Sunday, January 27, 2013
Study: Alabama Supreme Court wrote opinions in favor of defendants 72% of the time
A new study discussed in an article in the Huntsville Times (via How Appealing) reveals that over the
last 10 years, the written opinions of the Supreme Court of Alabama overturned jury decisions that had found for plaintiffs 72 percent of the time, while most of the cases in which the plaintiffs' judgments were affirmed were decided without a written opinion.
Saturday, January 26, 2013
West Virginia Supreme Court affirms constitutionality of legislation banning pit bulls
One of those jurisdictions was the city of Ceredo in West Virginia and, in a memorandum decision filed January 14, the highest court in the state affirmed the constitutionality of the breed-specific ordinance that prohibited the ownership of pit bull terriers in Ceredo. Go here for more details on this story.
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.
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.
Comments on the effect of "tort reform" legislation in Texas
Tort reformers always say their goal is to eliminate frivolous lawsuits. Yet, as I have often argued, another goal is to make it much more difficult for plaintiffs with valid claims. Recently, the New York Times published a story critical of the effects of the tort reform legislation in Texas which clearly has had this effect. The PopTort blog has a comment on the story here.
Colorado Supreme Court may be the next to decide whether to recognize a claim for the wrongful death of a fetus
As you may remember, about a year ago, the Alabama Supreme Court decided in a case called Hamilton v. Scott that a parent may bring a wrongful death lawsuit on behalf of a
stillborn child that was incapable of life outside the womb. See here. Then, last November, a new lawsuit was filed in Nebraska asking the court to
recognize a claim for the wrongful death of a fetus for the first time in that state.
See here.
Now comes news that a case in Colorado is raising the same question. As so often happens in cases that raise this question, the wrongful death statute refers to the death of a person and the defendant is arguing that a fetus should not be considered to be a person. What's a bit unusual about the argument in that particular case is that the defendant is a Catholic hospital. The case was dismissed initially when the court interpreted the word "person" to include only someone who had been born, but the plaintiffs recently filed an appeal before the Colorado Supreme Court. The Denver WestWord News has more on the story here.
The facts, as you would expect, are tragic. In a nutshell, a pregnant woman went to the hospital with shortness of breath where eventually she died. The hospital staff did not conduct an emergency C-section believing the twins the woman was carrying had died too. Having consulted experts, the husband has now filed a claim alleging malpractice.
Evidently, the case raises an important issue that has been addressed by other jurisdictions. Currently, the majority view seems to be that a cause of action is allowed if the plaintiff can show the fetus was viable at the time of the incident, while a few jurisdictions recognize the cause of action regardless of the state of gestation and a few others which do not recognize the cause of action unless the child survived independently of the mother before dying.
NOTE to my current students: this is a topic we will cover in detail later in the semester.
Now comes news that a case in Colorado is raising the same question. As so often happens in cases that raise this question, the wrongful death statute refers to the death of a person and the defendant is arguing that a fetus should not be considered to be a person. What's a bit unusual about the argument in that particular case is that the defendant is a Catholic hospital. The case was dismissed initially when the court interpreted the word "person" to include only someone who had been born, but the plaintiffs recently filed an appeal before the Colorado Supreme Court. The Denver WestWord News has more on the story here.
The facts, as you would expect, are tragic. In a nutshell, a pregnant woman went to the hospital with shortness of breath where eventually she died. The hospital staff did not conduct an emergency C-section believing the twins the woman was carrying had died too. Having consulted experts, the husband has now filed a claim alleging malpractice.
Evidently, the case raises an important issue that has been addressed by other jurisdictions. Currently, the majority view seems to be that a cause of action is allowed if the plaintiff can show the fetus was viable at the time of the incident, while a few jurisdictions recognize the cause of action regardless of the state of gestation and a few others which do not recognize the cause of action unless the child survived independently of the mother before dying.
NOTE to my current students: this is a topic we will cover in detail later in the semester.
Linda Riss, of Riss v. New York fame, died this week at the age of 75
As you may remember from your days as a first semester Torts student, the famous case Riss v New York tells the story of how Burton Pugach hired some men to attack his ex-girlfriend Linda Riss. Riss sued the City of New York because the police did not provide her protection after she repeatedly complained that Pugach was stalking her. The decision of the court established the notion that because the state has a duty to everyone, it does not have a duty to anyone in particular.
But, as you may also remember, the story did not end there. Pugach went to jail for 14 years and, strangely, Riss agreed to marry him upon his release. The real life story of the main characters is the subject of a book called A Very Different Love Story and a documentary called Crazy Love. (See the trailer below).
