Sunday, December 6, 2015
Illinois Supreme Court Agrees to Clarify When Workers’ Comp Settlement Eliminates Contribution Claim from Third-Party Tortfeasor
According to Illinois law, when a party settles a claim in good faith against one tortfeasor, the
finding of good faith automatically discharges that tortfeasor from any
liability for contribution to another tortfeasor. Now, the Appellate Strategist is reporting that the Illinois Supreme Court had agreed to clarify whether a workers’ compensation settlement eliminates the right to a contribution claim the same way. Go here for the full story.
Take the test: the most recent PopTort medical malpractice quiz is available now; Dept of Defense expands program to encourage alternative dispute resolution of med mal claims
The PopTort has its most recent quiz on medical malpractice issues here. Go and see how well you do.
The last question in the quiz asks "how often do medical providers voluntarily disclose errors to patients?" You can go take the quiz to find the answer ... but along that theme, the TortsProf blog reported recently as follows: "The Department of Defense is expanding a program, already underway at eight facilities, in which conversations are encouraged between medical practitioners and patients about medical injuries. The program allows patients and providers an avenue to discuss injuries and apologize. Alternative dispute resolution is also provided. The program does not require a waiver of malpractice actions, though the Feres Doctrine already prevents active-duty troops from suing for med mal. Pursuant to the program, no determinations about negligence are made. Military Times has the story."
The last question in the quiz asks "how often do medical providers voluntarily disclose errors to patients?" You can go take the quiz to find the answer ... but along that theme, the TortsProf blog reported recently as follows: "The Department of Defense is expanding a program, already underway at eight facilities, in which conversations are encouraged between medical practitioners and patients about medical injuries. The program allows patients and providers an avenue to discuss injuries and apologize. Alternative dispute resolution is also provided. The program does not require a waiver of malpractice actions, though the Feres Doctrine already prevents active-duty troops from suing for med mal. Pursuant to the program, no determinations about negligence are made. Military Times has the story."
FDA approves drug for sexual condition in women even though it has been found barely effective -- UPDATED
Long time readers of this blog will remember that since back in 2009, I have been following the debate as to whether the so-called
Hypoactive Sexual Desire Disorder in women is really a medical
condition or something the pharmaceutical industry came up with
in order to convince women to buy a product they don't need. See here.
The drugmaker (Boehringer Ingelheim) geared up an enormous publicity
effort to promote the pill, but the FDA was not impressed and decided
the pill was neither safe nor effective. See here.
What appears below is the same story I originally posted in August of this year. The UPDATE appears at the end.
At that time, all 11 members of the FDA advisory committee decided the side effects of the drug were unacceptable, and 10 ruled the pill is not effective. For the full story up to that point (including links to more information), go here.
Because of this failed effort, the manufacturer decided to discontinue development entirely. For more on the story go here.
Soon thereafter, however, Sprout Pharmaceuticals picked it up and again submitted it for approval in 2013. Since there was no new evidence to contradict the earlier findings, the FDA rejected it, again.
Somehow, however, with still no new evidence, two years later, the FDA has indeed approved the drug. How, or why, did this happen?
Sprout smartly enlisted thousands of women’s activists and members of Congress in a campaign about gender double standards and sexual politics, in an attempt to avoid the discussion of the fact that the medical evidence that the drug actually works safely is weak and that the FDA rejected drug twice because its minimal benefits failed to outweigh the safety risks.
Converting the discussion from one about health and safety into one about gender (based on the argument that it’s time that the agency gave the same priority to drugs to treat women’s sexual problems as it has to drugs for men) apparently provided enough pressure on the FDA to change its ruling, even though the scientific evidence is still the same.
It has been reported that the FDA approval comes with a requirement that the company take steps to ensure doctors prescribe the drug carefully and make women aware of its health risks. But isn't that true of all drugs? That statement adds absolutely nothing to current standards of the medical profession.
The FDA is also mandating that the drug will have with a black box warning — the strongest FDA warning language — to highlight the risk of severe blood pressure drops and fainting in patients who drink alcohol or use certain other drugs during treatment. That is a good thing, but perversely, because of the state of the law regarding preemption in cases based on inadequate warnings, it will make it more difficult for plaintiffs to recover for injuries caused by the drug.
