Tuesday, July 31, 2012

NJ Supreme Court denies claim for bystander emotional distress due to death of a pet

I have argued before that I really don't see why pet owners should not have the right to try to claim personal/emotional injuries due to the deaths or injuries to their pets. See here and here and there are a few cases out there that have recognized these types of claims, (See here for example.)

However 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. 

The most recent case on the subject comes from the New Jersey Supreme Court which has held that a plaintiff may not recover damages for the emotional injury caused by witnessing the death of her pet dog.  Following the traditional analysis, the court held that a pet is merely "property."

The case is called McDougall v. Lamm.   For more on the story go here.

UPDATE:  Torts Today has more on the case here.

Missouri Supreme Court declares caps on damages in medical malpractice cases are unconstitutional

In a 4-3 decision issued today, the Supreme Court of Missouri has found that caps on the amount of money a person can win in medical malpractice lawsuits are a violation of the right to a jury trial.  The $350,000 damages cap had been put in place in 2005 by the Republican-led legislature as part of a massive tort-reform bill.  The case is called Watts v. Lester Cox Medical Centers and you can read the opinion here.

Sunday, July 29, 2012

Comment on the first lawsuit related to the shooting in Colorado

Last week I reported (here) that the first lawsuit related to the shooting at the premiere of the latest Batman movie had been filed.  I commented that some of the allegations sounded weak or even frivolous.  Max Kennerly of the Litigation & Trial blog has posted his own comment on why the allegations sound so dubious here.

Wednesday, July 25, 2012

Judge dismisses claim finding Accutane warnings were adequate

A federal judge in Florida has granted summary judgment for Roche in an Accutane lawsuit, finding that the drug maker provided adequate warnings under New York law about the risk of inflammatory bowel disease.  The order is available here. For more information go to AboutLawsuits.com.

First lawsuit filed related to the shooting in Colorado

It is not unusual to have injured people file lawsuits following events like the shooting in Colorado last week.  However, I am sometimes surprised at how quickly some of those suits are filed. What is the hurry? Are the parties really in a position to begin litigation so quickly?

In any case, Injured is now reporting that the first lawsuit from the Colorado shooting has been 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.  Different states deal with those types of claims differently and I am not familiar as to which approach Colorado takes.  The majority view requires the plaintiff to be within a physical zone of danger where he himself was at risk of physical injury and it would seem that the plaintiff can make a claim he was.

What is more interesting about the report on this lawsuit, though, is the list of defendants.  The plaintiff (and I assume at the suggestion of his lawyer) has sued the movie theater, the doctors of James Holmes, and the film studio that produced the movie.

The claim against the movie theater (for negligence related to the emergency exit) I can understand.  The claim against the doctor will be a tough sell.  The claim against the producers of the movie sounds dangerously close to frivolous.  Interestingly, there are no claims against any member of the gun industry.

The claim against the doctors argues that the doctors should have foreseen the shooters' violent tendencies and should have made sure he was not skipping his medication. I am not familiar with what is known about the medical treatment the shooter was under but the question will depend on the issue of the proper medical duty of care.  I suspect the doctors will argue they did not have a duty to anything beyond what they did.

The claim against the producers of the movie is that the previous movies were so violent they caused the shooter to imitate the conduct depicted in them.  I could be wrong about this, but I think this is a claim that has been raised and defeated many times before in other types of cases involving movies, tv and video games.

Friday, July 20, 2012

Reply to med mal proposal in Florida

New York lawyer and blogger Eric Turkewitz has posted a reply to a proposal to replace the current medical liability system with a type of worker compensation system (in Florida).  The proposal appeared in an opinion piece today in the Tampa Tribune.  Eric Turkewitz's response is available here.

Debate on Michigan bill that would radically change the concept of duty in med mal cases

Hundreds of protestors turned out in Michigan’s capitol city of Lansing this week to speak out against a proposed bill that would radically alter the element of duty in medical malpractice lawsuits which would allow doctors to avoid liability in most, if not all cases. Senate Bill 1116 states that a doctor could not be held liable in Michigan if he or she "acts with a reasonable and good-faith belief that the person’s conduct is both well founded in medicine and in the best interests of the patient.”  Read literally, this would allow a doctor to escape liability if he or she is convincing when claiming they acted in good faith.  This is the old "I did the best I could" approach to duty which, as every lawyer knows from the first week of class in their Torts course, was abandoned as unfair and unworkable.  For more information go here.