In 1997, Pugach again went on trial on charges that he had sexually abused and threatened to kill a woman with whom he had been having an affair. Ms. Riss testified on his behalf, telling him in open court, “You’re a wonderful, caring husband.”
This week, the New York Times reported that Ms. Riss passed away. The New York Times article is available here. Go here for a couple of comments by my students who saw the video a few years ago.
But, as you may also remember, the story did not end there. Pugach went to jail for 14 years and, strangely, Riss agreed to marry him upon his release. The real life story of the main characters is the subject of a book called A Very Different Love Story and a documentary called Crazy Love. (See the trailer below).
In 1997, Pugach again went on trial on charges that he had sexually abused and threatened to kill a woman with whom he had been having an affair. Ms. Riss testified on his behalf, telling him in open court, “You’re a wonderful, caring husband.”
This week, the New York Times reported that Ms. Riss passed away. The New York Times article is available here. Go here for a couple of comments by my students who saw the video a few years ago.
Monday, January 21, 2013
US Supreme Court to decide case on sovereign immunity for battery claims by medical personnel
Last week, the US Supreme Court heard oral arguments in Levin v. United States,
in which the court has been asked to decide whether a civilian may bring a battery claim against the
United States for injuries allegedly caused by military medical
personnel during the performance of their duties, or, more specifically, whether such claims
barred by sovereign immunity.
In this case, the plaintiff, a military veteran, claimed that a Navy physician performed an operation even though the plaintiff had withdrawn his consented to it. The lower court held that the claim was barred by the exception in the Federal Torts Claims Act which retains sovereign immunity for certain intentional tort claims. The plaintiff, however, argues that another statute provides an exception to the exception and that, thus, the state has waived its immunity. This new statute is known as the Gonzalez Act, and the argument is based on section 1089(e) of the act which states that "[f]or purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations)." Section 2680(h) of title 28 is the section of the FTCA which retains immunity for battery.
The Ninth Circuit agreed that the plaintiff's reading of the Gonzalez Act is plausible, but concluded that Section 1089(e) did not waive the government’s immunity as to battery claims. The Circuit Court's opinion is available here. For a detailed discussion of the argument and the court's opinion go here. For a review of the oral argument before the Supreme Court, go here. For copies of all the relevant documents filed in the case, go here.
In his review of the oral argument, the author concludes that "[i]t appears likely that the Court will reverse the Ninth Circuit’s decision and hold that Section 1089(e) waives the government’s sovereign immunity as to claims like [the plaintiff's]". Given the discussion of the issue, and the Court's past history, I am skeptical. Whatever the decision, it will have important implications. Stay tuned.
In this case, the plaintiff, a military veteran, claimed that a Navy physician performed an operation even though the plaintiff had withdrawn his consented to it. The lower court held that the claim was barred by the exception in the Federal Torts Claims Act which retains sovereign immunity for certain intentional tort claims. The plaintiff, however, argues that another statute provides an exception to the exception and that, thus, the state has waived its immunity. This new statute is known as the Gonzalez Act, and the argument is based on section 1089(e) of the act which states that "[f]or purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions (including clinical studies and investigations)." Section 2680(h) of title 28 is the section of the FTCA which retains immunity for battery.
The Ninth Circuit agreed that the plaintiff's reading of the Gonzalez Act is plausible, but concluded that Section 1089(e) did not waive the government’s immunity as to battery claims. The Circuit Court's opinion is available here. For a detailed discussion of the argument and the court's opinion go here. For a review of the oral argument before the Supreme Court, go here. For copies of all the relevant documents filed in the case, go here.
In his review of the oral argument, the author concludes that "[i]t appears likely that the Court will reverse the Ninth Circuit’s decision and hold that Section 1089(e) waives the government’s sovereign immunity as to claims like [the plaintiff's]". Given the discussion of the issue, and the Court's past history, I am skeptical. Whatever the decision, it will have important implications. Stay tuned.
Sunday, January 20, 2013
Alabama Supreme Court holds generic drug user can sue brand name manufacturer
In June 2011, the U.S. Supreme Court held in Pliva v. Mensing that injured patients' state-law failure-to-warn claims against generic-drug manufacturers are preempted by federal law because the Food and Drug Administration requires those manufacturers to use labeling that is the same as the brand-name labeling. This opened the door to claims by generic drug users against manufacturers of name brand drugs even if the plaintiff did not take the name drug.
Now the Alabama Supreme Court has put the issue right at the forefront in a case that is likely to have important national implications. In a case called Wyeth v. Weeks, available here, the Court held that the user of a generic drug can sue the manufacturer of the equivalent brand name medication even if the plaintiff only used a generic equivalent.
Defendants and their supporters immediately began to cry foul arguing that this could result in a defendant having to pay for injuries that were not caused by their product. See here, for example.
