More than 100 families of fallen members of the military sue defense contractors alleging they funded the Taliban, which resulted in the deaths of their relatives

In a very interesting development, NPR is reporting that more than 100 families are suing several major defense contractors alleging they made "protection payments" to the Taliban which constitutes funding funding terrorism under the federal Anti-Terrorism Act.

I am not familiar with the exact content of this Act, but given the complaint I am guessing it recognizes a cause of action for those who can allege that a defendant funded a terrorist group whose conduct causes an injury to the plaintiff (or decedent).  According to the complaint the "protection payments aided and abetted terrorism by directly funding an al-Qaeda-backed Taliban insurgency that killed and injured thousands of Americans."

The 288 page complaint is available here.

According to one expert, paying insurgents is "pretty universal" among defense contractors because it is the only way to get the supplies needed for their operations.  In contrast, the complaint argues that the defendants put the decedent's lives in danger in order to save money:  "it was cheaper to buy off the Taliban than it would have been to invest in the security necessary to mitigate the terrorists' threats."

Senate approves Defense Authorization Bill which includes provision to provide compensation to military personnel injured by negligence of military doctors

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury under any circumstances while the plaintiff was in military 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.

The debate over whether the Feres Doctrine should be abandoned has raged ever since.  In fact, last May, two Justices of the Supreme Court suggested it was time to get rid of it.  See here.  Soon after that, the New York Times published an Op-Ed piece urging Congress to eliminate the doctrine.  See here.

Maybe in response to these events, later in the year Congress debated inserting a provision into the annual defense authorization bill to offer payouts to victims of military medical malpractice.  The provision did not alter the Feres doctrine, but it creates a system to provide limited recovery to some victims of military medical malpractice.

Last week, the Senate voted, 86-8, to pass the National Defense Authorization Act including $400 Million for the Defense Department to investigate and pay out military medical malpractice claims internally, bypassing the Feres Doctrine. 

This sounds great, but the details of the provision severely limit its possible benefits.  Most importantly, claims would be limited to under $100,000, and legal fees are capped at 20%.  Unfortunately for the victims, these limits will make it difficult for them to find lawyers to on the representation.  Medical malpractice cases are typically very expensive to litigate and being able to recover only $20,000 will make the cases not viable financially.

According to the bill, the Secretary of Defense can create regulations that allow them to pay more, but those regulations haven’t been written.

The New York Personal Injury Law Blog has a good short comment on the bill here.

Arizona Appeals Court suggests it is time to starting thinking of suicide as any other intervening cause

As in many other jurisdictions, a decedent's conduct in committing suicide is considered a superseding cause, presumably based on the notion that it is always unforeseeable that someone would commit suicide. 

But we all know that this statement is nonsense.  That someone might commit suicide is as foreseeable as any other intervening event.  Sometimes it is, sometimes it isn't.  And, for that reason, it is not convincing to hold as a matter of law that suicide is always unforeseeable.  Yet, that is what many courts do.

I am writing about this today because I just read in Bloomberg news that an Arizona appeals court recently dismissed a legal malpractice suit against two law firms brought by the parents of a woman who killed herself.  The court cited that accepted view of suicide as a superseding cause as the reason for its ruling, but urged the state supreme court to revisit “the aging majority rule” because it’s “primitive and unduly inflexible."

I agree, particularly given the statistics about suicide in this country, that as the court stated, the suicide rule is outdated, noting that it “draws from society’s historical view of suicide as sinful and immoral.”  The court's opinion states in fact that it "would not adopt the majority rule if it were within the scope of our authority to make that decision.”

The case is called Parton v. Jeans.

Auto accidents no longer the leading cause of traumatic brain injury deaths in the US

This is a truly sad and alarming bit of news: According to researchers with the U.S. Centers for Disease Control and Prevention (CDC), suicide is now the leading cause of traumatic brain injury deaths, passing automobile accidents for the first time.  Story here.

News about vaping products keep piling up

Here are a few bits of news related to vaping:

The American Medical Association has called for an immediate ban on all electronic cigarettes and vaping devices.

Yet another complaint has been filed against the manufacturer of vaping products.  In this one, an 11-year old child alleges to have developed a nicotine addiction from JUUL, indicating that the manufacturer’s aggressive marketing practices not caused vaping problems among high school and middle school students, but also ensnared children still in elementary school.  The story is here.

A new study suggests that JUUL products deliver much higher amounts of nicotine than other e-cigarettes, increasing the risk of addiction and other health problems.  Story here.

Another sports story: Mary Cain's claims against Alberto Salazar and Nike

Yesterday I wrote about the possibility of supporting a claim related to a fight on the football field.  Today I want to point out another story related to sports.

If you are a track and field fan, you probably have heard about Alberto Salazar.  Once a famous and successful runner, he then became a famous and successful coach. 

Now he is famous for other reasons.  Bad reasons. Over the years, Salazar became known for operating in a gray area, using unconventional methods and pushing the envelope of what might be allowable under the letter of the doping rules.  In 2015 he was accused of using his son as a guinea pig, and was forced to admit he had been testing a testosterone gel on his sons.

Then, earlier this year, after a multi-year US Anti Doping Agency investigation, Salazar was found guilty of doping violations linked to the Nike Oregon Project training camp. In addition it was determined that Salazar ran experiments with supplements and testosterone and possessed and trafficked a banned substance. As a result, he was suspended for four years.

I had heard that bit of news (and the accusation of using his sons as guinea pigs) back when it was announced, but it was not until a week ago that I had heard the allegations by female athletes against Salazar.

I first heard about this controversy when I saw a New York Times video in which Mary Cain discusses her experience as a female athlete in the Nike system.  You can watch the video below.  She is not the first female athlete to make similar claims.   Kara Goucher claimed she was pressured by Salazar to take thyroid medication not prescribed by her doctor to lose weight gained during her pregnancy in 2010.

I am writing about this today because I just read an excellent short comment on the issue linking it to the same question I asked about the football case:  Could an athlete support a claim under these circumstances.  The comment is written by lawyer (and athlete) Eric Turkewitz.  In it, he addresses the difference between assumption of the risk for participating in a sport and what he calls "coaching malpractice."  It is worth reading.  Go here for the full text.

Can Mason Rudolph (Pittsburgh Steelers quarterback) support a claim for battery against Myles Garrett?