I commented on this bill back in May (here).  In part, I said:

"[a] person exercises professional judgment if the person acts with a reasonable and good-faith belief that the person’s conduct is both well founded in medicine and in the best interests of the patient.”

This statement is contrary to generally accepted principles of tort law.  It makes the standard of care subjective.  According to this proposed standard, the doctor is not negligent if the doctor can convince others that he really thought he was not being negligent.  How self serving is that?!

The proper standard is that the plaintiff has the burden to show what the standard in the profession is and that the doctor acted below that standard. If the accepted standard in the profession allows for discretion, the doctor will not be found negligent as long as the doctor exercised that discretion using reasonable care.  The fact that the result of that exercise of discretion was an injury to the plaintiff does not mean the plaintiff has a right to recover nor that the doctor was negligent.

This current standard places the burden on the plaintiff (where it should be) and it is not an easy burden to meet (the way it should be).  There is no reason to change it.

And in case you think that the drafters of the bill maybe just did not know the law, think again.  After creating this new way out for a defendant, the Bill states that "[i]f the court determines … that the [defendant] … did not meet the burden of proving that the act or omission was an exercise of professional judgment, the question of whether the person failed to provide the recognized standard of acceptable professional practice or care is a question for the trier of fact to decide."

In other words, the Bill creates a way for the defendant to excuse their conduct, but if they can't do it, then the "old" rules of law would apply.

I hope for the sake of injured patients in Michigan that this bill is defeated.

New report responds to most common claims by tort reformers

The Center for Justice and Democracy has posted a very good (and short) new response to many of the most common claims by tort reformers.  You should take a look at the full report here.

Debate on the movie Hot Coffee

You may remember last year's big debate about the movie Hot Coffee.  For some background on the movie and links to articles and comments go here, here, here, here, here and here. For an older interview with the director of the movie go here.

Thanks to the TortsProf blog, here is a link to a video showing Susan Saladoff, the director of the movie  "Hot Coffee" and Victor Schwartz, General Counsel for the American Tort Reform Association discussing the movie at a screening in Widener University.  They both participated via "skype."  This is probably the first time the two have appeared together in such an event.  Unfortunately, you can't hear the questions from the audience and the quality of the video is not great, but here it is anyway: http://db.tt/QpuOaXPi

I think that if you are interested in the issue of tort reform, you should take the time to watch the movie Hot Coffee even though I don't think it is a particularly good movie.  It has a lot of good and interesting information and I agree with the "spirit" behind it.  However, I have to say that the movie is not an effective documentary because it tries to do too much.  It tries to combine very different issues and does not do a particularly good job at making the connections between them.  Having said that, I still think people should watch it.

The symposium on the Alien Torts Statute continues

Now that all the articles in the ongoing symposium on the Alien Torts Statute are in, some of the authors are posting responses to some of the other articles.  The original articles are available here.  Here are the first four responses: 

A response to Colangelo, Feder, and Ramsey

Response to symposium contributions

Response: International law supplies the conduct rules and domestic law governs enforcement 

Response: Adjudicative versus prescriptive jurisdiction, translating historical intent, and a brief universal jurisdiction rejoinder

Response: Plain text, stare decisis, and déjà vu all over again

Response: The ATS and choice of law

I will continue to add links to other responses as they become available.

Thursday, July 19, 2012

New report: medical malpractice payments at an all time low

A new report by Public Citizen indicates that medical malpractice payments dropped to an all-time low last year, once again disproving claims by tort reform proponents that medical malpractice lawsuits are an important factor in the increasing cost of health care.  The new report is available here. For more information go to AboutLawsuits.

Articles on whether corporations can be sued under the Alien Tort Statute and related issues

Last week I posted (here) an announcement of an upcoming on line symposium on Kiobel v Royal Dutch Petroleum, the case currently pending before the Supreme Court on whether a corporation can be sued under the Alien Tort Statute.  All the contributions to the symposium are now available.  Here are links to all of them:

The Alien Tort Statute and the law of nations

Precedents, pirates, and the presumption against extraterritoriality

The Alien Tort Statute, Kiobel, and standard tools of statutory interpretation

Kiobel, “vigilant doorkeeping,” and the parochial purposes of the Alien Tort Statute

International law and Alien Tort Statute litigation

Kiobel and the original meaning of the Alien Tort Statute

A brave new world of transnational human rights litigation

The Alien Tort Statute and the foreign relations fallacy

The Alien Tort Statute as a species of extraterritorial U.S. law

The ATS is in good company

The Alien Tort Statute and the importance of historical evidence

For ATS claims, universal jurisdiction isn’t the answer

Tuesday, July 17, 2012

New twist on Kiobel: Obama administration sides with the defendants on the issue of extraterritoriality

As you probably remember in Kiobel v. Royal Dutch Petroleum the issue before the Supreme Court was 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.  Go here for all the background information and previous posts. Go here for my comments specifically on the question of extraterritoriality, which I think can essentially kill the ATS forever.

