Article on lawsuits against gun stores

Here is a link to a story recently published in Wall Street Journal about lawsuits targeting stores for selling guns illegally. There were a few similar cases in the news in 2009. For posts on those cases go here, here and here.

Family of Rutgers student who committed suicide files notice of claim against the university

The family of Tyler Clementi, the student who committed suicide in September after video of his inimate encounter with another man was broadcast on the internet, has filed a notice of claim against Rutgers University. The notice contends the university failed to protect Clementi against “unlawful or otherwise improper acts." “It appears Rutgers University failed to act, failed to put in place and/or failed to implement, and enforce policies and practices that would have prevented or deterred such acts, and that Rutgers failed to act timely and appropriately,” the notice reads. myCentralJersy.com has the story. I have not read the notice so I can't comment in detail, but from this short statement it sounds to me the claim is not particularly strong. Unless the University had imposed on itself a duty to protect or help, the court is not likely to find a duty existed because, as you probably know, there is no duty to help at common law. There are many cases out there that have addressed the possible liability of a University to protect its students from dangers and temptation that are inherent in university life. I don't think many have been successful, although I admit I have not researched the question in some time. I wonder what the plaintiffs are going to argue the school could have done - or more accurately, had a duty to do. Also, the defendants are likely to argue that the decedent's decision to commit suicide operates as a superseding cause. Thanks to TortsProf blog for the update and the link.

New case combines preemption and "Twiqbal"

When discussing preemption I always tell my students it is a "powerful" defense and I remind them that it has been used to successfully dismiss claims in many different contexts about many different products. So I smiled when I read the first line of a recent post at the Abnormal Use website: "As a defense lawyer, I dream about preemption..." The rest of the post, however, is what is important. It relates to a new case that illustrates what is now becoming a common "one-two punch" by defendants in product liability litigation: preemption and pleading requirements. In this particular case, the court dismissed a claim by applying a combination of preemption and what some people have been calling "Twiqballing" - which is a reference to the consequences of two cases called Twombly and Iqbal on the requirement to plead cases fully. For a list of cases applying this doctrine go here. The case is called Gelber v. Stryker (S.D.N.Y. Sept. 14, 2010) and it involved a claim that a hip replacement device was defective. The court dismissed the claim on preemption grounds based on the rigorous review the FDA had used in approving the device. The plaintiffs tried to reply by arguing that the defendants violated FDA manufacturing requirements but the court held that the plaintiffs had not sufficiently plead claims "grounded in violations of federal law and/or requirements." Thus, the court dismissed the claims, although it will allow the plaintiffs to amend to attempt to meet the pleading requirements. Thanks to Abnormal Use for the information.

American Tort Reform Association releases its "judicial hellholes" report

The American Tort Reform Association, a corporate front group whose mission is to make it more difficult for people to recover compensation for their injuries, has released its most recent report on what they call "judicial hellholes" which is really an attack on judges and juries that have held defendants accountable in court. The report names Philadelphia as the #1 "hellhole" - which means, that according to the report, it is the worst venue for corporate defendants. "Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits," explained ATRA general counsel Victor Schwartz. "The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation. . . ." (Thanks to the TortsProf blog for this quote). As expected, those who oppose tort reform have issued responses, both sarcastic and serious. More surprisingly, even the pro-defendant Drug & Device blog has criticized the report stating that "Philadelphia’s reputation as a pro-plaintiff venue is a bit overblown" and that "ATRA's "litigation tourism" charge [is] particularly unfair."

Hot Coffee at the Sundance Film Festival - UPDATED

I am sure you have heard about the case where a plaintiff was awarded compensation when she got burned by McDonald’s hot coffee. But do you really know the facts of the case? Do you really know why the case is important?

To find out more, maybe you can go to the world famous Sundance Film Festival and check out a new documentary called Hot Coffee that tries to explain why the case is part of the discussion over the civil justice system and how it was used (and misused) for propaganda purposes about tort reform.