If you are a football fan, and maybe even if you are not, you probably heard about or saw the video of a fight at the end of the game between the Cleveland Browns and the Pittsburgh Steelers a couple about a week ago.  At the end of the game, Myles Garrett (of the Browns) tore off Pittsburgh's quarterback Mason Rudolph’s helmet, and hit Rudolph in the head with it.  The NFL quickly responded by suspending Garrett for the rest of the season.  You can see the video here with the actual helmet to head contact here and here. 

Could Rudolph support a claim for battery against Garrett?

In sports cases, it is often said that players consent to conduct that would otherwise constitute battery if the conduct is inherent to the sport.  Likewise, if the claim were for negligence, it is often said that players assume the risks inherent to the sport.  For this reasons, given the violence inherent to football most of the time players can't support a claim.

But, is the risk of having an opponent rip off your helmet and use it against you like a weapon inherent to the sport of football?  I don't think so.  I think the conduct in this case is so far outside the inherent risks of the game that the quarterback should be allowed to have a cause of action.  What do you think?

California sues JUUL Labs

California and the city of Los Angeles sued e-cigarette maker Juul Labs on Monday, claiming the company caused a public health crisis by targeting teens with fruity, fun flavored vaping products and did not verify the age of its customers for online sales.  Here is the full story.  Bloomberg law podcast has a 7 minute comment on the claim here.

More news on vaping: Trump flip flops on regulation of vaping products

At some point earlier this fall, President Trump announced he was going to look into ways to keep vaping products away from teenagers and even stated his administration would ban most flavored e-cigarettes.  Of course, as is so often the case, he was only pretending to know what he was talking about and now that someone told him that such a move might cost him some votes, the plan is off the table.  You can now add that to the growing list of Trump's unfulfilled promises.  More on the story here.

Supreme Court denies cert in case against gun manufacturer related to Sandy Hook school shooting

This is the big news of the week in the world of Torts.  

Back in March, I reported that the Connecticut Supreme Court cleared the way for families of children killed in 2012 at Sandy Hook Elementary School to proceed with a lawsuit against Remington, which manufactured the AR-15 Bushmaster semi-automatic rifle that was used during the school shooting.  After that ruling Remington appealed arguing it should be immune from liability because of the federal Protection of Lawful Commerce in Arms Act (2006) which grants gun manufacturers broad immunity from civil lawsuits that arise out of the criminal misuse of a weapon.

However, the Supreme Court denied review of the case on Nov. 12.  As explained by Prof. Timothy Lytton in the best analysis of the decision I saw this week,

". . . [the immunity granted by the federal statute] does not apply where a manufacturer “knowingly violated a state or federal statute applicable to the sale or marketing” of a firearm. 

The Sandy Hook families allege that Remington, by marketing certain guns to civilians, engaged in “unethical” business methods in violation of the Connecticut Unfair Trade Practices Act. Specifically, they argued Remington “marketed, advertised and promoted the Bushmaster XM15-E2S for civilians to use to carry out offensive, military-style combat missions against their perceived enemies.” 

Remington asked the court to throw out the lawsuit based on the federal immunity statute, but the Connecticut Supreme Court held that a violation of the state’s unfair trade practices law qualifies as an exception to the industry’s liability shield. 

Now that the U.S. Supreme Court has refused to hear Remington’s appeal, the case will move into discovery and, potentially, trial in a Connecticut state court. 

Since many states have unfair trade practices laws like Connecticut’s, gun violence victims are likely to bring similar claims elsewhere, effectively ending the gun industry’s federal immunity from civil lawsuits."

 For more links to the story go to:

Politico

NPR

Courthouse News

The ABA Journal

TortsProf Blog

More news related to JUUL nicotine products

In a complaint filed earlier this month in the U.S. District Court for the Northern District of Oklahoma, 20 year-old Wayne Childs, Jr. argues that he and potentially millions of other young adults and teens in the United States were victims of an “orchestrated effort” by the makers of JUUL, which has resulted in widespread “JUULing” addictions due to high levels of nicotine delivered by the e-cigarettes.  That story is here.

Meanwhile, the U.S. District Judge recently appointed to preside over all federal JUUL addiction lawsuits has indicated that he intends to move the litigation forward in a quick and efficient manner, given the urgency and gravity of the significant public health concerns that are raised in the cases.  That story is here.

Finally, here is a story about a different type of lawsuit the manufacturers are now facing: "The makers of JUUL e-cigarettes face a growing number of nicotine addiction lawsuits, not just from teens and parents, but also from school districts that have become the “front line” in a battle against the growing teen vaping epidemic in the United States.  Over the last month, several districts nationwide have filed JUUL lawsuits, alleging that the manufacturer’s marketing tactics specifically targeted teens, resulting in widespread underage nicotine addiction."  You can read that story here.

Another lawsuit against the makers of JUUL vaping products

Yesterday I reported on a class action filed against the manufacturers of JUUL vaping products.  Today, there is news of another lawsuit, this one an individual product liability claim brought by a 19 year old in Colorado.  Go here for a copy of the complaint.  Go here for more general information on the case.

Class action filed against manufacturers of JUUL vaping products

AboutLawsuits is reporting that a complaint was filed last month in the U.S. District Court for the Western District of Tennessee against the makers of JUUL vaping products arguing that the defendants intentionally exploited teens to create a new generation of nicotine-addicted customers.

Go here for a copy of the complaint.

Idaho lower court rejects so-called "innovator liability"

Long time readers of this blog will remember the debate over the so called "innovator liability" about which I have posted in the past. You can find some of those posts by going to the "warnings" label and scrolling down.

In an nutshell, the debate is this:  Current FDA regulations require manufacturers of generic prescription drugs to use exactly the same warnings that the name brand manufacturers use.  By "name brand manufacturers" I mean the manufacturers of the original drugs of which the generics are now an option.  The manufacturers of generics are not allowed to deviate from those warnings even if they think that they should provide better warnings that could make the product safer.  And, the language of the warnings are largely determined by the name brand manufacturers themselves, not by the FDA.

Because of this, manufacturers of generics can say that it is not their fault that the warning is inadequate since their hands are tied when it comes to deciding what the warning should say.  For that reason, at some point plaintiffs' lawyers started to file claims against the name brand manufacturers arguing that since the problem was that the warning was inadequate, it is the party that decided what the warning should be who should be liable, even if that defendant was not the person who manufactured the drug used by the plaintiff.  This theory of liability is what is not often referred to as "innovator liability."

