Today is opening day for Major League Baseball. Picking up on that theme, and being the torts geek that I am, I decided to participate in the TortsProf blog with a post on baseball torts. You can read it here.
Sunday, March 31, 2013
Sunday, March 24, 2013
Comment on the controversy over Monster and other caffeinated drinks
As you probably remember there has been a lot of discussion on the dangers of caffeinated drinks like Monster, Red Bull and others recently. See here for some links to my previous posts. Here is a recent comment published at The PopTort.
US abandons legal battle over cigarette warnings
After a series of setbacks in federal court, the U.S. government is abandoning a legal battle to require that
cigarette packs carry a set of large and graphic warning labels
depicting the dangers of smoking and encouraging smokers to quit. For all the background information go here. For the most recent information you can go to Reuters, The First Amendment Center, Legal Newsline, the Washington Legal Foundation and Public Citizen.
Tuesday, March 19, 2013
Additional comments on Bartlett
Just a few minutes ago, I posted some links to reports on today's oral argument before the US Supreme Court in Mutual Pharmaceutical v. Bartlett which asks the Court to decide whether a generic drug maker can be held liable for a design defect. Here are a few more:
The New York Times
The Washington Post
The Los Angeles Times
The Hill
Thanks to How Appealing for the links.
The New York Times
The Washington Post
The Los Angeles Times
The Hill
Thanks to How Appealing for the links.
The Supreme Court, preemption and generic drug manufacturers
The big news in torts today was the oral argument before the US Supreme Court in Mutual Pharmaceutical v. Bartlett which asks the Court to decide whether a generic drug maker can be held liable for a design defect. I wrote about the case a few days ago here.
You can access the transcript of the oral argument here. For comments you can go to Bloomberg, Thomson Reuters, AP, AboutLawsuits.com and Drug and Device blog.
According to the report by AP, "The Supreme Court seemed skeptical Tuesday of allowing generic drug manufacturers to be sued in state court for a drug's design defects if federal officials approved the brand-name version the generic drug copied."
You can access the transcript of the oral argument here. For comments you can go to Bloomberg, Thomson Reuters, AP, AboutLawsuits.com and Drug and Device blog.
According to the report by AP, "The Supreme Court seemed skeptical Tuesday of allowing generic drug manufacturers to be sued in state court for a drug's design defects if federal officials approved the brand-name version the generic drug copied."
Sunday, March 17, 2013
Idaho Supreme Court refuses to adopt "baseball rule"
The Idaho Supreme Court recently declined to adopt the so-called "baseball rule” which is commonly used to release baseball park operators from liability based on the notion that spectators assume the risk of being hit by foul balls. The court reached the correct result, but it could have done more to clarify what has become a confusing area of the law.
It is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them. Neither of the two parts of this statement is entirely correct. The problem is that the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense. The so–called “primary assumption of the risk” is simply another way of asking whether the defendant owes a duty to the plaintiff.
When applied to baseball, the policy question should be answered the way the court in Idaho answered it. An operator of a baseball stadium has a duty to protect the spectators sitting in the most dangerous part of the stadium and to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others. This means that a defendant can’t claim a plaintiff assumed a risk created by the defendant’s own negligence.
This approach will yield good results not only in spectator injury cases but also in other sports cases.
It is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the park do not have a duty to protect them. Neither of the two parts of this statement is entirely correct. The problem is that the statement confuses the concept of duty – which is an element of the cause of action’s prima facie case – and assumption of the risk – which is an affirmative defense. The so–called “primary assumption of the risk” is simply another way of asking whether the defendant owes a duty to the plaintiff.
When applied to baseball, the policy question should be answered the way the court in Idaho answered it. An operator of a baseball stadium has a duty to protect the spectators sitting in the most dangerous part of the stadium and to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others. This means that a defendant can’t claim a plaintiff assumed a risk created by the defendant’s own negligence.