For more on the film go to its website here. For more on the story go here. 

UPDATE:  For more comments, mostly critical of the case and the movie, go here, here and here.

Interview with FDA Commissioner Margaret Hamburg

Here are links to three videos of a recent interview of FDA Commissioner Margaret Hamburg by Michael Specter of The New Yorker. Part 1: Regulation and consumer safety Part 2: Label and Marketing Part 3: Personal Medicine

Proposed new rules for vehicle safety

Abnormal Use is reporting that the federal government proposed new rules aimed at improving rear visibility standards for vehicles. The requirements, which the Transportation Department intends to take effect by the 2014 model year, were created to address concerns about drivers unintentionally backing over children. The Associated Press reports that most car makers will comply by installing rear-mounted video cameras and in-vehicles displays, which the governments estimates will add approximately $200 to the cost of each new vehicle. Go here for the full story.

Settlement in cases claiming loss of smell from use of Zicam?

The makers of Zicam have indicated that they are offering a $15.5 million to settle lawsuits brought by consumers who allege that they lost their sense of taste and smell due to the company’s recalled line of nasal sprays. The company said that 1,014 plaintiffs and 1,127 claimants will be eligible to be a part of the settlement. Go here for the full story.

Podcast on injuries to soldiers from exposure to toxins in Iraq and Afghanistan

I have blogged a few times about veterans claiming compensation for injuries related to exposure to toxins and other hazards. In 2008, sixteen Indiana National Guard soldiers filed suit against military contractor Kellogg Brown and Root (KBR), for allegedly exposing them to a cancer-causing toxins. Go here and here for more on that story. More recently, I posted a link to a story on possible health hazards soldiers are getting exposed to in Iraq and Afghanistan as a result of the burning of hazardous and medical waste. Now, the Legal Talk Network has a short radio podcast discussing the most recent developments in this area. To listen to the program go here (if that link does not work for you try here or here).

Duty to the beneficiary of a will?

The Legal Ethics Forum recently reported on a case out of the California Court of Appeal called Hall v. Kalfayan, in which the court decided that "a prospective beneficiary of a will cannot maintain a cause of action for legal malpractice against the attorney who drafted the will but did not have it executed before the death of the testator." According to the court, "[t]he essence of the claim in the case. . . is that [the attorney] failed to complete the new estate plan for Ms. Turner [the client] and have it executed on her behalf by her conservator before her death, thereby depriving Hall [the plaintiff] of his share of her estate." The court based its ruling on the fact that "in the absence of an executed (and in this instance, approved) testamentary document naming Hall as a beneficiary, Hall is only a potential beneficiary." But isn't this a bit of an egg/chicken problem? The plaintiff can't have a cause of action because he is not a beneficiary, but the reason he is not a beneficiary is, arguably, the attorney's negligence. If the lawyer had not been negligent, he would have been a beneficiary... The court seems to realize this problem and makes a point of stating that the client "had not expressed a desire to have a new will prepared and had only limited conversation with [the lawyer] about the disposition of her estate." If that is the case, I can understand the court's reasoning. After all, lots of people can speculate that they would have been beneficiaries had the client drafted a will if the client hadn't made up her mind yet. I have no problem with the court's conclusion in a case like that. But I think it would be wrong to conclude that even if the client had expressed her desire to the lawyer, there is no duty to the beneficiary until the lawyer does the work. Let's assume that the client clearly expresses to the lawyer his desire to prepare a will in which a certain person would be a beneficiary and it is clear that without the will the person would recover less or nothing at all. Let's also assume that it is clear the will must be prepared quickly because the client is in poor health. Then the lawyer is negligent in doing the work, or waiting too long or whatever. Saying that the beneficiary does not have a cause of action because the will was never prepared allows the negligent lawyer to avoid any consequences for the negligence and results in an injury to the beneficiary. I don't see why not recognize a cause of action under those circumstances. It would serve the two main goals of tort law: providing incentives for avoiding negligent conduct and providing compensation to victims of negligent conduct.