Believe it or not there are just a handful (four or five)
jurisdictions in the United States that still recognize the anachronistic and inherently unfair doctrine of contributory
negligence as a defense, which allows a defendant - regardless of the
level of negligence - to escape liability if the plaintiff can be said
to have contributed in any way to his or her own injury. Maryland is one of the few states that cling to that old, nearly universally rejected rule.
Tennessee was the most recent state to abandon contributory negligence and it is now under attack in Maryland. However, joined by groups representing a variety of employers, physicians, and
their insurers, the American Tort Reform Association has submitted a brief
to Maryland’s supreme court urging it to uphold doctrine of contributory negligence. A copy of the brief is available here.
Because of the evident unfairness of the doctrine, almost all
jurisdictions have abandoned it and replaced it with some form of
comparative negligence. In all fairness, some of the forms of
comparative negligence adopted (the so-called "modified" systems) merely
change the threshold point at which the contributory negligence
doctrine would apply, but they are still better than the old rule. So, it is not surprising that this coalition of insurers, physicians and
tort reformers want to make sure the law of the state continues to
firmly reflect 19th century values. Why? Again, because it allows them
to escape liability.
Wednesday, July 11, 2012
Tuesday, July 10, 2012
New report claims Merck hid evidence of Vioxx risks for years before taking the drug off the market
Pharmalot is reporting today that a new study has concluded that pharmaceutical company Merck hid evidence that its product Vioxx tripled the risk of cardiovascular
death for more than three years before taking it off the market in
2004. In fact, the manufacturer not only hid the evidence, it actively insisted such an increased did not exist. Go here for the full report.
More articles in the symposium on whether corporations can be sued under the Alien Tort Statute
Last week I posted (here) an announcement of an upcoming on line symposium on Kiobel v Royal Dutch Petroleum,
the case currently pending before the Supreme Court on whether a
corporation can be sued under the Alien Tort Statute. The symposium is currently underway and the first few articles are now available.
The first article is available here.
The second one is here.
The third one is here.
I will continue to post links to all future articles published as part of the symposium as they become available.
The first article is available here.
The second one is here.
The third one is here.
I will continue to post links to all future articles published as part of the symposium as they become available.
Another article on the early offer law in New Hampshire
Continuing our coverage on the debate over the recently adopted law on "early offers" in New Hampshire (most recently here), here's a link to a short article in the New York Post.
Thanks to the TortsProf blog for the link.
Thanks to the TortsProf blog for the link.
Monday, July 9, 2012
First contribution to symposium on whether corporations can be sued under the Alien Tort Statute is available now
Last Friday I posted (here) an announcement of an upcoming on line symposium on Kiobel v Royal Dutch Petroleum, the case currently pending before the Supreme Court on whether a corporation can be sued under the Alien Tort Statute. The first contribution to the symposium was posted today and it is available here.
I will continue to post links to all future articles published as part of the symposium as they become available.
I will continue to post links to all future articles published as part of the symposium as they become available.
Friday, July 6, 2012
11th Circuit affirms case on whether there is a duty to provide bilingual warnings for a product sold in latino community but leaves some questions unanswered
Back in January of last year we reported on a very interesting case out of the Southern District of
Florida on the issue of whether there is a duty to provide warnings
about products in languages other than English. The case is Farias v. Mr. Heater, Inc. Go here for my initial comments and then here to follow a conversation between me and the Abnormal Use blog on the issue.
The Abnormal Use blog is now reporting that the Court of Appeals for the 11th Circuit has affirmed the lower court's decision. The opinion can be found here.
What is interesting is that the court did not address the issue I raised back when we first discussed the question: whether there ought to be a duty to provide warnings in specific languages depending on the marketing strategies for the product. I argued that saying that it would not be frivolous to argue that a manufacturer that specifically targets an audience of consumers in a foreign language community within the US should have a duty to provide warnings in that community's language. According to the report by the Abnormal Use blog, the Court of Appeals hinted at this concern but did not address it: "... the Eleventh Circuit found no evidence that [the defendant] targeted the Hispanic community in its marketing. As such, the Court did not find that the marketing efforts created a duty to provide bilingual warnings. It would have been interesting to see how the Court’s analysis would have changed if [the defendant] did so market the heater." Indeed!
The Abnormal Use blog is now reporting that the Court of Appeals for the 11th Circuit has affirmed the lower court's decision. The opinion can be found here.
