Sunday, August 25, 2013

Police officer sues woman who called 911 alleging she had a duty to warn the cop would be facing a dangerous situation

Here is a story about the most ridiculous lawsuit of the year so far, although not as ridiculous as the case filed a couple of years ago alleging damages caused by bad mothering (see here).

In this new case, a police officer in Texas was injured when he responded to a 911 call.  He then filed a lawsuit against the caller claiming she failed to adequately warn the 911 operator of the dangerous situation the cop was walking into.  Read the story here.

In the newspaper account, the defendant's lawyer calls the lawsuit frivolous.  I agree.  The generally accepted rule for cases like these is that those who take on the responsibilities of jobs that require putting oneself in danger when called to action assume the risk inherent to the job.  Typically, this is referred to as the "fireman's rule" because it was originally developed to explain why firefighters should not be allowed to sue those who negligently caused fires.

The same policy reasons apply to police officers.  First of all, there is the notion of assumption of the risk.  People who opt to work in dangerous jobs know or should know of the risks involved and assume those risks.  Second, the fact that the job carries risks is reflected in the compensation the officers and firefighters receive for taking those risks.  (If they are underpaid, that is another problem, but not one that ought to be solved by spreading the costs of the accident to the victim who has to call 911 for help).  Third, if the people who need help can be sued, there is going to be a disincentive for them to ask for help, thus defeating the purpose of creating a 911 service to begin with. 

The one argument that can be made in support of a claim like the one used in this case is that assumption of the risk is an outdated doctrine that should be abandoned in favor of comparative negligence.  I have no problem with that argument, but even if we take that position, the case here is frivolous.  In order to support the claim, the plaintiff has to support the argument that the defendant was negligent and arguing that the victim of a crime or someone who calls 911 is negligent for not warning the police that the situation is dangerous is absurd.  Reasonable people would not disagree on this.  The case should be dismissed immediately.

Tuesday, August 20, 2013

New report on medical malpractice disputes tort reformers arguments

AboutLawsuits is reporting on a new report that confirms what we already knew.  While the cost of medical care in the United States continues to climb, the amount paid out for medical malpractice continues to fall, contradicting claims by tort reform advocates who argue that lawsuits are driving up healthcare costs. I say we already knew that because, as I have reported many times over the last few years, pretty much every single study done on this subject has concluded the same thing.  If you click on the "medical malpractice" label and scroll down, you will find a number of old posts with links to a lot of those studies.  For more on the new one, go to AboutLawsuits.

Thursday, August 15, 2013

Article in New England Journal of Medicine supports view that new warnings and lower dosages are needed for sleeping pills such as Ambien

Back in January I wrote about the FDA's attempt to convince drug makers that sell sleeping pills that contain the zolpidem active ingredient – a list that includes Ambien – to lower current recommended doses by half.  See here.  Today, AboutLawsuits is reporting that a group of doctors is backing the FDA’s view that new warnings and lower dosages for Ambien and other sleep drugs are needed in a perspective article published last week in the New England Journal of Medicine.  Go to AboutLawsuits for the details and links.  The article is available here.

Wednesday, August 14, 2013

More that 1500 claims have been filed seeking compensation for injuries allegedly caused by NuvaRing birth control device

Merck reports that the there are now about 1,500 women who are pursuing product liability lawsuits over injuries from NuvaRing, alleging that side effects of the birth control ring increased the risk of blood clots and other injuries.  For more details go to,

Friday, August 9, 2013

Should the FDA change the rules that apply to generic drug manufacturers?

The FDA recently announced its intention to adopt new regulations that would allow (and presumably encourage) generic drug manufacturers to add or update the safety warnings on their products.  Currently, they are required to have exactly the same warnings as the name brand products. The new rule would allow the generics to decide what to include in their own warnings, which may result in disparities in the warning content and language among manufacturers.  It will also open the door to debates arguments as to which warnings are "better".  Should the FDA change the rules and allow generic drug manufacturers more freedom in deciding matters related to warnings?    Some say yes (here), others say no (here).

Monday, August 5, 2013

Recent Texas defamation case clarifies some aspects of the law in the state

Over a year ago, I wrote about a case making its way through the courts in Texas that I thought would have important consequences on how the media reported the news.  Go here for my original post.  

The case is called Neely v. Wilson and the most recent opinion is the Texas supreme court's review of a motion for summary judgment granted in favor of the defendants.  The defendants had based their argument on the notion of "substantial truth" and the plaintiff argued that his evidence raised a question of material fact as to whether the statements made by the defendants were in fact substantially true.  The supreme court agreed and remanded the case.

However, the court also touched upon some of the other defenses and issues I discussed in my original post. It discusses the fair comment privilege and the official/judicial proceedings privilege.  You can read the opinion here.

Thanks to Jamie Baskin for the link!

Article on Maryland's decision to retain contributory negligence

A couple of weeks ago I criticized the recent decision of the Court of Appeals of Maryland in which it decided to retain the antiquated, inadequate, unfair and, for those reasons, almost universally rejected doctrine of contributory negligence.  I asserted that the majority opinion is weak and unconvincing and that it takes the wrong position on the policy in question.  You can read my post (and get a link to the opinion) here.

Professor Edward Robertson has now published a short but very good article in which he expands on many of the points I made.  I highly recommend the article which is available here.  In it, Prof.  Robertson shows that the court abdicated its judicial duty, and, as I asserted in my original post, the basis for the opinion is weak and unconvincing.  As he explains better than I did, there is simply no legislative or public policy declared by the legislature to which the court has any reason to defer.  He also explains that the opinion creates a perverse incentive for special interests lobbyists and that, again as I suggested, the court ignores the reality of the legislative process which is operates on the basis of an "asymmetrical balance of lobbying interests."

The article makes a number of other great points.  You should read it.  But let me mention just one more.

The court admits that courts are justified in changing the common law when the conditions that resulted in the policy in question have changed.  So, how is it that conditions have not changed in the state of Maryland to the point where a change in the common law is justified?  Forty six other states have decided the change has been justified for a long time.  What makes Maryland different?

Thanks to the TortsProf blog for the link to the article.

Max Kennerly on the BP oil spill litigation process

Not too long ago, the New York Times published an article criticizing the BP oil spill litigation process and the role of the lawyers who represented the plaintiffs trying to get compensation for their injuries.  Max Kennerly replies in his latest column here.  As usual, I agree with Max. 

Thursday, August 1, 2013

Iowa Supreme Court recognizes claim for emotional distress caused by attorney's malpractice

I have never understood why it is so difficult for courts to recognize claims for emotional distress in cases where the plaintiff does not suffer physical injuries. Is it really that difficult to believe that someone can suffer emotional distress due to someone's conduct absent a physical injury?   Assume an attorney's malpractice causes a client to lose his house, or custody of his children or to be separated from his children for years.  Is it really that difficult to believe that the attorney's negligence can cause emotional distress?

I don't think so.  As long as we recognize that emotional distress is a distinct type of injury that can result from negligent conduct, it is difficult to argue that a plaintiff should not have the right to bring a claim as long as he or she can support the elements of the cause of action.

Following this type of reasoning, the Iowa Supreme Court recently held that a couple from Ecuador may sue their attorney for emotional distress because his advice caused them to be separated from their children and grandchildren for a decade.  It’s the first time the state’s high court has allowed an attorney to be sued for emotional distress and punitive damages in a malpractice case.  Go here for more on the story.