Sunday, July 11, 2021

Louisiana Court of Appeals rejects wrongful life claims

 About two weeks ago the Louisiana Court of Appeals issued an opinion in which it joins the majority of jurisdictions in rejecting the notion of wrongful life. The case involved a claim brought by the parents of a child born with Down syndrome. They argued that they would have terminated the pregnancy had they been informed of a lab test that showed the child was at risk of being born with the condition. The court affirmed the lower court's dismissal of the claim noting that people with Down syndrome are valued members of society and actively participate in educational, social and recreational activities. 

The case is called Robinson v. Mitchell and you can read the opinion here.

Sunday, July 4, 2021

Texas Supreme Court holds that Amazon can not be held liable for injuries caused by products sold by others through Amazon

Back in May I reported that a California Appellate Court held that Amazon can be liable in products liability for products sold by other vendors through Amazon.  As this happened, the exact same issue was certified to the Texas Supreme Court, and now we have a ruling.

In direct contrast with the California Appellate Court, the Texas Supreme Court held that Amazon can NOT be liable because it does not act as a seller.  

If you are looking for good topic for a law review article, here you go!  Now you have two totally opposite views on exactly the same issue.  

In both cases Amazon argued that it should not be liable to the consumer because it operates only as a marketplace, not as a seller in the chain of commerce.  The court in California did not agree, but the court in Texas did.  

The California court found that Amazon operated as a seller, or at least a distributor in the chain of commerce, rather than as a neutral "mall".  Amazon handled all product advertising, payment processing, and communication between the buyer and the manufacturer.   Also, Amazon may be the only member of the distribution chain reasonably available for an injured consumer to recover damages.

The Texas court held that Amazon did not qualify as a seller because it was not engaged in the business of distributing products through ordinary sales or placing products in the stream of commerce through non-sale commercial transactions, even though Amazon controlled the process of the transaction and the delivery of the product.

It is difficult for me to understand how someone who "controls the process of the transaction and delivery of the product" is not placing the product in the stream of commerce, so my best guess is that the issue comes down to the phrase "ordinary sales."  

Courthouse Network News has a short analysis of the case here.

Tuesday, June 29, 2021

Important Reminder: if you currently get this blog's updates by e-mail, you need to change "carrier"; here's how to do it

Hopefully, by now you don't need this last reminder, but just in case...

In case you have missed the previous posts on this, you should know that Google has announced changes that will affect your ability to get updates by e-mail after July 1 (in two days). So if you currently get your blog stories by e-mail, this message is for you.  

I already posted about this a few days ago and what follows is essentially the same message, including information on how to sign up for updates by e-mail from different websites.  If you already signed up with one of the new services, whatever services you picked should be working already and you do not have read any further.  

So, the bad news is that Google will terminate the system they use now to send updates by e-mail.  The good news is that there are other options you can use to re-subscribe so you don't miss the blog's content.  

Please take a minute to select a new e-mail delivery service so you don't risk missing content.  It really takes only a few minutes.  I explain how to do it in detail below.  Feel free to contact me by e-mail if you need more information.

As you know, there are two main ways in which readers can get updates when I post new stories.  One is to add the blog to a “news aggregator” such as “Feedly” which is the one I use myself to collect the stories from all the blogs I follow.  The changes announced by Google will NOT affect the use of an aggregator.

The other way to keep up with the new stories is to subscribe by email and that is the system Google is going to eliminate in two days.

So, if you want to continue receiving your updates by e-mail, you will need to sign up using a different service, and below I will describe two options in detail.  

The first option is Blogtrottr.  This is the easiest to set up BUT when you get the e-mail message with the blog stories, there will be a big ad at the top and another at the bottom.  I don't like ads, so this is not my preferred way to subscribe.  If you don't mind the ads, then feel free to sign up for the updates this way.  If you don't want ads, I recommend a service called Follow it.  It has ads but they appear at the bottom of the message and are not intrusive.

I also prefer Follow-it because you can set it up as a news aggregator just like Feedly.  So it is both an email subscription service and a news aggregator in one.  Here is what you need to do to sign up.  It only takes a few minutes but there are a few steps.  (I will also explain how to set up Blogtrottr below).

