Court appoints plaintiffs' steering committee in multidistrict litigation against manufacturers of earplugs issued by the military

Last month I reported that the U.S. Judicial Panel on Multidistrict Litigation (JPML) agreed to consolidate and centralize all 3M Combat Arms Earplug lawsuits pending throughout the federal court system.  Currently, there are more than 813 product liability lawsuits filed against 3M Company and it’s Aearo Technologies subsidiary, each involving similar allegations that military veterans suffered hearing damage following use of Combat Arms earplugs, which were standard issue by the military between 2003 and 2015.  However, according to some, it is expected that ultimately thousands of cases will be brought by individuals nationwide.

The centralized litigation has been assigned to U.S. District Judge Casey Rodgers in the Northern District of Florida, which will help reduce duplicative discovery, and avoid conflicting pretrial rulings.

Now comes news that the Judge has appointed a group of 53 plaintiffs’ attorneys to serve in various leadership roles, taking actions that benefit all veterans who are pursuing claims for hearing loss linked to product defects.  AboutLawsuits has the story and links to the relevant documents.

Supreme Court decides new case on preemption in cases of prescription drugs

About a week ago, the Surpreme Court issued its opinion on Merck Sharpe & Dohme v. Albrecht, the latest decision in the Court's line of cases on pre-emption as a defense in cases for injuries caused by lack of adequate warnings regarding prescription drugs. 

According to the summary and analysis of the opinion in the SCotUS blog, the opinion offers "clarity on the procedure for deciding pre-emption defenses, but little additional elucidation on the contours of those defenses."

You should read the full article (here), which explains that "[a] decade ago in Wyeth v. Levine, the court held that to succeed with the impossibility pre-emption defense, defendants had to produce “clear evidence” that the FDA would have prohibited an additional warning. Yesterday’s opinion in Albrecht attempted to clarify Wyeth’s application by explaining abstractly that the “clear evidence” standard contemplates an irreconcilable conflict between federal and state law, rather than a heightened standard of evidentiary proof."

The court held that judges, rather than juries, should decide whether FDA actions pre-empt state tort suits alleging failure to warn consumers of adverse effects. This is a strategic win for drug manufacturers, clarifying that their go-to defense of “impossibility preemption” – the claim that federal regulation would have prohibited the additional warnings plaintiffs allege state tort law required – can be decided on motions before the case reaches a jury.

Jurist has a short summary here.

Podcast on autonomous vehicles

A recent University of Virginia School of Law podcast addresses the effect of autonomous vehicles on tort and insurance.  You can listen to the program here or read about it here.


Thanks to the TortsProf blog for the link.

Interview with the author of recent book on generic drug regulation and the FDA

Here is a link to an interview with the author of “Bottle of Lies: The Inside Story of the Generic Drug Boom.” In the book, investigative journalist Katherine Eban works with two industry whistleblowers to expose how some manufacturers are cutting corners at the cost of quality and safety.

The second part of the report is here.

Coincidentally, the Supreme Court also just issued a decision on preemption in drug related cases, about which I will post separately.

Going to the doctor? The robot will see you now...

I have written before about issues (both ethical and legal) related to artificial intelligence, driverless cars and the like.  So I am writing today to point out an article about artificial intelligence in medicine since it is clearly not inconceivable that at some point it will be possible to create databases of information that can be used to diagnose and treat matters of health.  You can read the article "The (A.I.) Doctor Will See You Now: What if artificial intelligence could accurately diagnose you—and save you a trip to the doctor’s office?" here.

I don't know if there a lot of literature on this topic, but it certainly is an interesting one that raises lots of questions.  How should the practice be regulated?  If mistakes are made and injuries caused, should the claims be considered medical malpractice or products liability?  Should they be evaluated under a negligence standard of strict liability?

I think it is just a matter of time before we face the need to ask these questions.

