Thursday, January 17, 2019

Shooting victims argue on appeal to revive case against social media platforms

In a recent oral argument before the Court of Appeals for the 6th Circuit, attorneys for some victims and family members of those killed during the 2016 shooting at the Pulse nightclub in Orlando argued that the court should reverse a lower court decision dismissing a complaint against Twitter and other social media platforms.

In the original lawsuit, the plaintiffs argued that but for the postings of a radical group using defendants’ social media platforms, the shooter would not have engaged in his attack on the Pulse nightclub.  They alleged Twitter, Google and Facebook knew their sites and platforms were being used by terrorist organizations to raise money and recruit new members, but did nothing to curb or end the activity.

The lower court judge, however, ruled in favor of the defendants and granted their motion to dismiss in March 2018.

You can read a summary of the argument here

I confess I have not been following this story and do not know the details of the allegations or the lower court opinion; but from what I can gather from the summary, it seems to me the plaintiffs will have a hard time winning the argument.  It is not easy to hold the media responsible for the criminal conduct of others who read or react to what is published in the media platforms.

Lawsuit Blames Sorority Hazing for Athlete's Suicide

I recently published a short article on two recent cases on whether universities have a "duty to help" students by preventing injuries caused by other students or by protecting students from injuring themselves (including by attempting to commit suicide).  You can read it here.

With this in mind, I found it interesting to read that FindLaw is reporting that the mother of a Northwestern University basketball player that took her own life in early 2017 has filed a lawsuit in the Northern District of Illinois court alleging that Jordan's sorority's hazing motivated her suicide.

I have not seen the complaint itself so I am not sure of the details, but from the stories I have read in the press, it appears the lawsuit is against the sorority and not against the University.

Wednesday, January 9, 2019

Supreme Court hears oral argument on FDA preemption claim

A couple of days ago, the Supreme Court heard oral arguments on the most recent case on whether claims against prescription drug manufacturers are preempted by FDA regulations.  The case is called Merck Sharp & Dohme Corp. v. Albrecht.

The SCotUS blog has a good short summary of the case here and an analysis of the oral argument here.

Sunday, December 30, 2018

Court of Appeals finds Tennessee punitive damages cap unconstitutional

A divided panel of the Court of Appeals for the Sixth Circuit recently held that the Tennessee statute capping punitive damages is unconstitutional.  Courthouse News Services has the story here.

FDA No Longer Pursuing Rule Update to Require Generic Drug Makers To Warn Of Known Side Effects

Back in November, 2013, I posted that the FDA proposed a new regulations that would allow (and presumably encourage) generic drug manufacturers to add or update the safety warnings on their products.  In a nutshell, the key is that generics are required to use the exact same label and warnings as the brand name manufacturers.  They can't deviate and update the warnings on their own. 

You would think that manufacturers interested in making sure their products are safe would welcome the new rule.  However, because the current system works to immunize generics manufacturers, a change that would work to make the products safer would also open the door to possible liability.  Thus, as you would expect from those who are more interested in profits than safety, the manufacturers hired a consulting firm  to conduct a cost-beneift analysis of the consequences of the new rule.  And, not surprisingly, the analysis concludes that the change is not good for consumers.  You can read the report here.  Then, go here for a report by Center for Justice & Democracy (called "America’s Unaccountable Generic Drug Industry; How Legal Immunity Could Be Making You Sick") which explains how deficient the current system is. You can then form your own opinion.  For more on this issue go here, here, here, here and here (video).

In April 2015, the New York Times published story stating that
The pharmaceutical industry mounted a new challenge on Friday to a federal plan that would require generic drug companies to take the initiative to update their labels to warn consumers whenever health risks were discovered, a shift that would expose the companies to legal liability.

During a public meeting at the Food and Drug Administration, the industry proposed instead that the F.D.A. itself should decide whether new warnings on drug labels are required and, if so, order companies to make the changes. But consumer advocacy groups said the companies were trying to shift responsibility to an agency that lacks the resources to track the vast array of drugs on the market.
Not much has happened since. The rules were supposed to have been finalized in December 2015, but the FDA delayed taking action until July 2016.  Yet, no action was taken, and two weeks ago, despite years of work, and calls from both inside and outside of the agency to ensure accurate and up-to-date warnings are provided to consumers by generic drug manufacturers, the FDA posted a notice announcing the withdrawal of the proposed rule involving label changes.

AboutLawsuits has the story here.