To sign up for email update through Follow it, here is what you need to do:

Go to https://follow.it/intro where you will see this page:

Click on "No, I am a reader..."  This will take you to this page:

Here, type in his blog's address (https://bernabetorts.blogspot.com/) in the blank (as shown) and hit Go.  This will bring you to this page:


These are the different options on how to follow the blog.  If you want only one message per day with all the stories published the previous day, choose the first box (maroon) that says "Newspaper" by email.  If you want to use Follow it as a news aggregator, click on the purple box that says "News page."  You can sign up for more than one option.

Once you pick your options click on Follow it, and this will bring you to another page with more options

As you can see, these are optional, so you can decide what to do there.  I did not select any of these.  

Once you are done with all this, you will get a message by email asking you to confirm.  Make sure you do so because otherwise you will not be signed up and won't get the email updates.  If you don't get the message right away, make sure you check your junk or spam folder just in case.

The other option is easier to set up, but, as I said before, the e-mail messages you will get will have ads.  If you don't mind that, here is what you need to do: 

Go to Blogtrottr.com , where you will see this page 


Once there, enter the URL for this blog (https://bernabetorts.blogspot.com/) in the first blank on the left (where you see "http://").

Then enter your email address in the blank in the middle.

Then select how you want the updates to be delivered by clicking on the drop down menu on the left, where it says "realtime".  Realtime means you will get a message by email the moment I post something.  This means you will get multiple messages if I publish more than one story on any given day.  Click on the down arrow to see the other options.  If you want only one message per day (if there is new content) pick the daily digest option.

Once you have filled out these blanks, click on "Feed me".  That will take you to this page:

Pick one of the two options (I picked the one that says Feed Type: RSS) and you will then get a message by email asking you to confirm your subscription.  Check your junk or spam folder if you don't see it right away and make sure you follow the instructions to confirm.  You won't get the updates unless you do so.


I hope this message helps you figure out how to re-subscribe so you continue to get the email updates you are used to.  There may be other options out there that I am not aware of too.  These two are the two I know of.  I tried them both and they work well.  I prefer Follow it for the reasons stated above but they both work.  

Please let me know by email or by leaving a comment here if I can help you make the transition.  


Monday, June 21, 2021

Finally, some changes to the Feres Doctrine!

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury suffered while the plaintiff is in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

There have been many attempts to eliminate or at least to change the effect of the Feres doctrine over the years, and Justice Clarence Thomas recently expressed his support for change.  But all attempts had failed, Until now.  

Thus I am happy to report that the Defense Department has published a new rule governing how uniformed service members or their representatives can file claims against the military for medical malpractice.  This new rule states that (subject to some exceptions)

"A substantiated claim under $100,000 will be paid directly to the member or his/her estate by the [Department of Defense (DoD)]. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues."

However, it must be noted that the rule does not allow for judicial review of adjudicated claims, and that, therefore, their settlement will be "final and conclusive."

So, it while it is a good thing that plaintiffs will have the chance to recover for their injuries, the remedy provided is still short of the recognition of a possible judicially resolved tort claim.  

For more information, you can go to Military.com, Stars and Stripes and the NY Personal Injury Law Blog.

Supreme Court rules that Alien Tort Statute can't be used against defendants for conduct that happens overseas

Long time readers of this blog know I have followed the cases on the Alien Tort Statute (ATS) for some time.  For my posts on this topic, go here and scroll down.

The last time I posted something about the ATS was back in November of 2019, when I reported on a case against Nestle and Cargill alleging that the defendants aided and abetted in human rights violations by farmers in the Ivory Coast.  Back then the Court of Appeals for the Ninth Circuit held that a lawsuit filed by citizens of Mali who, as children, worked on Ivory Coast cocoa farms should be permitted to go forward under the Alien Tort Statute (ATS).  You can read that post here.

That case was appealed to the Supreme Court and the Court issued its opinion just a few days ago reversing the Circuit Court, by a vote of 8-1, because the lawsuit was based on conduct that occurred overseas. 

Evidently, the decision was a victory for the defendants, but it was not what the business community and the Washington Legal Foundation really wanted because the opinion left open for another day the question of whether the federal law at the heart of the case allows lawsuits against U.S. corporations to begin with.  (I comment on the WLF position in my post linked above.)  

You can read more about the case and the Court's opinion on the SCOTUS blogPolitico, and Howe on the Court.

Snapchat Ends 'Speed Filter' That Critics Say Encouraged Reckless Driving

 Last month I reported that the 9th U.S. Circuit Court of Appeals had issued an opinion holding that the parents of a teenager killed in a traffic accident could sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

Today I am writing about this because NPR is reporting that Snapchat is eliminating a feature known as the "speed filter" that lets users capture how fast they are moving and share it with friends. 