But now for today's news:  Alison Frankel is reporting (here) that while in Kiobel's first trip to the Supreme Court, the U.S. government sided with the plaintiffs, when the justices sent the case back to the parties for briefing on whether the statute applies to conduct outside the United States, the Justice Department switched sides. The government's amicus brief, filed last month, argues tepidly that the ATS is not appropriate in this particular case, though it stops short of advocating for an absolute bar on ATS cases stemming from overseas conduct. Interestingly, the State Department, which had joined the Justice Department in signing the first Kiobel amicus brief, did not sign the second one.  Go here for the full report and analysis.

In addition, go here for links to all the articles in the recent symposium on Kiobel sponsored by the SCotUS blog.

Monday, July 16, 2012

Texas adopts learned intermediary rule

Last month the Texas Supreme Court formally adopted the learned intermediary rule in a case called Centecor v. Hamilton (available here).  For a comment praising the decision go here.  For a comment criticizing the learned intermediary doctrine in general go here.

Wednesday, July 11, 2012

ATRA urges Maryland Supreme Court not to abandon contributory negligence

Believe it or not there are just a handful (four or five) jurisdictions in the United States that still recognize the anachronistic and inherently unfair doctrine of contributory negligence as a defense, which allows a defendant - regardless of the level of negligence - to escape liability if the plaintiff can be said to have contributed in any way to his or her own injury.  Maryland is one of the few states that cling to that old, nearly universally rejected rule.

Tennessee was the most recent state to abandon contributory negligence and it is now under attack in Maryland.  However, joined by groups representing a variety of employers, physicians, and their insurers, the American Tort Reform Association has submitted a brief  to Maryland’s supreme court urging it to uphold doctrine of contributory negligence. A copy of the brief is available here.

Because of the evident unfairness of the doctrine, almost all jurisdictions have abandoned it and replaced it with some form of comparative negligence.  In all fairness, some of the forms of comparative negligence adopted (the so-called "modified" systems) merely change the threshold point at which the contributory negligence doctrine would apply, but they are still better than the old rule.  So, it is not surprising that this coalition of insurers, physicians and tort reformers want to make sure the law of the state continues to firmly reflect 19th century values. Why?  Again, because it allows them to escape liability.

Tuesday, July 10, 2012

New report claims Merck hid evidence of Vioxx risks for years before taking the drug off the market

Pharmalot is reporting today that a new study has concluded that pharmaceutical company Merck hid evidence that its product Vioxx tripled the risk of cardiovascular death for more than three years before taking it off the market in 2004.  In fact, the manufacturer not only hid the evidence, it actively insisted such an increased did not exist.  Go here for the full report.

Why does the bag of peanuts say “CONTAINS PEANUTS”?

Max Kennerly has a good answer here

More articles in the symposium on whether corporations can be sued under the Alien Tort Statute

Last week I posted (here) an announcement of an upcoming on line symposium on Kiobel v Royal Dutch Petroleum, the case currently pending before the Supreme Court on whether a corporation can be sued under the Alien Tort Statute.  The symposium is currently underway and the first few articles are now available.

The first article is available here.

The second one is here.

The third one is here.

I will continue to post links to all future articles published as part of the symposium as they become available.

Another article on the early offer law in New Hampshire

Continuing our coverage on the debate over the recently adopted law on "early offers" in New Hampshire (most recently here), here's a link to a short article in the New York Post.

Thanks to the TortsProf blog for the link.

Monday, July 9, 2012

First contribution to symposium on whether corporations can be sued under the Alien Tort Statute is available now

Last Friday I posted (here) an announcement of an upcoming on line symposium on Kiobel v Royal Dutch Petroleum, the case currently pending before the Supreme Court on whether a corporation can be sued under the Alien Tort Statute.  The first contribution to the symposium was posted today and it is available here.

I will continue to post links to all future articles published as part of the symposium as they become available.