To me, it makes perfect sense because the claim is not based on a manufacturing problem, but on the lack of, or adequacy of, a warning.  But, not surprisingly, brand name manufacturers and their lawyers have reacted negatively to the possibility of liability.

Some courts have adopted innovator liability as a possible way to support a claim; others have rejected it, and just a few days ago I heard of a recent decision by a state court in Idaho rejecting it.  The case is called Sterling v. Novartis and you can read the opinion here.

It is interesting that the court starts its discussion of the issue by pointing out what it refers to as the “crucial fact” that “Novartis did not manufacture the drug that caused the injuries.”

Obviously, sated that way it sound like imposing liability on the defendant would be contrary to basic principles of tort law.  After all, as the court also points out the common law generally does not impose  liability on a company for injuries caused by other companies.

But here is the thing.  That "crucial fact" is also irrelevant.

That fact would be crucial if the claim was for an injury related to the manufacturing or design of the product because in a case like that the plaintiff would be trying to impose liability on the defendant for the conduct of the generics manufacturer.

This claim is based on an inadequate warning and the brand name manufacturer is the one whose conduct is related to the warning.  Thus, the possible liability is not for the conduct of another but for the conduct of the defendant.

The question is whether the duty owed by the defendant to its customers should extend to the customers of the generics manufacturers.  Applying the most commonly adopted analysis for this question, we would say the duty should extend to those whose injuries are a foreseeable consequence of the risk created.  If the risk was created by the defendant given its role in determining the content of the warning, then it makes sense to extend the duty and to recognize the possibility of liability for the resulting injuries.

Here is a comment from the perspective of the defendant which argues against my view.

Pennsylvania Supreme Court declares med mal statute of repose unconstitutonal

About two weeks ago, in a 4-3 ruling, the Supreme Court of Pennsylvania held that a 7-year statute of repose for medical malpractice, enacted in 2002 as part of a "tort reform" effort is unconstitutional.  The court found the statute violated the right of access to the courts and had no substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.  Courts in at least 6 other states--Alabama, Indiana, Kentucky, New Hampshire, Rhode Island, and Utah--have also held med mal statutes of repose to be unconstitutional.  The case is called Yanakos v UPMC and you can read the opinion here.

Here are a few key passages from the opinion:

...we conclude the governmental interest in controlling the rising costs of medical malpractice insurance premiums and of medical care is important. However, the MCARE Act’s statute of repose as enacted is not substantially related to achieving those goals.
. . . .
The effect of the seven-year repose period for most medical malpractice actions is to limit the “discovery rule” to seven years.  In most cases, if a malpractice victim discovers the injury and its cause within seven years, the victim may bring a timely lawsuit; however, after seven years, the statute of repose bars the victim’s action. Additionally, foreign objects cases are exempt from the statute of repose, and minors can file a lawsuit either seven years from the date of injury or until their twentieth birthday, whichever is later.  Thus, the statute of repose prevents most medical malpractice victims, except foreign objects plaintiffs and certain minors, from exercising the constitutional right to a remedy after seven years.
. . . .
In this case, there was no evidence to show the initially proposed four-year statute of repose would provide actuarial certainty, except that it “seemed like a reasonable resolution” to “provide some stability and predictability” to insurers. . . .  Moreover, there is no evidence in the legislative history as to how the General Assembly arrived at a seven-year statute of repose with exceptions for foreign objects cases and minors. The legislature did not cite any statistics on the number of medical malpractice actions that are commenced after seven years of the occurrence giving rise to the action.  There is no indication that such a time period, as opposed to a longer or shorter period, will have any effect on malpractice insurance costs.  Likewise, the parties in their current briefing failed to suggest the seven-year repose period has any substantial relationship to the legislative goal of controlling
malpractice insurance costs. 

Ninth Circuit upholds right to sue under the Alien Tort Statute; Washington Legal Foundation asks Supreme Court to overturn

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

I had not heard of any new developments in ATS case law in quite a while now.... until just a few days ago, when I read that the Court of Appeals for the Ninth Circuit held that a lawsuit filed by citizens of Mali who, as children, worked on Ivory Coast cocoa farms should be permitted to go forward under the Alien Tort Statute (ATS).  The plaintiffs allege that cocoa processors and chocolate manufacturers aided and abetted in human rights violations by farmers in the Ivory Coast.  

Not surprisingly, the Washington Legal Foundation (WLF), an American "public interest law firm" (and, essentially a right wing think tank), quickly filed an amicus brief asking the U.S. Supreme Court to review (and ultimately overturn) the decision of the appeals court.  You can read the brief here.

Among other things, the WLF argues that the apparent purpose of the lawsuit is to assist with a human-rights campaign being waged in the press and before legislatures, not to seriously pursue claims against those who purchase products from farmers who engage in abusive labor practices.

California has adopted a statute banning use of race, gender, or ethnicity in the calculation of tort damages

California has adopted a statute that prohibits the use of race, gender, and ethnicity in the calculation of lost earnings or impaired earning capacity in tort damages.  The crucial language of S.B. 41 is: "estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender."

Thanks to TortProf blog for the update.

Recent developments on whether colleges and universities have a duty to protect students from harm -- UPDATED

August

Last year I published an article on whether colleges or universities have a duty to protect students from harm (available here).  In it I discussed the then most recent cases on the subject.  One involved a claim against a university based on an attack by one student on another.  The other case involved a student who committed suicide.  In both cases, the courts found that the institution owed a limited duty of care to protect the students, which was a hint of the beginning of a new trend on the issue.

I am writing about this today because, sadly, there are two recent stories that combine both types of cases.

The first story involves the the death of a 24-year-old Ph.D. student of Chinese and Indian heritage at Utah State University.  According to a complaint filed recently, she ended her life after eight months of racist bullying by classmates.  The complaint names as defendants Utah State University, the head of the psychology department, and some students and professors, and it alleges negligence, wrongful death, and intentional infliction of emotional distress.

The claim against the University and its employees is based on the allegation that the decedent  complained about the alleged bullying to professors and a department chairperson but that the University took no action.

