Sunday, March 31, 2013

Baseball torts

Today is opening day for Major League Baseball. Picking up on that theme, and being the torts geek that I am, I decided to participate in the TortsProf blog with a post on baseball torts. You can read it here.

Sunday, March 24, 2013

Comment on the controversy over Monster and other caffeinated drinks

As you probably remember there has been a lot of discussion on the dangers of caffeinated drinks like Monster, Red Bull and others recently.  See here for some links to my previous posts.  Here is a recent comment published at The PopTort.

US abandons legal battle over cigarette warnings

After a series of setbacks in federal court, the U.S. government is abandoning a legal battle to require that cigarette packs carry a set of large and graphic warning labels depicting the dangers of smoking and encouraging smokers to quit.  For all the background information go here.  For the most recent information you can go to Reuters, The First Amendment Center, Legal Newsline, the Washington Legal Foundation and Public Citizen.

Tuesday, March 19, 2013

Additional comments on Bartlett

Just a few minutes ago, I posted some links to reports on today's oral argument before the US Supreme Court in Mutual Pharmaceutical v. Bartlett which asks the Court to decide whether a generic drug maker can be held liable for a design defect. Here are a few more: 

The New York Times

The Washington Post

The Los Angeles Times

The Hill

Thanks to How Appealing for the links.

The Supreme Court, preemption and generic drug manufacturers

The big news in torts today was the oral argument before the US Supreme Court in Mutual Pharmaceutical v. Bartlett which asks the Court to decide whether a generic drug maker can be held liable for a design defect. I wrote about the case a few days ago here

You can access the transcript of the oral argument here.  For comments you can go to Bloomberg, Thomson Reuters, AP, and Drug and Device blog.

According to the report by AP, "The Supreme Court seemed skeptical Tuesday of allowing generic drug manufacturers to be sued in state court for a drug's design defects if federal officials approved the brand-name version the generic drug copied."

Sunday, March 17, 2013

Idaho Supreme Court refuses to adopt "baseball rule"

The Idaho Supreme Court recently declined to adopt the so-called "baseball rule” which is commonly used to release baseball park operators from liability based on the notion that spectators assume the risk of being hit by foul balls. The court reached the correct result, but it could have done more to clarify what has become a confusing area of the law.
It is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct. The problem is that the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense. The so–called “primary assumption of the risk” is simply another way of asking whether the defendant owes a duty to the plaintiff. 

When applied to baseball, the policy question should be answered the way the court in Idaho answered it.   An operator of a baseball stadium has a duty to protect the spectators sitting in the most dangerous part of the stadium and to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others.  This means that a defendant can’t claim a plaintiff assumed a risk created by the defendant’s own negligence.

This approach will yield good results not only in spectator injury cases but also in other sports cases. 

Court of Appeals for the 6th Circuit holds claim against generic drug manufacturer is not preempted

Just as the US Supreme Court gets ready to hear oral arguments on a new case on preemption issues involving a generic drug manufacturer, the Court of Appeals for the Sixth Circuit has issued a new opinion holding that "failure to update" claims are not preempted in a case involving a generic drug. The case is called Fulgenzi .v PLIVA and it is available here.  Thomson Reuters has the story here.  Drug and Device has a comment here.

The Supreme Court, preemption and generic drug manufacturers

This week the US Supreme Court will hear oral arguments in a case called Mutual Pharmaceutical v. Bartlett which asks the Court to decide whether a generic drug maker can be held liable for a design defect. See here and here.  In anticipation of this very important case, a number of blogs have published posts on the issues.  Here are three good ones:  Preemption again (SCOTUS blog), Argument Preview (SCOTUS blog), Supreme Court to Hear Generic Drug Suit (Politico).

OB/GYN group advises against the use of robotic surgeries

A few days ago I reported that the FDA has launched an investigation into the safety of the da Vinci surgical robot following a number of reports involving severe complications, internal injuries and patient deaths associated with the machine.  See here and here.

Now comes news that the nation’s largest organization representing obstetricians and gynecologists announced this week that it is advising health care professionals not to use the da Vinci robotic surgery system for hysterectomies. has the story here.

Thursday, March 14, 2013

Do attorneys owe a duty to non client affiliates of entity client

Under what circumstances should an attorney have a duty in tort toward the affiliates of an entity client? 

The question is now before the District of Columbia Court of Appeals.  The case involves a claim by Boston-Maine Airways Corp. against a law firm that represented its sibling companies and a shared owner.  After a District of Columbia Superior Court judge granted the law firm's motion for summary judgment, finding that Boston-Maine failed to prove that Sheppard owed them any care, it appealed arguing that the firm's representation of its sibling companies meant the firm couldn't take actions that would harm members of the corporate family. For a more detailed summary of the case and the issues go here.

