US Supreme Court denies cert in ignition switch defects case

Last year, the Court of Appeals for the Second Circuit ruled against General Motors' argument that it could not be liable for damages caused by ignition-switch defects because the products were made before it formed a new company following Chapter 11 bankruptcy.  For more information on the case go here and scroll down.  This decision was appealed to the Supreme Court and this week it was reported that the Court has refused to hear the appeal.  Now, the currently pending claims against GM will move forward. The claims have been estimated to be worth between $7 billion and $10 billion.

Is a dog a product?

The Abnormal Use blog is reporting on an interesting story about a lawsuit against a Humane Society pet shelter based on the fact that a dog adopted from the agency bit a 15-month old child. What is interesting is that the cause of action is based on product liability principles.  The case apparently argues that the agency failed to warn the Greenes of the risks of transitioning a dog from a shelter to a home and of a dog’s potential dangerous propensities. 

Although it might seem odd to think of a dog as a product at first - mostly because it is not "made" or "manufactured" - dogs are "things" when it comes to the law.  Most jurisdictions will not grant more than their market value in a claim against someone who kills a pet, for example.  Also, animals of all sorts are bought and sold in the market, and not all as pets.  For this reason, I would not be surprised if there are other cases that consider animals as products in the context of products liability, although I can't say I remember having seen any lately other than cases involving dead animals, aka food for humans.

Yet, I agree with Abnormal Use that there does not seem to be a need to use strict liability to support the claim.  A simple negligence claim for lack of proper warnings would be sufficient. 

If the claim were to be argued as a negligence claim for failure to warn, though, there is another interesting issue looming over the case:  whether the defendant should have warned the consumer that the dog was a pit bull mix.  This opens the door to the debate on whether knowledge that the dog was of a particular specific breed creates a duty to warn - something I have written about before many times.  The generally accepted view is against imposing such a duty, but there are cases that have recognized it and there is credible (at least to me) evidence that suggests the argument has some validity to it.

The case was just filed recently, and my guess is that like most cases it will be settled quietly.  But who knows, maybe it will work its way through the courts and bring up the issues to the forefront again.  We'll have to wait and see.

US Supreme Court agrees to hear case on the Alien Tort Statute to decide whether Corporations can be liable

It has been more than two years since I have posted anything related to the Alien Tort Statute because, well, with the 2013 US Supreme Court decision in Kiobel v Royal Dutch Petroleum the court pretty much made the statute irrelevant.  That case raised the issue of whether the statute could be used to support claims against corporations. However, in a surprising move, the Court asked the parties to brief a different issue (extraterritoriality), and eventually decided the case based only on that issue.  For all the background stories, go to the Alien Tort Statute section of the blog here.

In 2014, the Court of Appeals for the 9th Circuit decided one case on the ATS holding that  holding that corporations, and not just state actors, can face liability for violations of universal norms under the Alien Tort Statute.  At the time, I thought that case would open the door for a renewed discussion of the issue, but the case did not reach the Supreme Court.

But now the wait is apparently over.  Just a few days ago, the U.S. Supreme Court agreed to hear a case in which the issue is precisely whether corporations can be liable under the Alien Tort Statute.  Stay tuned!

For more information and some links on the case (Jesner v. Arab Bank) go here.  For up to date coverage and access to all the documents related to the case go to the SCotUS blog here.

Update on Congress' work on med mal tort reform

Earlier this month, I wrote a note about efforts in Congress to pass tort reform bills that could have seriously negative/damaging effects on the ability of victims of medical malpractice to recover for injuries.  Today, the PopTort has an update here. The article is called "Congress Moving to Protect Doctors Who Abuse and Assault Children."  It sounds like an exaggeration, but if you read the article you'll see why it is not. 

Accreditation Council for Graduate Medical Education will allow interns to work up to 28 hours without a break

At a time when it is being reported that medical errors is now the third leading cause of deaths in the US, the maximum workday for first-year medical residents just got substantially longer. The group that sets rules for training doctors announced Friday it will be scrapping the 16-hour cap on shifts worked by doctors who have just graduated from medical school.  As of July 1, the Accreditation Council for Graduate Medical Education will allow these first-year residents, also known as interns, to work 24 hours without a break — and sometimes as long as 28, if a particular transition between doctors demands it.  NPR has more on the story here.

The Associated Press notes the American Medical Student Association and the Committee of Interns and Residents oppose the change.  Also, Dr. Michael Carome, director of Public Citizen's Health Research Group has stated that "[s]tudy after study shows that sleep-deprived resident physicians are a danger to themselves, their patients and the public," and that "[i]t's disheartening to see the ACGME cave to pressure from organized medicine and let their misguided wishes trump public health."

Tort reform efforts under way in Congress

Now that Republicans control the Senate, the House and the White House, it is not surprising to hear about new efforts to interfere with the rights of injured plaintiffs in the name of tort reform.  Recently, the House Judiciary Committee approved legislation capping damages in medical malpractice cases.  The vote was 18-17.  The federal legislation would cover individuals who are insured under Medicare, Medicaid, veterans or military health plans, and the Affordable Care Act, and could also impact people covered under COBRA or health savings plans.