The argument sounds reasonable at first but I don't think it is that simple once you think about the reasoning behind the plaintiff's claim-that the name manufacturers are the ones who determine what the awnings of the generic products are going to say. If that is true, and if the warning was inadequate, then you can argue that the conduct of the brand name manufacturer did contribute to cause the injury.
Of course, that's two big "ifs" in that sentence, but I don't see anything wrong in allowing the plaintiff a chance to prove them. The one weakness in the plaintiffs' claim, though, might be a recent study that says that, even though generics manufacturers are required to use the same warnings used by brand name manufacturers, the reality is that few actually do. If the generic drug manufacturer changed the warning unilaterally, the brand name one should be able to claim that was not its fault.
The New York Times has more on the story here. AboutLawsuits also has more on the story here.
Now the Alabama Supreme Court has put the issue right at the forefront in a case that is likely to have important national implications. In a case called Wyeth v. Weeks, available here, the Court held that the user of a generic drug can sue the manufacturer of the equivalent brand name medication even if the plaintiff only used a generic equivalent.
Defendants and their supporters immediately began to cry foul arguing that this could result in a defendant having to pay for injuries that were not caused by their product. See here, for example.
The argument sounds reasonable at first but I don't think it is that simple once you think about the reasoning behind the plaintiff's claim-that the name manufacturers are the ones who determine what the awnings of the generic products are going to say. If that is true, and if the warning was inadequate, then you can argue that the conduct of the brand name manufacturer did contribute to cause the injury.
Of course, that's two big "ifs" in that sentence, but I don't see anything wrong in allowing the plaintiff a chance to prove them. The one weakness in the plaintiffs' claim, though, might be a recent study that says that, even though generics manufacturers are required to use the same warnings used by brand name manufacturers, the reality is that few actually do. If the generic drug manufacturer changed the warning unilaterally, the brand name one should be able to claim that was not its fault.
The New York Times has more on the story here. AboutLawsuits also has more on the story here.
Saturday, January 19, 2013
New lawsuit alleges "energy drink" delivers no more energy than coffee
At a time when there is an on-going debate as to whether so called "energy drinks" are dangerous products because, at least in part, they have too much caffeine (see here), a new lawsuit claims exactly the opposite. The ABA Journal is reporting (here) that a class action lawsuit filed last Tuesday attacks the marketing
claims by the makers of Red Bull that the energy drink “gives you
wings” which they are apparently interpreting is a claim that Red Bull improves physical and mental
performance. The suit claims the popular drink is no better at
providing energy than a cup of coffee. Reuters has more on the story.
UPDATE 2/6/13: AboutLawsuits.com has more details on the story here.
UPDATE 2/6/13: AboutLawsuits.com has more details on the story here.
Provision in NY gun law seeks to expand duty created by Tarasoff
As reported in the Wall street Journal law blog, a provision in New York state's new gun-control law that requires mental-health professionals to report potentially dangerous patients is drawing concern from experts who fear it could discourage people from seeking treatment and treads on client confidentiality.
As you may remember, many jurisdictions have adopted the view that therapists have a duty to warn unsuspecting possible victims, at least as long as they are identifiable, by following the reasoning in the famous case Tarasoff v Regents of the University of California. Yet, the provision in the NY gun law would expand this duty tremendously.
According to the article, the measure requires physicians, psychologists, nurses or clinical social workers to alert local health officials if a patient "is likely to engage in conduct that would result in serious harm to self or others." This is an extremely vague and broad duty and I think the criticism is well deserved.
Even the notion of a duty adopted in Tarasoff is controversial, which explains why it was not adopted everywhere. The duty proposed in the NY law is even broader. It is difficult to understand when the duty would start and it is not frivolous to argue that it could have a negative effect on the ability of therapists to do their job.
For more on the story go to the New York Times. USA Today has more on the story here.
As you may remember, many jurisdictions have adopted the view that therapists have a duty to warn unsuspecting possible victims, at least as long as they are identifiable, by following the reasoning in the famous case Tarasoff v Regents of the University of California. Yet, the provision in the NY gun law would expand this duty tremendously.
According to the article, the measure requires physicians, psychologists, nurses or clinical social workers to alert local health officials if a patient "is likely to engage in conduct that would result in serious harm to self or others." This is an extremely vague and broad duty and I think the criticism is well deserved.
Even the notion of a duty adopted in Tarasoff is controversial, which explains why it was not adopted everywhere. The duty proposed in the NY law is even broader. It is difficult to understand when the duty would start and it is not frivolous to argue that it could have a negative effect on the ability of therapists to do their job.
For more on the story go to the New York Times. USA Today has more on the story here.
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