Monday, December 24, 2018

Mississippi and Kentucky adopt exoneration requirement for malpractice claims against criminal defense attorneys

Some jurisdictions have recently abandoned the view that a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to prove that he or she was actually innocent of the crime for which they were convicted.  My most recent post on this is here.   Some of those, however, still require that the plaintiffs show they were exonerated through the criminal process (or what some call "post conviction relief").  In other words, in cases in which a convicted defendant wants to sue a former lawyer alleging they would not have been convicted but for the negligence of the lawyer there are three approaches:  requiring that the defendant show actual innocence, requiring that the defendant show post conviction relief (but not necessarily innocence) and not requiring anything other than the typical elements of a torts claim.

In two recent decisions, the Supreme Courts of Mississippi and Kentucky have decided to adopt the approach that requires "exoneration" for the malpractice claim to proceed.

The case in Mississippi is called Trigg v. Farese, and you can read the opinion here.  In it, the court concludes that "We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled."

The case in Kentucky is called Lawrence v. Bingham, Greenbaum,Doll, LLP, and you can read the opinion here.  In it, the court adopted the following articulation of the Exoneration Rule: "to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the postconviction exoneration occurs."

Tuesday, December 18, 2018

Kentucky Supreme Court Holds Med Mal Review Panel Law is Unconstitutional; while Puerto Rico enacts a similar law

On November 15, 2018, the Kentucky Supreme Court held that Kentucky’s Medical Review Panel Act was unconstitutional. The Act established that all potential medical malpractice suits must first be presented to a three person medical review panel before the case could be filed in State court and that only after the panel rendered its decision (or after nine months if it had not rendered a decision) that the Plaintiff could file suit in State Court.  The case is called Commonwealth of Kentucky v Claycomb and you can read it here.

The TortsProf Blog has a comment here in which, without opining on the constitutionality of the act, Prof. Chris Robinette argues the bill is (or was) a bad idea.

JD Supra has a story about the decision here

Meanwhile, in Puerto Rico, the governor signed a law creating panels composed of 3 people--including a health expert, a public advocate, and a lawyer or former judge--to review medical malpractice claims.  Claimants, with an exclusion for the indigent, will be required to post a bond-like payment with the panel.  If the panel finds evidence of malpractice, the money will be returned.

This is a horrible idea and really bad news for the victims of medical malpractice in Puerto Rico.  It will not only delay their claims, it will make it very difficult for them to find legal representation and to get access to justice. 

Even though time and time again, studies have shown that the reasons for doctors leaving a jurisdiction of practice are rarely related to exposure to liability, the legislature and the governor argued the bill is meant to stem the exodus of doctors from Puerto Rico.  What they fail to recognize is that there is a general exodus from Puerto Rico largely caused by a long economic crisis which was made worse by the devastation caused by recent hurricanes. 

I agree with Prof. Robinette that there are better ways to handle the concern over frivolous claims.

Monday, October 22, 2018

Supreme Court hears oral argument in asbestos case under maritime law

A couple of weeks ago, the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment. Because the injuries in question occurred at sea it arises under the general “maritime” law, judge-made federal law for which the Supreme Court is the final authority. The lower court found that the manufacturers could be liable because the injuries were foreseeable. 

The SCotUS blog has analysis here.  You can also access all the relevant documents in the case here.

Saturday, October 20, 2018

Interesting case in the Fifth Circuit Court of Appeals regarding false imprisonment

Suppose a person is charged of and convicted of a crime he or she did not commit and is later exonerated.  Should that person have a claim for false imprisonment?  against whom?  and when would the statute of limitation begin to run? 

These are some of the issues addressed by the US Court of Appeals for the Fifth Circuit in a recent decision in which it  reversed and remanded dismissal of a false-imprisonment claim against the city and county of El Paso holding that false imprisonment is a continuing tort in Texas.  The case was brought by a man who spent 17 years in prison for a sexual assault he did not commit.

You can read the opinion here.

Judge dismisses defamation suit against Trump

By now you have probably heard that a U.S. District Judge has dismissed a defamation lawsuit filed by Stormy Daniels against Donald Trump based on a “tweet” in which Trump suggested Daniels lied. 

The judge concluded that the tweet "constitutes 'rhetorical hyperbole', and that because the tweet displays “an incredulous tone,” it was not meant to be understood as a “literal statement about the plaintiff."

You be the judge.  The statement in question is this:  "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

Does that sound to be a statement of fact, an opinion or a rhetorical hyperbole?  Do you think reasonable people would disagree about the answer to that question?

The judge also found that Daniels failed to show that Trump "acted with actual malice or reckless disregard for the truth," which is ironic since Trump is famous for having reckless disregard for the truth.

NPR has more about the court's ruling here.  Politico has more here.