Friday, July 6, 2012

11th Circuit affirms case on whether there is a duty to provide bilingual warnings for a product sold in latino community but leaves some questions unanswered

Back in January of last year we reported on a very interesting case out of the Southern District of Florida on the issue of whether there is a duty to provide warnings about products in languages other than English. The case is Farias v. Mr. Heater, Inc.  Go here for my initial comments and then here to follow a conversation between me and the Abnormal Use blog on the issue.

The Abnormal Use blog is now reporting that the Court of Appeals for the 11th Circuit has affirmed the lower court's decision. The opinion can be found here.

What is interesting is that the court did not address the issue I raised back when we first discussed the question:  whether there ought to be a duty to provide warnings in specific languages depending on the marketing strategies for the product.  I argued that saying that it would not be frivolous to argue that a manufacturer that specifically targets an audience of consumers in a foreign language community within the US should have a duty to provide warnings in that community's language.  According to the report by the Abnormal Use blog, the Court of Appeals hinted at this concern but did not address it:  "... the Eleventh Circuit found no evidence that [the defendant] targeted the Hispanic community in its marketing.  As such, the Court did not find that the marketing efforts created a duty to provide bilingual warnings.  It would have been interesting to see how the Court’s analysis would have changed if [the defendant] did so market the heater."  Indeed!

Court finds against Iran and awards $813 million to victims under the Foreign Sovereign Immunities Act

A Washington federal judge has awarded $813 million to victims of the 1983 terrorist bombing at the U.S. Marine barracks in Beirut, Lebanon, the latest in a string of large money judgments awarded against Iran for its role in the attack.  The case is called Brown v. Islamic Republic of Iran and the opinion is available here.  The claim was brought under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act, which allows Americans to sue foreign states if it can be shown that the injury was caused by an act of terrorism sponsored by that foreign state.  The Blog of the Legal Times has more details here. This type of ruling is not unusual.  In fact, as the court states in its conclusion "Iran is racking up quite a bill from its sponsorship of terrorism. After this opinion, this Court will have issued over $8.8 billion in judgments against Iran as a result of the 1983 Beirut bombing."

Unfortunately, however, it is almost impossible for the victims to actually collect the money awarded. 

In one recent case on this issue called Estate of Heiser v Iran (DDC 2011), the court discusses how difficult it is for plaintiffs in cases like these to recover.  In that case, the plaintiffs went after Sprint to attempt to get Sprint to pay them money it owed to Iran's communications agency.  After discussing the issue in detail the court did order Sprint to give the funds to the plaintiffs, but then it concluded that
“...this decision represents renewed hope for long-suffering victims of state-sponsored terrorism. . . .But the bleak reality is that today’s decision comes after more than a year of litigation and results in a turnover of funds amounting to less than one-tenth of one-percent of what plaintiffs are entitled to in these consolidated cases.  And this infinitesimal sum is dwarfed by even greater magnitudes when compared to the endless agony and suffering befalling these victims.  A step in the right direction, to be sure.  But a very small one.”

Upcoming symposium on Kiobel and whether corporations can be sued under the Alien Tort Statute

Long time readers of this blog will remember that I have been following Kiobel v Royal Dutch Petroleum, the case currently pending before the Supreme Court on whether a corporation can be sued under the Alien Tort Statute.  Go here and scroll down for all the posts on this topic and the case.  Today the SCotUS blog has revived the debate on the issue by posting a short summary of the background on the case and an announcement that there will be an on-line symposium on it.  Here is a link to the short article.  The symposium will take place next Monday.  There are 11 contributors announced for the event.  I will keep you informed with links to their contributions... 

Monday, July 2, 2012

Reply to response to criticism regarding the New Hampshire new law on early offers in med mal cases

Continuing our coverage on the debate over the recently adopted law on "early offers" in New Hampshire (most recently here), here are some more articles:

New Hampshire’s Insidious Early Offer Medical Malpractice Law by Max Kennerly of the Litigation and Trial blog, in which he argues that regardless of the text of the law, its effect is that if a plaintiff asks for the “early offer” but doesn’t accept it, he or she would be in effect precluded from filing suit, because a lawsuit would simply be too expensive and too risky.  He also argues that the definition of the remedy to which plaintiffs are allowed under the law is too limited.

Chris Robinette, who supports the law, replies to Kennerly in some detail in two articles here and here.  His conclusion, which he has argued before, is that the law offers a "trade off" and that its benefits do not necessarily benefit everybody equally.