Wednesday, September 30, 2009

Hold your wee for a wii trial in progress

Go here for an update. It describes the testimony of the VP/Market Manager of the radio station in which he said he did not believe that the radio show personalities knew of the danger of drinking too much water. Isn't this common knowledge? For past comments on this case go here. Thanks to TortsProf Blog for the link.

Sunday, September 27, 2009

The most common factors leading to legal malpractice claims

Summarizing the discussion during an ABA panel discussion held in Chicago last Thursday, an article published in Friday's Chicago Law Journal states that the top mistakes that lead to malpractice claims are: •Poor communication between lawyer and client, resulting in disparate understandings of the arrangement. •Missed deadlines through bad calendaring or failure to know deadlines. •Poor investigation that misses basic facts. •Failure to catch errors in work delegated to assistants. In personal injury cases, blowing the statute of limitations leads the way in malpractice errors, either because the attorney entered the wrong date in the law firm's or lawyer's calendar, the attorney waited for the very last day to file or because the attorney did not know statutory deadlines. Another common reason for a malpractice complaint is that the lawyer failed to decline the case in time for the plaintiff to find another lawyer. Often a lawyer doesn't make it clear to a potential client whether the lawyer agreed to take the case or is just looking it over. And the lawyer never gets around to actually rejecting the representation. Interestingly, I cover both of these problems in the classes I teach. In Torts I tell my students that buying a calendar and learning how to use it is the fist thing they should do after they get a job and that missing the statute of limitations is the dumbest thing they can do. In Professional Responsibility we cover the issues related to the formation of an attorney-client relationship by discussing the famous case Togstad v. Vesely, Otto, Miller & Keefe which illustrates the importance of letting a client know clearly the decision not to agree to the representation. If a second year law student knows not to make these mistakes, there is no excuse for attorneys in practice to be making them.

Friday, September 25, 2009

FDA admits to something we already knew...

In a story published today by the New York Times, the FDA admits that it has made decisions based on influence from outside sources. This is should not be news to anyone who has followed the FDA over the years but the more information comes to light about the deficiencies of one of the agencies that are supposed to be protecting us from dangerous products, the better. The NYT story, which is available here, specifically refers to the integrity of the FDA’s decision-making process for the approval of a device known as Menaflex. The agency’s scientific reviewers repeatedly and unanimously over many years decided that the device was unsafe, but after receiving what an FDA report described as “extreme,” “unusual” and persistent pressure from four Democrats from New Jersey agency managers overruled the scientists and approved the device for sale.

Malpractice claim for failure to communicate settlement offer

The Wall Street Journal Law Blog is reporting today that "Susan Stanford is suing her former divorce lawyer for $200 million, alleging that the lawyer, Nancy Rommelmann, failed to tell her of a verbal offer to settle her divorce for $200 million last year. Click here for the story, from Bloomberg. Stanford filed a complaint (link not available) on Thursday in Houston state court."

NYT article re med mal

Here is a link to an article on the medical malpractice debate from the New York Times; and here is one to a post on the Wall Street Journal summarizing it.

Most interesting stories this week

It's Friday, which means it is time for the TortsProf Blog's list of the most interesting stories for this week (availalble here.) To their list I would add the following three stories: $12 million verdict against Michelin in tire tread separation claim FDA to discuss possible regulation of internet promotion of prescription drugs Illinois Supreme Court rejects Tarasoff

Thursday, September 24, 2009

Illinois Supreme Court rejects Tarasoff

The Supreme Court of Illinois released an interesting opinion today in which it rejects the reasoning behind the famous case Tarasoff v Regents of the Univ of California. The case is called Tedrick v. Community Resource Center and the opinion is available here. In this case, the plaintiffs brought an action seeking damages resulting from the death of a woman who was killed by her husband. The complaint alleged that the defendants, ten healthcare providers, including physicians, psychologists and social workers, negligently provided medical care to the husband and that they had a duty to warn the wife, and to protect her from, the husband’s threats and potential violent acts. In discussing the claim, the Court recognized that Tarasoff v. Regents of the University of California is the “most cited” case for holding that a mental-health-care provider owes a duty to warn and protect a nonpatient third party under certain circumstances. However, interpreting its decision in other previous cases, the Court concludes that "it is clear . . . that this court has rejected the rationale of the Tarasoff case."

