Police forget about teens left in van locked for fourteen hours

Prof. Jonathan Turley is reporting today that Police in Fort Lee, New Jersey are accused of locking a group of teens in a police van without heat (temperature was in the 20s) for 14 hours. The teens were rounded up at high school house party over the weekend and apparently forgotten until a passerby heard them screaming. The kids had to go to the bathroom in the crowded van. How many different types of claims do you think the teens could support based on these facts? For more go here and here.

Supreme Court to hear case on preemption of claims vs generic drug manufacturers

This Wednesday the Supreme Court will hear oral arguments on PLIVA v. Mensing (09-993), Actavis v. Mensing (09-1039), and Actavis v. Demahy (09-1501) on the right to sue in state court when a generic drug maker fails to change its label to warn consumers of new harmful side-effects. For some background information on this case, go to my previous post on it here. For all the relevant documents, lower court opinions and briefs go here. The defendants claim federal law preempts state lawsuits because their effect could be to force the defendants to offer labeling that is different from what appears on the label of the brand-name drug. For more on the case go to Pharmalot and for a preview of the oral argument go here. Check back here by the end of the week for links to the transcript and the recording of the oral argument.

This week's top stories

Go here for the TortsProf Blog's list of this week's top stories and here for the Abnormal Use blog's "Friday links." In addition, go here and scroll down for my own selection of top news stories. Here is a short trivia bit from this weeks news. As some of you know, actress Elizabeth Taylor passed away this week. She had a very indirect connection with tort law. In 1975, she had a brief but celebrated close personal relationship with a guy called Henry Wynberg. The relationship generated many news articles and Wynberg sued the National Enquirer for one of them claiming defamation. The Enquirer replied by claiming that Wynberg’s reputation was so bad to begin with that nothing said in the article could have made it any worse. In Wynberg v. National Enquirer, Inc., 564 F.Supp. 924 (C.D.Cal. 1982), the court sided with The Enquirer developing what has come to be known as the “libel proof” defense. Although this may not have been the first case in which the argument was discussed, I believe it is the first one in which a court explains it in detail and provides the analysis to follow to determine if a plaintiff should be considered libel proof.

Supreme Court grants cert in yet another prosecutorial misconduct case

The Supreme Court just announced it has granted review in a case called Rehberg v. Paulk which asks "whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages." The lower court's opinion is available here. As usual, the Supreme Court blog has all the information and links here, including the Petition for certiorari, and all the briefs and replies. Make sure you keep that link handy, since they keep updating it with documents as they are filed. I have not had a chance to read the opinion or the petition for cert so I do not know the details but I have been speculating for a while that after all the prosecutorial misconduct scandals in 2009, the Court has been looking for opportunities to express itself on the subject. It first granted review in the Pottawatomie case which eventually settled, and then Connick v Thompson, for which it heard oral arguments in the fall. Rehberg, is therefore, the third case related to the issue of prosecutorial misconduct in two terms. For previous posts on Pottawatomie go here, here and here. For previous posts on Connick v Thompson, including links to the oral arguments, go here, here, here, here and here.

Old Michigan statute prevents state from suing manufacturer

Remember those TV Commercials with Jeff Daniels inviting companies to come to Michigan? For quite some time, one of the more inviting aspects of that invitation has been the fact that Michigan has a unique statute that grants immunity to drugmakers if their products were approved by the FDA (unless that approval was fraudulently obtained). This has meant that, regardless of injuries or of how dangerous the product has turned out to be, state residents are very unlikely to succeed against a pharmaceutical company. Now that the state itself feels ripped off by one of these companies, it is realizing the consequences of its own law. Michigan sued Merck in an effort to recover millions of dollars spent on the Vioxx painkiller, which was pulled from the market in 2004 over heart attack risks but the Michigan appeals court has ruled that the lawsuit is barred by the state statute that grants immunity to the pharmaceutical companies. “We hold that where, as here, the drug in question was approved by the FDA, the state’s suit to recover Medicaid money premised on fraud by the drug company in its representations regarding the safety and efficacy of the drug is barred by (the statute), which exempts drug companies from product liability suits regarding FDA-approved drugs” Go here for a copy of the decision of the court.

Comment on med mal reform in New York

Here is a link to an Op-ed piece on medical malpractice in New York published today in the Journal News, a newspaper that serves the suburban counties just north of New York City.

This week's top stories

Go here for the TortsProf Blog's list of this week's top stories and here for the Abnormal Use blog's "Friday links." In addition, go here and scroll down for my own selection of top news stories.