This claim is similar to the one filed in the case I discussed in my article so it will be interesting to see if the courts continue the trend to recognize, and impose, more of a duty to protect.  The one significant difference between the two cases however is that Utah State University is a state actor and, therefore, may be protected by immunity under a state "torts claims act" type statute.

You can read more about the case here.

A second related item involves  a Missouri college student who allegedly was “fascinated” with death and gave five other students advice on how to commit suicide. The student is now being sued by parents of two of the students who killed themselves, along with the University the students attended and the Fraternity they belonged to.  However, from the news account it is not too clear how strong the connection between the conduct of the student and the alleged conduct of the university really is.

You can read more about this case here.

For my posts on cases involving suicide, including some cases involving claims against colleges and universities, or against students for hazing, go here and scroll down.


UPDATE 11/3/19:  CBS has an article on the case here.

Why it might be difficult to determine when a person is an employee or an independent contractor

Although know the basics related to the concept of vicarious liability, we don't have time to discuss the details or to read cases that explore the different types of issues that can arise when trying to apply the doctrine.  For that reason, I thought I would provide a link to a recent article discussing three reasons why it is difficult to determine whether a worker is an employee or an independent contractor.

Yet another lawsuit fled against 3M related to faulty earplugs

If you have been following the blog recently, you know I have following the 3M Combat Arms Earplug lawsuits pending throughout the federal court system. My most recent posts are here and here and here.

Now, here is the latest.  According to allegations raised in a recently filed product liability lawsuit, 3M Company ignored warning signs that its Combat Arms earplugs could damage the hearing of military personnel as part of an effort to win and maintain lucrative government contracts.

AboutLawsuits has more details.

Remember Byrne v. Boadle (the barrel of flour)?

Modern Byrne v. Boadle; watch the video below:

Podcast on e-cigarettes, vaping claims, and regulation

Yesterday I posted a note about a new case filed against the manufacturer of a popular e-cigarette product.

Here is a link to a podcast on Ringler Radio in which hosts Larry Cohen and Ford Swift talk with attorney Joseph VanZandt about claims of false and deceptive sales, marketing, and labeling against JUUL, and the failure to warn of the products’ highly addictive levels of nicotine, all targeting young people.

New lawsuit filed arguing injuries caused by "vaping"

An 18-year-old from Illinois has filed a product liability lawsuit against the makers of JUUL (a "vaping" device) arguing that the side effects of vaping caused a respiratory injury, which has left the teen with the lungs of a 70 year old man.  This appears to be one of the first lawsuits filed claiming injuries caused by vaping.  AboutLawusuits has a little more information here.

Connecticut Supreme Court adopts "alternative liability doctrine"

Assume that three men enter an abandoned building without permission.  While there, they drink alcohol and smoke cigarettes.  One of them fails to extinguish a cigarette, which starts a fire that spreads quickly and destroys the building.  As a result, the owners of the building sue the men but then realize they can’t prove which of the three defendants actually caused the fire.  Assuming it is true that only one of the three men caused the fire, none of them should not be liable since the plaintiff has the burden to show that a defendant's conduct caused their injury, right?

Does that sound familiar?  Does it sound like a law school hypo?  Of course it does, because it is essentially the question every law school student talks about when discussing the famous case Summers v. Tice, which you probably don’t remember by name but you do remember the facts:  two hunters shoot in the direction of the plaintiff.  Only one of them hits him, but the plaintiff could not identify which one.  In that case, the court decided to impose liability on both (unless either one could prove they were not the cause of the injury) as if they had both committed the act. 

I am writing today about this because just a few days ago, the Connecticut Supreme Court decided to adopt this same approach and apply it to the case with the fire in the building scenario. 

In doing so, the Court explained how the new rule (sometimes referred to as “alternative liability”) would be applied: 

“...the rule applies only when the plaintiff can demonstrate, first, that all of the defendants acted negligently and harm resulted, second, that all possible tortfeasors have been named as defendants, and, third, that the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.”

When these three threshold requirements are met, the alternative liability doctrine has been recognized as a limited exception to the general rule that the plaintiff must prove that each of the defendants caused the plaintiff’s harm.

As in Summers, the Court admits that adopting this approach can result in the imposition of liability on a defendant who was actually not at fault.  Yet, it is better to be unfair to a negligent defendant than to leave an innocent plaintiff without a remedy.  As the Court states, “[f]aced with the choice of leaving an injured plaintiff without a remedy, on the one hand, or requiring two wrongdoers, both of whom had acted negligently toward the plaintiff and had created the situation [in which the] plaintiff was injured, [to] bear the burden of absolving themselves on the other, it seems clear that the latter approach represents the fairer, more sensible alternative.”

I should note that the term "alternative liability" is very unfortunate because it suggests that the result of the application of the doctrine is liability, when in fact it isn't.  The result is to allow the plaintiff to support the element of causation without the type of proof that is typically required for it.  If we are going to be technically correct, we could say the doctrine is an "alternative proof of causation" doctrine.

The case is called Connecticut Interlocal Risk Management Agency and Town of Somers v. Jackson and you can read it here.

3M Earplug Hearing Loss Claims and Class Action Lawsuits to Proceed in Single Track

I have been following the 3M Combat Arms Earplug lawsuits pending throughout the federal court system. My most recent posts are here and here.

Now, here is an update:  The U.S. District Judge presiding over all federal 3M earplug lawsuits filed nationwide has declined to create separate litigation track for class action lawsuits, indicating that the it is premature to consider such a move and they will continue on the same path as individual hearing loss claims at this time.

For more details go here.

Football players claim against College for injuries suffered in practice survives motion to dismiss

Two football players at Lackawanna Junior College were injured during the same tackling drill in 2010. They sued the college in 2012, claiming the football staff was negligent and the school should have had certified athletic trainers available to aid and advise players who were injured. Instead, the college employed two women who had failed to gain certification as athletic trainers.

The claims were dismissed by the trial court on the ground the players had signed a waiver.  The Superior Court reinstated the suits and now the Pennsylvania Supreme Court has affirmed that ruling.  The court noted waivers against gross negligence and recklessness were ineffective and held there were sufficient facts for the players to present the case to a jury.

You can read more (although there isn't much) about the case here.

Podcast on the settlement over defective ear plugs used by the military

I have been following the litigation Multidistrict Litigation consolidating all 3M Combat Arms Earplug lawsuits pending throughout the federal court system, each raising similar allegations that veterans were left with permanent hearing damage as a result of design defects with the reversible earplugs that were standard issue by the U.S. military between 2003 and 2015.  I posted many links to information on the cases here, here and here. 

