Court of Appeals finds Tennessee punitive damages cap unconstitutional

A divided panel of the Court of Appeals for the Sixth Circuit recently held that the Tennessee statute capping punitive damages is unconstitutional.  Courthouse News Services has the story here.

FDA No Longer Pursuing Rule Update to Require Generic Drug Makers To Warn Of Known Side Effects

Back in November, 2013, I posted that the FDA proposed a new regulations that would allow (and presumably encourage) generic drug manufacturers to add or update the safety warnings on their products.  In a nutshell, the key is that generics are required to use the exact same label and warnings as the brand name manufacturers.  They can't deviate and update the warnings on their own. 

You would think that manufacturers interested in making sure their products are safe would welcome the new rule.  However, because the current system works to immunize generics manufacturers, a change that would work to make the products safer would also open the door to possible liability.  Thus, as you would expect from those who are more interested in profits than safety, the manufacturers hired a consulting firm  to conduct a cost-beneift analysis of the consequences of the new rule.  And, not surprisingly, the analysis concludes that the change is not good for consumers.  You can read the report here.  Then, go here for a report by Center for Justice & Democracy (called "America’s Unaccountable Generic Drug Industry; How Legal Immunity Could Be Making You Sick") which explains how deficient the current system is. You can then form your own opinion.  For more on this issue go here, here, here, here and here (video).

In April 2015, the New York Times published story stating that

The pharmaceutical industry mounted a new challenge on Friday to a federal plan that would require generic drug companies to take the initiative to update their labels to warn consumers whenever health risks were discovered, a shift that would expose the companies to legal liability.

During a public meeting at the Food and Drug Administration, the industry proposed instead that the F.D.A. itself should decide whether new warnings on drug labels are required and, if so, order companies to make the changes. But consumer advocacy groups said the companies were trying to shift responsibility to an agency that lacks the resources to track the vast array of drugs on the market.

Not much has happened since. The rules were supposed to have been finalized in December 2015, but the FDA delayed taking action until July 2016.  Yet, no action was taken, and two weeks ago, despite years of work, and calls from both inside and outside of the agency to ensure accurate and up-to-date warnings are provided to consumers by generic drug manufacturers, the FDA posted a notice announcing the withdrawal of the proposed rule involving label changes.

AboutLawsuits has the story here.

Mississippi and Kentucky adopt exoneration requirement for malpractice claims against criminal defense attorneys

Some jurisdictions have recently abandoned the view that a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to prove that he or she was actually innocent of the crime for which they were convicted.  My most recent post on this is here.   Some of those, however, still require that the plaintiffs show they were exonerated through the criminal process (or what some call "post conviction relief").  In other words, in cases in which a convicted defendant wants to sue a former lawyer alleging they would not have been convicted but for the negligence of the lawyer there are three approaches:  requiring that the defendant show actual innocence, requiring that the defendant show post conviction relief (but not necessarily innocence) and not requiring anything other than the typical elements of a torts claim.

In two recent decisions, the Supreme Courts of Mississippi and Kentucky have decided to adopt the approach that requires "exoneration" for the malpractice claim to proceed.

The case in Mississippi is called Trigg v. Farese, and you can read the opinion here.  In it, the court concludes that "We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled."

The case in Kentucky is called Lawrence v. Bingham, Greenbaum,Doll, LLP, and you can read the opinion here.  In it, the court adopted the following articulation of the Exoneration Rule: "to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the postconviction exoneration occurs."

Kentucky Supreme Court Holds Med Mal Review Panel Law is Unconstitutional; while Puerto Rico enacts a similar law

On November 15, 2018, the Kentucky Supreme Court held that Kentucky’s Medical Review Panel Act was unconstitutional. The Act established that all potential medical malpractice suits must first be presented to a three person medical review panel before the case could be filed in State court and that only after the panel rendered its decision (or after nine months if it had not rendered a decision) that the Plaintiff could file suit in State Court.  The case is called Commonwealth of Kentucky v Claycomb and you can read it here.

The TortsProf Blog has a comment here in which, without opining on the constitutionality of the act, Prof. Chris Robinette argues the bill is (or was) a bad idea.

JD Supra has a story about the decision here. 

Meanwhile, in Puerto Rico, the governor signed a law creating panels composed of 3 people--including a health expert, a public advocate, and a lawyer or former judge--to review medical malpractice claims.  Claimants, with an exclusion for the indigent, will be required to post a bond-like payment with the panel.  If the panel finds evidence of malpractice, the money will be returned.

This is a horrible idea and really bad news for the victims of medical malpractice in Puerto Rico.  It will not only delay their claims, it will make it very difficult for them to find legal representation and to get access to justice. 

