from last week go here.  Both links are available at Oyez.

Sunday, October 7, 2012

Exploding gas cans and tort reform?

A few days ago, The New York Times published an article on the story behind the most recent Chamber of Commerce propaganda campaign in favor tort reform: a 30-second commercial that uses Blitz USA, a bankrupt Oklahoma gasoline can manufacturer, to illustrate what they argue are the consequences of abusive lawsuits. But, as the NYT's article makes clear, the commercial ducks the complexities of the product liability cases surrounding Blitz by making no mention of the dozens of casualties linked to explosions while people used the cans in recent years.  As usual, for the Chamber of Commerce everything can be blamed on greedy lawyers and frivolous lawsuits.  The reality is not quite that simple, though.  You can read the NYT's article here.

One particularly interesting point in this specific case, is that the product could have been made safer by using a simple device that would have not added much to the cost of production, something the company knew but apparently failed to look into.  Friend of the blog Professor George Conk (Fordham) comments on the story in his blog "Torts Today" here.

Saturday, October 6, 2012

Supreme Court grants review to decide validity of a claim for battery as result of medical treatment by military doctor

Last week, the Supreme Court granted review in a case that will address an interesting and important issue on the possible liability of the United States for medical malpractice. 

In this case, called Levin v US, the Plaintiff-Appellant Steven Levin brought a claim for battery against the United States government and his United States Navy surgeon.  The US substituted itself for the doctor (as allowed by statute) and argued that the district court lacked jurisdiction because the Federal Torts Claims Act expressly preserves sovereign immunity against battery claims. The district court agreed and dismissed the battery claim.

Levin appealed to the Court of Appeals for the 9th Circuit arguing that the district court had jurisdiction to hear his battery claim based on the statutory interplay between the FTCA and the Gonzalez Act (which provides immunity to military medical personnel).  The Court of Appeals disagreed and affirmed the lower court's ruling holding that § 1089(e) of the Gonzalez Act does not waive the government's sovereign immunity for common law battery claims.  The opinion is available here.

For updates on the Supreme Court's review process and links to all the relevant documents, go here.  The Pop-Tort has a comment about the case here.

Report on civil litigation against NY city shows increase in cases filed vs police department; reformers blame the victims

The New York World is reporting (here) that the recently released Mayor’s Management Report reveals a 28 percent increase in claims against New York City over the previous fiscal year and that most of the cases are civil rights violations claims against the police department. In 2010, the NYPD became the city agency with the highest volume of tort claims with more than 8,100, surpassing the Department of Transportation and the Health and Hospitals Corporation, and accounting for $135.8 million of the city’s total expenditures for judgments and settlements. (Given a recent court ruling on false arrests by the city police, it also predicts the numbers will soon be higher.)

The consequences for the city can be costly.  The article states that "because cases against the NYPD can take at least two to three years to conclude, a spike now means that payouts for court judgments and settlements are likely to squeeze the city budget in coming years."


Interestingly, as soon as the report came out, tort reformers, as usual, immediately assessed the situation by blaming the victims. See here. According to this twisted view, the problem is the fact that victims of civil rights abuses file too many claims, not that the police is committing too many torts.  Perhaps if the city learned from its mistakes and caused fewer injuries, it would not have to spend so much money paying up for their liability. 

Proposed law in Florida would create registry of dangerous dogs

Professor Jonathan Turley is reporting on a proposed law in Miami to create an online registry of “dangerous dogs.” The law would require registration of any dogs or other pets that attack or threaten to attack people or other pets.  See the full story (and many reader comments) here.

As is well known, the generally accepted doctrine on domesticated animal attacks is that owners are strictly liable for the injuries caused if they (the owners) had notice of the dangerous propensities of the animal.  If the animal is already a registered offender, plaintiffs would obviously have a much easier time arguing the owner had such notice.  The new registry, therefore, would make the owners more vulnerable to strict liability claims.  To encourage them to register their troubled pets anyway, the law would impose a fine of $1,000 for failure to register.  More importantly, for victims, to help assure coverage in case of possible injuries, the law would require owners of dogs designated as “dangerous” to obtain $50,000 worth of insurance.

