Jury awards millions in damages against white nationalists for injuries caused during "Unite the Right" rally in Charlottesville

After a monthlong trial, a jury in U.S. District Court in Charlottesville found the white nationalists liable on four counts in a lawsuit filed by nine people who suffered physical or emotional injuries during two days of demonstrations.  The jury awarded more than $25 million in damages for the injuries suffered after violence that erupted during the 2017 Unite the Right rally.

Lawyers for the plaintiffs invoked a 150-year-old law passed after the civil war to shield freed slaves from violence and protect their civil rights. Commonly known as the Ku Klux Klan Act, the law contains a rarely used provision that allows private citizens to sue other citizens for civil rights violations.

For more coverage you can check:  Politico. Jurist, NPR, ABA Journal, The Guardian, Above the Law, and Democracy Now.

Judge awards $7 million in case involving a wife getting exposed to asbestos in her husband's work clothes

As you probably know, mesothelioma is a rare form of cancer caused by exposure to, and breathing of, asbestos fibers. Most asbestos cases involve plaintiffs who were exposed to asbestos directly (usually at work), but there are a few cases that have recognized liability for "second hand exposure."  These usually involve plaintiffs who were exposed to asbestos when the person who had been exposed directly brought the fibers home embedded in their clothes.

For example, back in 2013, I reported (here) that a jury in California awarded $27.3 million in damages to a woman who developed mesothelioma as a result of her contact with her husband's clothes.  Just about a year ago, I reported (here) that a Washington state jury awarded $3.5 million to the estate of a woman who died of mesothelioma for the same reason.

Now comes news (also here) that a trial judge in Louisiana has awarded $7 million to the surviving family members of a woman who died of cancer after years of washing her husband's asbestos-tainted clothes.

Plaintiffs in these cases argue that the defendant should be liable because the injury is a foreseeable consequence of the risk created by the negligence conduct or product (depending on whether the claim is for negligence or strict liability).  This, obviously, is just an argument in support of the element of proximate cause and defendants, therefore, reply that viewed this way, liability could extend too far thus defeating the reason for proximate cause in the first place.  Since the notion of proximate cause is used to limit the reach of possible liability, they argue liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.  What if the worker, instead of going straight home after work, went to a bar every day for a beer or two with friends and other co-workers.  Any "regulars" at the bar could have a cause of action. 

It is not a frivolous argument, and I am guessing some courts have (or will) accept it.  But, as we have seen, a few have either rejected it or at least replied to it that even if the possible liability should be limited to exclude those bystanders, it should not exclude the immediate family members.  

Wisconsin jury grants $5 million in case against gun store for negligent sale of a gun which was later used to kill two police officers

In 2005, Congress enacted a statute that gives gun dealers immunity from liability for injuries caused by guns sold by them unless the sellers knew or should have known the sale was illegal or likely to pose a danger.  (See the Protection of Lawful Commerce in Arms Act).  More than 30 states have adopted similar laws.

Since 2005 only one case against a gun seller had reached a jury and the jury found for the defendant.  That changed two days ago when a jury in Wisconsin awarded more than $5 million in damages to two police officers who had been severely wounded with a pistol that a local gun shop sold to a straw buyer in 2009.  The New York Times has more details here.  Slate has more here (including links to other sources).

The jury found that the store had been negligent in selling the gun because there were signs that the person seeking to buy the gun was fronting for an 18-year-old who accompanied him to the store. One month after the purchase, the 18-year-old shot the plaintiffs, leaving one of them with brain damage and a destroyed eye.

The decision is surprising for a couple of reasons.  First, usually the effect of the federal statute, and of similar state statutes, is to prevent liability of gun sellers for the consequences of the conduct of those who use the guns. 