Even though time and time again, studies have shown that the reasons for doctors leaving a jurisdiction of practice are rarely related to exposure to liability, the legislature and the governor argued the bill is meant to stem the exodus of doctors from Puerto Rico.  What they fail to recognize is that there is a general exodus from Puerto Rico largely caused by a long economic crisis which was made worse by the devastation caused by recent hurricanes. 

I agree with Prof. Robinette that there are better ways to handle the concern over frivolous claims.

Supreme Court hears oral argument in asbestos case under maritime law

A couple of weeks ago, the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment. Because the injuries in question occurred at sea it arises under the general “maritime” law, judge-made federal law for which the Supreme Court is the final authority. The lower court found that the manufacturers could be liable because the injuries were foreseeable. 

The SCotUS blog has analysis here.  You can also access all the relevant documents in the case here.

Interesting case in the Fifth Circuit Court of Appeals regarding false imprisonment

Suppose a person is charged of and convicted of a crime he or she did not commit and is later exonerated.  Should that person have a claim for false imprisonment?  against whom?  and when would the statute of limitation begin to run? 

These are some of the issues addressed by the US Court of Appeals for the Fifth Circuit in a recent decision in which it  reversed and remanded dismissal of a false-imprisonment claim against the city and county of El Paso holding that false imprisonment is a continuing tort in Texas.  The case was brought by a man who spent 17 years in prison for a sexual assault he did not commit.

You can read the opinion here.

Judge dismisses defamation suit against Trump

By now you have probably heard that a U.S. District Judge has dismissed a defamation lawsuit filed by Stormy Daniels against Donald Trump based on a “tweet” in which Trump suggested Daniels lied. 

The judge concluded that the tweet "constitutes 'rhetorical hyperbole', and that because the tweet displays “an incredulous tone,” it was not meant to be understood as a “literal statement about the plaintiff."

You be the judge.  The statement in question is this:  "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

Does that sound to be a statement of fact, an opinion or a rhetorical hyperbole?  Do you think reasonable people would disagree about the answer to that question?

The judge also found that Daniels failed to show that Trump "acted with actual malice or reckless disregard for the truth," which is ironic since Trump is famous for having reckless disregard for the truth.

NPR has more about the court's ruling here.  Politico has more here.

California Supreme Court says defendants in products liability cases may use evidence of industry custom

Strict products liability was born in California and many states still look to California law for guidance on products liability law issues.  For that reason, it is worth noting that late last August, the California Supreme Court issued its decision in Kim v. Toyota Motor Corporation in which it was asked to determine whether, in a strict products liability action, evidence that a product’s design conforms with industry custom and practice is relevant and admissible.  Several appellate decisions in California had previously had held that such evidence is categorically inadmissible, but the lower appellate court in Kim had taken a different approach, saying "it depends.”

In a 5-2 decision, the court acknowledged that evidence that a product was manufactured following the custom does not, by itself, prove that the product is not defective, but the court held that evidence of industry custom and practice may be relevant for other purposes, “including the jury’s evaluation of whether the product is as safely designed as it should be, considering the feasibility and cost of alternative designs.”  In other words, the court held that the evidence can be used together with other evidence as part of the analysis to determine whether the product is defective. 

This result is actually not that surprising and it follows the general approach developed by courts following the Restatement 2d's approach to products liability (as opposed to the one in the Restatement 3d, which is followed by a minority of jurisdictions.)

You can read the opinion here.

You can read more about the case here.

Kentucky Supreme Court hears oral arguments in case challenging med mal panel review procedure

As reported in the TortsProf blog: Last year, Kentucky enacted a law requiring medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial.  The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial.  Last week, the Kentucky Supreme Court heard arguments over the constitutionality of the law.  Plaintiffs claim the law obstructs the right to a jury trial, in violation of the state constitution.  The Courier Journal has the story.

Comment on documentary "Bleeding Edge" and the medical device industry

Netflix recently released a documentary called "The Bleeding Edge" which details many problems with medical devices today, with emphasis on the suffering of thousands of people due to Bayer’s Essure contraceptive, DePuy’s ASR hip implant, Johnson & Johnson’s transvaginal mesh, and the Da Vinci surgical robot.  Most medical devices aren’t tested with clinical trials. The medical devices which are tested can pass with a minimal showing, and Congress has adopted laws that shut the courthouse doors on injured victims. 

You can read a good comment on the documentary and the issues it raises by Max Kennerly at Litigation and Trial.

Third Circuit: US is immune from liability for intentional conduct by TSA officers because they are not "law enforcement officers" under the FTCA

As you probably know, the Federal Torts Claims Act retains immunity in a number of very specific circumstances.  Thus, according to the Act, the United States generally enjoys sovereign immunity for intentional torts committed by federal employees.  However, this rule is subject to an exception which waives immunity for a number of intentional torts if they are committed by employees who qualify as “investigative or law enforcement officers.” 28 U.S.C. § 2680(h).  This means that a plaintiff does not have a right to recover from the US Government if a mail carrier commits battery; but may have a right to recover if an FBI agent does.