Tuesday, September 22, 2009

More on med mal reform debate

Here is a link to a story (which itself has many more links) that challenges the typical pro-tort reform argument based on how the lack of reform results in "defensive medicine." This argument, in case you are new to the topic, is that the fear of getting sued makes doctors order or perform unnecessary tests and procedures which increase the costs of health care. There is evidence out there now that supports the proposition that many doctors are not ordering or performing these procedures out of fear of getting sued but because it is a good way to make more money. Go here for a story in the Washington Post. Here is the latest from the PopTort on the subject (including links to more information).

Debate re med mal tort reform

The Atlanta Journal-Constitution has published a debate on whether liability damages caps should be a part of health reform... here. Thanks to the TortsProf blog for the link

New story re false arrest in Chicago

A head emergency room nurse at Advocate Illinois Masonic Hospital has sued the city of Chicago and a Police officer for violation of her civil rights when the officer handcuffed her and putt her in the back of a squad car for 45 minutes after she refused to draw blood from a suspected drunken driver. As so often happens these days, the cop forgot there are cameras everywhere and his actions were caught on video. The full story and the videos are available here. Prof. Jonathan Turley has more on the story here. Thanks to Louis Raymond for the link.

Seattle Times supports ruling against requiring certificates of merit in med mal cases

A couple of days ago I reported that the Washington Suprem Court held that a requirement that plaintiffs obtain a 'certificate of merit' before filing medical malpractice suits is unconstitutional. In response to the ruling, the Seattle Times has published an editorial praising the decision (see here.) For more on the story and some links go here.

Monday, September 21, 2009

More on the battle to undo Iqbal

Two days ago, I reported that a battle is brewing to undo the Supreme Court's decision in Ashcroft v. Iqbal. (If you are not familiar with the debate over the case go here, here, here and here.) Today, the Wall Street Journal Law Blog has an article on the response by plaintiffs' lawyers to the decision in Ashcroft v. Iqbal (here). Meanwhile, the PopTort blog is reporting that Senator, Arlen Specter (D-PA) is working on a bill to undo the consequences of the case. This post also offers a couple of very intersting quotes on the issue: Arthur Miller, New York University School of Law professor and recognized expert on civil procedure: "I have spent my whole life with the federal rules, and this is one of the biggest deals I have ever seen….I see serious problems with democratic values here, with access to the courts, with resolution of disputes with a jury of peers. "Elizabeth Schneider, Brooklyn Law School professor “who has written extensively on federal civil procedure.”: “Iqbal is forcing trial judges to go ‘line by line’ through pleadings, using subjective factors to decide what parts are factual and which statements are conclusory. ‘If that's not an open door to judicial bias, I don't know what is.’"

FDA to discuss possible regulation of internet promotion of prescription drugs

The FDA announced today in a Federal Register notice that the Agency plans to hold a public hearing to discuss issues regarding the promotion of FDA-regulated products – specifically prescription drugs, prescription biologics, and medical devices – via the Internet and social media. Many in industry feel that guidance from FDA on this issue is long overdue. The FDA Law Blog has more on the story here.

$12 million verdict against Michelin in tire tread separation claim is reporting today that a 12-year-old boy has been awarded $12 million against Michelin for injuries suffered in an automobile accident that was allegedly caused by tire tread separation. The product liability lawsuit alleged that Michelin was liable for negligently manufacturing defective tires that resulted in the accident. Go here for the full story.

Saturday, September 19, 2009

Articles on medical malpractice myths and health care reform

Here is a link to a new article that links to a new study (and several old ones) that show once again that medical malpractice lawsuits account for just a tiny fraction of the nation’s overall health care costs. This is old news to anyone who has seriously followed the issue over the years, but some are still trying to advance the argument that we need tort reform to control the rising costs of health care. Go here for the full story. Here is an article with information that debunks several other common allegations in the med-mal/health care reform debate.