Monday, October 1, 2012

Supreme Court opens new term with re-hearing on case that could determine the future of the Alien Tort Statute

As you probably remember, last year the Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum in which the Court was asked to decide whether corporations (or other entities) could be liable under the Alien Tort Statute.  After hearing oral arguments, however, the Court surprisingly set the case for a rehearing and asked the parties to prepare briefs on an issue that had not been presented to the Court - whether the Alien Tort Statute could apply extraterritorialy.

That new oral argument was held today, the first day of the Court's new term.

On the issue of extraterritoriality, as I have said in the past, the Supreme Court's decision could result in the end of the ATS as we know it, and it does not help that the U.S. Justice Department switched sides on the issue.  Go here and here for some of my original comments.  As stated by Judge Posner last year, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011),  courts have been applying the statute extraterritorially since the beginning; no court has ever held that it doesn’t apply extraterritorially.  In fact, the only case on the ATS decided by the Supreme Court involved the application of the statute extraterritorially. If you eliminate the possible extraterritorial application of the statute, the statute will be useless.

This is an extremely important case that has generated a tremendous amount of literature.  Simply stated, a decision for the defendants will essentially eliminate the ATS as a possible source of redress for human rights violations.  For more, see Kiobel v. Royal Dutch Petroleum: What’s at stake, and for whom?.

The SCotUS blog has a recap of the oral argument here. The actual transcript of the argument is available here.  The audio will probably be available on Friday. I will post a link to it then.

For more recent comments and information on the oral argument you can go to the New York Times, the Associated Press, Thomson-Reuters, Bloomberg, Slate, ABC news, The Pop Tort and Washington Legal Foundation.

I have been following the developments around the issue since the case was decided by the court of appeals and you can catch up with all the links by going here and scrolling down.  There about a zillion posts, all with about another zillion links to cases, articles, op-ed pieces and debates. 

Wednesday, September 26, 2012

Is a doctor negligent for advocating that people should be hungry all the time?

I will start covering medical malpractice in my torts class in a couple of days so I thought it would be relevant to post this story today.  It is a story about a physician - a cardiologist - who advocates patients to live on a diet based on how much their food weighs.  The story was reported back in June, but I just read about it for the first time today in a fellow law professor's blog.

The doctor's theories on managing weight became news when he was connected to the investigation of the death of a child.  According to news accounts, the child's mom, who was charged with murder for allegedly starving her teen daughter to death, was following the advice of the doctor who encourages people to eat just 32 ounces of food a day. The child, who was 15 or 16, weighed about 40 pounds.

In a video available in YouTube (and here and here), the doctor explains the "scientific" principles behind his theories saying that "being hungry is wonderful. The opposite of hungry, which is not hungry, is the opposite of wonderful, which is terrible."  He also claims to mathematically "prove" that being hungry is wonderful by explaining that "when we're 10 times hungrier, doesn't food tastes 10 times better? And when food tastes 10 times better, that's wonderful, isn't it?... It's a mathematical principle."

Well, there you have it! Who can argue against such scientific evidence, right?!

According to some accounts, the doctor has been called everything from "crazy" to a "caring" and "very educated" man whose findings are rooted in science and scripture.  Crazy? Nooo; really?  Who would think that?...  although I do find the suggestion of scientific findings rooted in science and scripture rather puzzling, to say the least.

OK; so here is the torts angle I would want my students to consider.  Let's assume the doctor actually suggests to a patient to go on a diet based on how much the food weighs, which, by the way, is what this doctor suggests.  His idea is not based on calories, but on actual weight.  Put your plate on a scale, fill it up until it weighs 2 pounds and that is all you get to eat all day.  Sure it is an easy diet to follow - if you have an accurate scale at home, I guess - but is it healthy?  Does this "medical advice" follow the standard of care of the profession?    And if it doesn't and a patient following the advice suffers an injury, could they bring a cause of action?

To complicate matters, what if the person is not an actual patient of the doctor but someone who read his book or his website and followed the advice published there (in print or online).  Can that person bring a claim?

Your thoughts?

For more details on this bizarre story go to ABC news.com, The Daily Mail and The New York Daily News.

Monday, September 24, 2012

NFL refs, illegal hits and torts

If you are a football fan you know that the NFL referees have been locked out and the league is using substitutes and that there is a huge controversy over the quality of the work they are doing.  Also, there is a lot of talk about the fact that some players are playing much more violently because they think they can get away with it.  I did not watch much football yesterday, so I missed this bit of news when it happened but just heard of a hit on the Texans' quarterback by a Denver Broncos' defender which resulted in a serious injury to the QB.  According to the story, he will lose a little part of his left ear.