Today, here is a link to a recent podcast discussing a 9.1 million dollar settlement reached in litigation surrounding a defective earplug (3M Earplugs).  In it, the hosts and guests discuss the 2016 whistleblower lawsuit that started it all, how these earplugs have impaired its users, and future litigation.

You can listen to the podcast here or here.  You can download it here.

Court rules white nationalist must pay $14 million in damages for anti semitic campaign

A federal judge has ruled in an SPLC lawsuit that neo-Nazi leader Andrew Anglin must pay more than $14 million in damages for using his website to launch an antisemitic campaign of terror against a Jewish woman and her family.  You can read more about the story here and here. 

Recent Tennessee case holds suicide is a superseding cause

A couple of days ago I posted a comment about a couple of recent claims based on deaths by suicide.  Sadly suicide is a serious health issue.  There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country, which raises an interesting question for courts:  if the risk of suicide is known, can it be said that someone committing suicide is always unforeseeable?

I have published many stories on the issues raised by claims based on suicide over the years.  You can go here and scroll down to read them.  In a recent one I commented on an article that argues it is time to change the way courts approach suicide as a superseding cause that eliminates the right of a plaintiff to recovery -- a view I happen to agree with.

I am writing about this today because I just read about a new opinion out of Tennessee that provides the most recent and fairly comprehensive discussion on whether the act of committing suicide should be considered to be a superseding cause.  The case is called Cotten v. Wilson and you can read the opinion here.

As you may know already, some jurisdictions consider suicide a superseding cause per se, in all cases, while others presume it is a superseding but would consider evidence to support the claim that the presumption should be defeated.

Tennessee appears to be in the second camp.  According to the case, courts in Tennessee have generally held that suicide will be deemed a superseding cause of death if it was ‘a willful, calculated, and deliberate act of one who has the power of choice based on the notion that no reasonable person could foresee that a rational person would intentionally choose to commit suicide. But, courts would consider the conduct foreseeable under different circumstances including (1) where it is reasonably foreseeable that the defendant’s conduct will cause a mental condition in the decedent that would lead to the self-destructive act, (2) where the suicide occurs in a custodial context, (3) where there was a special relationship between the defendant and decedent, and (4) situations in which the defendant facilitated the suicide by supplying the decedent with the means to carry it out.

The case involved a woman and a psychiatrist who had been in a relationship.  The psychiatrist knew that the woman had attempted to commit suicide in the past, but nevertheless allowed her to stay in his home alone with an unsecured gun.

It seems to me that it is not too far fetched to argue that suicide could be considered to be foreseeable under those circumstances.  Yet, the Tennessee Supreme Court dismissed the claim holding that the “suicide constitutes a superseding intervening event that breaks the chain of proximate causation.”  One judge filed a dissenting opinion, which you can read here.

Utah holds criminal defendant does not have to show actual innocence to support malpractice claim against lawyer

As you probably know, jurisdiction are divided on the issue of whether a convicted criminal defendant should be required to show actual innocence as a requirement to support a malpractice claim against his or her former criminal defense lawyer.

I recently wrote that Mississippi and Kentucky adopted an exoneration requirement, while Iowa and Idaho rejected it.  (For more stories on the issue, go here and scroll down.)

Today I am writing about this because I just read that the Utah Supreme Court has affirmed and clarified its holding that a criminal defendant can sue counsel for malpractice without proving actual innocence in a case called Paxman v King, available here.

The Legal Profession Blog has more details here.

Utah Supreme Court strikes down law requiring "certificate of merit" in medical malpractice claims

Like many other jurisdictions, at some point, Utah enacted a statute that requires plaintiffs in medical malpractice cases to file a so-called "certificate of merit" when filing a medical malpractice lawsuit.  In some jurisdictions, the certificate is simply an affidavit by an expert supporting the conclusion that the claim has merit.  In Utah, the certificate of compliance is issued once Utah’s Division of Occupational and Professional Licensing (DOPL) reviews the malpractice claim and determines it has merit. If the claim is rejected by the DOPL, plaintiffs can still receive the certificate upon attestation of their claims by an expert.

I have never been in favor of this requirement which is an artificial burden on plaintiffs created to make more difficult for them to get access to the courts, but it has become a standard in many states.

So, today's news is that, somewhat surprisingly, Utah’s Supreme Court has unanimously struck down the statute that required the certificate of merit holding that the law was unconstitutional because it violated the separation of powers doctrine by limiting the role of the judiciary.

The case is called Vega v. Jordan Valley Medical Center, and you can read it here.

Utah Supreme Court holds that waivers signed by parents on behalf of children are not enforceable

Earlier this month I reported that the the Kentucky Supreme Court recently found that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver. See here.

Now comes news that, in a case called Rutherford v. Talisker Canyons Fin., Co., LC, 2019 WL 2710230, the Utah Supreme Court held that a parent cannot release his or her minor child's prospective claims for negligence unless this rule is altered by a statute enacted to make such releases enforceable.

Should a doctor be subject to liability to non-patients who suffer an injury because of negligence toward a patient?

Suppose a doctor misdiagnoses a contagious condition on a patient, and the patient then causes an injury to a third person.  Should the third person have a cause of action against the doctor?  This is a question that has been addressed by a number of cases, many of them involving sexually transmitted diseases.

Now, in a case called Jane Doe v Charles Cochran, available here, the Connecticut Supreme Court has held that a doctor may be liable to a third party infected with an STD after the doctor had mistakenly informed the patient he was free of infection.

Two judges dissented, here, arguing that it is wrong to extend the duty of the doctor to include non-patients.

Debate about safety netting around baseball parks continues

One of the more talked about themes during this baseball season is the increased amount of home runs (and the speculation that it has something to do with the way baseballs are manufactured).  Another continues to be the debate about whether baseball parks should extend the protective netting along the baselines.

If you are a baseball fan, you know that baseball parks offer safety netting to protect fans close to home filed from foul balls, errant throws and bats flying into the stands. Traditionally, the netting extends from just about half way to first base to about half way to third base.  

Yet, last year, in response to a number of incidents in which spectators were seriously hurt by foul balls along the baselines beyond the ends of protective netting some ballparks decided to extend the netting further down along the baselines.

