Friday, October 30, 2009

Jury finds Louisville Slugger liable in case about aluminum bat

I remember having read and heard debates about the safety of aluminum bats used in baseball at the high school and college levels (they are not allowed in the professional leagues). I remember reports saying that the bats provide a tremendous level of force to the ball which then travels at a much higher rate of speed toward the fielders. Under such circumstances, players in the infield, particularly pitchers and third basemen are very vulnerable because of the very limited time they would have to react to a sharply hit line drive.

Yesterday, I saw in several sources around the internet a story that a jury in Montana imposed liability on Louisville Slugger, the baseball bat manufacturer, for failing to provide adequate warnings about the dangers posed by aluminum bats and awarded $850,000 to the family of an 18 year old who died when hit with a baseball while pitching in a game in 2003. Go here for the full story and some interesting comments criticizing the decision. This site has the story and links to other related stories. More versions of the story are linked here.

The arguments against this type of verdict are not new: that kid assumed the risk, that a warning would not have made a difference, that plaintiffs lawyers are just using the system to bring frivolous lawsuits, that cases like these result in ridiculous warnings on all products, etc etc.

I think these arguments miss the point. First of all, no one has ever argued that a warning makes a product safer. A warning just provides information that the consumer can then use to make decisions on how to protect him/herself given the risks involved in using the product.

Second, it is true that there are some products (and some activities) that are inherently dangerous, but this does not mean that everyone understands the level of risk they pose.

 Finally, and I think most importantly in this case, sometimes we need to ask whether a product is so dangerous that it should not be used at all, period. I understand you can't play baseball unless the hitters use a bat...duh! But it does not have to be an aluminum bat! Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won't eliminate all the risk, but it is safer.

Now, some argue the result would have been the same even if the bat had been made of wood. I have no expertise on that question, but I can concede that may be true in some cases. I am sure it is not true in all cases, though, and it is those cases that matter.

Also, if it is true that the death in this case would have happened even if the bat used had been a wooden bat, I wonder how come the defendant did not get the case dismissed early on arguing that the plaintiff could not establish cause in fact. Did they not have an expert ready to testify? Aluminum bats are probably ok for very little kids who do not generate the bat swing speed necessary to make much of a difference (and for many of whom a wood bat would be too heavy), but as the kids get bigger and stronger the leagues should move to wooden bats.

Jury awards $16.6 million in "Hold your wee for a wii" wrongful death case

Readers of this blog may remember that I have been following the story behind the "hold your wee for a wii" radio contest which ended in a contestant's death from water intoxication. If you don't remember what this case was about, go here and here first. Now comes the news that the trial is over and the jury has awarded $16.6 million to the family of the victim. Go here for the full story. Thanks to the TortsProf Blog for the link.

This Week's Top Stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here for my own selection of top news stories.

Thursday, October 29, 2009

Should suicide be considered superseding cause?

On November 4 at 10:00 am the Court of Appeals for the Seventh Circuit will hear oral arguments in case called Johnson v. Wal-Mart Stores Inc. the issue of which is whether, under the facts of the case, the decedent's conduct in committing suicide was a superseding cause that should relieve the defendant of liability. The alleged facts of the case are as follows: Wal-Mart Stores Inc. sold a woman firearm ammunition without asking her to produce an Illinois Firearm Owners Identification Card. Selling ammunition to anyone who does not have such a card is illegal under Illinois law. The woman did not have such a card because she had been a mental patient within the previous five years. After she purchased the ammunition, she returned to her residence, loaded a revolver and shot herself in the chest. She died the next morning. Her husband filed a wrongful death lawsuit against Wal-Mart and Wal-Mart replied by filing a motion to dismiss arguing the plaintiff's allegations did not meet the element of proximate cause because the suicide was an unforeseeable event that relieved Wal-Mart of liability for negligence in selling the ammunition. The lower court granted the motion to dismiss and the plaintiff appealed. The lower court's decision is reported in 587 F.Supp.2d 1027 (C.D.Ill. 2008).

Article on the US Chamber of Commerce and its pursuit of tort reform

Here is a link to a recent article on the US Chamber of Commerce's pursuit of tort reform. The article discusses how, in 1998, the U.S. Chamber created something called the Institute for Legal Reform to pursue the Chamber's "so-called "tort reform" agenda: protecting corporations from liability, weakening the civil jury system and blocking the courthouse door for sick and injured Americans" and that this week the ILR issued some easy-to-follow instructions for states seeking to wipe out the legal rights of people injured by corporate wrongdoing, as well as a "how to" guide to make sure that states appoint the right kind of judges, saying judicial selections shouldn't be "political."

New report concludes FDA is inefficient; is anybody surprised?