Second, typically, defendants in this type of case will argue that the conduct of the person using the gun should be seen as a superseding cause that severs the connection between the negligent conduct upon which the claim is based and the injury for which the plaintiff seeks recovery. I've always thought that courts tend to be receptive to this argument. If the argument was raised, I wonder if maybe, given the string of recent school shootings, opinions are starting to shift on the issue.  I don't know if this argument was made in this particular case, but I can't imagine it wasn't.  The defendant would have argued that even if it was negligent, the conduct of the person who got the gun was unforeseeable.  If the argument was raised, the court probably concluded that was for the jury to decide, and now we know how they decided it.

Jury awards $3.5 million in case involving a wife getting exposed to asbestos in her husband's work clothes

A Washington state jury has awarded $3.5 million to the estate of a woman who died of mesothelioma she contracted from exposure to asbestos carried home on her husband’s work clothes.  AboutLawsuits has the story here.

Most asbestos cases involve plaintiffs who were exposed to asbestos at work, but the plaintiff in this case was exposed to asbestos due to her contact with her husband, who as a result of his work, carried asbestos fibers home on his work clothes.  In a case like this, the issue of whether the possible liability of the defendant should be limited to the person exposed to asbestos directly at work. In the end, the issue is one of proximate cause or duty. Should the duty of the defendant extend to include the injuries suffered by anyone exposed to the fibers, or just to the injuries of those exposed at work?

The case is similar to a case in California in which the jury awarded $27.3 million in damages, and a case in Illinios in which the court remanded the case to allow the plaintiff a chance to support its allegation of duty.  You can read my comment on those cases here.

$150 million jury verdict against Jeep for death caused by fuel tank fire

About ten years ago, I remember reading that Jeep Liberty SUVs had the gas tank closer to the ground than any car on the market.  I don't know if it was true, but I remember the story because we (my wife and I) owned one at the time!  More recently, back in July of last year I reported that the U.S. National Highway Traffic Safety Administration (NHTSA) concluded that Chrysler dragged its feet in issuing a Jeep recall that ultimately impacted 2.5 million vehicles, and was taking too long to make repairs necessary prevent gas tanks from exploding. Jeep Grand Cherokee and Jeep Liberty model SUVs were linked to at least 51 fiery crashes over the past three years. (See here.)

I am recalling these stories today because AboutLawsuits is reporting that a Georgia jury has awarded $150 million to the family of a 4-year-old boy who was killed when a Jeep Grand Cherokee burst into flames after an auto accident. The child died in March 2012 when the 1999 Jeep Grand Cherokee he was riding in was rear-ended, causing the fuel tank to leak and then catch on fire. The boy’s death is one of at least 75 fatalities linked to Jeep fuel tank fires.  Go here for the full story.  The New York Times also has the story here.

Comments on the $9 billion verdict

Yesterday I reported that a jury in Louisiana had awarded what someone called "maybe largest monetary award ever" against a pharmaceutical company for injuries caused by the drug Actos.  

Whatever its place in history, the verdict has generated some debate.  The defendant quickly responded by announcing it would appeal the verdict.  Others have provided additional commentary.  The TortsProf blog opined that "[b]ecause of the presumptive single-digit Due Process ratio, there is a strong possibility the punies will at least be reduced."  An article in Reuters agrees.

On the other hand, although agreeing that the amount of the verdict is likely to be reduced, Eric Turkewitz of the NY Personal Injury Law Blog, thinks an award of much more than a "single-digit ratio" can be justified.  His conclusion:  "So what will happen in the Actos litigation? I think that a punitive damage award of 100x or greater is in the cards if the plaintiffs satisfy the court that the conduct was reprehensible ... And I also think that, given the significant document destruction that led to that whopper of an award, that satisfying that element won’t be too difficult. Assuming that the $1.5M in compensatory damages aren’t touched, I think that ultimately a punitive award of $150M+ is sustainable under current law."