The refs did impose a penalty for the play, but the discussion now is whether the conduct was so far outside the lines that the injured player should have a claim for the injury.  Torts students who used the Prosser textbook may remember Hackbart v. The Cincinnati Bengals in which the court discusses the concept of consent to intentional torts in the context of organized sports.  According to the generally accepted view discussed in that case, players who voluntarily engage in organized sports agree to the inherent risks of the sport which includes conduct that violates the rules.

At some point, though, it could be argued that the conduct is so far outside the rules and customs of the game that it should be actionable.  If the player had purposely taken the QB's helmet off and then bit into his ear, a la Mike Tyson, I'd say you can argue for possible liability.  Likewise, maybe if the hit had happened some time after the play had been blown dead and the QB had let down his guard; but that would depend on how much time had passed.

But the case is much closer when the play is fast, before the whistle blows, even though the player goes for a hit to the head, etc.  Yes, the hit is illegal according to the rules but it is still a known risk of the game.  The video I saw of the play in question here, in my opinion, does not show a blatantly late hit.  It is not the lateness of the hit that was the problem.   It was the fact that it was clearly -in my opinion at least- to the head of the QB. 

Clearly, the fact the play is against the rules is not going to be enough to justify allowing possible liability.  What would be enough, is not all that clear, though. Professor Jonathan Turley has a good discussion of the question in his blog which you can read here

Second set of lawsuits filed out of attack at Batman movie in Colorado

Last July I reported on the first lawsuit filed arising out of the shooting at the opening of the Batman movie in Colorado.  See here and here.  That claim was filed by a man who did not suffer a physical injury.  His claim is based on the fact that his best friend was shot in the chest and died. In other words, the claim is for the fear the plaintiff suffered himself and for the emotional distress at witnessing someone else suffer a physical injury.  I have not followed up on what has happened with that claim since, but now comes news that a new set of claims have been filed.  CNN.com is reporting that three people wounded in the shooting have filed claims against the theater owner claiming that the theater lacked adequate security or sufficient alarm systems.  Go here for more on the story.

For a related story on the possible liability of the shooter's doctors go here.

Thanks to the TortsProf blog for the new link.

Saturday, September 22, 2012

New system for reporting medical malpractice?

I have always liked the expression that the best way to reduce the amount of medical malpractice litigation is to reduce the incidence of medical malpractice.  This is not necessarily easy to do for many reasons, but the New York Times is reporting on a new government initiative that may help. According to the article, the Obama administration is working on instituting a system for consumers to report medical mistakes and unsafe practices by doctors, hospitals, pharmacists and others who provide medical services.  At least some hospitals have declared they are receptive to the idea, despite concerns about malpractice liability and possible financial penalties for poor performance.  Go here to read the full article.

Thursday, September 20, 2012

New interview with the director of the movie Hot Coffee

Remember the movie "Hot Coffee"?  It was released at the Sundance Film Festival about two years ago and then had a run on HBO.  Along the way it became an instant source of debate on tort reform.  It was praised by those who oppose tort reform and criticized by those who support it.  I, on the other hand - although I generally oppose tort reform - think the movie is weak.  But you have to see it for yourself.  I think it is weak because it is just not a particularly good documentary mostly because it tries to do too much.  It attacks several different issues and does not do a particularly good job of connecting them.  I still think you should see it, but I don't think it is one of the great law related documentaries.  For a list of my favorites, go here.

In any case, I am bringing this up again today because the director of Hot Coffee recently recorded a new interview for the folks at the Legal Talk Network.  You can access the audio here

For those of you who don't know the background about the movie, or who want more information and links to many of the articles and opinion pieces (both for and against the movie) you can take a look at my previous posts on the movie:

Hot Coffee at the Sundance Film Festival 
Hot Coffee on HBO 
Interview with the director of the documentary "Hot Coffee" 
Two articles on hot coffee and tort reform
Not everyone likes hot coffee
More hot coffee for you 
Two comments in one
Debate on the movie Hot Coffee

Monday, September 17, 2012

New case on the possible liability of an aluminum bat manufacturer

My blog friends over at Abnormal Use are reporting on yet another little league baseball bat case today.  For a change, though, this one was decided in favor of the manufacturer.  I posted a comment on their website so you can go there and read their post and my comment.  Let me just add one point here.  According to the story, the judge who decided the case wrote that "the experts who testify about the supposedly dangerous characteristics of aluminum bats are talking about a relative scale. Fewer players would be injured if Little Leaguers used foam-rubber bats, but it doesn’t reasonably follow that manufacturers of wooden bats would then be liable for imparting “increased exit speed” to the ball."