In a recent case decided by the Third Circuit Court of Appeals, the court decided that TSA agents do not qualify as "law enforcement officers" and, therefore, the Government is protected by immunity.

The case is Pellegrino v. The TSA (available here), and the facts are what you would expect given the topic:  a passenger alleged intentional torts related to the conduct of TSA officers during a "screening" at an airport.  The details of the event are described here.

Be careful when reading comments on the case because some of the discussion is a bit inaccurate.  For example, some of the stories state that the officers are immune.  This is not entirely accurate because the FTCA deals with the immunity of the Federal Government, not of the individuals. 

Simple Justice has a comment here.

Tech Dirt has a comment here.

Parents who allowed child to die for religious reasons plead guilty

A number of years ago, I posted a number of comments on the possibility of imposing civil liability on parents whose refusal to provide medical treatment to a child for religious reasons causes the child to suffer an injury (or death).  See here, here and here, for example.

I had not seen the issue in the news for a long time, but today I saw an item in the news that caught my eye:  As reported in the Daily Beast, "[t]wo members of an Oregon church that believes in faith healing pleaded guilty to negligent homicide this week in the death of their newborn daughter, who spent hours struggling to breath without ever receiving medical treatment."  You can read the full story here.

This is, of course, a criminal law matter; but it does raise the question I have asked before.  If the parents can be criminally liable for this conduct, should we recognize a civil cause of action against them for wrongful death also? 

Wisconsin Supreme Court upholds validity of cap on non-economic damages

As the TortsProf blog recently reported, the Wisconsin Supreme Court recently held that the state's cap of $750,000 on non-economic damages in medical malpractice cases is constitutional. 

The plaintiff in the case lost her arms and legs as a result of a medical error and the jury determined that her pain, suffering, and disfigurement had a value of $16.5 million.  However, Wisconsin’s highest court deferred to legislation limiting such awards to a maximum of $750,000 in all cases, regardless of the severity of the injuries.

In a dissenting opinion, two justices argued that the cap had a perverse effect on plaintiffs because only those with the most catastrophic injuries will be denied a full and fair damages award and it "makes no sense that those who are injured most get the least.”

You can read the entire opinion here.

Med Mal statistics and other information

The Center for Justice and Democracy has just published its most recent update to the Medical Malpractice briefing book with all the latest statistics about medical malpractice litigation, cost, access to doctors, insurance, and patient safety.  Here is a summary. You can download the full report (free) here.

Supreme Court Holds Foreign Corporations Cannot Be Held Liable Under Alien Tort Statute

Long time readers of this blog know I have followed the cases on the Alien Tort Statute for some time.  For my posts on this topic, go here and scroll down.

But for those new to the subject, here is a very short update:  Back in 2012, the Supreme Court heard oral argument in a case called Kiobel v. Royal Dutch Petroleum which challenged the applicability of the Alien Tort Statute to corporate defendants. However, after that issue was argued before the Supreme Court, the Court asked the parties to brief and prepare for argument on a different issue: whether the ATS can be applied extraterritorially. This was surprising since the issue had not been raised by the parties because, before the Supreme Court brought it up, there probably was little disagreement about that question.  Yet, the Court expressed more interest in that question and eventually decided the case based on it.   Again, go to the link above and scroll down for a lot more information and links.

So the original issue presented by Kiobel was left undecided until the Court agreed to hear Jesner v. Arab Bank which asked the court to address it.  For a short explanation of the issues in the case go here.

And so, a few weeks ago, the Court finally issued its decision in which it holds that foreign corporations can not be held liable in American courts under the Alien Torts Statue.  NPR has the news here.

In a dissenting opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan, Justice Sonia Sotomayor said the court’s decision absolves corporations for responsibility under the law for “conscience-shocking behavior” and that she disagreed “both with the court’s conclusion and its analytic approach.”

You can read the (very long) opinion here.

Needless to say, the opinion has generated quite a bit of commentary.  Here are links to articles from different perspectives:

The SCotUS blog has an analysis of the opinion here.

Politico has an article here there argues, among other things, that "[t]he ruling appears to be a part of a pro-corporate pattern when it comes to the court’s view of its global role..."

Conservative think tank Washington Legal Foundation has a comment here in which it implies that the case was a wasted opportunity to go even further. It sees the opinion as part of a good trend that attempts to rein in human rights activists’ efforts to police private businesses’ overseas conduct but laments that the Court "once again failed to shut the door entirely on human rights activists" because the ruling said nothing about the many ATS claims pending against American corporations.

