Back in 2010 I posted a few stories on the possible health hazards soldiers were getting exposed to in Iraq and
Afghanistan as a result of the burning of hazardous and medical waste. See here and here, for example. Two years later, I reported on an $85 million verdict against a military contractor for negligently exposing soldiers to a
cancer causing toxin. See here.
The issue is now back in the news. NPR has posted a story here, or you can listen to it below by pressing the play button.
Saturday, December 26, 2015
Short podcast on driverless (self driving) cars
Friday, December 25, 2015
American Museum of Tort Law, interview with Ralph Nader (video)
Earlier this year the American Museum of Tort Law opened its doors in Connecticut. Here is a short introduction by Ralph Nader:
A conversation with four Fordham Law professors about tort law
The Fordham Law News just published a conversation among four
torts professors: Ben Zipursky, Howard Erichson, Michael Martin, and
Jed Shugerman. They answer questions about frivolous lawsuits,
efficiency, insurance, and more. Check it out here.
Thanks to TortsProf Blog for the link!
Thanks to TortsProf Blog for the link!
Tuesday, December 22, 2015
Two interesting stories about driverless, or self driving, cars
I have posted a couple of stories on possible legal issues related to driverless cars before (see here, for example). So, to follow up on that, in case you haven't seen them, here are two interesting recent stories about issues related to driverless, or self driving, cars:
Self-Driving Cars Have Twice The Accidents, But Only Because Humans Aren't Used To Vehicles Following The Rules
The Ethical and Legal Dilemmas of Self-Driving Cars
Self-Driving Cars Have Twice The Accidents, But Only Because Humans Aren't Used To Vehicles Following The Rules
The Ethical and Legal Dilemmas of Self-Driving Cars
Sunday, December 13, 2015
On the possible liability of parents who don't vaccinate their children, again
Long time readers of this blog know I have posted a series of comments on whether there should a cause of action against parents who do not vaccinate their children. See here, here, here and here. With that in mind, here is a link to an article in Slate on tolerance of anti-vaccine parents. It starts: "Tolerance of racial and cultural diversity is good. Tolerance of those who endanger the community by refusing to vaccinate their kids is not. An Australian primary school just learned that the hard way."
In a newsletter to parents, the school’s principal directly told parents that they should tolerate the vaccine dodgers among them stating "[w]e expect all community members to act respectfully and with tolerance when interacting with other parents and carers who may have a differing opinion to their own. This includes an opposing understanding about child immunisation."
As the article then states, those words may sound “respectful” and “admirable,” ... until 25 percent of your school is suddenly infected with chickepox within two weeks (which, of course, is what happened).
In a newsletter to parents, the school’s principal directly told parents that they should tolerate the vaccine dodgers among them stating "[w]e expect all community members to act respectfully and with tolerance when interacting with other parents and carers who may have a differing opinion to their own. This includes an opposing understanding about child immunisation."
As the article then states, those words may sound “respectful” and “admirable,” ... until 25 percent of your school is suddenly infected with chickepox within two weeks (which, of course, is what happened).
Tuesday, December 8, 2015
Article on whether universities have, or should have, a duty to protect students -- UPDATED
Back in October I posted that a California appeals court issued an opinion
(with one dissenting judge) reaffirming the generally accepted view that
state public colleges and universities do not have a general duty to
protect adult students from violent acts by other students. Go here to read my original post.
In that case, the court ruled that "While colleges and universities may properly adopt policies and provide student services that reduce the likelihood such incidents will occur on their campuses, they are not liable for the criminal wrongdoing of mentally ill third parties, regardless of whether such conduct might be in some sense foreseeable." And I stated that this approach is not surprising and appears to be the majority view on the issue, whether because the conduct of the actor is considered a superseding cause or whether because of the long standing (although often criticized) rule that there is no duty to help.
In response to the case, the blog "New Private Law" has published a very well written post arguing the case was wrongly decided. It argues that the case was wrongly decided because the issue in the case is "by far" closer to Tarasoff than to any of the cases that hold universities do not have a duty to protect students. In support of this conclusion, it argues that "the gist of the complaint is not that the University failed to do enough to enforce general policies (such as those against underage drinking), but rather that the University had reason to believe that a particular student posed a serious danger to his fellow students and other members of the university community.
You can read the full post here.