It seems to me this view misses the point.  One basic underlying theory of tort law is that we can't make our society entirely safe.  Risk, danger and injuries are a part of life.  Tort law is one of many mechanisms we can use to regulate the level of risk we are willing to accept in our lives, not to eliminate it.  We can't eliminate all risk, and even if we could, we would not want to because that would mean abandoning many of the convenient things we use and enjoy - like cars, for example.  And baseball.  Yes, it is true that fewer players would get injured if we played baseball with rubber bats and whiffle balls, but then that would not be baseball.  The point is that we have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection and other things.  That is why Little League baseball (the official organization) has banned the use of dangerous aluminum bats and regulates those that are permitted for competition. 

The fact that we have used the solid wood bat as a benchmark for one of the risks involved in baseball makes it easier - not more difficult, as the judge suggests - to explain the level of risk involved and to justify recognizing a cause of action the result of which - at least in theory - may work to help regulate that risk in the future.

For my most recent posts on baseball bat safety go here and here.

Friday, September 14, 2012

Center for Justice and Democracy new book on medical malpractice

The Center for Justice and Democracy has published a new booklet on medical malpractice statistics called Briefing Book, Medical Malpractice: By the Numbers. (You can download it by clicking on the title).  According to the Center's own blog, "this no-frills, 70-page document – nothing but statistics and key quotes, all fully sourced and footnoted - is a must read for anyone seeking information about these and many other medical malpractice and health care issues today."  For more information on the book go here.

Wednesday, September 12, 2012

Standard of care that applies to children?

This re-post does not really have anything to do with torts but because in two days we will cover the standard of care that applies to children, I am going to post it here.  It comes from the very funny blog "Say What?" which collects true funny stories from real life cases.  In this particular case, a teenager apparently got some citations (for speeding, I guess) but did not tell his parents (both attorneys).  As a result a warrant was issued.  The parents then filed a motion to withdraw the warrant in which they stated:
2. Defendant is a teenage boy and therefore, as a matter of law, doesn’t have a lick of good sense. Despite the fact that his parents are licensed attorneys, Defendant felt it was the better course to not tell them about the citations. Therefore, upon information and belief, the dog ate the citations.
When submitting the story to "Say What?", the judge added  “After wiping the tears from my eyes, I signed the order as Municipal Court Judge/Mother of a Teenage Son.” 

Thursday, September 6, 2012

Last chance to nominate your favorite blogs for the ABA law blog's list

Today is the last day to nominate your favorite blogs for the ABA Journal 's annual 100 best legal blogs ("Blawg 100") list. If you have enjoyed reading my blog, please consider voting for it by going here.

Wednesday, September 5, 2012

World Trade Center case against airlines for negligence leading to Sept. 11 attacks set for trial

 The New York Times is reporting (without much detail) that a federal judge has denied a motion filed by American Airlines and United Continental Holdings in one of the remaining cases arising out of the Sept. 11, 2001 terrorist attacks which means the case will be set to go to trial.  This is the case filed against the airlines in 2008 by World Trade Center Properties, which owned the twin towers destroyed in the attacks.  

UPDATE 9/5/12:   The Jurist provides a little more information:  The airline's motion had argued that they should not be required to go to trial because the plaintiff had already recovered compensation in a settlement with insurance companies.  The judge's opinion denying the motion is available here.

Monday, September 3, 2012

California Supreme Court changes rules on apportionment of liability

The Wall Street Journal is reporting (here) that the California Supreme Court has changed a long-standing rule on liability among multiple defendants.  In a case called Leung v. Verdugo Hills Hospital (available here), the court ruled that a plaintiff who settles with one defendant among several does not release the rest from liability.  Although apparently this is a break from a long standing rule, it is not surprising to me since this is the generally accepted rule.