A new congressional report from the Government Accountability Office (GAO) indicates that the FDA has failed to follow up on unproven drugs that are put on the market through an accelerated approval process, and has no mechanism in place to remove those drugs when they prove to be unsuccessful or dangerous. Go here for the full story.

Illinois Supreme Court rules no need for experts in NIED case

In a decision released TODAY, the Illinois Supreme Court holds that a plaintiff does not need to support a claim for negligent infliction of emotional distress with expert testimony. Specifically, the court stated that "[w]e hold that expert testimony, while it may assist the jury, is not required to support a claim for negligent infliction of emotional distress" and that "[t]he absence of medical testimony does not preclude recovery for emotional distress. Rather, “[t]he existence or nonexistence of medical testimony goes to the weight of the evidence but does not prevent this issue from being submitted to the jury.”" The court concluded, therefore, that the jury can reasonably find whether the circumstances of a case cause emotional distress based on personal experience.

This is a particularly timely and interesting development given the fact that just yesterday we began our discussion of negligent infliction of emotional distress in my first year Torts class!

In class, we discussed the development of the tort from the days where courts felt we did not know enough about emotional distress to recognize a claim at all, to the days when courts said we don't know enough about it to allow the claim absent physical manifestations and so on. Illinois had abandoned the requirement of showing physical manifestation already years ago. With this decision, Illinois has moved the history of the tort even further.

The case is Thorton v Garcini and it is available here.

Illegal promotion of products that caused injury results in indictment

Stryker Biotech and its top management have been indicted by the U.S. Department of Justice (DOJ) on charges that they committed fraud and illegally promoted medical devices used for bone surgery, which resulted in serious medical problems for some patients. Go here for the full story.

Zicam lawsuit reinstated

A Zicam class action suit that was originally filed in 2004 was wrongly dismissed and should be reinstated, according to a federal appeals court. The lawsuit claimed that Matrixx Initiatives, Inc. hid evidence from investors that certain types of Zicam Cold Remedy could cause people to lose their sense of smell. Go here for the full story.

Monday, October 26, 2009

Fleeing the scene of an accident

Here is another interesting little video courtesy of Prof. Jonathan Turley:

Sunday, October 25, 2009

Liability for allowing friend to drive drunk?

Here is a link to the disturbing story of a woman who killed a child while driving drunk a few days ago. According to the story, a 31 year old woman got drunk at a party and then drove away with seven little girls in the car. She crashed the car, took her own daughter out of the car and ran away leaving the other six girls to fend for themselves. One of them, an 11 year old, died on the side of the road. The driver had more than one and half times the legal limit in her blood stream. The torts issue arises out of the fact that reportedly, more than one person at the party confronted the woman about driving in her condition but aparently noone tried to actually stop her. The story states that one of the woman's friends told her boyfriend that she was not fit to drive. The boyfriend confronted her and when she insisted on driving, he pulled his 14-month-old boy out of the car. Obviously, the driver should be liable for her conduct. In fact, a torts claim may be the least of her worries as she will be charged with manslaughter. But should the other people in the party who knew she was drunk and intended to drive a car full of kids be liabile in tort? Usually, courts do not impose liability on social hosts for allowing friends to drive drunk, but this is so, at least in part, because it is assumed that social hosts are not experts at determining when someone is intoxicated or incapable of driving. In a case like this one, when the evidence shows those people did know enough to confront the driver, shouldn't the court allow the case to survive a motion to dismiss and give a chance to the plaintiff to bring their case before a jury? Or, should we limit the possible liability to that of the driver? According to the story, the district attorney is considering bringing criminal charges against the bystanders who did not stop the woman from driving. If their conduct is in fact a violation of a criminal statute, doesn't that provide support for a claim in tort law? On the other hand, there is this question, raised by someone else, "what if the adults at the party took away [the woman's] keys or otherwise prevented her from driving, and she turned not to be legally intoxicated, would she have a claim against them?" Go here for the disturbing details of the story (I have left out some details that make the woman's conduct even more reprehensible) and here for some commentary and links to more information. This has been an interesting year for stories related to issues of liability for alcohol related injuries. For the other stories I have discussed on this issue go here. Thanks to Prof. Jonathan Turley for this story.

Friday, October 23, 2009

This week's top stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here for my own selection of top news stories.

The battle to undo Iqbal heats up

I already commented on how the battle lines over the consequences of the decision in Ashcroft v Iqbal have been clearly drawn. (See my posts on August 9, August 14, September 8, September 19, September 21, October 12 and October 22). The Drug and Device Law Blog is reporting today that on Tuesday, October 27, the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties will hold a hearing on the pleading standard established by Ashcroft v. Iqbal under the title "Access to Justice Denied -- Ashcroft v. Iqbal." Evidently, the title suggests the initial take on the case is not going to be positive. More on the story here.