So, as I said in one of my recent posts on the subject, when the drug is shown to cause injuries, and the medical evidence and past history shows it more than likely will, it will inevitably result in litigation. The story is just beginning.
For more on the story you can go here, here and here.
Go here for videos on a documentary about this issue.
UPDATE (12-5-15): The website VITALS has a very good overview of the debate and controversy over the now approved drug, which is now officially called "Addyi" here. The article is called "Is the “Female Viagra” Worth It?" and it concludes that for most women, given the risks, costs and uncertainty, the answer is no. If you are interested in the topic, the article (and the comments) are well worth reading.
What appears below is the same story I originally posted in August of this year. The UPDATE appears at the end.
At that time, all 11 members of the FDA advisory committee decided the side effects of the drug were unacceptable, and 10 ruled the pill is not effective. For the full story up to that point (including links to more information), go here.
Because of this failed effort, the manufacturer decided to discontinue development entirely. For more on the story go here.
Soon thereafter, however, Sprout Pharmaceuticals picked it up and again submitted it for approval in 2013. Since there was no new evidence to contradict the earlier findings, the FDA rejected it, again.
Somehow, however, with still no new evidence, two years later, the FDA has indeed approved the drug. How, or why, did this happen?
Sprout smartly enlisted thousands of women’s activists and members of Congress in a campaign about gender double standards and sexual politics, in an attempt to avoid the discussion of the fact that the medical evidence that the drug actually works safely is weak and that the FDA rejected drug twice because its minimal benefits failed to outweigh the safety risks.
Converting the discussion from one about health and safety into one about gender (based on the argument that it’s time that the agency gave the same priority to drugs to treat women’s sexual problems as it has to drugs for men) apparently provided enough pressure on the FDA to change its ruling, even though the scientific evidence is still the same.
It has been reported that the FDA approval comes with a requirement that the company take steps to ensure doctors prescribe the drug carefully and make women aware of its health risks. But isn't that true of all drugs? That statement adds absolutely nothing to current standards of the medical profession.
The FDA is also mandating that the drug will have with a black box warning — the strongest FDA warning language — to highlight the risk of severe blood pressure drops and fainting in patients who drink alcohol or use certain other drugs during treatment. That is a good thing, but perversely, because of the state of the law regarding preemption in cases based on inadequate warnings, it will make it more difficult for plaintiffs to recover for injuries caused by the drug.
So, as I said in one of my recent posts on the subject, when the drug is shown to cause injuries, and the medical evidence and past history shows it more than likely will, it will inevitably result in litigation. The story is just beginning.
For more on the story you can go here, here and here.
Go here for videos on a documentary about this issue.
UPDATE (12-5-15): The website VITALS has a very good overview of the debate and controversy over the now approved drug, which is now officially called "Addyi" here. The article is called "Is the “Female Viagra” Worth It?" and it concludes that for most women, given the risks, costs and uncertainty, the answer is no. If you are interested in the topic, the article (and the comments) are well worth reading.
Thursday, December 3, 2015
Plaintiffs suing General Motors over faulty ignition switches can seek punitive damages despite GM's reorganization after bankruptcy
Back in May I wrote about the possibility that a large number of lawsuits filed against General Motors could be dismissed
following a ruling blocking lawsuits filed against GM over actions that predate its 2009 bankruptcy, declaring that “New GM” and “Old GM” are two different companies and that the new company is not liable for the actions of the old one. The back story on that is here, here and here. But the Chicago Daily Law Bulletin is reporting now that "[a] federal bankruptcy judge has ruled that people suing General Motors over faulty ignition switches can seek punitive damages that could cost the company millions of dollars or more. When General Motors emerged from a 2009 bankruptcy, it became known as “New GM.” The new company essentially was shielded from liabilities of the old company that was left behind. But Judge Robert Gerber in New York ruled Monday that employees and knowledge transferred from the “Old GM” to the new company. Plaintiffs, he ruled, can seek punitive damages if they can show that “New GM” knew of the faulty switches but covered it up."
Saturday, October 24, 2015
California court of appeals reaffirms view that universities do not have a duty to protect adult students from violent acts of other students
A couple of weeks ago, 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. Obviously, with so many frequent stories of violence on college campuses, the question of whether an institution of higher education can be liable is important and timely. The case is called Regents of the University of California v. Superior Court of Los Angeles County and you can read the opinion here.