The new rule is fair and attempts to advance the public policy of encouraging settlements. The court explained that the recovery from defendants other than the one who settles will be adjusted by the amount of the settlement, not the percentage of fault of the party that settled, thus preserving the use of the doctrine of joint and several liability and creating an incentive for the non settling defendants to settle.

The incentive to settle is also preserved because once a party settles, the non settling party is not allowed to go after the settling party for contribution.  This is the rule in Illinois and it makes a lot of sense.  Once a party settles, that party should be considered to be out of the picture entirely.   Otherwise, there would be no incentive to settle. 

However, in Leung, the California Supreme Court explained that this should not be the case if the settling party and the plaintiff were found to have settled the case in bad faith.  In such a case, defendants who don’t settle and find themselves with an excess share of liability can sue for contribution against the defendant who did settle.  In combination with the previous rule, this encourages parties to settle and to do it in good faith.

Sunday, September 2, 2012

Update on the debate on whether pit bull owners should be held strictly liable for injuries caused by their dogs

Back in May I reported (here) that the Court of Appeals of Maryland issued an opinion holding that the owner of a pit bull could be held strictly liable for the injuries caused by the dog. (The decision in the case, called Tracey v. Solesky, has been stayed until the court hears a motion to reconsider.)

Then last month, the ABA adopted a resolution urging legislative bodies not to adopt breed specific dog regulations. See here

Now, the September issue of the ABA Journal has an update on the debate in Maryland.  It reports that pit bull owners and their advocates have persuaded state legislators to convene a task force aimed at overriding the decision of the Court of Appeals.  Go here to read the article.

UPDATE 12/17/12:  The Solesky family has released the tape of the 911 call in this case.  Go here for more on the story and to listen to the tape.

Chicago White Sox pitcher sued for failure to act; did he have a duty?

A former student of mine sent me this link to a bizarre story about a recently filed lawsuit against a Chicago White Sox pitcher.  According to the report, Sox pitcher John Danks "was hit with a lawsuit earlier this month alleging he failed to call 911 after his high school classmate was injured when he fell about 10 feet onto the rooftop deck of Danks’ Chicago condo."

I have not seen the complaint itself, but, again, according to the newspaper story, the plaintiff's brother pushed the plaintiff off a structure causing him to fall.  Danks had nothing to do with that.  It is not reported that he helped push the plaintiff or encouraged anyone else to do so.  Thus, the only basis for a claim against him is the fact he did not help the plaintiff after the fall.  This is a classic example of the issues raised by the old generally accepted rule that says there is no duty to help.

Unless there is a specific statute or other specific common law that creates a duty to help, it seems to me there is no basis for this claim.  Unseemly as it may seem, the rule has always been that a person has no duty (as it relates to torts) to help someone in need.

Now, it is possible that the plaintiff is arguing that the fact the accident happened in the defendant's home somehow should make a difference or that other facts not mentioned in the newspaper story impose a duty on the defendant. Or, it is also possible that the plaintiff is arguing that it is time we abandon that old view and adopt a new position on the subject. 

But, if the argument is simply that there should be liability because the defendant failed to act, without more, it seems to me the case is weak.

Thanks to Robert Foltman for the link to the story.

Monday, August 27, 2012

D.C. Circuit Court of Appeals rules regulation imposing graphic cigarette warnings is unconstitutional -- UPDATED

As you may recall, I have been following the developments in the litigation over the constitutionality of the proposed new graphic warnings for cigarettes.  Go here and scroll down for all the previous posts on the subject.  The most recent development came in today as news spread that a panel of the Court of Appeals for the District of Columbia found (on a 2 to 1 vote) that the regulation imposing the warnings is unconstitutional.  Go here for a copy of the opinion.  For more news and commentary go to The Blog of the Legal Times, The New York Times (here and here), The Jurist, Drug and Device blog, The Wall Street Journal law blog, Public Citizen, and The First Amendment Center.

UPDATE 8/27/12:  Here are two more links with more discussion (and links) on the case:  Circuit Splits, FDA law blog and Jonathan Turley.