Med mal reform defeat in Washington

Good news for victims of medical malpractice in the state of Washington and, perhaps, all over the nation. The requirement that a plaintiff obtain a “Certificate of Merit” prior to filing a medical malpractice claim was declared unconstitutional by the Washington State Supreme Court yesterday. Interetingly, this is one of the ideas that have been mentioned in the context of President Obama’s state-level medical malpractice pilot projects. The court ruled that the law violates the separation of state powers, saying that allowing the Legislature to set rules about filing a lawsuit "conflicts with the judiciary's inherent power to set court procedures." Seven of the justices also said that the law was unconstitutional because it unduly burdened the right of access to courts. "Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery" wrote the majority, led by Justice Susan Owens. "Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts." For more on the story, go here. Thanks to the PopTort for the information.

Tony Sebok on Health Insurance Reform and Tort Reform

Prof. Tony Sebok, whose columns on tort law I often recommend here, has posted an interesting article on how tort reform has become an element of the current health care reform plan and debate. For the full article go here.

Update on the allegations that Toyota destroyed evidence re rollovers

Here is an update on the case in which a former Toyota executive alleged Toyota destroyed evidence relevant to rollover cases. is reporting that a federal judge in Los Angeles has refused to seal the wrongful termination suit in which the former in-house attorney for Toyota Motor Sales asserted that the auto manufacturer hid and destroyed evidence in numerous rollover lawsuits. For the full story go here. For previous posts about this go here and here.

The battle to undo Iqbal begins

I have blogged before about the Supreme Court decision in Ashcroft v. Iqbal, in which the Court said plaintiffs must include in their initial pleadings substantial factual assertions that give "facial plausibility" to their claims -- a major shift from the tradition of "notice pleading," which required only a simple statement of the case against the defendant. The decision has made it easier than ever for defendants to shut down lawsuits before they get to the costly discovery stage. For previous posts on this see here, here and here. Fortunately, plaintiffs' attorneys are ready to fight back. is reporting today that "civil rights and consumer groups and trial lawyers met on Sept. 14 in Washington, D.C., to lay plans for a two-pronged battle to undo the effects of Iqbal. The campaign will be aimed at Congress as well as the rulemaking process for federal courts. Hearings are being planned for October in the House and the Senate." For the full story, go here.

Wednesday, September 16, 2009

Georgia Supreme Court to Decide Constitutionality of Med Mal Damage Caps

Thanks to Chris Robinette of the TortsProf Blog for this important news item: Yesterday the Georgia Supreme Court heard arguments in a case challenging the 2005 law imposing a $350,000 cap on non-economic damages in medical malpractice cases. The trial judge ruled the caps unconstitutional. Coverage is here: Atlanta Journal Constitution, Atlanta Business Chronicle.

Tuesday, September 15, 2009

Who has the right to recover for wrongful death?

There is something about the concept of a "wrongful death action" that has always troubled me. In most states the right to recover for wrongful death is limited to a specific person or to persons who fall in a very specific category. Some statutes limit the recovery to a "surviving spouse", others to the "next of kin", others to "heirs." And the claims often are mutually exclusive. The statute may say that the children of the deceased recover only if there's no surviving spouse, and the parents only recover if there is no spouse and no children, etc. What bothers me about this is this: an action for wrongful death is designed to provide a remedy for the loss someoone suffers when a person is killed because of another's negligence. Yet, given the language of many statutes it is not unusual that people who can make a very good case that they have suffered a loss do not have a right to recover. If the statute limits recovery to a surviving spouse and children, for example, the parents of the deceased simply don't have a right to recover anything. Can we really argue that parents don't suffer a loss when their child dies? I understand that we can't allow just anybody to try to recover -- there has to be a limit as to how far we extend the reach of possible liability; but I think the approach to wrongful death in many states is unduly restrictive. I am thinking of this topic today because I just read about a case pending before the Supreme Court of Georgia that exposes the problem. What appeared to be a straightforward wrongful death claim has turned out to be a very unfortunate situation for everyone involved. The case involves the death of 16 year old boy in a traffic accident. At the time, his girfried was pregnant with his daughter. After the boy's death, his parents filed a wrongful death action. However, after the girlfriend gave birth, she filed a claim on behalf of the child. And only one of the two claims can be valid. The claims are now "competing" against each other. In this case, the Court will have to decide who can recover the value of the loss caused by the death, even though I don't think it is difficult to argue that all the plaintiffs have suffered because of the death. Again, why should a daughter's claim exclude a claim by the parents? Go here for the full story.