NYT Op Ed on the Feres Doctrine

Yesterday I commented on the news that two Justices voted to take on a case that could have resulted in a change to the Feres Doctrine.  Today there's more.  Stephen I. Vladeck, a professor at the University of Texas School of Law, just published an Op Ed piece in the New York Times calling on Congress to undue the doctrine.  You can read the article here.  In part, it states:

For almost as long as it has been on the books, the Feres decision has been controversial. The case reached the Supreme Court in 1950, four years after Congress broadly expanded the tort liability of the federal government in the Federal Tort Claims Act and shortly after the United States had entered the Korean War. Although Congress had expressly disallowed claims from anyone arising out of the military’s “combatant activities,” the Supreme Court in Feres went further. It held that Congress could not have intended that service members could bring ordinary tort suits for any other claims arising out of their military service, even though nothing in the law directly supported that result.

As Justice Antonin Scalia put it in 1987, “Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.” Not only did the court in 1950 read into the tort claims act an exception with no textual support; subsequent decisions broadly construed Feres’s scope so that it is virtually impossible for service members to recover damages from the government for almost any negligence or other misconduct they suffer while serving. In the process, Feres treats service members more harshly than any other Americans, even in contexts that are entirely analogous to civilian life — like medical malpractice claims at stateside hospitals. It would be one thing if Congress had expressly required such an unjust and unfair result. But nearly every contemporary court and commentator agrees that it did not — and that the result of the decision, in Justice Scalia’s words, has been “unfairness and irrationality.”

. . . . Why has the court held firm on a decision so widely criticized? In that same 1987 case in which Justice Scalia dissented with three other justices, the court identified three justifications. First, injuries to service members related to their military service should not be left to the vagaries of 50 different state laws but should instead be subject to a uniform federal rule. Second, Congress had already provided at least some kind of remedy to injured service members through “generous statutory disability and death benefits.” And third, tort suits arising out of military service “would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” 

Reasonable minds can disagree about the relative strengths of these policy arguments; Justice Scalia’s central point in dissenting from that analysis was that Congress had already weighed the pluses and minuses of such policy considerations when it enacted the tort claims act — and it wasn’t for the courts to second-guess its answer. “The problem now, as then,” he explained, “is that Congress not only failed to provide such an exemption, but quite plainly excluded it.”

 As Prof. Vladeck explains, the doctrine is controversial and has been hotly debated for a long time.  Several attempts to change it have failed in Congress.  For some of the arguments against his position you only need to read some of the comments already posted to his argument.  Here is one:

It may be hard to understand the justification for Feres in a medical malpractice case like this, but there are many situations in which the nature of military service is hard to reconcile with normal tort concepts. The Tort Claims Act already excludes liability for combat activities, but military personnel engage in non-combat activities that are dangerous and difficult to measure by negligence standards.

Is it negligent to subject military personnel to training that, by replicating some of the risks of combat, prepares trainees for combat? Is it negligent for the Coast Guard to send personnel on a search and rescue mission in a storm? Does it matter how many civilians may die if no rescue is attempted?  

Military personnel are entitled to compensation on a no-fault basis for service connected injuries. If that compensation is viewed as inadequate, the better solution may be to increase it rather than, as Professor Vladeck proposes, legislation to overturn Feres in its entirety.

 Here is part of another one:

Of course. That's the solution. We need more tort claims. I'm sure that will improve the quality of military healthcare. Why didn't I think of that?  

Geez. You sometimes witness why law struggles to meet reality. 

I happen to agree with the reasoning behind Feres. The military isn't going to function well if you open the government to personal liability claims from service members.  hat's a rabbit hole I don't want to go down. 

If you're a service member and something bad happens... well... you're a service member. Use the military hospital and hope for the best.

So, what do you think?

Justice Thomas argues in favor of overturning the Feres Doctrine!

I am not sure why but the Feres doctrine seems to be in the news a lot these days.  Yesterday I commented on a recent bill seeking to limit the Feres Doctrine and on the fact that the doctrine is currently part of the plot of a TV show.