Complaint filed against Southwest for emotional distress caused by failed engine

At least one passenger has already filed a lawsuit over the mental trauma suffered on a Southwest flight that made an emergency landing earlier this month, after an engine exploded and blew out a window, resulting in a sudden drop in cabin pressure that almost pulled one woman out of the airplane.  Southwest Airlines has sent passengers of the flight an apology and has offered them each a $5,000 check and a $1,000 travel voucher.  Go here for the full story.

Massachusetts and California rule universities have a limited duty to help students because of special relationship

As readers of this blog know, the general common law did not recognize a duty to help or to control the conduct of others.  However, over time, courts (and eventually the Restatement) recognized limited duties in certain circumstances.  One of the most commonly accepted of these exceptions to the general rule is based on the existence of a special relationship.

Traditionally, a special relationship exists when a person is dependent on the other for safety.  Whether a relationship constitutes a special relationship which creates a duty to help, or protect, has usually been interpreted narrowly and for a long time was limited to the relationship between common carriers and their passengers and innkeepers and their guests.  However, some jurisdictions (and the Restatement) have considered extending the notion of special relationships to include other circumstances including the relationships between landlords and tenants, and commercial establishments and their customers.

As you would expect, whether schools have a special relationship with their students is a common question.  Because of the types of schools and ages of the students, the analysis is different if the case involves elementary schools or high schools, as opposed to colleges and universities.

There are lots of cases out there related to injuries suffered by students in college campuses, but not all jurisdictions have decided whether the schools have a duty to help or protect the students based on the relationship between the school and the student.

You may remember from your law school days a case called Hegel v Langsam used by many textbooks to illustrate the generally accepted rule that universities do not have a general duty to protect students.  Yet, according to some, there seems to be a trend to recognize (or impose) a duty in recent times.

Now we can add Massachusetts and California to the list of states that have decided the issue in favor of imposing a limited duty on the university.

Last December I wrote about a case brought against MIT that asked whether the university should be held responsible in a wrongful death claim based on the fact that a student took his own lives.  You can read my initial comments about the case here.

The student’s family sued, claiming his death was preventable and that the school had a legal duty to use reasonable care to protect him from harm.  MIT replied that the school wasn’t aware of the severity of the student’s condition and that he was treated by outside professionals, none of whom thought the student was a risk to himself.

I just read that the Supreme Court of Massachusetts issued its opinion yesterday.  I have not read the opinion itself, so I can't comment in detail but from what I have read, the court found that a university has a duty to take action if it is aware that a student has attempted, or has threatened, to commit suicide while enrolled at the university.  I do not know of any other cases that have found that universities have a duty to prevent suicides. 

Meanwhile, in California, the Supreme Court decided back in March, that colleges and universities are in a special relationship with their enrolled students which creates a limited duty to help, and protect, during school-sponsored activities over which the college has some measure of control.

The case is called The Regents of the Univ. of California v. Superior Court (decided March 22, 2018).  This one I have read and here is a summary:

The facts are long and detailed, but the short version of the story is that over more than a semester a certain UCLA student suffered from hallucinations and other mental health issues and behaved erratically and threateningly toward other students.  The problematic behavior was known to other students, TAs, professors, and members of the administration of the university.  The administration took action to help the students involved, including moving the problematic student off his dorm, and providing counseling.  The student was cooperative at times, but not consistently.  Sometimes he attended counseling, sometimes he did not.  Sometimes he took medication, sometimes he did not, and so on.

Again, there are more details to the story, but to make it short, one day at the end of class in a a science lab, the student unexpectedly and without provocation attacked another student (the plaintiff in the case) with a knife, causing her severe injuries.

The plaintiff sued the attacker and UCLA.  Against UCLA, she argued that the university owed her several duties:  (1) a duty to take reasonable protective measures to ensure her safety against violent attacks and otherwise protect her from reasonable foreseeable criminal conduct; (2) a duty to warn her as to such reasonable foreseeable criminal conduct on its campus and in its buildings; and, (3) a duty to control the reasonably foreseeable wrongful acts of third parties/other students.  In the alternative, she argued that even if UCLA did not owe those duties to her based on the special relationship, UCLA had assumed a duty of care by undertaking to provide campus-wide security.  (Because the court found that UCLA did owe a duty based on the special relationship, this last argument was not addressed.)

UCLA filed a motion for summary judgment arguing that colleges have no duty to protect their adult students from criminal acts but the Trial Court denied it.  On appeal, a divided panel of the Court of Appeal reversed.  The dissenting judge opined that colleges have a special relationship with their enrolled students, “at least when the student is in a classroom under the direct supervision of an instructor” and that, therefore, colleges have duty to protect against foreseeable threats of violence in classroom.