Sunday, August 26, 2012

Little league baseball bats

A few days ago I posted a note about a recent case for injuries caused by a ball hit with an aluminum bat during a little league baseball game which settled for $14.5 million.  (See here.)  Today, as I watched the Little League World Series with my 8 year old son on TV, I noticed the bats did not make that metallic high pitched sound that aluminum bats typically make.  So, I went on line and did a quick search - thinking maybe they are not using metal bats anymore...  And I did find that the bats are, in fact, different now.  They are still not using wood bats, but there are more regulations in place.  Here is a link to the Little League page on bat rules.  Not only have the rules changed, I was surprised to see this statement:  "For the 2011 season, a moratorium on the use of baseball bats with composite materials in the barrel was enacted by Little League. The moratorium was enacted because it was discovered, through laboratory testing, that a significant number of these bats could exceed the standard that is printed on the bat – after the bat was broken in."

Friday, August 24, 2012

D.C. Circuit Court of Appeals rules regulation imposing graphic cigarette warnings is unconstitutional

As you may recall, I have been following the developments in the litigation over the constitutionality of the proposed new graphic warnings for cigarettes.  Go here and scroll down for all the previous posts on the subject.  The most recent development came in today as news spread that a panel of the Court of Appeals for the District of Columbia found (on a 2 to 1 vote) that the regulation imposing the warnings is unconstitutional.  Go here for a copy of the opinion.  For more news and commentary go to The Blog of the Legal Times, The New York Times (here and here), The Jurist, Drug and Device blog, The Wall Street Journal law blog, Public Citizen, and The First Amendment Center.

Thursday, August 23, 2012

Case for injury caused by aluminum bat in little league game settles for $14.5 million

Sports Illustrated is reporting today that a new case for injuries caused by a ball hit with an aluminum bat during a little league baseball game has settled for $14.5 million.  At the time of the accident (in 2006), the plaintiff was 12 years old.  He was hit in the chest by a line drive while standing on the pitcher's mound. Seconds later he went into cardiac arrest and he now has serious brain injuries.  He can't perform daily life functions and the money will be used to care for him for the rest of his life.  For more on this story (and more links) go to Sports Illustrated and Injured.

This is not the first time I have commented on cases like this one.  (See here and here, for example)  Back in 2009, I posted the following comment when news of a similar case were reported and my views have not changed since:

I remember having read and heard debates about the safety of aluminum bats used in baseball at the high school and college levels (they are not allowed in the professional leagues). I remember reports saying that the bats provide a tremendous level of force to the ball which then travels at a much higher rate of speed toward the fielders. Under such circumstances, players in the infield, particularly pitchers and third basemen are very vulnerable because of the very limited time they would have to react to a sharply hit line drive.

Yesterday, I saw in several sources around the internet a story that a jury in Montana imposed liability on Louisville Slugger, the baseball bat manufacturer, for failing to provide adequate warnings about the dangers posed by aluminum bats and awarded $850,000 to the family of an 18 year old who died when hit with a baseball while pitching in a game in 2003. Go here for the full story and some interesting comments criticizing the decision. This site has the story and links to other related stories. More versions of the story are linked here.

The arguments against this type of verdict are not new: that kid assumed the risk, that a warning would not have made a difference, that plaintiffs lawyers are just using the system to bring frivolous lawsuits, that cases like these result in ridiculous warnings on all products, etc etc.

I think these arguments miss the point. First of all, no one has ever argued that a warning makes a product safer. A warning just provides information that the consumer can then use to make decisions on how to protect him/herself given the risks involved in using the product.

Second, it is true that there are some products (and some activities) that are inherently dangerous, but this does not mean that everyone understands the level of risk they pose.

 Finally, and I think most importantly in this case, sometimes we need to ask whether a product is so dangerous that it should not be used at all, period. I understand you can't play baseball unless the hitters use a bat...duh! But it does not have to be an aluminum bat! Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won't eliminate all the risk, but it is safer.

Now, some argue the result would have been the same even if the bat had been made of wood. I have no expertise on that question, but I can concede that may be true in some cases. I am sure it is not true in all cases, though, and it is those cases that matter.

Also, if it is true that the death in this case would have happened even if the bat used had been a wooden bat, I wonder how come the defendant did not get the case dismissed early on arguing that the plaintiff could not establish cause in fact. Did they not have an expert ready to testify? Aluminum bats are probably ok for very little kids who do not generate the bat swing speed necessary to make much of a difference (and for many of whom a wood bat would be too heavy), but as the kids get bigger and stronger the leagues should move to wooden bats.