UPDATE (12-7-15): As I reported elsewhere, the Washington Supreme Court is currently considering whether the extend the notion of a therapist's duty to warn identifiable possible victims under a Tarasoff approach, to a duty to warn the general public. See here.
UPDATE (12-8-15): Here is another article on the decision in University of California v. Superior Court of Los Angeles County, in which the court rejected the request to impose a duty on a university.
In that case, the court ruled that "While colleges and universities may properly adopt policies and provide student services that reduce the likelihood such incidents will occur on their campuses, they are not liable for the criminal wrongdoing of mentally ill third parties, regardless of whether such conduct might be in some sense foreseeable." And I stated that this approach is not surprising and appears to be the majority view on the issue, whether because the conduct of the actor is considered a superseding cause or whether because of the long standing (although often criticized) rule that there is no duty to help.
In response to the case, the blog "New Private Law" has published a very well written post arguing the case was wrongly decided. It argues that the case was wrongly decided because the issue in the case is "by far" closer to Tarasoff than to any of the cases that hold universities do not have a duty to protect students. In support of this conclusion, it argues that "the gist of the complaint is not that the University failed to do enough to enforce general policies (such as those against underage drinking), but rather that the University had reason to believe that a particular student posed a serious danger to his fellow students and other members of the university community.
You can read the full post here.
UPDATE (12-7-15): As I reported elsewhere, the Washington Supreme Court is currently considering whether the extend the notion of a therapist's duty to warn identifiable possible victims under a Tarasoff approach, to a duty to warn the general public. See here.
UPDATE (12-8-15): Here is another article on the decision in University of California v. Superior Court of Los Angeles County, in which the court rejected the request to impose a duty on a university.
Washington Supreme Court to decide whether doctors have a duty to warn “all foreseeable victims” of potentially dangerous patients in their care
Last month the Supreme Court of the State of Washington heard oral arguments in a case called Volk v. DeMeerleer which raises the issue of whether doctors have a duty to warn “all foreseeable victims” of potentially dangerous patients in their care. In the case, a psychiatrist was sued after one of his patients shot and killed an ex-girlfriend and her son before killing himself. The trial court dismissed the complaint (on summary judgment) on the grounds that the doctor did not have a duty because the patient haad made no specific threats the victims during his treatment. The appeals court reversed (with one judge dissenting), however, holding that the plaintiff could support a cause of action because the patient's conduct was foreseeable and holding that "a question of fact exists as to whether Dr. Howard Ashby and his employer, Spokane Psychiatric Clinic, P.S., owed a duty to protect the general public, including plaintiffs, from violent behavior of patient Jan DeMeerleer." You can read the full appeals court's opinion here.
Leaving aside the fact that this is an odd ruling because the question of whether there is a duty is usually thought of as a question for the court, not the jury, the issue before the court is very interesting. It calls for the court to expand on the doctrine created by Tarasoff v Regents of the University of California, which I am sure you are familiar with. In that case, the California Supreme Court held that a therapist does have a duty to protect an identifiable victim. The plaintiffs in Volk are asking the court to extend this notion further because the victims were not identifiable. The plaintiffs are asking for a duty to "protect the general public."
Tarasoff is a well known case, and a popular one, but it has been rejected by a number jurisdictions. Also, back in 1979 the Washington Court of Appeals decided a case in which it refused to expand the reach of the Tarasoff doctrine in a case where the victim already knew of the possible threat to her safety. (Interestingly, that case involved a lawyer, rather than a therapist) who arguably had confidential information about a client's intent to harm someone else.) For these reasons, it would not be entirely surprising if the Washington Supreme Court reverses the Court of Appeals. Yet, it will be very interesting to see what happens.
A finding for the plaintiff will have serious implications for the medical profession, and potentially for the legal profession too, because such a ruling will affect the principle of confidentiality. It is because of the importance of confidentiality that courts have either rejected Tarasoff or refused to expand its reach. Take a look at Thapar v Zezulka, 994 SW2d 635 (Tex 1999) (medical profession) and Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979) (legal profession).
The New York Times published an Op-Ed piece on this case written by a doctor in which he argues the court should reject the plaintiffs' claim and protect the value of confidentiality in the doctor-patient relationship. You can read it here. The argument is a good one, although the author makes a horrible mistake in his analysis when he illustrates his duty of confidentiality by telling a story of a time when he destroyed illegal drugs handed to him by a patient in order to help the patient avoid arrest. In doing so, the doctor was not protecting the patient's confidentiality but, at helping someone destroy evidence of a crime; but I suppose that is another story. (The article generated two letters to the editor, one of which points out this issue.)