The plaintiffs appealed and the state supreme court agreed with the dissenting judge holding that there is a duty to protect, although there is no duty to control.

The Court's opinion starts by reviewing the general rule and the exceptions to the notion of a duty to help.  Thus, the court is clear that there is no duty to help unless the plaintiff can establish that the defendant had a special relationship toward the plaintiff that justifies imposing a duty on the defendant.  Such a relationship would be characterized by dependency and control: one party depends on the other for protection and the other has the ability to provide control over that needed protection.  The court also explains even if there is a duty, the duty must be limited.  It can't be a duty owed to the public at large; it is owed only to those to whom the special relationship applies.

With this as the general background, the court compared the circumstances of the case to those of cases involving high schools because it has already been decided that high school do have a duty to protect students.

The court admitted that there are differences between high schools and colleges but decided the relationship between a university and its students still justifies finding that a duty is owed.

The cases involving high schools have held that there is duty owed because the relationship between the school and the students is characterized by mandatory character of school attendance and comprehensive control over students exercised by school personnel.  Even though in the college setting, the students have more freedom and are usually not minors, the court found that students are still somewhat vulnerable because, although they are not minors, they are still learning how to navigate the world as adults and are, therefore, dependent on their college communities to provide structure, guidance, and a safe learning environment.

Given this conclusion, and the fact that colleges have superior control over the college community environment and the ability to protect students, including by monitoring and disciplining them if necessary, the court concluded that it is justified to find that colleges have a special relationship with their students.

However, the fact that there is a special relationship does not mean there is a duty to everyone or to eliminate all risks.  The court concluded that colleges are in a special relationship with their enrolled students only, and limited to the context of school-sponsored activities over which the college has some measure of control.  The court also noted that this duty is not a duty to prevent violence, which would be impossible to discharge.  It is a duty to take reasonable steps to protect students when the university becomes aware of a foreseeable threat to their safety.

Applying its conclusions to the facts of the case, the court remanded the case for the Court of Appeal to decide whether triable issues of material fact remain on the questions of breach of the duty (alerting to the fact that the appropriate standard of care for judging reasonableness of university’s actions remains an open question, which parties are free to litigate on remand.)

Thus, UCLA lost the argument on whether the court should impose a duty, but it is possible that UCLA will not be liable if it is determined that it did not breach the duty.

In a separate Concurring Opinion, one of the justices makes a very good point:  the language used by the court may be a bit too broad.

For a few reasons, this justice did not join the majority opinion insofar as it would extend the duty beyond the classroom, to encompass more broadly “curricular activities” and activities “closely related to [the] delivery of educational services.”   First, there is no need to decide if the duty extends beyond the classroom, because the attack in this case occurred in a classroom.  Second, the extent of a university’s control in a non-classroom setting varies considerably because activities outside the classroom differ in potentially significant ways. And, third, the majority’s conclusion can create confusion because it offers no guidance as to which non-classroom activities qualify as either “curricular” or “closely related to [the] delivery of educational services” or what factors are relevant to this determination.

Wisconsin Supreme Court to decide whether the state's cap on non-economic damages in med mal cases is unconstitutional

The TortsProf blog is reporting that the Wisconsin Supreme Court will hear oral arguments in a case on appeal from a decision of the state's appellate court which declared the state's cap on non-economic damages unconstitutional.  The case involves a medical malpractice claim which resulted in a jury verdict for the plaintiff.  The jury determined that the health care providers were responsible and awarded $25.3 million. The non-economic damages portion of the award was approximately $16.5 million.  Wisconsin has a cap on non-economic damages in medical malpractice cases of $750,000. The trial judge ruled the cap was unconstitutional as applied to the plaintiff's case. The intermediate appellate court affirmed and went further because it ruled that the the cap was unconstitutional per se (not just "as applied.")  The Milwaukee Journal Sentinel has the story.

Iowa Supreme Court finds that proof of exoneration is not necessarily required for a convicted defendant to sue for legal malpractice

In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. This view has been criticized but still appears to be the majority view. Yet, a number of jurisdictions have recently decided otherwise.

Back in 2016, I reported that the Iowa Supreme Court decided actual innocence is no longer required as an element of the cause of action; and I just saw that it recently reaffirmed this new approach in a case decided this year.  Here is the story which includes a link to the opinion.

Other jurisdictions that have held innocence is not a requirement include Washington, Kansas (also here) and Idaho.

UPDATE (4/15/2018):  Thanks to Patrick J. Olmstead, Jr. who wrote to me to let me know that the Indiana Court of Appeals also abandoned the actual innocence requirement in a case called Beal v. Blinn, 9 N.E.3d 694 (2014).

