Lawsuit filed against gun manufacturers related to Las Vegas Music Festival shooting

Back in March I reported (here) that the Connecticut Supreme Court allowed to proceed a lawsuit against Remington, the manufacturer of the rifle that was used during the school shooting at Sandy Hook Elementary School. 

Now, Courthouse News is reporting that attorneys for victims of the Newtown school shooting have filed a new lawsuit against the companies whose assault rifles were used by the gunman in the shooting at the Harvest Musical Festival in Las Vegas.  You can read the full story here.

For my recent posts related to the gun industry go here.

Alaska reiterates its approach to bystander emotional distress claims, which is very different than the one used in most other jurisdictions

As you probably know, back in 1968 the California Supreme Court created what has now become the majority approach to claims by people who suffer emotional distress at witnessing injuries suffered by others.  According to that approach, the claim is limited to plaintiffs who are closely related to the victim, are present at the scene of the accident and who have a contemporaneous sensory observance of the accident.  Someone who is told about an accident after it happens or who arrives at the scene only to observe the aftermath, would not have a claim.

Alaska, however, never adopted the requirement of the contemporaneous sensory observance.  According to this approach, the plaintiff can support a claim as long as he or she is a close relative of the victim and that, under the circumstances, it is reasonably foreseeable that the plaintiff would suffer emotional distress.  This means the notion of duty in Alaska in these types of cases is broader and defendants are exposed to liability in many more cases.

I am writing about this today because the I just read that the Alaska Supreme Court has again reiterated its approach to this issue in a new case called Doan v. Banner Health, Inc., (available in Westlaw at 2019 WL 2312537).

In this case, a mother, who was in a hospital waiting room when her daughter died, brought a NIED claim against medical providers for the distress she suffered upon seeing her daughter’s body. 

This claim would have been rejected in any state that follows the California approach and, obviously, in all states that reject it in favor of the "zone of danger" approach.  To my knowledge, this leaves only Alaska and Puerto Rico.

Thanks to the TortsProf blog for the update.

Can a parent sign away a child's rights by signing a waiver of liability? Not in Kentucky (and many other states)

Those of you who have children out there are familiar with this, which as a parent myself, I have seen and done lots of times!  Your child wants to participate in a sport or other physical activity, and you (the parent) are asked to sign a "waiver" before the child can be allowed to do so.  Will those waivers really work to prevent a lawsuit?  Are they a valid form of contract that can be argued support a defense of express assumption of the risk.  Not in many states.  (I have not done a state by state survey, but I suspect this would be the case in a majority of states.) 

The Torts Prof blog is reporting that the Kentucky Supreme Court has unanimously ruled that for-profit companies can be liable for injuries to minor children even if their parents signed a pre-injury waiver.  The ruling came in a case in which an 11-year-old girl broke her ankle jumping on a trampoline at the House of Boom in Louisville, KY in 2015.  The mother had checked a box saying that she, on behalf of her daughter, would "forever discharge and agree not to sue" the trampoline park.  The court noted that for the most part, under Kentucky law, "a parent has no authority to enter into contracts on a child's behalf."  The court also stated that in 11 of 12 jurisdictions in the U.S., waivers between parents and for-profit entities have been found unenforceable.  WDRB.com has a little more on the story.

New update to Report on Medical Malpractice

The Center for Justice & Democracy at New York Law School recently released the 12th update to its Medical Malpractice: By The Numbers report. The fully-sourced 172-page volume includes the latest statistics and research on issues related to medical malpractice, including over 500 footnotes linking to original sources.  You can get a copy of the full report here; or a summary here.

House and Senate Democrats introduce bill to allow victims of gun violence to sue the gun industry

Last week House and Senate Democrats presented a bill called The Equal Access to Justice for Victims of Gun Violence Act which seeks to repeal federal protections blocking firearm and ammunition manufacturers, dealers and trade groups from most civil lawsuits when a firearm is used unlawfully or in a crime.  Given that Mitch McConnell has asserted he will not let any progressive legislation pass during his reign, the bill has little to no chance of ever becoming law, though.

NPR has the full story here.

Comment on recent Supreme Court case on preemption in prescription drug cases

A few days ago I reported that he Surpreme Court issued its opinion on Merck Sharpe & Dohme v. Albrecht, the latest decision in the Court's line of cases on pre-emption as a defense in cases for injuries caused by lack of adequate warnings regarding prescription drugs.  (See here).

Since then, Max Kennerly, of the excellent Litigation and Trial blog, has published a detailed discussion of the case. You should read the full article here.  Here is his conclusion:

On May 20, 2019, the United States Supreme Court decided Merck v. Albrecht ... destroying most of the arguments routinely used by drug companies to claim that plaintiffs’ cases are “preempted” and have to be dismissed. The law for people injured by branded prescription drugs is far better now than it was before Albrecht, and as a result, it is likely that far more victims will get to see their day in court. 

After Albrecht, a branded prescription drug manufacturer can only establish impossibility preemption — which happens when federal law makes it “impossible” for defendants to comply with state tort laws that enable victims to seek compensation — if they can show: 

-- The manufacturer “fully informed” the FDA by providing both all “material” safety information and an “evaluation or analysis concerning the specific dangers” raised by the plaintiff; and 

-- The FDA took action, “carrying the force of law,” to disapprove the warning proposed by the plaintiffs. 