Off road vehicle accidents lead to new federal standards

Following concerns about the number of serious injuries and deaths with Yamaha Rhinos and other recreational off-highway vehicles (ROV), the U.S. Consumer Product Safety Commission (CPSC) indicated Thursday that new safety standards will be enacted. The federal regulators published advance notice of proposed rulemaking (ANPR) to invite comments from the public about the risk of injury associated with these vehicles. Go here for the full story.

Thursday, October 22, 2009

More recent articles on Ashcroft v. Iqbal and related issues

Here is a link to yet another recent article on recent developments in the area of proper pleadings in torts cases. I have blogged before about this on August 9, August 14, September 8, September 19, September 21 and October 12.

Patient safety and the health care bill debate

Go here for a comment and several links to more articles on the topic of medical malpractice and the health care debate.

Tuesday, October 20, 2009

Limits on testimony of experts witness in med mal case

The other day I mentioned in class that one way in which medical malpractice "reformers" have attempted to limit plaintiffs' claims is by making it difficult for them to find experts willing to testify for them. Here is an example: the Maryland Court of Appeals has decided a case holding that a proffered expert witness in a medical malpractice case was properly prevented from testifying at trial "when the expert devoted annually more than 20 percent of his professional activities to activities that directly involved testimony in personal injury claims." Here is the link to the case. Thanks to the Legal Profession blog for the info.

Warning added to Super Poligrip while manufacturer is sued for products liability

A new insert has been added to Super Poligrip warning users that the denture cream contains zinc, and that use of excessive amounts can cause “serious health effects”. The warning comes as the manufacturer, GlaxoSmithKline, faces a number of Super Poligrip lawsuits filed by individuals who claim to have suffered severe and debilitating injuries as a result of zinc poisoning from the denture adhesive. Go here for the full story.

A video is worth a thousand words

Today's video brought to you courtesy of Prof. Jonathan Turley:

Monday, October 19, 2009

Article on tort law theory

Here is a link to a short article that laments the seeming absence of critical theory as an influential approach to current tort theory (which seems to be domintated by “law and economics” and “corrective justice.”) The author discusses her book, The Measure of Injury: Race, Gender and Tort Law in which she tries to connect critical theory more closely to tort law by exploring how race and gender have shaped contemporary U.S. tort law.

Saturday, October 17, 2009

Dram Shop/Social Host Liability?

I have discussed elsewhere issues related to possible liability for injuries casused by intoxicated persons, including the question of whether there should liability on social hosts. See here for a list of posts on these issues. As is widely known, most jurisdictions do not recognize a cause of action against a social host for the injuries caused by guests who leave the hosts' house intoxicated. Many courts have stated that, in part, this result is justified by the fact that social hosts are not experts at determining who is intoxicated. Should this be left to be decided on a case by case basis? Would you be inclined to impose liability on a social host who allowed the guy in the video below to drive away from their parties?

Friday, October 16, 2009

Article by Ralph Nader on Medical Malpractice

Here is a link to an article by consumer advocate Ralph Nader in response to the CBO's flawed report on medical malpractice.

This week's top stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here for my own selection of top news stories.

Mattel and Fisher Price agree to settlement over lead paint toys

Mattel Inc. and its Fisher-Price subsidiary have agreed to settle a consumer lawsuit for what could total more than $50 million over the 2007 recall of millions of toys made in China that were found to contain high levels of lead, the company said Tuesday. The proposed settlement will resolve 22 suits filed against Mattel and Fisher-Price and major retailers on behalf of millions of families who purchased or received the defective toys as gifts before they were recalled or withdrawn from market. Go here for the full story.

Verdict in important defamation case

Back in March I commented on a decision by the Court of Appeals for the First Circuit that which, applying Massachusetts law, found a plaintiff can sustain a defamation claim even though the statement upon which the claim was based was true (here, here and here). The case was remended for trial and earlier about a week ago the jury issued a verdict in favor of the defendant. Go here and here for the full story.

Ford sued, again, for defect in gas tank placement; Recall of other models

For years the Ford Crown Victoria, which is used by police agencies throughout the United States, has been linked to the deaths of police officers in fires after crashes. A few days ago, the family of an Ohio police officer has filed a product liability lawsuit against Ford, saying that the defective design of a Crown Victoria led to the officer’s death. Among other things, the complaint alleges that Ford the car is defective because its gas tank is placed in the vehicle’s rear crush zone. Wasn't this the same allegation that resulted in the Pinto fiasco in the 70s? Go here for the full story. In more bad news for Ford, the company has announced it has recalled 4.5 million vehicles due to a faulty cruise control deactivation switch, which may cause the vehicles to catch fire even when turned off. The recall is the largest recall in the company’s history, and the eighth recall connected to the cruise control deactivation switch. To date, 16 million vehicles have been affected by a Ford cruise control recall, making it the overall largest automotive recall in history. Go here for the full story.