This approach will yield good results not only in spectator injury cases but also in other sports cases.
Court of Appeals for the 6th Circuit holds claim against generic drug manufacturer is not preempted
Just as the US Supreme Court gets ready to hear oral arguments on a new case on preemption issues involving a generic drug manufacturer, the Court of Appeals for the Sixth Circuit has issued a new opinion holding that "failure to update" claims are not
preempted in a case involving a generic drug. The case is called Fulgenzi .v PLIVA and it is available here. Thomson Reuters has the story here. Drug and Device has a comment here.
The Supreme Court, preemption and generic drug manufacturers
This week the US Supreme Court will hear oral arguments in a case called Mutual Pharmaceutical v. Bartlett which asks the Court to decide whether a generic drug maker can be held liable for a design defect. See here and here. In anticipation of this very important case, a number of blogs have published posts on the issues. Here are three good ones: Preemption again (SCOTUS blog), Argument Preview (SCOTUS blog), Supreme Court to Hear Generic Drug Suit (Politico).
OB/GYN group advises against the use of robotic surgeries
A few days ago I reported that the FDA has launched an investigation into the safety of the da Vinci surgical robot
following a number of reports involving severe complications, internal
injuries and patient deaths associated with the machine. See here and here.
Now comes news that the nation’s largest organization representing obstetricians and gynecologists announced this week that it is advising health care professionals not to use the da Vinci robotic surgery system for hysterectomies. AboutLawsuits.com has the story here.
Now comes news that the nation’s largest organization representing obstetricians and gynecologists announced this week that it is advising health care professionals not to use the da Vinci robotic surgery system for hysterectomies. AboutLawsuits.com has the story here.
Thursday, March 14, 2013
Do attorneys owe a duty to non client affiliates of entity client
Under what circumstances should an attorney have a duty in tort toward the affiliates of an entity client?
The question is now before the District of Columbia Court of Appeals. The case involves a claim by Boston-Maine Airways Corp. against a law firm that represented its sibling companies and a shared owner. After a District of Columbia Superior Court judge granted the law firm's motion for summary judgment, finding that Boston-Maine failed to prove that Sheppard owed them any care, it appealed arguing that the firm's representation of its sibling companies meant the firm couldn't take actions that would harm members of the corporate family. For a more detailed summary of the case and the issues go here.
My guess is that the court will follow the analysis suggested in the comment to ABA Model Rule of Professional Conduct 1.7 on conflicts of interest. Even though the issue is different, the analysis is helpful. According to the Rule's approach, lawyers who represent entities do not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary of the entity. For this reason, an attorney for an entity is not barred from accepting a client whose interests are adverse to an affiliate of the entity client in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, or there is an understanding between the lawyer & the entity client that the lawyer will avoid accepting new clients in those circumstances, or if the lawyer’s obligations to either the entity client or to the new client are likely to materially limit the representation of the other client.
The question is now before the District of Columbia Court of Appeals. The case involves a claim by Boston-Maine Airways Corp. against a law firm that represented its sibling companies and a shared owner. After a District of Columbia Superior Court judge granted the law firm's motion for summary judgment, finding that Boston-Maine failed to prove that Sheppard owed them any care, it appealed arguing that the firm's representation of its sibling companies meant the firm couldn't take actions that would harm members of the corporate family. For a more detailed summary of the case and the issues go here.
My guess is that the court will follow the analysis suggested in the comment to ABA Model Rule of Professional Conduct 1.7 on conflicts of interest. Even though the issue is different, the analysis is helpful. According to the Rule's approach, lawyers who represent entities do not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary of the entity. For this reason, an attorney for an entity is not barred from accepting a client whose interests are adverse to an affiliate of the entity client in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, or there is an understanding between the lawyer & the entity client that the lawyer will avoid accepting new clients in those circumstances, or if the lawyer’s obligations to either the entity client or to the new client are likely to materially limit the representation of the other client.
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