Pennsylvania bill seeks to eliminate joint and several liability

Bad news for victims of injuries in Pennsylvania. A story in the Pittsburgh Post Gazette states that a new bill seeks to eliminate joint and several liability as the system for apportioning liability in the state. This is not news in and of itself since joint and several liability is a common target of tort reformers and the arguments for the attack are, of course, the same old/usual ones. For those who don’t remember, joint and several liability is a doctrine that allows a plaintiff to choose which defendant will be responsible for paying the value of the injuries. In many jurisdictions that follow this doctrine, it applies regardless of the level of negligence of any individual defendant. This is not the case in every jurisdiction, but let’s leave that aside for the moment - more on that later. The main argument upon which the attack on joint and several liability is based is that it is unfair to impose liability for the full amount of the injury on a defendant who "does not cause all of the injury." A recent article argued this by saying that a defendant found to be "1 percent liable in a lawsuit could potentially be held responsible for 100 percent of the financial verdict." The problem is that this argument is based on a fallacy. The origin of the argument is usually that courts can ask jurors to assign a percentage of negligence on all tortfeasors relative to each other. The problem is that when doing this the jury is not asked to find a level of "liability." Thus stating that a defendant found to be "1 per cent liable" is simply misunderstanding what a jury does. A jury may find that one defendant was more negligent than another, but that does not mean the jury is finding any one of them should be more liable than any other. Opponents of joint and several liability argue, however, that liability should be apportined according to the level of negligence assigned by the jury. Say, for example, that the jury finds that one defendant was 75% negligent while the other one was 25%. In a jurisdiction that follows joint and several liability, the plaintiff can recover 100% of the value of the injury from either defendant and the defendant who was found to be less negligent typically argues this is unfair. Here is the problem with the argument. The percentage numbers are an expression of the level of negligence each defendant was found to be relative each other. They do not refer to, or express, how much of the injury each defendant caused. By definition if we could determine what part of the injury each defendant caused, the liability of that defendant would be limited to that because it would be contrary to the law to impose liability for something the defendant did not cause. Joint and several liability, again, by definition, applies in cases where the injury is indivisible - when it can’t be determined which part of the injury was caused by any one defendant individually. The injury (all of it) was caused by the combination of the negligence of each defendant. Thus, each defendant caused all of it. The fact that one defendant was less negligent than the other does not eliminate the fact that we just can’t tell what part of the injury was caused by either one. That aside, because I am a reasonable man, I am willing to compromise (unlike most tort reformers). So, let’s consider some other options. Simply eliminating joint and several liability is not the only option. Let’s say for the sake of argument that it is unfair for a defendant who is found to be negligent at a very low level to have to pay the full amount of the injury. The first thing to note is that this is only unfair if the other tortfeasor is not available to pay (either because it is unavailable, was never identified or has no money to pay). If that tortfeasor is available/has money, then after all is said and done everyone pays what they owe according to the percentages of negligence. So what can be done to make it less unfair on the "low level negligent" defendant? One alternative is to adopt a threshold before which joint and several liability does not apply. That threshold would be, by force, arbitrary, but at least there would be a threshold. Illinois, for example, sets the threshold at 25%. A defendant whose level of negligence is below that is only liable for an amount equivalent to their percent of negligence. If the level of negligence is above that, then the defendant is joint and severally liable and can, in fact, end up paying for the full amount. If the concern is to protect defendants who were "not very negligent" when compared to the others involved in the claim, this is not a bad compromise. The important question becomes where to place the threshold. This alternative is suggested in the Restament of Torts. Another, alternative that is definitely more fair that simply eliminating joint and several liability and that still protects the interests of defendants from having to pay the full amount when other tortfeasors can’t contribute is to adopt a system that reapportions the amount that those unavailable defendants should have paid among all available tortfeasors. The Restatement of torts considers this the most appealing alternative because it apportions the risk of insolvency to all the remaining parties in proportion to their level of negligence, thus providing an equitable mechanism for dealing with the problem. Not surprisingly, at least according to the newspaper story, none of this is being discussed. That’s because the goal of the tort reformer is not to find a fair system but a system that provides the most protection possible to tortfeasors. The battle lines are drawn and the only alternatives mentioned are the ends of the spectrum. If those are the only alternatives, the question to ask is whether it is more fair to err on the side of the injured person or on the side of those who actually caused the injury. If those are the only alternatives, the answer is easy: err on the side of the victim. It may be better, though, to consider the alternatives available as a compromise.

Consumer Product Safety Commission launches new database

The Consumer Product Safety Commission has finally launched its new product safety website where consumers will be able search a database of products that have been identified as having potential safety issues and file new reports about problems they have experienced. It can be accessed at SaferProducts.gov. For more on the story, go to AboutLawsuits.com. As you may recall from my reports from a few days ago, however, the future of the database is still in jeopardy. See here and here.

Tort reform in Texas

I just posted a link to an article to tort reform in New York, so following on this theme... here is a link to an article on tort reform efforts in Texas. The article emphasizes a proposal to make the person who brings the lawsuit pay for the expenses and attorney fees of the other party if they ultimately lose their lawsuit. The article concludes: "That might sound fair to some, but the law is one-sided. The only time the loser pays is when the loser is the plaintiff. If the loser is the defendant, which is the case in a majority of lawsuits filed, the defendant is not required to pay expenses and not required to pay the winner’s attorney fees. Not anyone’s idea of fair. But fairness is not the point."