Thursday, October 15, 2009

Report on Health Care, Med Mal and Tort Reform

The Center for Justice & Democracy has published a response to the Congressional Budget Office's memo which estimates that a $500,000 cap on punitive damages and a $250,000 cap on pain-and-suffering damages would save $54 billion over ten years and lower liability insurance premiums by 10%. The CJ&D's report concludes that the Congressional Budget Office's memo is based on a small handful of studies, several of which are noted to contradict each other. It also finds that the CBO's memo only finds an extremely small percentage of health care savings and that the CBO virtually admits that to the extent defensive medicine exists as all, it can be controlled through simply managing care correctly as opposed to taking away patients’ rights and possibly killing and injuring more people. Finally, the report concludes that tort reforms can increase costs rather than save them. "The only logical conclusion", says the CJ&D's report, "is that not only should Congress not enact this measure, but states should repeal these laws, as well." The CJ&D's report is available here.

Bankruptcy Judge has had enough

US Bankruptcy Judge Alan Jaroslovsky has had enough incompetent lawyers appearing in his courtroom; so he has given them the following notice: NOTICE TO BAR REGARDING INDIVIDUAL CHAPTER 11 CASES There has been a recent spate of individual Chapter 11 cases filed by attorneys who have neither the experience nor the education nor the competence to venture into Chapter 11. I believe that there are very few bankruptcy lawyers other than State Bar certified specialists who should be contemplating representation of Chapter 11 debtors in possession. I see rampant errors being made in issues relating to cash collateral, conflicts of interest, and compensation. The use of cash collateral without permission, even for necessary expenses, is usually fatal to Chapter 11 cases. There are procedures in place to obtain emergency permission to use cash collateral. If you don’t know them, you should not be taking Chapter 11 cases. A Chapter 11 is not just a big Chapter 13. If you represent a Chapter 11 debtor in possession, your client is the estate, not the debtor personally. Failure to understand this results in serious liability exposure. Forget about trying to fix your compensation. You will be paid what I allow, period. I suggest you not spend retainers until your fees are allowed to avoid having to return money you have already spent. I see frequent malpractice in individual Chapter 11 cases and I am quick to note it on the record. Your employment will not be approved unless you have substantial current malpractice insurance. If you are going “bare,” don’t even think about taking a Chapter 11 case. For the Judge's official home page go here. The link to this letter appears at the very bottom. Thanks to The Legal Profession Blog for the information.

Res Ipsa Loquitur? Are farmers liable for cow that falls from the sky?

In Spanish the word "res" means cattle and the Latin word "loquitur" sounds like it would be related to "loco" which means crazy, and "ipsa", well, I guess that just sounds fast... so in Puerto Rico, law students remember the concept of "res ipsa loquitur" by translating it as "la vaca corre como loca" -- which absurdly means "the cow runs like crazy". In the US, law students remember res ipsa loquitur from the famous old case of the barrel of flour that falls on the plantiff. Well, now comes today's crazy story about torts combining both of these, sort of... What if a cow, running like crazy, falls off a cliff and lands on the plaintiff? Like I tell my students, I don't make these things up! The story is available here and this is the first paragraph: "A cow fell about 200 feet off a cliff Sunday and landed on the hood of a minivan passing by Rocky Point about one mile east of Manson, officials said." In response, Prof. Jonathan Turley, who brought the story to my attention first, offers other bizarre bovine airborne stories here.

Maryland Ct of Appeals to review constitutionality of damages cap

About a month ago I reported that the Georgia Supreme Court was going to review the validity of the state's cap on damages in med mal cases (here). Now comes news that the Maryland Court of Appeals will hear an appeal that challenges the constitutionality of a damage cap that limits the amount of compensation plaintiffs can be awarded for non-economic damages in personal injury lawsuits. The cap has survived several challenges in the past. The Maryland damage cap was established in 1986, and specifies that a jury’s award for non-economic damages cannot exceed an amount that increases modestly every year. Interestingly, when awarding damages in Maryland lawsuits, jurors are not informed about the cap. Go here for the full story.

Illinois to hold hearings on nursing home safety

State Senators in Illinois are preparing to hold hearings on how to fix a growing nursing home problem in the state. A recent series of stories by the Chicago Tribune into the high number of assaults, rapes and murders inflicted on Illinois nursing home residents has sent local and state officials scrambling for answers and solutions. The Senate human services and public health committees have scheduled a joint hearing in Chicago for November 5, to discuss the problem and possible legislation to address it. For the full story and some links to more information go here.