The case involved a claim by a former student at the University of California at Los Angeles who in 2009 was stabbed by a fellow student in a chemistry lab. The suit charged that UCLA didn't do enough to protect students, even as it learned of the serious mental health issues faced by the student who committed the stabbing.
Finding that there is no general duty to help 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."
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.
The dissenting opinion, however, argued that the University should be subject to liability because it had adopted a duty to help. The dissenting judge quoted from university materials distributed to students and parents that included statements like "Welcome to one of the most secure campuses in the country." The dissenting judge also pointed out that "[o]ther promotional materials assure prospective students and their families that ‘UCLA is committed to maintaining a safe and respectful learning environment and takes an unwavering stand against any act that violates the True Bruin values.’" Based on these statements, the dissenting judge argued, parents and students are entitled to expect that the university would provide better safety measures.
The dissenting judge also argued that the university could be subject to liability under the exception to the no duty rule based on "special relationships." Traditionally limited to common carriers or innkeepers, courts in many jurisdictions have disagreed on whether to expand the notion of a special relationship to include other types of relationships. Again, many have held that the relationship between a university and its adult students should not be included within the exception, even if that of an elementary school and its students has been. Usually, the fact that students in an elementary school are minors who are not entirely equipped to defend themselves and who are not as mature as adults justifies the distinction.
The dissenting judge, however, thought that this distinction should not be given as much weight as it has in the past saying that "I would find such a special relationship exists between a college and its enrolled students, at least when the student is in a classroom under the direct supervision of an instructor..." In such cases, the dissenting judge would find that "the school has a duty to take reasonable steps to keep its classrooms safe from foreseeable threats of violence."
Inside Higher Ed has more on the story here.
The case involved a claim by a former student at the University of California at Los Angeles who in 2009 was stabbed by a fellow student in a chemistry lab. The suit charged that UCLA didn't do enough to protect students, even as it learned of the serious mental health issues faced by the student who committed the stabbing.
Finding that there is no general duty to help 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."
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.
The dissenting opinion, however, argued that the University should be subject to liability because it had adopted a duty to help. The dissenting judge quoted from university materials distributed to students and parents that included statements like "Welcome to one of the most secure campuses in the country." The dissenting judge also pointed out that "[o]ther promotional materials assure prospective students and their families that ‘UCLA is committed to maintaining a safe and respectful learning environment and takes an unwavering stand against any act that violates the True Bruin values.’" Based on these statements, the dissenting judge argued, parents and students are entitled to expect that the university would provide better safety measures.
The dissenting judge also argued that the university could be subject to liability under the exception to the no duty rule based on "special relationships." Traditionally limited to common carriers or innkeepers, courts in many jurisdictions have disagreed on whether to expand the notion of a special relationship to include other types of relationships. Again, many have held that the relationship between a university and its adult students should not be included within the exception, even if that of an elementary school and its students has been. Usually, the fact that students in an elementary school are minors who are not entirely equipped to defend themselves and who are not as mature as adults justifies the distinction.
The dissenting judge, however, thought that this distinction should not be given as much weight as it has in the past saying that "I would find such a special relationship exists between a college and its enrolled students, at least when the student is in a classroom under the direct supervision of an instructor..." In such cases, the dissenting judge would find that "the school has a duty to take reasonable steps to keep its classrooms safe from foreseeable threats of violence."
Inside Higher Ed has more on the story here.
Friday, October 16, 2015
Eighth Circuit reinstates wrongful death claim based on alleged defect on Remington rifle
A widow's wrongful death suit against the Remington Arms Co. is
reinstated after a divided Eighth Circuit said sufficient circumstantial
evidence pointed to a defect that could affect as many as 2 million
rifles (O'Neal v. Remington Arms Co., 2015 BL 337378, 8th Cir., No. 14-2883, 10/14/15).
Wednesday, October 14, 2015
Wisconsin jury grants $5 million in case against gun store for negligent sale of a gun which was later used to kill two police officers
In 2005, Congress enacted a statute that gives gun dealers immunity from liability for injuries caused by guns sold by them unless the sellers knew or should have known the sale was illegal or likely to pose a danger. (See the Protection of Lawful Commerce in Arms Act). More than 30 states have adopted similar laws.