Unfortunately, this season has already seen several such accidents and the debate about the netting has reignited.  Here in Chicago, at least two star Cubs players (Javier Baez and Kris Bryant) have called for the use of more netting.  

As you probably know, spectators usually do not have a remedy in tort available because of the so called "baseball rule" which is essentially a derivation of the notion of assumption of the risk.  I have argued the use of the rule is inconsistent with general principles of tort law, but it continues to be applied in many jurisdictions.  (Idaho is one which has refused to adopt it. See here.)   For some of my comments on the rule in general, go here, here and here.  For my posts on this and other topics related to baseball go here.

NPR recently posted a short radio segment on the issue.  You can listen to it below, or you can read the full story here.  It includes a video of one of the recent incidents (I also included it below).  It does NOT show the fan (in this case a young child) getting hit.  What it shows is the reaction of the players on the field.  Notice the reaction of the catcher the moment the ball goes into the stands; while the batter needed to be consoled by teammates and his manager.

Lawsuit filed against gun manufacturers related to Las Vegas Music Festival shooting

Back in March I reported (here) that the Connecticut Supreme Court allowed to proceed a lawsuit against Remington, the manufacturer of the rifle that was used during the school shooting at Sandy Hook Elementary School. 

Now, Courthouse News is reporting that attorneys for victims of the Newtown school shooting have filed a new lawsuit against the companies whose assault rifles were used by the gunman in the shooting at the Harvest Musical Festival in Las Vegas.  You can read the full story here.

For my recent posts related to the gun industry go here.

Alaska reiterates its approach to bystander emotional distress claims, which is very different than the one used in most other jurisdictions

As you probably know, back in 1968 the California Supreme Court created what has now become the majority approach to claims by people who suffer emotional distress at witnessing injuries suffered by others.  According to that approach, the claim is limited to plaintiffs who are closely related to the victim, are present at the scene of the accident and who have a contemporaneous sensory observance of the accident.  Someone who is told about an accident after it happens or who arrives at the scene only to observe the aftermath, would not have a claim.

Alaska, however, never adopted the requirement of the contemporaneous sensory observance.  According to this approach, the plaintiff can support a claim as long as he or she is a close relative of the victim and that, under the circumstances, it is reasonably foreseeable that the plaintiff would suffer emotional distress.  This means the notion of duty in Alaska in these types of cases is broader and defendants are exposed to liability in many more cases.

I am writing about this today because I just read that the Alaska Supreme Court has again reiterated its approach to this issue in a new case called Doan v. Banner Health, Inc., (available in Westlaw at 2019 WL 2312537).

In this case, a mother, who was in a hospital waiting room when her daughter died, brought a NIED claim against medical providers for the distress she suffered upon seeing her daughter’s body. 

This claim would have been rejected in any state that follows the California approach and, obviously, in all states that reject it in favor of the "zone of danger" approach.  To my knowledge, this leaves only Alaska and Puerto Rico.

Thanks to the TortsProf blog for the update.

Can a parent sign away a child's rights by signing a waiver of liability? Not in Kentucky (and many other states)

Those of you who have children out there are familiar with this, which as a parent myself, I have seen and done lots of times!  Your child wants to participate in a sport or other physical activity, and you (the parent) are asked to sign a "waiver" before the child can be allowed to do so.  Will those waivers really work to prevent a lawsuit?  Are they a valid form of contract that can be argued support a defense of express assumption of the risk.  Not in many states.  (I have not done a state by state survey, but I suspect this would be the case in a majority of states.) 

The Torts Prof blog is reporting that the Kentucky Supreme Court has unanimously ruled that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver.  The ruling came in a case in which an 11-year-old girl broke her ankle jumping on a trampoline at the House of Boom in Louisville, KY in 2015.  The mother had checked a box saying that she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park.  The court noted that for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf."  The court also stated that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable.  WDRB.com has a little more on the story.

New update to Report on Medical Malpractice

The Center for Justice & Democracy at New York Law School recently released the 12th update to its Medical Malpractice: By The Numbers report. The fully-sourced 172-page volume includes the latest statistics and research on issues related to medical malpractice, including over 500 footnotes linking to original sources.  You can get a copy of the full report here; or a summary here.

House and Senate Democrats introduce bill to allow victims of gun violence to sue the gun industry

Last week House and Senate Democrats presented a bill called The Equal Access to Justice for Victims of Gun Violence Act which seeks to repeal federal protections blocking firearm and ammunition manufacturers, dealers and trade groups from most civil lawsuits when a firearm is used unlawfully or in a crime.  Given that Mitch McConnell has asserted he will not let any progressive legislation pass during his reign, the bill has little to no chance of ever becoming law, though.

NPR has the full story here.

Comment on recent Supreme Court case on preemption in prescription drug cases

A few days ago I reported that he 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.  (See here).

Since then, Max Kennerly, of the excellent Litigation and Trial blog, has published a detailed discussion of the case. You should read the full article here.  Here is his conclusion:

On May 20, 2019, the United States Supreme Court decided Merck v. Albrecht ... destroying most of the arguments routinely used by drug companies to claim that plaintiffs’ cases are “preempted” and have to be dismissed. The law for people injured by branded prescription drugs is far better now than it was before Albrecht, and as a result, it is likely that far more victims will get to see their day in court. 

After Albrecht, a branded prescription drug manufacturer can only establish impossibility preemption — which happens when federal law makes it “impossible” for defendants to comply with state tort laws that enable victims to seek compensation — if they can show: 

-- The manufacturer “fully informed” the FDA by providing both all “material” safety information and an “evaluation or analysis concerning the specific dangers” raised by the plaintiff; and 

-- The FDA took action, “carrying the force of law,” to disapprove the warning proposed by the plaintiffs. 

The Supreme Court’s analysis in Albrecht is far more narrow than any preemption argument ever proposed by drug manufacturers, and far more narrow than the “clear evidence” tests many lower courts have been using since Wyeth v. Levine, 555 U.S. 555 (2009). As the Supreme Court itself said, “a drug manufacturer will not ordinarily be able to show that there is an actual conflict between state and federal law such that it was impossible to comply with both.”

Podcast on internet defamation

The most recent edition of the podcast "Digital Detectives" is devoted to a discussion of what lawyers need to look out for when handling a defamation case that originates in comments made on the internet.  You can listen to the program by going here.