$2.5 million verdict in case vs Pharma for birth defects caused by drug Paxil

In the first jury verdict out of more 600 Paxil lawsuits pending against GlaxoSmithKline, a Pennsylvania jury has found that use of the antidepressant during pregnancy resulted in birth defects for a three year old child and awarded $2.5 million in compensation. Go here or here for the full story.

Wednesday, October 14, 2009

Monday, October 12, 2009

Recent articles on Ashcroft v. Iqbal and related issues

I have blogged before on the controversy created by the Supreme Court's decision in Ashcroft v. Iqbal related to the level of proof needed to support a plaintiff's claim. See my posts from August 9, August 14, September 8, September 19 and September 21. Adding to this reading list, the Drug and Device Law Blog has posted a list of recent scholarship on the subject here.

Sunday, October 11, 2009

Should there be a cause of action when parents fail to seek medical help for religious reasons?

At the beginning of the year, I posted some comments on the issue of whether there should be a cause of action for injuries to a child when parents refuse medical services for religious reasons. (see here). That post was based on an article about a criminal case that had been filed in Wisconsin against the parents of a child who died when they refused to seek medical treatment for her.

The Wisconsin case was finally decided last week, just within a day of another similar case in Pennsylvania. In both cases the courts imposed light criminal penalties on the parents. In both cases, it is likely that the children would have recovered fully had they been given medical attention, but the parents declined to get medical attention in favor of engaging in prayer. (For a comment on the issues raised by the fact that courts often impose light sentences in cases like these go here and here.)

If states have the authority to impose criminal sanctions for conduct that the actors claim is based on religious faith, couldn't states recognize a cause of action in tort against the parents, or the church they belong to, in a case like this?

I have not updated my research on this subject recently, but as far as I remember, the last time I taught the subject, there were very few cases that imposed civil liability in similar cases. Two cases cited often on this issue are Lundman v McKown, 520 NW2d 807 (Minn App 1995) and Quigley v First Church of Christ Scientist (Calif App 1998). In both cases, the courts rejected the cause of action against the church itself, but in Lundman the court recognized a claim against some members of the church who, according to the court, owed a duty to the child.

If you are interested in this subject you may also want to take a look at a short article called Life and Death Laywering: Dignity in the Absence of Autonomy by Theresa Stanton Collette, published in the Journal of the Institute for the Study of Legal Ethics in 1996, which explores the duty of the attorneys appointed to represent children whose parents want to deny them access to medical treatment.

UPDATE 4/25/13:  The parents in the Wisconsin case have just been arrested again after another one of their children died. See here.

Update 7/10/18:  Here is another case with the same issue, this time in Oregon: another guilty plea by the parents of a newborn baby who died after they refused medical treatment.

Saturday, October 10, 2009

Last Week's Top Stories

Go here for the list of last week's most interesting Tort Law stories as selected by the TortsProf Blog. In addition, go here for my own selection of top news stories.

Thursday, October 8, 2009

Ct of Appeals for the 2nd Circuit issues important opinion re Alien Torts Statute

There has been a lot of litigation under the Alien Torts Statute in the past few years. (Go here for posts on some of those recent developments.) The statute, which was enacted in 1789 and is codified in 28 U.S.C. §1350, provides jurisdiction to federal district courts over claims filed by aliens for injuries allegedly caused by conduct that constitutes a violation of the law of nations.

As the use of the ATS as a remedy for damages became more popular, some plaintiffs began to argue that aiding and abetting the violation of international law is itself a violation of international law and, eventually, courts recognized the validity of a cause of action for "aiding and abetting" the commission of a violation of the law of nations. The recognition of this new type of cause of action under the ATS created the need to address yet another difficult question: whether the concept of aiding and abetting should be defined according to international law sources or according to the law of the US.

One of the best discussions of the different approaches to this question was provided by the concurring opinions of two judges of the Court of Appeals for the Second Circuit in a case called Khulumani v. Barclay Nat’l Bank, decided in 2007. In a per curiam opinion the judges recognized the validity of a claim based on a theory of aiding and abetting under the ATS but they disagreed as to the analysis that should be used to resolve those claims. In separate concurring opinions, Judges Katzmann and Hall debated the issues and argued for the different approaches. In doing so, they openned the door to a debate that the Court finally resolved just a few days ago.