Since 2005 only one case against a gun seller had reached a jury and the jury found for the defendant. That changed two days ago when a jury in Wisconsin awarded more than $5 million in damages to two police officers who had been severely wounded with a pistol that a local gun shop sold to a straw buyer in 2009. The New York Times has more details here. Slate has more here (including links to other sources).
The jury found that the store had been negligent in selling the gun because there were signs that the person seeking to buy the gun was fronting for an 18-year-old who accompanied him to the store. One month after the purchase, the 18-year-old shot the plaintiffs, leaving one of them with brain damage and a destroyed eye.
The decision is surprising for a couple of reasons. First, usually the effect of the federal statute, and of similar state statutes, is to prevent liability of gun sellers for the consequences of the conduct of those who use the guns.
Second, typically, defendants in this type of case will argue that the conduct of the person using the gun should be seen as a superseding cause that severs the connection between the negligent conduct upon which the claim is based and the injury for which the plaintiff seeks recovery. I've always thought that courts tend to be receptive to this argument. If the argument was raised, I wonder if maybe, given the string of recent school shootings, opinions are starting to shift on the issue. I don't know if this argument was made in this particular case, but I can't imagine it wasn't. The defendant would have argued that even if it was negligent, the conduct of the person who got the gun was unforeseeable. If the argument was raised, the court probably concluded that was for the jury to decide, and now we know how they decided it.
Since 2005 only one case against a gun seller had reached a jury and the jury found for the defendant. That changed two days ago when a jury in Wisconsin awarded more than $5 million in damages to two police officers who had been severely wounded with a pistol that a local gun shop sold to a straw buyer in 2009. The New York Times has more details here. Slate has more here (including links to other sources).
The jury found that the store had been negligent in selling the gun because there were signs that the person seeking to buy the gun was fronting for an 18-year-old who accompanied him to the store. One month after the purchase, the 18-year-old shot the plaintiffs, leaving one of them with brain damage and a destroyed eye.
The decision is surprising for a couple of reasons. First, usually the effect of the federal statute, and of similar state statutes, is to prevent liability of gun sellers for the consequences of the conduct of those who use the guns.
Second, typically, defendants in this type of case will argue that the conduct of the person using the gun should be seen as a superseding cause that severs the connection between the negligent conduct upon which the claim is based and the injury for which the plaintiff seeks recovery. I've always thought that courts tend to be receptive to this argument. If the argument was raised, I wonder if maybe, given the string of recent school shootings, opinions are starting to shift on the issue. I don't know if this argument was made in this particular case, but I can't imagine it wasn't. The defendant would have argued that even if it was negligent, the conduct of the person who got the gun was unforeseeable. If the argument was raised, the court probably concluded that was for the jury to decide, and now we know how they decided it.
Saturday, October 10, 2015
Louisiana Supreme Court finds medical provider write off does not fall within the collateral source rule, which means it can be taken into account when determining value of compensation
In a recent decision, the Louisiana Supreme Court has held that a writeoff from a medical provider, negotiated by the plaintiff‟s
attorney, may not be considered a collateral source from which the
tortfeasor receives no set-off. Applying Louisiana law and the
principles set forth in our Civil Code, the court found that such a write-off
does not fall within the scope of the collateral source rule. The TortsProf blog has more information. You can read the opinion here.
North Charleston SC agrees to pay $6.5 million in settlement for shooting of unarmed black man by Scott by police
North Charleston, S.C., has agreed to pay $6.5 million as a settlement with the family of Walter Scott, an unarmed black man shot in the back and killed by a white police officer in April. The incident captured national attention because it was captured on a cellphone camera by a
passerby. The officer, Michael Slager, was fired and eventually charged with murder. NPR and Slate have more information.
Nevada upholds compensation cap
Jurisdictions continue to rule differently when it comes to the constitutionality of legislative caps on compensation for non-economic injuries. Some, including Illinois, have found them unconstitutional. Others, most recently Nevada, have rejected that position.
As reported in the TortsProf blog, a few days ago, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages. A lower court had ruled the cap violated the constitutional right to trial by jury. The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant. The Las Vegas Review-Journal has the story.
As reported in the TortsProf blog, a few days ago, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages. A lower court had ruled the cap violated the constitutional right to trial by jury. The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant. The Las Vegas Review-Journal has the story.
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