On the question of a possible duty in tort, I do agree the court should rule for the defendant. Even if the duty recognized in Tarasoff applies in the jurisdiction, a duty to warn the general public when there is no indication of specific plans or specific possible victims is too broad.
Leaving aside the fact that this is an odd ruling because the question of whether there is a duty is usually thought of as a question for the court, not the jury, the issue before the court is very interesting. It calls for the court to expand on the doctrine created by Tarasoff v Regents of the University of California, which I am sure you are familiar with. In that case, the California Supreme Court held that a therapist does have a duty to protect an identifiable victim. The plaintiffs in Volk are asking the court to extend this notion further because the victims were not identifiable. The plaintiffs are asking for a duty to "protect the general public."
Tarasoff is a well known case, and a popular one, but it has been rejected by a number jurisdictions. Also, back in 1979 the Washington Court of Appeals decided a case in which it refused to expand the reach of the Tarasoff doctrine in a case where the victim already knew of the possible threat to her safety. (Interestingly, that case involved a lawyer, rather than a therapist) who arguably had confidential information about a client's intent to harm someone else.) For these reasons, it would not be entirely surprising if the Washington Supreme Court reverses the Court of Appeals. Yet, it will be very interesting to see what happens.
A finding for the plaintiff will have serious implications for the medical profession, and potentially for the legal profession too, because such a ruling will affect the principle of confidentiality. It is because of the importance of confidentiality that courts have either rejected Tarasoff or refused to expand its reach. Take a look at Thapar v Zezulka, 994 SW2d 635 (Tex 1999) (medical profession) and Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979) (legal profession).
The New York Times published an Op-Ed piece on this case written by a doctor in which he argues the court should reject the plaintiffs' claim and protect the value of confidentiality in the doctor-patient relationship. You can read it here. The argument is a good one, although the author makes a horrible mistake in his analysis when he illustrates his duty of confidentiality by telling a story of a time when he destroyed illegal drugs handed to him by a patient in order to help the patient avoid arrest. In doing so, the doctor was not protecting the patient's confidentiality but, at helping someone destroy evidence of a crime; but I suppose that is another story. (The article generated two letters to the editor, one of which points out this issue.)
On the question of a possible duty in tort, I do agree the court should rule for the defendant. Even if the duty recognized in Tarasoff applies in the jurisdiction, a duty to warn the general public when there is no indication of specific plans or specific possible victims is too broad.
Charlie Sheen’s Ex-Fiancée Sues Over Sheen’s Failure to Disclose HIV Status; does she have a case?
FDA delays implementation of the generic drug labeling rules until July 2016 (at least)
Back in November, 2013, I posted that the FDA proposed a new regulations that would allow (and presumably encourage) generic drug manufacturers
to add or update the safety warnings on their products. Go here for my most recent post on the background on the controversy.
The rules were supposed to be finalized this month, but the FDA recently confirmed that implementation of the generic drug labeling rules will be delayed until at least July 2016. This is not entirely surprising given the tremendous pressure the pharmaceutical industry has exerted on this issue and since it has taken this long to even get to this point. It is disappointing, though, since the announcement back in 2013 gave some hope that the FDA would do something to improve the current state of the law.
As reported in AboutLawsuits.com, "[t]he prominent consumer watchdog group Public Citizen criticized the move in a press release issued December 3, indicating that the FDA’s decision to once-again delay implementing rules originally proposed several years ago, which would allow generic drug makers to up date their warning labels, will place consumers at serious risk."
The rules were supposed to be finalized this month, but the FDA recently confirmed that implementation of the generic drug labeling rules will be delayed until at least July 2016. This is not entirely surprising given the tremendous pressure the pharmaceutical industry has exerted on this issue and since it has taken this long to even get to this point. It is disappointing, though, since the announcement back in 2013 gave some hope that the FDA would do something to improve the current state of the law.
As reported in AboutLawsuits.com, "[t]he prominent consumer watchdog group Public Citizen criticized the move in a press release issued December 3, indicating that the FDA’s decision to once-again delay implementing rules originally proposed several years ago, which would allow generic drug makers to up date their warning labels, will place consumers at serious risk."
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