The Supreme Court’s analysis in Albrecht is far more narrow than any preemption argument ever proposed by drug manufacturers, and far more narrow than the “clear evidence” tests many lower courts have been using since Wyeth v. Levine, 555 U.S. 555 (2009). As the Supreme Court itself said, “a drug manufacturer will not ordinarily be able to show that there is an actual conflict between state and federal law such that it was impossible to comply with both.”

Podcast on internet defamation

The most recent edition of the podcast "Digital Detectives" is devoted to a discussion of what lawyers need to look out for when handling a defamation case that originates in comments made on the internet.  You can listen to the program by going here.

New York Times article on Boeing's handling of the design of the 737 Max airplane; it's not a pretty picture.

The New York Times has published an article describing certain aspects of the process that led to the design and manufacture of the Boeing 737 Max airplane, the model recently involved in several crashes, which paints a really bad picture for the company.  If the article is accurate, and the statements can be proven in court, the picture is one of negligence, if not intentional or reckless, management of the design process which could be used against the company in a product liability case.  The article is called "Boeing Built Deadly Assumptions Into 737 Max, Blind to a Late Design Change" and you can read it in full here, but here is the gist of it:

The fatal flaws with Boeing’s 737 Max can be traced to a breakdown late in the plane’s development, when test pilots, engineers and regulators were left in the dark about a fundamental overhaul to an automated system that would ultimately play a role in two crashes.

A year before the plane was finished, Boeing made the system more aggressive and riskier. While the original version relied on data from at least two types of sensors, the final version used just one, leaving the system without a critical safeguard. In both doomed flights, pilots struggled as a single damaged sensor sent the planes into irrecoverable nose-dives within minutes, killing 346 people and prompting regulators around the world to ground the Max.

But many people involved in building, testing and approving the system, known as MCAS, said they hadn’t fully understood the changes. Current and former employees at Boeing and the Federal Aviation Administration who spoke with The New York Times said they had assumed the system relied on more sensors and would rarely, if ever, activate. Based on those misguided assumptions, many made critical decisions, affecting design, certification and training.

“It doesn’t make any sense,” said a former test pilot who worked on the Max. “I wish I had the full story.”

While prosecutors and lawmakers try to piece together what went wrong, the current and former employees point to the single, fateful decision to change the system, which led to a series of design mistakes and regulatory oversights. As Boeing rushed to get the plane done, many of the employees say, they didn’t recognize the importance of the decision. They described a compartmentalized approach, each of them focusing on a small part of the plane. The process left them without a complete view of a critical and ultimately dangerous system. 

The company also played down the scope of the system to regulators. Boeing never disclosed the revamp of MCAS to Federal Aviation Administration officials involved in determining pilot training needs, according to three agency officials. When Boeing asked to remove the description of the system from the pilot’s manual, the F.A.A. agreed. As a result, most Max pilots did not know about the software until after the first crash, in October.

Court appoints plaintiffs' steering committee in multidistrict litigation against manufacturers of earplugs issued by the military

Last month I reported that the U.S. Judicial Panel on Multidistrict Litigation (JPML) agreed to consolidate and centralize all 3M Combat Arms Earplug lawsuits pending throughout the federal court system.  Currently, there are more than 813 product liability lawsuits filed against 3M Company and it’s Aearo Technologies subsidiary, each involving similar allegations that military veterans suffered hearing damage following use of Combat Arms earplugs, which were standard issue by the military between 2003 and 2015.  However, according to some, it is expected that ultimately thousands of cases will be brought by individuals nationwide.

The centralized litigation has been assigned to U.S. District Judge Casey Rodgers in the Northern District of Florida, which will help reduce duplicative discovery, and avoid conflicting pretrial rulings.

Now comes news that the Judge has appointed a group of 53 plaintiffs’ attorneys to serve in various leadership roles, taking actions that benefit all veterans who are pursuing claims for hearing loss linked to product defects.  AboutLawsuits has the story and links to the relevant documents.

Supreme Court decides new case on preemption in cases of prescription drugs

About a week ago, the Surpreme Court issued its opinion on Merck Sharpe & Dohme v. Albrecht, the latest decision in the Court's line of cases on pre-emption as a defense in cases for injuries caused by lack of adequate warnings regarding prescription drugs. 

According to the summary and analysis of the opinion in the SCotUS blog, the opinion offers "clarity on the procedure for deciding pre-emption defenses, but little additional elucidation on the contours of those defenses."

You should read the full article (here), which explains that "[a] decade ago in Wyeth v. Levine, the court held that to succeed with the impossibility pre-emption defense, defendants had to produce “clear evidence” that the FDA would have prohibited an additional warning. Yesterday’s opinion in Albrecht attempted to clarify Wyeth’s application by explaining abstractly that the “clear evidence” standard contemplates an irreconcilable conflict between federal and state law, rather than a heightened standard of evidentiary proof."

The court held that judges, rather than juries, should decide whether FDA actions pre-empt state tort suits alleging failure to warn consumers of adverse effects. This is a strategic win for drug manufacturers, clarifying that their go-to defense of “impossibility preemption” – the claim that federal regulation would have prohibited the additional warnings plaintiffs allege state tort law required – can be decided on motions before the case reaches a jury.

Jurist has a short summary here.