Battery with dog...?

Prof. Jonathan Turley is reporting today on the criminal law implications of throwing a dog at somone else in Nebraska. Could that same conduct be the basis of a tort claim for battery? As you read the statement below remember that "assault" is the word used in criminal law to describe what we would call "battery" in torts. Here is Prof. Turley's comment: "A woman in Lincoln, Nebraska has been charged after she allegedly threw a Jack Russell Terrier at an officer. It appears, however, that in Lincoln a charge of assault requires a dog as large or greater than a Bulldog to constitute assault on an officer. Instead, she was arrested on suspicion of domestic assault. The charge itself is due to her alleged throwing of a cell phone that hit her boyfriend in the face. That would suggest throwing live animals is technically permissible while electronics falls squarely under the criminal code. Under the Nebraska code, a toy poodle is a misdemeanor. A Boxer is a simple felony of assault. A Mastiff is an aggravated felony. Many Nebraska residents, however, keep a small dog in the glove compartment for traffic stops and a larger breed at home for no-knock searches."

More lawsuits vs pharma for alleged injuries caused by birth control pills

Two pension funds for firefighters and city employees in Pennsylvania have filed a lawsuit against Bayer, saying that the drug maker hid health risks and misrepresented the effectiveness of its popular birth control pills Yaz and Yasmin. The complaint joins over 300 other lawsuits pending against the pharmaceutical company over problems with Yaz and Yasmin. For more on this story (including links to more information) go here.

Pharmaceutical kept information from doctors in order to market drug

Internal documents disclosed during the litigation over Seroquel suggest that AstraZeneca continued to promote the antipsychotic drug as weight neutral, years after clinical evidence demonstrated significant Seroquel weight gain problems for users, which could lead to diabetes and other serious side effects. For the full story (with lots of links to more info) go here.

Why it is a always a good idea to take a picture

Yesterday in class we discussed the concept of evidence as it relates to torts cases. As part of that discussion we talked about the "banana peel cases" and the notion that the condition of the banana may prove how long it was lying on the ground. Sound familiar? 

 Well, in any case, at some point in this discussion I usually ask something along the lines of "what evidence can you bring to prove how long the banana was there?" and someone always says "the banana peel" (which is the right way to think about it)... but then I remind them that the trial is happening years later and "the" peel is long gone. So I mention the importance of preserving the evidence, taking photos, making sure they are time stamped etc. 

 Now, at 5 in the morning when I am sitting here with nothing better to do than catching up on my reading I just saw this new case out of the court of appeals of the 7th circuit decided about a week ago called Aguirre v. Turner Construction Company where judge Posner has this to say to the lawyers who litigated the case: 

 "A difficulty in understanding the evidence has arisen, however, from the lawyers’ regrettable failure to include in the record a diagram or photographs (other than some unreadable copies of photographs) that would have given us judges an intelligible picture of the scene and circumstances of the accident. A duplicate of the scaffold was exhibited at trial, but no photo or drawing was made of it. We have pointed out that when the appearance of something is material to a case—it could be a copyrighted picture, a trademark, or, as in this case, the scene and instrumentality of an accident—it is better to show us a picture than to try to describe the object or scene just in words. . . . The lawyers at argument did their best with words and hand gestures to depict the scene of the accident for us, and we think we get it, but they would have done better to honor the adage that a picture is worth a thousand words." 

 Enough said. Your cellphone has a camera. Use it. 

 ps: the case is also about the concept of res ipsa loquitur, which we will discuss in class next week... so, more about the case later...

Video on Hold your wee for a wii

Video on the "Hold your wee for a wii contest."

"Hold Your Wee for a Wii" Trial Ends

The TortsProf blog is reporting today that the trial in the infamous "hold your wee for a wii" radio contest has ended. If you don't remember what this case was about, go here and here first. For more current information, TortsProf is providing the following helpful links: for an overview of the trial go here. For complete trial coverage go to this blog. Thanks to William Childs for the info and the links.

More problems for Toyota: recall for defects, 2.5 years too late

About a week ago, the news came out that a former high-ranking attorney for Toyota alleged the auto maker conspired to illegally conceal and withhold evidence in cases related to rollover accidents (see here). Then, a few days later, a federal judge issued a temporary restraining order against Toyota, ordering it not to destroy any evidence on the crashworthiness of its vehicles. (see here). Go here for an update on that part of the story. Now there are reports that Toyota has announced a recall of 3.8 million Toyota and Lexus vehicles due to problems with the driver’s side floor mats, which can cause the accelerator to stick and result in a loss of vehicle control. Go here for the full story. But wait! There is more: AboutLawsuits.com is reporting today that Toyota knew about potential floor mat problems more than two and a half years before issuing the recall. In fact, according to a report in the New York Times, officials at the National Highway Traffic Safety Administration (NHTSA) began investigating potential problems with Toyota and Lexus floor mats as early as March 2007, after receiving complaints from Lexus ES 350 owners that their vehicles were suddenly accelerating out of control. However, it wasn't until after a fatal auto accident in August 2009, where 4 people died that NHTSA officials met with Toyota to discuss concerns about continuing complaints of uncontrollable acceleration in Toyota and Lexus vehicles. Go here for more on this story.

Another Court Rules Against Preemption in Generic Drug Case

Last week, the U.S. District Court for the District of New Hampshire ruled that various state law tort claims brought against generic drug manufacturer Mutual Pharmaceutical Company, Inc. are not preempted by FDC Act. The decision is the latest in a string of cases in which courts have ruled that state law tort claims alleging the defective labeling of generic drugs are not preempted. The case is called Bartlett v. Mutual Pharma. Co. and it is available here. For more on the story including a list of all the recent cases on the subject go to the FDA Law Blog.

Review of the TV show "House"

Here is an interesting column that comments on legal issues raised by the TV show "House." I have never watched this show, but I enjoyed reading the column. It essentially illustrates a problem common to many other shows and movies: in the pursuit of a dramatic story, the screenplays involve people engaged in conduct that is not just incredible, it is criminal. Read the article here.

Compensation fund created in Peanut Corp bankruptcy but not in Chrysler bankruptcy

As part of the bankruptcy proceedings for Peanut Corporation of America, which processed and distributed millions of pounds of contaminated peanuts, peanut butter and peanut paste that sickened people throughout the United States with salmonella poisoning, a federal judge has issued an order calling for the creation of a $12 million fund from insurance proceeds to compensate victims. For the full story go here. In reponse to this news item, the PopTort has published a comment here lamenting how Chrysler, GM, numerous pundits and even the Obama administration argued not too long ago that wiping out the rights of those injured by those companies’ faulty products before they emerged from bankruptcy was unavoidable and/or simply par for the course in any bankruptcy proceeding.