In his concurring opinion, Judge Katzmann argued that the proper source to define the requirements of a cause of action for aiding and abetting a violation of the law of nations should be international law. For this reason, following the formulation of aiding and abetting in several international law sources, he also argued that to support a claim for aiding and abetting under the ATS, a plaintiff would have to prove that the defendant provided practical assistance which had a substantial effect on the perpetration of the crime, and that the defendant did so with the purpose of facilitating the commission of the violation of international law at issue in the case.

Judge Hall, on the other hand, argued that the proper standard for aiding and abetting claims under the ATS should be the US federal law and that, following that view, a plaintiff would only have to show that the defendant furthered a violation of a clearly established international law norm by knowingly & substantially assisting the principal tortfeasor to commit the act. In other words, in contrast with Judge Katzman’s analysis, which would require proof of intent on the part of the defendant, Judge Hall would have found a showing of knowledge sufficient.

The question of whether a plaintiff has to show intent or can get by showing just knowledge was not settled until six days ago when the court issued an opinion in The Presbyterian Church of Sudan v. Talisman Energy, Inc. which is available here.

In this new opinion, the court explicitly adopts Judge Katzmann’s proposed rule/analysis in his concurring opinion in Khulumani as the law of the Circuit, stating that: "Thus, applying international law, we hold that the mens rea standard for aiding and abetting liability in ATS actions is purpose rather than knowledge alone. Even if there is a sufficient international consensus for imposing liability on individuals who purposefully aid and abet a violation of international law . . . no such consensus exists for imposing liability on individuals who knowingly (but not purposefully) aid and abet a violation of international law."

Court of Appeals for the 7th Circuit interprets Illinois law related to Res Ipsa Loquitur

Earlier today I posted a quote from a new case out of the Court of Appeals for the 7th Circuit on the importance of preserving evidence and making sure the judges have a clear picture of the facts, so to speak (here). At the bottom of that note, I mentioned that the case was about the possible application of the doctrine of res ipsa loquitur. Here is a comment about that part of the case.

 In the case, to support its argument that the defendant breached its duty of care, the plaintiff tried to rely on the doctrine of res ipsa loquitur, which allows a plaintiff to prove negligence by showing that even if there is no direct evidence of negligence, the circumstances of the accident indicate that it probably would not have occurred had the defendant not been negligent. The Court then proceeds to interpret Illinois law on the subject as it relates to two very important aspects of res ipsa loquitur: the so-called "requirement" that the instrumentality that causes the injury be under "exclusive control" of the defendant and the procedural effect that the application of the doctrine should have.

As to the issue of "control", the court adopts what has been the modern trend: to minimize the importance of this factor -- or to eliminate it entirely -- from the analysis. The notion that the object that causes an injury has to be under the exclusive control of the defendant can't be read strictly because doing so would limit the application of the doctrine too much. Courts have never required a strict application of this factor. At most, it can be said that the control must refer to control at the time of the possible negligence (not at the time of the accident -- which is the interpretation the defendants always argue since usually it is the plaintiff who is using the product when the accident happens).

Coming just short of saying the question of control is irrelevant, the court states the following: "The black-letter statement of the doctrine is that the thing that caused the plaintiff’s injury must at the time of the accident have been under the defendant’s control. But as the Prosser treatise points out. . . this formulation (like so many blackletter statements of rules) should not be taken literally, as it implies that the doctrine could not be invoked in a case in which the brakes on a new car fail and the manufacturer is sued. . . ." It should be noted that the Restatement 3d of Torts eliminated the element of control from its "blackletter" description of the doctrine. 

As to the question of the effect of the application of the doctrine in Illinois, the court had this to say: "The parties manage to avoid telling us what the effect of the doctrine is in a lawsuit governed by Illinois law. Does the doctrine merely allow the trier of fact to infer negligence—is it in other words just an illustration of the use of circumstantial evidence to create a prima facie case? Or does it create a presumption of negligence that entitles the plaintiff to judgment unless the defendant presents evidence in rebuttal, or that even shifts the burden of persuasion to the defendant? In Illinois, as in most states, . . . it is just a type of circumstantial evidence (which raises the question, why treat it as a separate doctrine?)."

 Note the little challenge thrown in there by the judge... can we really explain why we treat RIL as a "separate doctrine" if all it is is a form or circumstantial evidence with a fancy name? The case is Aguirre v. Turner Construction Company.

Battery with dog...?