Monday, September 14, 2009

More reaction to Pres. Obama's plans re health care

As I posted here a few days ago, President Obama's suggestion that medical malpractice "tort reform" measures should be part of his health care reform package has received very mixed reviews. Here are two articles, one critical, on mostly just reciting some facts, on the subject. The first article is a comment posted in ThePopTort blog. Although there are no details available about what Pres. Obama's plan might look like, this post discusses (and criticizes) some of the elements that have been hinted at so far. It also provides a good number of links to support its position. One particularly problematic possible approach to reform that has been mentioned is the requirement of “certificates of merit.” Some states already have “Certificate of Merit” laws, are very controversial. As the Wall Street Journal reports, the certificates can cost $5,000 or more each to produce because of the expense of hiring experts which can prevent some injured people from filing suit. The requirement is also unfair because it requires experts to weigh in on a case, before plaintiffs have even had a chance to gather all the evidence. Like most tort reform efforts, the real goal of this requirement is to make it more difficult for people to get access to the court system. The PopTort article goes on to discuss "medical review panels" (arguing they are unfair for patients, since the panel members would come from the health care industry, with clear conflicts of interest), “early disclosure provisions” (which may be unfair if they allow injured patients to be pressured into accepting a low-ball insurance industry offer before they have any idea what's going on or can consult with an attorney or, worse, if they penalize the patient who refuses an initial offer by imposing a higher burden of proof). In the end, the article concludes that another basic problem is that "these kinds of measures don’t do a thing to improve patient safety." The PopTort article is available here. The Wall Street Journal article is available here.

Saturday, September 12, 2009

More on the right to use force to defend property and in self defense

Prof. Jonathan Turley has a series of posts on his website on recent developments in this area. For example, go here for a report of a recent case in Montana in which Prof. Turely explains that "For years, legislators have been passing “castle doctrine” laws or “Make My Day laws” that allow homeowners to use lethal force against anyone who enters their home. While these laws have produced a wide range of controversial shootings (here and here and here and here and here and here), legislators have continued to expand their scope to businesses, cars, and other areas while also expanding the right to carry concealed weapons into churches, bars, schools, school games and workplaces. Some of these laws are called “Make My Day Better laws,” which allow the use of lethal force outside of the home to repel criminals. Montana’s law has sweeping language to protect the “natural right” to use lethal force." Go here for a dicussion of a similar case out of Texas and here for a note on a case in England.

Friday, September 11, 2009

Defense of property, self defense, defense of others etc

The other day in class we discussed the different "privileges" or "defenses" to intentional torts including the so-called "shopkeeper's privilege" and the rights to self defense, to defend others, to defend property and to recover property. By coincidence, I just came across this video in another website, which in a way seems to implicate most of them. It shows the same scene from 4 different angles. The first one suggests a robbery.  Keep watching....


Most interesting stories this week

It's Friday, which means it is time for the TortsProf Blog's list of the most interesting stories for this week (availalble here.)

Thursday, September 10, 2009

Interview with Tom Baker, author of The Medical Malpractice Myth

The Medical Malpractice Myth is a very good short book on the arguments for and against medical malpractice tort reform. For an excerpt of the book go here. A couple of weeks ago, the New York Times published a short interview with the author of this book in which he discusses why he thinks that tort reform doesn’t accomplish the goal of bringing down costs. The interview is available here.

Reaction to Pres. Obama speech on health care reform (as it relates to torts)

There are a lot of articles out there today about President Obama's speech on health care reform. A few of them are reacting (negatively) to his comments regarding medical malpractice reform. The Center for Justice & Democracy, for example, published a statement strongly opposing what it calls "President Obama’s plan to implement Bush Administration measures to limit the legal rights of severely injured patients," arguing it has apparently become part of the health care discussion "as a bargaining chip to reduce Republican opposition to much needed health care reform." See the statement here. The PopTort Blog has two good posts on the subject with lots of links to more articles and information. See here and here. An article in the Wall Street Journal (available here) states that "[I]n an effort aimed at key Republican negotiators in the Senate, the White House outlined a new pilot program to move medical-malpractice cases out of the court system and put them before expert panels and arbitrators. White House officials say the program, first floated by President George W. Bush, would be instituted by executive order and wouldn't be included in the health-care legislation." For another WSJ article go here.