My guess is that the court will follow the analysis suggested in the comment to ABA Model Rule of Professional Conduct 1.7 on conflicts of interest.  Even though the issue is different, the analysis is helpful.  According to the Rule's approach, lawyers who represent entities do not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary of the entity.  For this reason, an attorney for an entity is not barred from accepting a client whose interests are adverse to an affiliate of the entity client in an unrelated matter, unless the circumstances are such that the  affiliate should also be considered a client of the lawyer, or there is an understanding between the lawyer & the entity client that the lawyer will avoid accepting new clients in those circumstances, or if the lawyer’s obligations to either the entity client or to the new client are likely to materially limit the representation of the other client.

Wednesday, March 13, 2013

NY Times: "Hold Generic Drug Makers Accountable"

I recently reported that the US Supreme Court will soon hear oral arguments in a case called Mutual Pharmaceutical v. Bartlett which asks the Court to decide whether a generic drug maker can be held liable for a design defect. See here.  Three days ago, the New York Times published an editorial (available here) arguing the court should rule in favor of recognizing possible liability.  The Times' position is based on the notion that we should not rely solely on the FDA as a regulatory agency to improve the quality of pharmaceutical products.  As stated in the article, "Manufacturers should bear responsibility for making sure their drugs are safe and effective. The Food and Drug Administration plays an important role by approving drugs based on limited clinical trials and then monitoring what happens when the drugs are widely used. But lawsuits are important, too, as deterrents to negligence or wrongdoing. If the Supreme Court shields the makers of generic drugs from consumer suits, Congress ought to amend the laws"

More on the story on the Da Vinci surgical robot

A few days ago I reported that the FDA has launched a probe into the safety of the da Vinci surgical robot following a number of reports involving severe complications, internal injuries and patient deaths associated with the machine. has an update on the story here.

Informed consent to a CT scan?

 Courts usually define the duty to provide information in medical informed consent cases as limited to "material risks."  But what makes a risk "material"?  Sometimes this is determined by the practice in the profession and sometimes by asking what a reasonable patient would have liked to have known.  Regardless of the standard, what is "material" also has something to do with the level of risk. 

So, should patients be told the level of risk of a CT scan? 

CT scans have been getting a lot of attention lately because new studies have shown they expose people to a lot more radiation that previously thought. (CT scans are a high powered x-ray used to provide clearer images than a traditional x-ray. The scan exposes patients to the radiation equivalent of 100 to 500 chest x-rays.)  And now a new study reveals that patients are often not informed about the levels of radiation exposure and other health risks they may face.  The study, published recently in JAMA Internal Medicine examined data from a questionnaire given to nearly 300 patients undergoing CT scans at the Denver Veterans Affairs Medical Center (VAMC) during November and December 2011.

Go here for more on this story.

Saturday, March 9, 2013

Supreme Court to decide new case on generics; US will argue in favor of preemption

The US Supreme Court has agreed to allow the Solicitor General to argue that federal law preempts personal injury lawsuits claiming design defects from proceeding in state courts. At issue, in this instance, is whether a generic drug maker can be held liable for a design flaw if it failed to withdraw an allegedly harmful medicine from the market. The case is called Mutual Pharmaceutical v. Bartlett. Read more on the story here. Go here for links to all the relevant documents on the case. Interestingly, the Government's position on preemption seems to have changed over the last couple of years. The case will be argued before the Supreme Court on march 19.

Tuesday, March 5, 2013

Monster Energy drink responds to allegations its product caused teen's death

Back in November I reported on a wrongful death claim filed by the parents of a teenager in which they argued the high caffeine content of the popular Monster Energy drink contributed to the teenager's death.  See here. Since then, there's been a lot of discussion about whether the drink (and others like it) are dangerous.  See here, here, here, here and here

Yesterday, the company that manufactures Monster Energy issued a press release attacking the claims raised by the family of the teenager.  The company indicates that it retained a group of physicians and a coroner to look into his death, and that they found no link between her death and Monster energy drinks. The opinion of the company’s paid experts is at odds with the findings of the Maryland Medical Examiner, who claimed the girl died of caffeine toxicity.  Go here for more on the story.

Yale Journal of Health Policy article on medical malpractice

Yale Journal of Health Policy, Law and Ethics has published an interesting short article called Debunking Medical Malpractice Myths: Unraveling the False Premises Behind "Tort Reform." You can read it here. The article concludes that regardless of the serious health care issues facing the United States right now, caps on damages are not a solution to the problem and adds that "doctors would better serve themselves and their patients by directing their anger and efforts regarding rising premiums toward the questionable practices of the insurance industry and the subset of doctors who repeatedly commit malpractice without facing adequate discipline. Seeking to take away patients' rights is not the answer."