What is interesting is that the court did not address the issue I raised back when we first discussed the question: whether there ought to be a duty to provide warnings in specific languages depending on the marketing strategies for the product. I argued that saying that it would not be frivolous to argue that a manufacturer that specifically targets an audience of consumers in a foreign language community within the US should have a duty to provide warnings in that community's language. According to the report by the Abnormal Use blog, the Court of Appeals hinted at this concern but did not address it: "... the Eleventh Circuit found no evidence that [the defendant] targeted the Hispanic community in its marketing. As such, the Court did not find that the marketing efforts created a duty to provide bilingual warnings. It would have been interesting to see how the Court’s analysis would have changed if [the defendant] did so market the heater." Indeed!
Court finds against Iran and awards $813 million to victims under the Foreign Sovereign Immunities Act
A Washington federal judge has awarded $813 million to victims of the
1983 terrorist bombing at the U.S. Marine barracks in Beirut, Lebanon,
the latest in a string of large money judgments awarded against Iran for
its role in the attack. The case is called Brown v. Islamic Republic of Iran and the opinion is available here. The claim was brought under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act, which allows Americans to sue foreign states if it can be shown that the injury was caused by an act of terrorism sponsored by that foreign state. The Blog of the Legal Times has more details here. This type of ruling is not unusual. In fact, as the court states in its conclusion "Iran is racking up quite a bill from its sponsorship of terrorism. After this opinion, this Court will have issued over $8.8 billion in judgments against Iran as a result of the 1983 Beirut bombing."
Unfortunately, however, it is almost impossible for the victims to actually collect the money awarded.
In one recent case on this issue called Estate of Heiser v Iran (DDC 2011), the court discusses how difficult it is for plaintiffs in cases like these to recover. In that case, the plaintiffs went after Sprint to attempt to get Sprint to pay them money it owed to Iran's communications agency. After discussing the issue in detail the court did order Sprint to give the funds to the plaintiffs, but then it concluded that
Unfortunately, however, it is almost impossible for the victims to actually collect the money awarded.
In one recent case on this issue called Estate of Heiser v Iran (DDC 2011), the court discusses how difficult it is for plaintiffs in cases like these to recover. In that case, the plaintiffs went after Sprint to attempt to get Sprint to pay them money it owed to Iran's communications agency. After discussing the issue in detail the court did order Sprint to give the funds to the plaintiffs, but then it concluded that
“...this decision represents renewed hope for long-suffering victims of state-sponsored terrorism. . . .But the bleak reality is that today’s decision comes after more than a year of litigation and results in a turnover of funds amounting to less than one-tenth of one-percent of what plaintiffs are entitled to in these consolidated cases. And this infinitesimal sum is dwarfed by even greater magnitudes when compared to the endless agony and suffering befalling these victims. A step in the right direction, to be sure. But a very small one.”
Upcoming symposium on Kiobel and whether corporations can be sued under the Alien Tort Statute
Long time readers of this blog will remember that I have been following Kiobel v Royal Dutch Petroleum, the case currently pending before the Supreme Court on whether a corporation can be sued under the Alien Tort Statute. Go here and scroll down for all the posts on this topic and the case. Today the SCotUS blog has revived the debate on the issue by posting a short summary of the background on the case and an announcement that there will be an on-line symposium on it. Here is a link to the short article. The symposium will take place next Monday. There are 11 contributors announced for the event. I will keep you informed with links to their contributions...
Monday, July 2, 2012
Reply to response to criticism regarding the New Hampshire new law on early offers in med mal cases
Continuing our coverage on the debate over the recently adopted law on "early offers" in New Hampshire (most recently here), here are some more articles:
New Hampshire’s Insidious Early Offer Medical Malpractice Law by Max Kennerly of the Litigation and Trial blog, in which he argues that regardless of the text of the law, its effect is that if a plaintiff asks for the “early offer” but doesn’t accept it, he or she would be in effect precluded from filing suit, because a lawsuit would simply be too expensive and too risky. He also argues that the definition of the remedy to which plaintiffs are allowed under the law is too limited.
Chris Robinette, who supports the law, replies to Kennerly in some detail in two articles here and here. His conclusion, which he has argued before, is that the law offers a "trade off" and that its benefits do not necessarily benefit everybody equally.
New Hampshire’s Insidious Early Offer Medical Malpractice Law by Max Kennerly of the Litigation and Trial blog, in which he argues that regardless of the text of the law, its effect is that if a plaintiff asks for the “early offer” but doesn’t accept it, he or she would be in effect precluded from filing suit, because a lawsuit would simply be too expensive and too risky. He also argues that the definition of the remedy to which plaintiffs are allowed under the law is too limited.
Chris Robinette, who supports the law, replies to Kennerly in some detail in two articles here and here. His conclusion, which he has argued before, is that the law offers a "trade off" and that its benefits do not necessarily benefit everybody equally.
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