Ky. Lawmakers Didn't Consult Federal Experts About Limiting Black Lung Claims

A few days ago I reported that the Legislature in Kentucky had approved a measure to prevent federally-certified radiologists from judging X-rays in state black lung compensation claims, leaving diagnoses of the disease mostly to physicians who typically work for coal companies.

NPR is now reporting that the federal agency that trains, tests and certifies the physicians who read X-rays and diagnose black lung disease not consulted by Kentucky lawmakers in the 14 months they considered the new law.

This is a terrible law enacted to please the coal companies because black lung claims in Kentucky have risen about 40 percent since 2014. It should be repealed.

NPR has the story and more information on the reactions to the law by different groups including radiologists, the College of Occupational and Environmental Medicine and the Kentucky Workers Association, among others.

Comment on issues and unanswered questions related to autonomous cars

I am sure you have heard by now about an Uber autonomous car killed a pedestrian in Arizona.  The accident was called the first fatality caused by such a vehicle.  At the time Uber was experimenting with autonomous cars in Arizona.  Soon after the accident, the company announced it was terminating the experiment - at least for now.

I have blogged about issues related to autonomous cars before and about some of the possible questions that we will inevitably have to deal with in the near future as accidents begin to happen.  Go here, here and here.

Now comes news that Uber confidentially compensated the family of the pedestrian killed by its robot car.  That was quick and it evidently prevented the publicity that would have resulted from discovery if a lawsuit had been filed. 

But the issues and unanswered questions remain.  This might have been the first pedestrian death caused by an autonomous car, but unfortunately, it is not likely to be be the last.

Which brings me to the comment posted at The Pop Tort addressing some of the issues and questions related to this new topic in Tort law.  You should go and read it here.

Court holds coffee manufacturers must add a cancer warning label in California

Smithsonian magazine is reporting that coffee companies in California may soon be required to display a warning label alerting customers to a possible carcinogen in their brews.  Coffee contains acrylamide, which is on California’s list of chemicals that require a warning.  The ABA Journal also has the story (and more links) here. 

On the other hand, it has been reported that drinking coffee helps decrease the risk of many cancers.  I have a feeling this is not the last we will hear of this controversy.

Kentucky enacts law to make it more difficult for plaintiffs to recover for black lung disease

A measure signed into law in Kentucky this past week would prevent federally-certified radiologists from judging X-rays in state black lung compensation claims, leaving diagnoses of the disease mostly to physicians who typically work for coal companies.

This is outrageous.  Whether a person should be allowed to appear as an expert in a case should be left to the application of the rules of procedure and evidence.  What the legislature has done here is simply interfere with the process in order to favor defendants. 

You can read the full story here.

Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule? -- UPDATED

October 17, 2017
Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit by a foul ball during a Cubs game earlier this year.  This question has been litigated many times in many jurisdictions and, as it stands right now, the law favors baseball stadium owners.

In most cases, the discussion of the courts has focused on either whether the defendants have a duty to the spectator or whether the spectator assumed the risk of injury by choosing to sit close to the field.  Often, whether the issue is defined as the former or the latter, court and commentary refer to the analysis as one involving "the baseball rule," which is really a reference to the result of the application of the analysis. The case against the Cubs is different, however, because in Illinois, there is a specific statute that limits the possible liability of baseball stadium owners.

I wrote a short comment on this a few days ago in The John Marshall Law School Law Review blog.  You can read it here.

UPDATE (3-21-18):  Earlier this month, the court dismissed the claim against the Cubs but allowed the case to proceed against Major League Baseball.  The Chicago Daily Bulletin has the story.

On the difficult to understand distinction between negligence and recklessness

I have often argued that the distinction between negligence and recklessness is difficult to understand.  True, on paper we can express a definition that supports and distinction between the two concepts.  For example, in New Jersey, “recklessness, unlike negligence, requires a conscious choice of a course of action, with knowledge or a reason to know that it will create serious danger to others.”   Yet, as is often the case, in practice this type of definition (and attempt to distinguish from negligence) is difficult to apply, as a recent case from New Jersey illustrates.

As reported in Golf Dispute Resolution, in this case the plaintiff asked the defendant to show him how to properly hit a golf ball. The plaintiff then said ‘All right, get back.’ He then set up a golf ball on a tee and explained how to set up properly to the ball, how to hold the club and how to start the swing. The plaintiff testified that he thought the defendant had moved back enough that he would not be in harms way, but did not confirm this visually before swinging the club.  Unfortunately, the plaintiff was not out of harms way, and when the defendant swung the club, he struck the plaintiff in the face causing severe injuries.

On these facts, the trial court determined that the defendant’s actions, at most, constituted negligence, requiring that the case against him be dismissed, which in my opinion, was the correct decision.  Often, states require a showing of recklessness in cases involving sports injuries and the conduct in this case does not sound to me to fit the definition of recklessness cited above.

