Claim against hospital for lead paint exposure

A class action lawsuit has been filed against a Baltimore children’s disabilities hospital for allegedly allowing poor minority children to be exposed to high levels of lead as part of a study. According to allegations raised in the complaint, the hosptial found poor and minority children who were living in homes with high levels of toxic lead paint to observe the health effects.  Then, some families were moved into homes with less lead contamination, while others were allowed to remain in lead paint-contaminated homes without being told about the health effects or the lead levels. The plaintiffs claim that the hospital selected poor and minority test subjects to stay in contaminated homes, while generally selecting white and more affluent children as those to be moved into safer homes.  Go here for more information.

On the possible liability of a lawyer for negligence in handling a settlement... in Australia

I have commented on the issue of whether a lawyer can be found liable for negligence in a case if the client decides to settle here, here and here.  Interestingly, this is now under debate in Australia.  Here is a link to a short comment by the Australian Professional Liability Blog on the issue.  It provides a survey of the relevant cases and the state of the law down under.

Comment on possible liability for exposure to lead paint

Here is a link to a short comment by the Center for Justice and Democracy on the possible liability of paint manufacturers for exposure to lead paint.  It starts by stating that "I don’t think it is a stretch to say that paint companies intentionally poisoned children" and goes on from there... 

Nevada Court rules no preemption in generic drug case despite Supreme Court's decision in Pliva v Mensing

As I reported here earlier this year, in PLIVA, Inc. v. Mensing, the US Supreme Court found that federal drug regulations applicable to generic drug manufacturers directly conflict with, and thus preempt, state tort-law claims based on drug manufacturers’ alleged failure to provide adequate warning labels for their products. As part of that decision, the Court said that a “[a] Dear Doctor letter that contained substantial new warning information would not be consistent with the drug’s approved labeling,” and concluded that “federal law did not permit the Manufacturers to issue additional warnings through Dear Doctor letters.”

Notwithstanding this ruling, the FDA law blog is reporting that Nevada State Court Judge Jerry Wiese II recently granted Plaintiff’s Motion for Partial Summary Judgment on Preemption Defense for Dear Doctor Liability in three propofol hepatitis infection cases – Carol Keck v. Endoscopy Center of Southern Nevada, L.L.C., Megan T. Gasper, et al. v. Endoscopy Center of Southern Nevada, L.L.C., and Betty Hymas v. Endoscopy Center of Southern Nevada, L.L.C.

According to the report, the court opined that the the Supreme Court did not indicate that “Dear Doctor” letters that were “consistent and not contrary” to the labeling, were preempted. 

In other words, since a claim based on a manufacturer's failure to send a letter warning doctors of new risks would be preempted, the decision seems to say that there could be a claim based on one of two possible types of cases:  when the manufacturer never sent a letter to begin with and, perhaps, when a manufacturer fails to send a letter reminding doctors of the information already available in past letters or other literature.

For more on this story go here.  For more on PLIVA v Mensing, go here, here and here.

For a survey of cases on the subject since PLIVA go here.

New York Port Authority has immunity

In a 4-3 decision that reversed lower courts rulings, the New York Court of Appeals (New York’s highest court) ruled today that the Port Authority of New York and New Jersey, which runs area airports and trains and owns the World Trade Center site, is immune from claims that it failed to deter the 1993 parking garage bombing at the trade center complex that killed six people and injured about 1,000. Go here for more on the story from the Wall Street Journal law blog and here for the story in AP.  Go here for the text of the opinion.

The Hazards of Hospitals

"The Hazards of Hospitals" -- a quick graphic list of scary statistics.

Article on implications of PLIVA v. Mensing

In PLIVA v. Mensing, 131 S. Ct. 2567 (2011), the Supreme Court held that FDA regulations governing the labeling of prescription drugs preempt state-law failure-to-warn claims against generic drug manufacturers. Here is a link to a recent article on Mensing and its implications.


Thanks to Public Citizen for the link.

Debate on the constitutionality of med mal bill before Congress

I have commented on the med mal reform bill before Congress here, here, here, here, here, here, here and here. 

Here is  a new short article (here) arguing that the bill is unconstitutional.

Stage now set for US Supreme Court to review important case on the Alien Tort Statute -- UPDATED

Last February I reported (here) that after a divided panel denied a rehearing and the en banc Court refused to rehear the case (on a 5-5 split), the stage was set for the decision by the Court of Appeals for the Second Circuit holding that plaintiffs could not bring claims against corporations under the Alien Tort Statute to go to he Supreme Court. That day is now here.  A cert petition has been filed and is now pending before the Court.  I hope it is accepted since an opinion in this case will be tremendously important. Go here for a full report by the Supreme Court Blog. The cert petition itself is available here. The Second Circuit's opinion is available here. 

For my previous posts on this case go here and here.

UPDATE (9/14/11):  the Petition for Certiorari has been distributed for the US Supreme Court's conference on September 26.  Check here for the USSCt docket. Stay tuned!

UPDATE (9/25/11): for all the relevant documents filed before the Supreme Court go here.

Fla court dismisses claims for emotional distress suffered from witnessing trainer's death at SeaWorld

The TortsProf blog is reporting today on an interesting case that illustrates some of the issues related to the reach of possible liability for emotional distress claims.

The case involves an accident at SeaWorld in Florida in 2010, where a SeaWorld trainer drowned during a public session. Two parents and their son were among the audience members and witnessed the drowning. Understandably, they were traumatized by the experience and later filed suit against SeaWorld for both intentional and negligence infliction of emotional distress.

According to this report from the Orlando Sentinel (which includes videos about the accident), the court dismissed the claims with prejudice, finding that they had failed to allege outrageous conduct (for the intentional claim) and that they had failed to show any precedent supporting a negligence claim for purely emotional distress when the plaintiff was "a complete stranger to the injured party."

Given generally accepted principles of the law related to emotional distress, this was the correct result.  Courts are very reluctant to recognize claims by "bystanders" because the reach of possible liability would be too broad.  Were this not the case, every single person in the audience could have a claim and if the show had been televised, maybe even anyone who watched it on TV anywhere could recover also - as long, of course, as they could prove the other elements of the cause of action.

The interesting question is whether we should recognize the cause of action.  After all it is perfectly foreseeable that the witnesses would suffer emotional distress.  As long as they can show negligence on the part of the defendant and can prove the value of their injury, why not allow them to sue?  I know of one jurisdiction that allows for such broad liability and it has not brought about chaos or has resulted in "dogs and cats to live together/the end of the world as we know it."

I have mixed feelings about this question.  I don't think that expanding the scope of possible liability that much is necessarily a good idea, but I do feel that if the defendant's negligence causes foreseeable injury you should be able to argue in favor of recognizing the right to recover.

But, as I said before, the generally accepted view is that this type of liability should be "limited."  I wonder if, maybe, there is a way to expand liability a little bit, while still keeping it limited.