New York Times article on Boeing's handling of the design of the 737 Max airplane; it's not a pretty picture.

The New York Times has published an article describing certain aspects of the process that led to the design and manufacture of the Boeing 737 Max airplane, the model recently involved in several crashes, which paints a really bad picture for the company.  If the article is accurate, and the statements can be proven in court, the picture is one of negligence, if not intentional or reckless, management of the design process which could be used against the company in a product liability case.  The article is called "Boeing Built Deadly Assumptions Into 737 Max, Blind to a Late Design Change" and you can read it in full here, but here is the gist of it:

The fatal flaws with Boeing’s 737 Max can be traced to a breakdown late in the plane’s development, when test pilots, engineers and regulators were left in the dark about a fundamental overhaul to an automated system that would ultimately play a role in two crashes.

A year before the plane was finished, Boeing made the system more aggressive and riskier. While the original version relied on data from at least two types of sensors, the final version used just one, leaving the system without a critical safeguard. In both doomed flights, pilots struggled as a single damaged sensor sent the planes into irrecoverable nose-dives within minutes, killing 346 people and prompting regulators around the world to ground the Max.

But many people involved in building, testing and approving the system, known as MCAS, said they hadn’t fully understood the changes. Current and former employees at Boeing and the Federal Aviation Administration who spoke with The New York Times said they had assumed the system relied on more sensors and would rarely, if ever, activate. Based on those misguided assumptions, many made critical decisions, affecting design, certification and training.

“It doesn’t make any sense,” said a former test pilot who worked on the Max. “I wish I had the full story.”

While prosecutors and lawmakers try to piece together what went wrong, the current and former employees point to the single, fateful decision to change the system, which led to a series of design mistakes and regulatory oversights. As Boeing rushed to get the plane done, many of the employees say, they didn’t recognize the importance of the decision. They described a compartmentalized approach, each of them focusing on a small part of the plane. The process left them without a complete view of a critical and ultimately dangerous system. 

The company also played down the scope of the system to regulators. Boeing never disclosed the revamp of MCAS to Federal Aviation Administration officials involved in determining pilot training needs, according to three agency officials. When Boeing asked to remove the description of the system from the pilot’s manual, the F.A.A. agreed. As a result, most Max pilots did not know about the software until after the first crash, in October.

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.

3M Military Earplug Lawyers To Meet With Judge Appointed To Preside Over Hearing Loss Lawsuits

3M Company currently faces more than 600 product liability lawsuits filed in U.S. District Courts nationwide by veterans left with hearing loss following service between 2003 and 2015, and the size of the litigation is expected to continue to grow as hearing loss lawyers continue to review and file complaints alleging the company knowingly sold defective earplugs to the U.S. military.

The lawyers involved in the lawsuits will meet for the first time next week with the judge recently appointed to preside over coordinated pretrial proceedings for the claims.

AboutLawsuits has more details on the latest developments here.

Class action on behalf of soldiers and veterans against manufacturers of defective earplugs -- UPDATED

The U.S. Judicial Panel on Multidistrict Litigation (JPML) has agreed to consolidate and centralize all 3M Combat Arms Earplug lawsuits pending throughout the federal court system, each raising similar allegations that veterans were left with permanent hearing damage as a result of design defects with the reversible earplugs that were standard issue by the U.S. military between 2003 and 2015.  You can read one the original complaints here, and get more information here, here and here.

UPDATE 4/13/19:  AboutLawsuits.com has a new post on this issue here.

How Have Tort Defendants Fared at the Illinois Supreme Court Since 1990? --- UPDATED

If you are interested in statistical evidence on litigation issues in Illinois, take a look at the Illinois Supreme Court Review Blog.  In its most recent posts on the subject, they discuss trends in tort law cases.  You can read "How Have Tort Defendants Fared at the Court Since 1990? Part 1 here, and Part 2 here.

UPDATE 4/11/19:  Part 3 of the series is now here.

US Supreme Court to decide another maritime law tort case this term

About a week ago, the US Supreme Court heard oral arguments in a case called The Dutra Group v. Batterton, which asks the Court to decide whether a seaman can recover punitive damages in a personal injury suit based on the unseaworthiness of a vessel on which he was working.   The SCotUS blog has an analysis of the oral argument here.  You can also review all the relevant documents in the case and links to more information here.

Video on the first U.S. wrongful death suit related to the Ethiopian Airlines crash

After Ethiopia released preliminary findings from an ongoing investigation into the Ethiopian Airlines flight that crashed last month and after the first American wrongful death lawsuit against Boeing was filed, Boeing CEO Dennis Muilenburg stated that "It’s our responsibility to eliminate this risk. We own it. And we know how to do it."  (See here.)

Democracy now, has a report including an interview with the plaintiffs in that first lawsuit, filed against Boeing and the Federal Aviation Administration here.  The first part of the report are statements by family members expressing their emotional loss.

At the 22:46 mark, the attorney for the plaintiffs explains some of the evidence in support of their claims.

NY Times article on lawsuits against Purdue Pharma for its role in fostering the opioid crisis

This morning the New York Times has posted an article on the lawsuits filed against the Sackler family and Purdue Pharmaceuticals for its role in the opioid crisis.  You can read it here.

Story on the possible liability of the private companies that transport prisoners

The Marshall Project has a disturbing story on "the dangerous prisoner transport business" and how it has dodged responsibility for “gross negligence.”  You can read the full story here.

Supreme Court finds manufacturer can be sued under maritime law for exposure to asbestos even if product is modified by a third party as long as defendant knows of modification

Back in October of last year I wrote that 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.

Last week, the Court announced its decision ruling that, under maritime law, manufacturers can be sued for the injuries caused by their products even if the products were modified by third parties as long as those modifications were known by the manufacturer.

As reported in Jurist:

The suit was brought by two veterans, Kenneth McAfee and John DeVries, who alleged that they were exposed to asbestos while enlisted and developed terminal cancer as a result. The defendants manufactured equipment for ships for the US Navy, on which the plaintiffs served. Though the equipment was not produced with asbestos by the defendants, integration of the carcinogen was performed by the Navy after the installation of the equipment pursuant to instructions by the manufacturers. The suit argued that the two crewmembers were not given sufficient notice that they were being exposed to a dangerous material by the manufacturer, while the companies claimed that they were not liable because they did not install the asbestos materials themselves. Though a federal district court ruled in favor of the manufacturers, the US Court of Appeals for the Third Circuit reversed the decision, after which the manufacturers appealed to the Supreme Court.