Prof. Jonathan Turley is reporting today on the criminal law implications of throwing a dog at somone else in Nebraska. Could that same conduct be the basis of a tort claim for battery? As you read the statement below remember that "assault" is the word used in criminal law to describe what we would call "battery" in torts. Here is Prof. Turley's comment: "A woman in Lincoln, Nebraska has been charged after she allegedly threw a Jack Russell Terrier at an officer. It appears, however, that in Lincoln a charge of assault requires a dog as large or greater than a Bulldog to constitute assault on an officer. Instead, she was arrested on suspicion of domestic assault. The charge itself is due to her alleged throwing of a cell phone that hit her boyfriend in the face. That would suggest throwing live animals is technically permissible while electronics falls squarely under the criminal code. Under the Nebraska code, a toy poodle is a misdemeanor. A Boxer is a simple felony of assault. A Mastiff is an aggravated felony. Many Nebraska residents, however, keep a small dog in the glove compartment for traffic stops and a larger breed at home for no-knock searches."

More lawsuits vs pharma for alleged injuries caused by birth control pills

Two pension funds for firefighters and city employees in Pennsylvania have filed a lawsuit against Bayer, saying that the drug maker hid health risks and misrepresented the effectiveness of its popular birth control pills Yaz and Yasmin. The complaint joins over 300 other lawsuits pending against the pharmaceutical company over problems with Yaz and Yasmin. For more on this story (including links to more information) go here.

Pharmaceutical kept information from doctors in order to market drug

Internal documents disclosed during the litigation over Seroquel suggest that AstraZeneca continued to promote the antipsychotic drug as weight neutral, years after clinical evidence demonstrated significant Seroquel weight gain problems for users, which could lead to diabetes and other serious side effects. For the full story (with lots of links to more info) go here.

Why it is a always a good idea to take a picture

Yesterday in class we discussed the concept of evidence as it relates to torts cases. As part of that discussion we talked about the "banana peel cases" and the notion that the condition of the banana may prove how long it was lying on the ground. Sound familiar? 

 Well, in any case, at some point in this discussion I usually ask something along the lines of "what evidence can you bring to prove how long the banana was there?" and someone always says "the banana peel" (which is the right way to think about it)... but then I remind them that the trial is happening years later and "the" peel is long gone. So I mention the importance of preserving the evidence, taking photos, making sure they are time stamped etc. 

 Now, at 5 in the morning when I am sitting here with nothing better to do than catching up on my reading I just saw this new case out of the court of appeals of the 7th circuit decided about a week ago called Aguirre v. Turner Construction Company where judge Posner has this to say to the lawyers who litigated the case: 
 "A difficulty in understanding the evidence has arisen, however, from the lawyers’ regrettable failure to include in the record a diagram or photographs (other than some unreadable copies of photographs) that would have given us judges an intelligible picture of the scene and circumstances of the accident. A duplicate of the scaffold was exhibited at trial, but no photo or drawing was made of it. We have pointed out that when the appearance of something is material to a case—it could be a copyrighted picture, a trademark, or, as in this case, the scene and instrumentality of an accident—it is better to show us a picture than to try to describe the object or scene just in words. . . . The lawyers at argument did their best with words and hand gestures to depict the scene of the accident for us, and we think we get it, but they would have done better to honor the adage that a picture is worth a thousand words." 
 Enough said. Your cellphone has a camera. Use it. 

 ps: the case is also about the concept of res ipsa loquitur, which we will discuss in class next week... so, more about the case later...

Wednesday, October 7, 2009

Video on Hold your wee for a wii

Video on the "Hold your wee for a wii contest."

"Hold Your Wee for a Wii" Trial Ends

The TortsProf blog is reporting today that the trial in the infamous "hold your wee for a wii" radio contest has ended. If you don't remember what this case was about, go here and here first. For more current information, TortsProf is providing the following helpful links: for an overview of the trial go here. For complete trial coverage go to this blog. Thanks to William Childs for the info and the links.

Tuesday, October 6, 2009

More problems for Toyota: recall for defects, 2.5 years too late

About a week ago, the news came out that a former high-ranking attorney for Toyota alleged the auto maker conspired to illegally conceal and withhold evidence in cases related to rollover accidents (see here). Then, a few days later, a federal judge issued a temporary restraining order against Toyota, ordering it not to destroy any evidence on the crashworthiness of its vehicles. (see here). Go here for an update on that part of the story. Now there are reports that Toyota has announced a recall of 3.8 million Toyota and Lexus vehicles due to problems with the driver’s side floor mats, which can cause the accelerator to stick and result in a loss of vehicle control. Go here for the full story. But wait! There is more: is reporting today that Toyota knew about potential floor mat problems more than two and a half years before issuing the recall. In fact, according to a report in the New York Times, officials at the National Highway Traffic Safety Administration (NHTSA) began investigating potential problems with Toyota and Lexus floor mats as early as March 2007, after receiving complaints from Lexus ES 350 owners that their vehicles were suddenly accelerating out of control. However, it wasn't until after a fatal auto accident in August 2009, where 4 people died that NHTSA officials met with Toyota to discuss concerns about continuing complaints of uncontrollable acceleration in Toyota and Lexus vehicles. Go here for more on this story.