Tuesday, September 8, 2009

More on the reach of Iqbal

Last month I wrote about the consequences of the U.S. Supreme Court case Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), in which the Court decided 5-4 that the plaintiff's claim should be dismissed because he had neglected to present concrete factual evidence of his claim at the time that he filed it. See here and here. The debate has centered on whether the decision would be expanded to any kind of case. It appears that it has. The case is being used in support of motions to dismiss with increasing frequency in all types of cases. Today, Jon Siegel published a short comment in Concurring Opinions criticizing the consequences of the decision using a recent dismissal in a slip and fall case. He writes: "Plaintiff alleged that she slipped and fell on liquid on the floor of defendant’s store. Insufficient! says the district court. Plaintiff has to allege either that the store owner caused the liquid to be on the floor or that the owner had actual or constructive notice that the liquid was on the floor and failed to remove it within a reasonable time or warn the plaintiff of it. And how exactly is the plaintiff supposed to make these allegations without discovery? This is what’s wrong with Iqbal. Of course if the plaintiff can’t prove all the elements of her claim under the applicable substantive law, she will ultimately lose. But what does it matter if every last point is in the complaint? The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible. We don’t need any more to get started. There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment." For the full story, go here.

Should courts reopen cases vs Toyota following allegations of destruction of evidence?

A few days ago I reported the news that a former high-ranking attorney for Toyota alleged that the auto maker conspired to illegally conceal and withhold evidence in Toyota rollover lawsuits. (see here) and I said "if true, this would be huge! Stay tuned." Today, is reporting that following those allegations "several attorneys are attempting to reopen cases against the automaker." Go here for the full story.

Friday, September 4, 2009

South Africa drops opposition to Alien Tort Statute claim

There have been a lot of news this year about cases based on the Alien Torts Statute, which recognizes the right of foreign nationals to sue in US federal courts to recover for injuries caused by conduct that constitutes a violation of the law of nations. See here for recent posts on the topic. These cases included claims against Pfizer for allegedly testing drugs without consent on African children and against Shell Oil for aiding and abetting in crimes against humanity in Nigeria. Last April, federal district court Judge Shira Scheindlin denied motions to dismiss claims that Ford, General Motors, IBM, UBS and others aided and abetted crimes committed by the apartheid regime in South Africa. Today, is reporting that the South African government announced that it had dropped its opposition to the litigation. Such opposition could have been a major obstacle for the plaintiffs' claim because it could have supported a finding that either the claim should be transfered to the South African courts or that the claim implicated a political question which would have eliminated the jurisdiction of the court. For more on the story go here.

Tort reform takes effect in Oklahoma

Bad news for victims of injuries in Oklahoma. The new tort reform law that was adopted earlier this year takes effect Nov. 1. (Go here for previous posts and links on this.) The legislation puts a cap on non-economic damages and abolishes joint and several liability.

Most interesting stories this week

It's Friday, which means it is time for the TortsProf Blog's list of the most interesting stories for this week (availalble here.)

Thursday, September 3, 2009

More on the Pfizer settlement has a story on the Pfizer settlement I mentioned yesterday. See here.

Wednesday, September 2, 2009

Pfizer agrees to pay $2.3 billion

The Wall Street Journal is reporting today that Pfizer and its subsidiary, Upjohn, have agreed to pay $2.3 billion to settle criminal and civil liability arising out of the illegal promotion of painkiller Bextra, which was pulled from the market in 2005, as well as a handful of other drugs. As part of the agreement, Pfizer agreed to plead guilty to a felony violation of the Food, Drug and Cosmetic Act for misbranding Bextra with the intent to defraud. The company has also settled civil charges related to Bextra, schizophrenia drug Geodon, antibiotic Zyvox, and anti-epilepsy drug Lyrica. Go here for the full story. More on the FDA Law Blog here. Also in here.