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

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.