The appellate court disagreed holding that the judge erroneously usurped the role of the factfinder by making findings of fact and liability in matters in dispute between the parties.

I disagree, on these facts, a judge could easily have concluded (in response to a motion to dismiss) that reasonable people would not disagree that the evidence presented did not support a finding of recklessness.

Instead, the court of appeals held that there exists a material fact in dispute concerning whether the defendant "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander."

And there is the problem:  saying that we have to decide whether someone "made appropriate observations prior to swinging the golf club consonant with the attendant risk of significant injury to a bystander" is a long way of saying whether the actor acted unlike a reasonable person would have under the circumstances, which is, of course, the standard of negligence.

In other words, the court decided that holding the case was a negligence claim was wrong, but then remanded so the jury could decide the case based on applying a negligence standard.

The case is called Spataro v The Stakemaster and you can read it here.

GM sued for accident caused by "self driving" vehicle

GM has been testing autonomous vehicle technology on the streets of San Francisco since August 2017, putting the cars in purposefully challenging conditions to ensure that their safety features work. Unfortunately, the vehicles have been involved in a number of accidents (at least six in September alone).  One of those accidents (which happened in December) involved a motorcyclist, who has now filed a lawsuit claiming that he suffered personal injuries in an accident with one of the company’s self-driving cars, when a self-driving Chevrolet Bolt vehicle veered suddenly into his lane, knocking him to the ground.  You can read the complaint here.

As reported by AboutLawsuits here, the lawsuit comes amid a push for the deployment of self-driving vehicle regulations. New federal guidance, A Vision for Safety 2.0, was released by the U.S. Department of Transportation (DOT) and the NHTSA in September, providing recommendations for the automotive industry and States to follow while developing the evolving technologies used in self-driving vehicles.

For my most recent posts on issues related to driverless cars, go to "Update on the debate regarding possible liability for injuries caused by autonomous cars"  and "Podcast: Challenges of self driving cars."

Miami Doctors Allow Man To Die Because Of “Do Not Resuscitate” Tattoo On Chest -- UPDATED

Jonathan Turley recently wrote about an interesting case in which doctors at a Miami Hospital decided to stop providing help to a patient because of a "do not resuscitate tattoo."   The story is interesting because, according to the report, Florida only recognizes DNRs if they are provided in a specific form.  If this is true, the doctors did not act according to the state's law.  Here is part of the story:

"Doctors at the Jackson Memorial Hospital faced a novel issue when a 70-year-old man was brought into the emergency room after being found intoxicated and unconscious on the street. . . . The doctors were working to assist the man when someone noticed a large chest tattoo reading “DO NOT RESUSCITATE.” It even had a tattoo signature. After consulting an “ethics expert,” the hospital treated the tattoo as a viable DNR form and allowed the man to die. In my view, the expert was wrong on the law if his decision was based solely on the tattoo. 

Florida agencies have a specific form and states: Do Not Resuscitate Order—Form 1896 (Multilingual) Important! In order to be legally valid this form MUST be printed on yellow paper prior to being completed. EMS and medical personnel are only required to honor the form if it is printed on yellow paper.  

The form has a place for a physician’s signature and required showings of informed consent. Florida does not recognize a metal DNR bracelet or necklace. A patient may carry a “patient identification device”, a smaller version of DH Form 1896 for their wallet or even a chain. 

The problem is that “Do Not Resuscitate” teeshirts and tattoos are common jokes. There was no way that the staff could determine if this was a joke or waiver.  

A similar case was discussed in a 2012 article in the Journal of General Internal Medicine, involving a 59-year-old patient. He had “D.N.R.” tattoo across his chest but he said the tattoo was a joke and the result of losing a bet in poker."

The doctors involved wrote the following Letter to the Editor of the New England Journal of Medicine:

We present the case of a person whose presumed code-status preference led him to tattoo “Do Not Resuscitate” on his chest. Paramedics brought an unconscious 70-year-old man with a history of chronic obstructive pulmonary disease, diabetes mellitus, and atrial fibrillation to the emergency department, where he was found to have an elevated blood alcohol level. The staff of the medical intensive care unit evaluated him several hours later when hypotension and an anion-gap metabolic acidosis with a pH of 6.81 developed. His anterior chest had a tattoo that read “Do Not Resuscitate,” accompanied by his presumed signature. Because he presented without identification or family, the social work department was called to assist in contacting next of kin. All efforts at treating reversible causes of his decreased level of consciousness failed to produce a mental status adequate for discussing goals of care. 

We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty. This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested. He was placed on empirical antibiotics, received intravenous fluid resuscitation and vasopressors, and was treated with bilevel positive airway pressure. 