Given that medical errors is now the third leading cause of deaths in the US, this is very important stuff.

The bill is based on the false premises and allegations that have been proven wrong time and time again, but that continue to be used in support of attempts to make it more difficult for injured victims to be able to recover for their injuries.  Some of these myths include the allegation that litigation costs result in more expensive services and higher insurance costs.  For a lot of information on these types of allegations and the studies that refute them you can go to the medical malpractice and tort reform sections of this blog and scroll down.  For a short critique of the house bill go here.

For more information about this and other attempts to push “tort reform” bills through the Republican-led Congress which seek to limit the rights of victims  while protecting large corporations and insurance companies go to  AboutLawsuits.

Update on tort reform in Arkansas -- UPDATED

Feb. 20, 2017:   About 10 days ago, I reported on the tort reform efforts in Arkansas (see below).  Here is an update, as reported in the TortsProf blog: The Arkansas Senate voted 21-10 to send a proposed constitutional amendment involving damage caps to the House for further consideration.  Given that 53 of the 100 members of the House are co-sponsors, it has a good chance of passing.  If the House approves the proposal, it will be on the ballot in the 2018 general election.  Arkansas Online has the story; more coverage here.

UPDATE (3/5/17):  The TortsProf blog has updates here and here.  The house bill doubled the amount of the proposed cap on non economic damages to $500,000.  That's the good news.  The bad news is that a cap is still a cap.  The new bill must now pass both houses.

Tort Reform efforts in Arkansas; bad news for victims

As reported in the TortsProf blog:

You may recall that last fall the Arkansas Supreme Court struck down a tort reform ballot initiative.  It's back.  The Arkansas Times reports:

A proposed amendment to the Arkansas Constitution filed last week in the Senate seeks to limit the amounts that can be awarded to claimants in civil actions, such as medical malpractice lawsuits. If Senate Joint Resolution 8 is approved by the General Assembly — and with a long list of co-sponsors, it seems likely to pass — it would appear before voters on the 2018 ballot. Sen. Missy Irvin (R-Mountain View) is the lead sponsor.

Like the so-called "tort reform" measure on the 2016 ballot (which was disqualified by the state Supreme Court not long before the election), SJR 8 would place a cap of $250,000 on noneconomic damages, meaning compensation for hard-to-quantify personal losses such as pain and suffering. The proposed amendment also places a cap on punitive damages, though that ceiling is more flexible. But SJR 8 also would give the legislature control over the rules of pleading, practice and procedure in the judicial branch, thus taking power away from Arkansas courts and giving it to the General Assembly.

Med Mal quiz

True or False:

Medical malpractice cases represent less than 5 percent of all state tort cases.

Medical malpractice insurance claims have dropped by half since 2003, and doctors are paying less for malpractice insurance today than they did in 2001, even without adjusting for inflation.

Medical malpractice insurance industry profits must be suffering!

Medical malpractice lawsuits put physicians at a significant risk of insolvency or personal bankruptcy.

When a state caps damages, health care costs related to physician spending (Medicare Part B) drops.

Doctors in high-risk specialties like neurosurgical spine surgery, who practice in states that have limited patients’ rights to sue, order significantly fewer tests and procedures because they are less likely to be sued (i.e., less “defensive medicine).

For the answers to these and other important and interesting questions go to The PopTort.

New article on the effect of artificial intelligence on tort law; should we change the standard of care to what a reasonable computer (programmer) would have done under the circumstances?

Ryan Abbott, professor of law and medicine, has written an article in which he discusses changes in technology and how they might affect tort law. Abbott appears to be the first to suggest that tort law should treat artificial intelligence (AI) machines like people when it comes to liability issues. Also, he suggests that the standard of care used to evaluate human conduct should be based on the competency of a computer (AI) (assuming, of course, that the AI proves to be consistently safer than a human being). This means that defendants' conduct would no longer be compared to what a hypothetical, reasonable person would have done under the circumstances, but to what a computer would have done, which, according to the author, "would benefit the general welfare.” The full article is here.

The proposition raises some very interesting issues, starting with whether it is valid to assume that a computer can always make better choices than a human, and whether a human has the capacity to make the choices a computer would make.  And by the way, let's not forget that computers don't think.  They are programmed to think; by a human programmer.  How should that factor into the equation?

Spoiler alert:  If you have not watched the movie Sully, stop reading right now.  Watch the movie, then come back. Otherwise, go on...
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This was an issue in the movie Sully.  If you recall, the movie tells the story of the investigation regarding the decision by Captain Sully to "land" an airplane in the Hudson river rather than to do what a computer plan would have suggested - to turn around and try to get back to one of two nearby airports.  Sully, as he put it, "eye-balled" it and decided he would not have enough time.  He used his human intuition and experience to determine what was "reasonable" under the circumstances.  The computer, with the benefit of no real time pressure, fear and human emotion concluded that was the wrong course of action and that it would have been not only possible but safer to fly to an airport.  In the movie, and I assume that's what happened in real life, Sully convinced the FAA to alter the test to include some of the human aspects of the decision making process.  Once that was done, the result of the test was different.

Watch the movie.  Think about it.  Get back to me.    


Thanks to the TortsProf blog for the link to the article.