Jury awards $9 billion in punitive damages for side effects of Actos diabetes drug

In what may be the largest award ever against a pharmaceutical company, after more than 12 weeks of trial, it took a Louisiana jury only a few hours to return a verdict in the first federal case involving the development of bladder cancer from side effects of Actos. The jurors found for the plaintiff and awarded $1.5 million in compensatory damages and an additional $9 billion in punitive damages against Takeda Pharmaceuticals and Eli Lilly. The case was based on the allegation that the makers of the diabetes drug Actos withheld information from consumers and the medical community about the risk of users developing bladder cancer. There are still aBout 3,000 other complaints pending involving nearly identical allegations. AboutLawsuits has many more details on the story here.
 

Virginia Supreme Court Reverses Award Against Virginia Tech From 2007 Shootings

Back in March, 2012 I reported (here) that Virginia Tech University had been found liable to the families of two students in a wrongful death claim for the University's negligent response to the 2007 campus shootings.  In June 2012, that verdict was upheld on appeal. Go here for more links.

Unfortunately for the plaintiffs in that case, however, the verdict was reduced to $100,000 for each family because of the state's damages cap, an amount called by one commentator "an insulting amount of reduced damages that eliminated the deterrent impact of such legal judgments."

And now, the Virginia Supreme Court has completely overturned the jury verdict on the ground that Virginia Tech had no duty to warn the students.  You can read the opinion here.  For a critical comment on it go here.

Verdict in Topamax case

A Philadelphia jury has ordered Johnson & Johnson to pay more than $4 million in damages for birth defects from Topamax, an anti-seizure medication that allegedly caused a child to develop cleft lip and other malformations as a result exposure before birth. Go here for more on the story.

$1.7 Million dollar verdict set aside because of contributory negligence

Back in August, I criticized the decision in Maryland to retain the archaic and unfair notion of contributory negligence (see here and here).  Now comes news that the doctrine has been used to set aside a $1.7 million verdict. 

Following three weeks of trial and two days of deliberations, in the second trial out of more than 3,000 Actos lawsuits pending nationwide, a Maryland jury found that Takeda Pharmaceutical’s failed to adequately warn physicians about the risk of bladder cancer from their popular diabetes drug and awarded nearly $1.77 million in damages. However, the court entered a verdict for the defendant because the jury also found that the plaintiff failed to exercise reasonable care for his own health.

Go here for the full story.

California jury awards $27.3 million in damages for second hand exposure to asbestos

AboutLawsuits is reporting (here) that a jury in California recently awarded $27.3 million in damages to a woman who developed mesothelioma as a result of "second hand exposure" to asbestos. As you probably know, mesothelioma is a rare form of cancer, which is only known to be caused by exposure to, and breathing of, asbestos fibers.

 

Most asbestos cases involve plaintiffs who were exposed to asbestos at work, but the plaintiff in this case was exposed to asbestos due to her contact with her husband who was the one exposed to the fibers at work. As a result of his work, the plaintiff's husband carried asbestos fibers home on his work clothes, which caused the plaintiff to develop mesothelioma years later.

 

These cases present the issue of whether the possible liability of the defendant should be limited to the person exposed to asbestos directly at work. In the end, the issue is one of proximate cause or duty. Should the duty of the defendant extend to include the injuries suffered by anyone exposed to the fibers, or just to the injuries of those exposed at work?

 

If we apply the traditional proximate cause analysis, the question is whether the injury is a foreseeable consequence of the risk created by the negligent conduct. If the answer is that reasonable people can disagree, then the case survives a motion to dismiss and goes to the jury.

 

Since asbestos fibers cling to clothes, it can easily be argued that exposure to others who come in contact with the contaminated clothes is a foreseeable consequence of the risk created. The problem with this, defendants argue, is that this subjects them to unlimited liability. What if a worker had the custom of going to a public establishment - a diner, restaurant, bar, etc - after work to meet with friends before changing? Should the defendant be liable to anyone who participated in those gatherings (as long as they can prove cause in fact)?

 

The concept of proximate cause was created precisely to achieve a level of fairness when it comes to possible unlimited liability. At some point we must draw a line - as Cardozo and Andrews agreed in Palsgraf v LIRR - and the key for the courts if figuring out how and where to do so.