After reviewing the patient’s case, the ethics consultants advised us to honor the patient’s do not resuscitate (DNR) tattoo. They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests. A DNR order was written. Subsequently, the social work department obtained a copy of his Florida Department of Health “out-of-hospital” DNR order, which was consistent with the tattoo. The patient’s clinical status deteriorated throughout the night, and he died without undergoing cardiopulmonary respiration or advanced airway management. 

This patient’s tattooed DNR request produced more confusion than clarity, given concerns about its legality and likely unfounded beliefs that tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated. We were relieved to find his written DNR request, especially because a review of the literature identified a case report of a person whose DNR tattoo did not reflect his current wishes. Despite the well-known difficulties that patients have in making their end-of-life wishes known, this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.

UPDATE 1/21/18: NPR recently picked up the story here.

Illinois state rep proposes "good samaritan" law to protect people who cause damages when trying to rescue dogs or cats

Have you ever seen a dog locked inside a hot car and felt like breaking a window?

An Illinois state legislator is proposing legal immunity for people who rescue pets from hot vehicles. Rep. David Olsen has filed a bill that would alter the Humane Care for Animals Act, allowing civil and criminal liability exemptions for people who break into cars to save dogs or cats — as long as they attempt to tell police about it first. The Illinois News Network has a summary, and the bill itself can be found here.

I only have one question, why limit it to dogs or cats? Don't other pets deserve rescuing too?

North Dakota: Court refuses to apply damages cap in med mal case, declares it unconstitutional -- UPDATED

In 1995, North Dakota passed a $500,000 cap on non-economic damages in medical malpractice cases.  I assume has been invoked and applied since.  Until now.  The TortsProf blog is reporting today that a state judge recently refused to apply the cap and ruled the statute violates equal protection guaranteed by the state constitution by arbitrarily reducing damages for people who suffer the most severe injuries.

Go here for more (although not much) on the story.  As you know, I am against caps, but an interesting element of this story is that at $500,000, the North Dakota cap is one of the more generous out there.

UPDATE (1/12/18):  The PopTort has more information, excerpts from the decision and a nice comment on the case here.

Court finds Amazon can't be responsible as "seller" in a product liability claim

About Lawsuits.com is reporting that a federal judge has ruled that Amazon.com cannot be held liable for injuries caused by third party products the company sells on its website because, according to the court's memorandum opinion Amazon did not meet the state’s definition of a “seller.”  The court held that Amazon is merely a marketing place for third-party vendors, and not the seller or manufacturer, stating, among other things, that

“[l]ike an auctioneer, Amazon is merely a third-party vendor’s ‘means of marketing,’ since third-party vendors—not Amazon—’cho[o]se the products and expose[] them for sale by means of’ the Marketplace,” Judge Brann stated. “Because of the enormous number of third party vendors (and, presumably, the correspondingly enormous number of goods sold by those vendors) Amazon is similarly ‘not equipped to pass upon the quality of the myriad of products’ available on its Marketplace.” 

This is interesting because, as Amazon users probably have noticed, Amazon seems to sell products in a number of different ways.  As far as I can tell, these are some of the categories:

1.  Amazon products sold by Amazon.

2.  Products that are sold by Amazon but are not Amazon products.

3.  Products are that not Amazon products that are sold "through" Amazon.  If I understand it correctly, products in this category are ordered through Amazon, sold by someone else, but the order is "fulfilled" by Amazon.

4.  Products that are ordered through Amazon, sold by someone else, and the order is fulfilled by that someone else.

I understand saying that Amazon is not a seller of a product in the last category.  But I think Amazon is a seller in the first three.

Why hasn't Gov. Cuomo signed the bill adopting the "discovery rule" for the statute of limitations in certain medical malpractice claims?

The New York Personal Injury Law Blog has a good (and short) discussion of a bill waiting to be signed that would adopt the so-called discovery rule for certain medical malpractice cases.  Before we go any further, let me confess that I am surprised there is a need to pass a bill for this to begin with!  I would have thought that by now all states have adopted the discovery rule; but evidently, I am wrong.  And what is worse is that the bill does not proposed adopting the rule for all cases. 

As explained in the article, the law "mimics the law in 44 other states, extending the statute of limitations in certain medical malpractice cases [to] the time the discovery of malpractice was made, or could reasonably have been made, instead of when it occurred.  In the final hours dickering over the bill last June, it was watered down to apply only to cancer cases, leaving all other “failure to diagnose” cases, where the patient didn’t even know s/he was victimized, hanging out in the cold. But still, even in its watered down state, it is something for those that have not only been victimized by malpractice, but didn’t even find out until the time to bring suit had expired."

You should read the full article here.  Among other things, it discusses how the current state of medical insurance business does not explain the hesitation to sign the bill.