Thanks to Day on Torts for the link.

FDA investigates injury reports related to the use of "da Vinci" robotic surgical machine

The FDA has launched a probe into the safety of the da Vinci surgical robot following a number of reports involving severe complications, internal injuries and patient deaths associated with the machine.  Adverse event reports submitted by doctors and patients have repeatedly claimed that the surgical robot accidentally caused burns, tears or other injury to internal organs, and a growing number of product liability lawsuits over the da Vinci surgical robot allege that the device is defective and that the electrical current used to cut and cauterize tissue is prone to arc outside of the surgical field.   Max Kennerly has a good comment on the issues raised by the use of robotic surgical machines here.  He concludes, among other things, that "robotic hysterectomies are not worth the extra cost, and they are likely more risky than laparoscopic surgeries done without them."  For more on this story go here.

NY Review of Books publishes article on lead poisoning

The New York Review of Books has published an article on the issues related to lead poisoning cases called "Lead Poisoning: The Ignored Scandal."  You can read it here.

Court of Appeals for the Fifth Circuit affirms constitutionality of damages cap

About a week ago, the Court of Appeals for the Fifth Circuit recently affirmed the constitutionality of Mississippi's $1 million statutory non-economic damages cap in a case called Learmouth v. Sears, Roebuck. (available here). The court held the statute does not invade the jurys's fact finding function and, thus, does not interfere with a claimant's right to a jury trial.
As long time readers of this blog know, I am generally against caps on damages, but, as I have said before, a cap of $1 million is certainly much better than the more common ones that typically cap recovery at amounts much lower than that. So, as caps go, the Mississippi one is quite generous. There is more on the story here.

New comment on medical malpractice reform

Joanne Doroshow, head of the Center for Justice and Democracy at New York Law School, has published a comment on medical malpractice "reform" efforts here.

US Supreme Court decides Levin v. US

Yesterday, the US Supreme Court issued its opinion in Levin v. United States in which the court had been asked to decide whether a civilian may bring a battery claim against the US government for injuries allegedly caused by military medical personnel during the performance of their duties, or, more specifically, whether such claims barred by sovereign immunity. 

Interpreting the statutes involved, the Court has held the plaintiff may bring the claim.  You can read the full opinion here.  Here is the syllabus:
The Federal Tort Claims Act (FTCA) waives the Government’s sovereign immunity from tort suits, . . .  but excepts from the waiver certain intentional torts, including battery, . . The FTCA, as originally enacted, afforded tort victims a remedy against the United States, but did not preclude suit against the alleged tortfeasor as sole or joint defendant. Several agency-specific statutes postdating the FTCA, however, immunized certain federal employees from personal liability for torts committed in the course of their official duties. One such statute, the Gonzalez Act, makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel. . . .  Congress subsequently enacted comprehensive legislation, the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), which makes the FTCA’s remedy against the United States exclusive for torts committed by federal employees acting within the scope of their employment . . . Under the Liability Reform Act, federal employees are shielded without regard to agency affiliation or line of work.

Petitioner Levin suffered injuries as a result of cataract surgery performed at a U. S. Naval Hospital. He filed suit, naming the United States and the surgeon as defendants and asserting, inter alia, a claim of battery, based on his alleged withdrawal of consent to operate shortly before the surgery took place. Finding that the surgeon had acted within the scope of his employment, the District Court released him and substituted the United States as sole defendant. The Government moved to dismiss the battery claim, relying on the FTCA’s intentional tort exception. Levin countered that the Gonzalez Act. . . renders that exception inapplicable when a plaintiff alleges medical battery by a military physician. The District Court granted the Government’s motion to dismiss. 
The Court of Appeals for the Ninth Circuit affirmed but the Supreme Court reversed holding that the government is not immune and, therefore, Levin’s suit against the United States can go forward.  For all the relevant documents related to the case including briefs and opinions go here.

Monday, March 4, 2013

New articles on sexual abuse at the Air Force Academy and the Feres doctrine

In the past, I have posted several stories on the Feres Doctrine, which prevents military personnel from suing for injuries while in service and, in particular, about the on going scandals related to sexual assaults on female cadets at the Air Force Academy.  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.  Last year, the New York Times published an article that suggested the problem is still rampant. About a week ago, the NYT published another article on the same issue here (with video).    Meanwhile, over at the PopTort there is a short comment on the issue (here) which recommends an Oscar-nominated documentary called The Invisible War.  (You can see the trailer here)