 

In an asbestos second hand exposure case, the plaintiff will argue we should extend the possible liability to include the members of the exposed worker's household. The defendant will argue that there is no reason to extend the possible liability beyond the duty owed to the worker and that extending it to anyone else would be going too far.

 

The California case is similar to a case decided by the Illinois Supreme Court last year called Simpkins v. CSX. The allegations in Simpkins were essentially the same: a wife who was exposed to asbestos due to contact with her husband's clothes. The Court's opinion concluded that the complaint had not alleged sufficient evidence to support the claim that defendant owed a duty of care to the plaintiff but remanded to give the plaintiff the chance to do so. The court explained that in order for the claim to survive a motion to dismiss it would have to show specific facts relating to defendant's knowledge of the potential harms of asbestos. Only then would the court be able to answer the question on whether the injury was a foreseeable consequence of the risk created by the defendant. You can read the opinion here. For more on the case go here.

 

In other words, the case was remanded and allowed to continue, but I do not know what has happened since. If it is still being litigated, I am sure the recent verdict in California will provide the plaintiff with some support for her claims and approach. It may also influence the defendant to consider settling the matter before taking chances with a jury.

 

Hunter is awarded $4 million in hunting accident

In a story that combines elements of the old classic case Summers v. Tice and the current debate on gun control, Injured is reporting that a Pennsylvania hunter who was mistaken for a turkey in a shooting has been awarded $4 million by a judge.

In this case, as in Summers, the defendant shot in the direction of the plaintiff thinking the plaintiff was his prey (in this case a turkey) and caused an injury to the plaintiff's eyes.  But, the plaintiff's lawyer reportedly argued that the case was not really about a hunting accident. Instead, he said it is a case about a person (the defendant) who had no business carrying a gun in the first place.  The defendant is a convicted felon who, under Pennsylvania law, should not have had possession of a gun.  Thus, the plaintiff's lawyer apparently stated that the judge probably wanted to send a message with the $4 million award -- the message being that individuals who are not supposed to be in possession of firearms will face severe penalties if they are caught with such a weapon.

Thanksgiving torts

Here is a link to Prof. Jonathan Turley's annual compilation of Thanksgiving themed torts. And here are two links (here and here)to some videos on how not to prepare a turkey....   Enjoy!

$85 Million verdict against Kellog Brown & Root (KBR), a US Iraq War contractor, for exposing soldiers to toxins

Back in January of 2010, there were many reports on possible health hazards American soldiers were getting exposed to in Iraq and Afghanistan as a result of the burning of hazardous and medical waste.  See here and here.  A  number of lawsuits were filed. One lawsuit was filed by a group of Indiana National Guardsmen who alleged that a mission to help clean up a water treatment plant in southern Iraq left them with fatal illnesses. (See here.)

Another case, filed by Oregon Guardsmen, has now been decided.  Torts Today is reporting that after a three week trial, a jury deliberated two days before it found KBR liable for negligently exposing soldiers to sodium dichromate, a cancer causing toxin substance containing hexavalent chromium. The jury returned an $85 million verdict against Kellog Brown & Root (KBR), a US Iraq war contractor.  The Washington Post has more on story here.

A similar lawsuit is now pending in the US Court in Maryland alleging that KBR, and others, exposed US soldiers to toxins from burn pits that were built, constructed or maintained for waste disposal.

More on the Missouri Supreme Court decision declaring damages cap unconstitutional

Yesterday I reported that the Missouri Supreme Court declared unconstitutional that state's statute that imposes a cap on non economic damages in medical malpractice cases.  See here. 

Today, the PopTort has posted a bit more information on the case and the issue here.  It turns out that Missouri provides a good example of why capping recovery for victims does not necessarily result in reducing insurance premiums. According to Missouri’s insurance department, by 2003, while claims and payouts had already dropped dramatically for the state’s insurance industry, doctors’ malpractice insurance premiums were rising.