You can read the story on NPR here.

Sunday, June 13, 2021

Trial related to destroyed frozen embryos raises interesting questions -- UPDATED again

This story is updated below, at the end of the original post

I just read a story on Courthouse News on a trial in which the plaintiffs are suing the manufacturer of cryogenic tanks that somehow failed causing the destruction of thousands of frozen eggs and embryos, which according to the plaintiffs dashed some families’ only hope of having biological children.

The plaintiffs' claim is for product liability based on the alleged defective design of the tanks.  The defendant, however, is apparently going to argue that the tank's failure was due to the misuse of the product by the Fertility Center which used it.  This is the first interesting point in the case because that argument is essentially claiming that the conduct of the Fertility Clinic was an unforeseeable intervening (and therefore superseding) cause.  

Yet, the most interesting question raised by this case relates to the injuries claimed by the plaintiffs.  The story states that the claims "for the loss of eggs and embryos" were sent to private arbitration.

So, my first question is what is a claim for the "loss of" the eggs and embryos?   I am assuming "embryos" refers to fertilized eggs, while eggs are not fertilized.  If that is the case, there can be no claim for wrongful death for the loss of the eggs in any jurisdiction I know of.  And for the loss of the embryos, there can be a wrongful death claim only in jurisdictions that recognize that life begins at conception for purposes of the wrongful death act.  So I wonder if the claim is not for wrongful death but for something else?  Is it just a contracts dispute then?  I just don' know.

On the other hand, maybe the claim is for emotional distress, but that claim would depend on the jurisdiction's approach to those claims?  If the jurisdiction requires impact, I don't think there is support for the claim, for example.  Also, the facts don't seem to fit a claim for emotional distress of a bystander.  

Since the case is already at trial, I guess these questions were resolved already through motions to dismiss, etc.  But I wonder what the answers are.  

UPDATE May 30, 2021:  Courthouse News is following the trial closely.  This week they published the following stories:

On May 26:  Lab Workers Were ‘Devastated’ by Tank Failure That Destroyed Human Embryos

On May 27:  Tank Manufacturer Accuses Fertility Clinic of Falsifying Data in Frozen Eggs Trial 

June 6: Fertility Patients Describe Sadness and Anger After Freezer Tank Failure

June 9: Jurors Asked to Award $30 Million for Lost Eggs and Embryos

June 10: Jury Finds Tank Maker Responsible for Lost Eggs and Embryos, Awards $15 Million

June 12: Loss of Embryos and Eggs at Fertility Clinic Leads to Groundbreaking Multi-Million Dollar Verdict in California

June 20: $15 Million Verdict Against IVF Cryopreservation Tank Maker Is Big News

Wednesday, May 26, 2021

All those attempts to get immunity for coronavirus related injuries are paying off now

About 200 lawsuits in nearly half the states have been filed against nursing homes, and many more are expected.  Patient advocates contend that some nursing homes were negligent in their handling of the virus, pointing to the industry’s documented history of problems with infection control. Unfortunately, the nursing home industry spent at least $4 million lobbying Congress and statehouses to grant expanded protections, arguing that they faced shortages of personal protective equipment and shifting guidance from the federal government on battling the virus.

This is a battle that we all saw coming a mile away.  Back in May of last year, I published a comment in which I argued that granting blanket immunity related to COVID-19 injuries is a bad idea and later, I published links to other articles (hereherehereherehere and here).

Politico has the latest here.

Tuesday, May 25, 2021

ALI adopts Restatement Third on Intentional torts to persons

Last week, at the ALI's Annual Meeting, the membership approved the Restatement (Third) of Torts:  Intentional Torts to Persons.  The ALI's press release is here.

Monday, May 24, 2021

Parents of teen who committed suicide sue Snapchat and other "apps" developers

A few days ago I posted a news story about a decision against Snapchat.  Yesterday, I posted a story about a new decision involving a suicide.  Tragically, today's story combines both themes.

Law & Crime is reporting that the mother of a teenager who took his own life after months of online harassment is suing Snapchat and the makers of third-party anonymous messaging apps YOLO and LMK, alleging that the products violated consumer protection laws by failing to comply with their own terms of service that promise safeguards against cyberbullying.

You can read more on the story and the complaint itself here.