Today, the news is that Justice Clarence Thomas dissented in a denial of cert with an opinion in which he argued the court should have taken on the case in order to overturn Feres v. United States.  The case is called Daniel v. United States.  Justice Ruth Bader Ginsburg also would have granted certiorari.

You can find all the relevant documents about the case here.

Unfortunately, the other important part of the story is that the Court refused to hear the case, which means it refused to reconsider the Feres doctrine.

Since there have been previous attempts to get rid of it in Congress and they have all failed, I am not too hopeful in the future of the recently proposed bill. If there was going to be a change, this now rejected case was the best chance.

Another attempt to eliminate (at least part of) the Feres Doctrine

As you might remember from your first semester Tort Law class, the Feres Doctine refers to the interpretation given by the Supreme Court in a case called Feres v US to an exception to the Federal Torts Claims Act.  According to the exception, members of the military can not sue the federal government for injuries suffered while in active duty.  In Feres, the Court expanded the interpretation of the exception to essentially ban any claim for any injury under any circumstances while the plaintiff was in service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example.

This is a controversial doctrine, and there have been many calls to eliminate it.  But all the attempts to do so have failed.

The TortsProf blog is now reporting that there is a new push afoot.

A bipartisan bill that would overrule the Feres Doctrine has been introduced in the House of Representatives.  The bill would create an exemption to the Federal Tort Claims Act to allow plaintiffs to file medical malpractice lawsuits for injuries that occur after the bill's passage.  However, the bill would have no impact on those instances of medical malpractice that occur during combat operations, aboard ships, or at battalion aid stations. 

For more information on the debate related to the Feres Doctrine, you can watch this old video.  And for some of my posts on it go here, here, here, and here.

Interestingly, the Feres Doctrine is also an underlying issue in the new TV Show "The Code", in which the widow of a member of the Marines sued for wrongful death.  During the episode (episode 3, which you can watch here), a few of the characters talked about it and their explanation was actually pretty accurate.  I think the producers got a good legal consultant to help with the script.

New case claims injury based on negligent conduct by fertility clinic

A few years ago I wrote an article criticizing a case in which the plaintiffs claimed to have suffered an injury because, due to the conduct of the defendant, they ended up giving birth to a child of a different race.  (See here.)  I argued that it would be wrong to use someone's race as a measure of injury in a torts claim.

I still believe that to be the case, but a new case has been filed in Connecticut which raises the issue in a slightly different way.  In the case I wrote about, the plaintiffs specifically used race as an element of their injury.  In the new case, the plaintiffs are not doing that.  They are also not using the phrase "wrongful birth" to refer to the basis for their claim.

Should this make a difference? 

The notion of wrongful birth is usually used to refer to a claim that had it not been for the negligent conduct of the defendant the parents would have chosen not to have the child, and that because they did have the child, the defendant should pay for the resulting expenses (and other injuries).  Typically, courts do not recognize recovery for the emotional injury, but might recognize a claim for out of pocket expenses of various types.

In the case I wrote about a few years ago, a white woman provided the eggs and the defendant used sperm from a donor.  The mother had specifically selected the donor to be white.  Instead, the defendant used sperm from a different donor who happened to be African American.  The child born from the procedure is biologically related to the mother but of mixed races.

In the recently filed case in Connecticut, the defendant was supposed to use sperm from the plaintiff/father to fertilize an egg from a donor, so that the child would be biologically related to the father. The defendant used the wrong sperm and thus the couple gave birth to a child who is not biologically related to either one of them and also of mixed races.

Based on those facts, the complaint in the new case simply states that the defendant provided the wrong sperm to the plaintiffs and that the result of the procedure is a child who is not related to the parents at all.  This is the basis for their claimed emotional distress.  The complaint is careful not to use the term "wrongful birth" or to suggest that the race of the child is itself a basis for emotional distress. 

Should the parents in this case be granted a cause of action for the emotional distress if we don't grant one for the parents of a child in the older case?

It seems that the difference comes down to whether the race of the child is the basis of the claim.  Is it?  What do you think?

You can read more about the case in Connecticut here and here.