Not surprisingly, however, tort reform support groups have criticized the decision.  See here.  In this report, the president of the American Tort Reform Association said the opinion was written by the court's "activist majority" and is quoted as saying that “Missouri is an outlier again, joining a minority of states in which high court decisions have stymied elected legislators and governors who had acted reasonably to limit pain and suffering awards when state constitutions did not explicitly disallow such limits.”

In statements like those, ATRA wants to imply that courts that rule against their positions are "radical" or "activist" which are not following the law. This characterization of the court's decision is unfair and misleading. The fact that a legislature enacts a statute does not by itself mean that the statute is valid and should be respected. We need courts in order to determine if a statute is unconstitutional.  Otherwise there would be no check on the power of a legislative body.

In deciding the constitutionality of a statute, the Missouri Supreme Court performed its role in our democratic system.  ATRA's argument seems to be simply that courts should not question or second guess what legislators do. That is a dumb argument. If you don't agree with the decision, argue it on the merits.  Don't just start name calling and saying the court had no right to do what it did.  Of course it did.  That's what courts are for.

The report from ATRA is also quoted as stating that reform is needed "if the cost of and access to health care in Missouri is to help the state compete for jobs and economic growth” a notion that has been discredited so many times in some many studies it is almost laughable anyone is still trying to advance it.

Missouri Supreme Court declares caps on damages in medical malpractice cases are unconstitutional

In a 4-3 decision issued today, the Supreme Court of Missouri has found that caps on the amount of money a person can win in medical malpractice lawsuits are a violation of the right to a jury trial.  The $350,000 damages cap had been put in place in 2005 by the Republican-led legislature as part of a massive tort-reform bill.  The case is called Watts v. Lester Cox Medical Centers and you can read the opinion here.

Verdict against Virginia Tech is upheld

Back in March I reported (here) that Virginia Tech University had been found liable to the families of two students in a wrongful death claim for the University's negligent response to the 2007 campus shootings. The Jurist is reporting now that the verdict has been upheld on appeal.  This is not the likely to be the end of the story, though since the defendant will likely appeal to the state supreme court.  Go here for a full report which includes lots of links to more information.

Should pet owner be awarded non economic damages for death of pet? Court in Colorado says yes.

I have argued before that I really don't see why owners should not have the right to try to claim personal/emotional injuries due to the deaths or injuries to their pets. See here. However, although there may be a few cases out there that have recognized these types of claims, courts have traditionally held that animals are "chattels" and that there is no cause of action for emotional distress, loss of companionship and the like when they are injured by others. Usually, if a cause of action is recognized, the injuries are valued based on the "market value" of the animal or for injuries based on intentional conduct by the defendant.  Rarely do you see claims allowing for non economic damages in cases based on negligence.

A recent case in Colorado has now brought the issue back to the forefront.  In this case, the plaintiff will receive $65,000 from the defendant for the death of her dog after the defendant negligently let the dog out of the house and the dog was hit by a car. 

For more on the story go here and here.

Jury finds for plaintiffs in case vs Virginia Tech based on 2007 campus shooting but amount will be reduced because of mandatory caps

The jury in a wrongful death case brought by the families of two students against Virginia Tech University recently found that the defendant was negligent and awarded the plaintiffs $4 million each.  However, because of the state’s damages cap, the awards are likely to be reduced to a mere $100,000 each for their dead children. Professor Jonathan Turley has published a comment (with links to more information) in which he argues that "For [the] parents . . .  the cap must be a terrible insult as the calculation of what the state believes their child is worth in the face of lethal negligence by the school."  Go here to read the full comment.

Former inmate who was left in solitary confinement wins $22 million; Another gets $25 for wrongful conviction

A New Mexico man held in solitary confinement in a county prison for nearly two years without ever being prosecuted has won a $22 million jury award for violation of his constitutional rights.  Go here for the story.

Meanwhile, an Illinois man who spent 16 years in prison for a crime he did not commit was awarded $25 million.   Go here for more on that story.