In a 6-3 decision, Justice Brett Kavanaugh wrote that there were three different approaches that the court could take to constrain defendant liability in maritime product liability law. The first, a forseeability approach, would require manufacturers to anyone who came into contact with their product of any dangers that could be reasonably caused by their equipment, even if it is modified by a third party. Kavanaugh dismissed this test, stating that it would cause “confusion” and “overdisclosure” while being a substantial burden. The second test, the “bare-metal” defense asserted by the defendants, would prevent manufacturers from being held liable for any modifications undertaken by a third party. Kavanaugh stated that this test “goes too far in the opposite direction” from the forseeability test, allowing manufacturers to wash their hands of dangerous products by hiding behind third parties. The court therefore held that a middle-ground test is appropriate, holding manufacturers responsible for harm caused by third-party modifications that are undertaken with the manufacturer’s “knowledge or intention” that such a modification would make the product dangerous.

The case is called Air and Liquid Systems Corp. v. DeVries , and you can read the opinion here.  You can read other documents relevant to the case here.

The SCotUS blog has analysis here.

How the Cosmetics Industry Got to Regulate Itself and Downplayed Cancer Risks

Interesting article related to products' regulation, and possible liability.  Take a look here.

Devin Nunes files lawsuit for $250 million against Twitter; does it violate the rules against frivolous suits?

By now, I am sure you have heard all the jokes about the lawsuit filed by Rep. Devin Nunes.  If not, here is the bottom line: Rep. Devin Nunes has sued Twitter, some satire Twitter accounts, and a real political commentator for a variety of "offenses" including defamation based on allegations that anyone with a basic understanding of the law should know would not support a claim for defamation.  He is asking for $250 million in compensation.  The defamation claim is frivolous.

Of course, frivolous lawsuits are not new, but this is the same Devin Nunes who co-sponsored the Discouraging Frivolous Lawsuits Act and who once voted for a House Amendment "to express a sense of Congress that free speech should be protected."

For a detailed analysis of the complaint, go to TechDirt.

You can read more comments in ABA Journal, and The Daily Beast.

For the jokes I mentioned above, you can go here, and here for some examples.

Connecticut Supreme Court reverses lower court allowing case against gun manufacturer to go forward -- UPDATED

In a 4-3 opinion issued on March 14 (available here), the Connecticut Supreme Court has cleared the way for families of children killed in 2012 at Sandy Hook Elementary School to proceed with a lawsuit against Remington, which manufactured the AR-15 Bushmaster semi-automatic rifle that was used during the school shooting. 

The court held that Remington can be sued over its marketing practices under a Connecticut state law, despite protections offered to gun manufacturers by federal law.  Specifically, the court held that the federal Protection of Lawful Commerce in Arms Act protects gun manufacturers and sellers from liability for the acts of people who use their weapons, but not from a claim under the Connecticut Unfair Trade Practices Act based on allegations that Remington and other defendants were involved in the selling of a weapon that was designed for military use, knowing it had no legitimate civilian purposes and could only be effectively used by civilians for criminal activity.

You can read more details on the story in NPR, AboutLawsuits, Jurist, Courthouse news, the Legal Profession blog and The ABA Journal.

UPDATE (3/19/19):  TortsProf blog has posted a comment here.

NJ Supreme Court to decide whether defendant has a duty to warn about asbestos exposure due to a replacement part in its product

The New Jersey Supreme Court has agreed to hear an appeal that will decide a manufacturer’s liability for asbestos-containing replacement parts that it did not manufacture or sell.  The Supreme Court granted certification after the Superior Court, Appellate Division, held that a manufacturer has a duty to warn of risks not just from the products it manufactures or sells, but also from asbestos-containing replacement parts necessary for its products to function.  You can read the lower court opinion here.

Here is a link to a short article that summarizes the possible approaches to the question and the issues involved.

Article proposing changes to the view that suicide is a superseding cause

As you may know, courts often rule that a person's decision to commit suicide operates as a superseding cause which results in dismissing wrongful death claims against defendants whose conduct allegedly drove the decedent to commit suicide.

A few years ago, I commented how this approach to the issue has resulted in a confused state of the law in Illinois.  See here.    I have also argued that the analysis has never made much sense to me because, by definition, a superseding cause is superseding only if it is unforeseeable and suicide is not always unforeseeable. 

However, for some, the act of committing suicide is still so inconceivable that for them it should always be considered to be unforeseeable.  Perhaps this is based on the notion that life, however bad it might be, is always preferable to death, and therefore it is inconceivable that someone might prefer to die.  This categorical approach, however, fails to consider the many possible reasons and circumstances that might lead someone to consider suicide.

Thus I have argued that the analysis in suicide cases should be exactly the same as that in all other cases that involve intervening causes:  is the injury a foreseeable consequence of the risk created by the negligent conduct?  Two years ago, I reported on a case that agreed with my view.  See here.

I am writing about this today because I just saw a new article on the subject.  It is called  Abolishing the Suicide Rule, and here is the abstract:

Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed “the suicide rule” in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death.

You can find the full article in SSRN, here.

Shooting victims argue on appeal to revive case against social media platforms

In a recent oral argument before the Court of Appeals for the 6th Circuit, attorneys for some victims and family members of those killed during the 2016 shooting at the Pulse nightclub in Orlando argued that the court should reverse a lower court decision dismissing a complaint against Twitter and other social media platforms.

In the original lawsuit, the plaintiffs argued that but for the postings of a radical group using defendants’ social media platforms, the shooter would not have engaged in his attack on the Pulse nightclub.  They alleged Twitter, Google and Facebook knew their sites and platforms were being used by terrorist organizations to raise money and recruit new members, but did nothing to curb or end the activity.

The lower court judge, however, ruled in favor of the defendants and granted their motion to dismiss in March 2018.

You can read a summary of the argument here. 

I confess I have not been following this story and do not know the details of the allegations or the lower court opinion; but from what I can gather from the summary, it seems to me the plaintiffs will have a hard time winning the argument.  It is not easy to hold the media responsible for the criminal conduct of others who read or react to what is published in the media platforms.