Another Court Rules Against Preemption in Generic Drug Case

Last week, the U.S. District Court for the District of New Hampshire ruled that various state law tort claims brought against generic drug manufacturer Mutual Pharmaceutical Company, Inc. are not preempted by FDC Act. The decision is the latest in a string of cases in which courts have ruled that state law tort claims alleging the defective labeling of generic drugs are not preempted. The case is called Bartlett v. Mutual Pharma. Co. and it is available here. For more on the story including a list of all the recent cases on the subject go to the FDA Law Blog.

Review of the TV show "House"

Here is an interesting column that comments on legal issues raised by the TV show "House." I have never watched this show, but I enjoyed reading the column. It essentially illustrates a problem common to many other shows and movies: in the pursuit of a dramatic story, the screenplays involve people engaged in conduct that is not just incredible, it is criminal. Read the article here.

Compensation fund created in Peanut Corp bankruptcy but not in Chrysler bankruptcy

As part of the bankruptcy proceedings for Peanut Corporation of America, which processed and distributed millions of pounds of contaminated peanuts, peanut butter and peanut paste that sickened people throughout the United States with salmonella poisoning, a federal judge has issued an order calling for the creation of a $12 million fund from insurance proceeds to compensate victims. For the full story go here. In reponse to this news item, the PopTort has published a comment here lamenting how Chrysler, GM, numerous pundits and even the Obama administration argued not too long ago that wiping out the rights of those injured by those companies’ faulty products before they emerged from bankruptcy was unavoidable and/or simply par for the course in any bankruptcy proceeding.

Tort by Tuba

Thanks to Prof. Jonathan Turley for this video...

Monday, October 5, 2009

Important changes to Federal Rules of Civil Procedure

I recently commented on how missing a deadline in litigation is one of the dumbest things a lawyer can do (here and here).... Well, now comes word that important changes to the Federal Rules of Civil Procedure will go into effect on December 1, 2009 (unless Congress stops them) that will affect the way time is calculated in federal court litigation. In a nutshell, the changes seek to standardize how days are calculated by counting all days. If a deadline falls on a weekend day, a federal holiday, or a day when filing is impossible because the Clerk’s office is closed or inaccessible, then the deadline falls to the next available day. Deadlines shorter than 30 days have been changed to multiples of seven (7) days, so that more often than not, the deadline will fall on a weekday. The Rule that allowed for adding time for service by mail has been deleted. The Drafting Committee has asked the district courts to revise their Local Rules accordingly, and to do so effective December 1. If it is not the rules will be a mess to deal with. For PowerPoint presentations explaining the amended rules and their operation in court proceedings go to For more details on this story go to the Drug & Device Law Blog, which includes a list of the affected rules and other links.

Friday, October 2, 2009

Alaska newspaper attacks tort reform

The Anchorage Daily News has published an article criticizing Alaska's severe medical malpratice tort reform law in which it states, among many other things, the following: -- Even though Alaska has had tort reform measures in place for years, including a cap on non-economic damages adopted in 2005, tort reform has not helped drop health care costs for consumers. --Health care costs in Anchorage are on a steady upward trajectory -- they quadrupled between 1982 and 2009. --Health care costs have also continued rising in other states with tort reform including Missouri and Texas. --The Congressional Budget Office says there's no conclusive evidence that doctors are practicing so-called defensive medicine to an extent that would affect health care costs. --National tort reform will not yield the kind of cost savings that America needs in the health reform package. --In a one year study, the Congressional Budget Office noted that malpractice costs amount to less than 2 percent of overall health spending in one year. --Even a 25 percent to 30 percent reduction in medical malpractice premiums would not significantly affect total health care costs. --The threat of medical malpractice lawsuits cuts down on health spending because it puts pressure on medical professionals to avoid common medical errors. The article then concludes that "[w]hat it all adds up to: Even if tort reform could cut overall health care costs -- which there's no proof it will -- we shouldn't count on tort reform for big savings. BOTTOM LINE: Alaska's experience and that of other states suggest tort reform isn't going to do much to cure costly flaws in the American medical system." The full article is available here. A comment on the article is available here.

Most interesting stories of the week

It is Friday, which means it is time for the list of the most interesting Tort Law stories of the week, as selected by the TortsProf website, which is available here. In addition, this week the website had a number of interesting stories, including the following: Chrysler wrongful death settlement approved by bankuptcy court Lawsuits mount over Fixodent and Super PoliGrip denture cream poisoning Judge issues order to preserve evidence of Toyota rollovers New York nursing care quality protection act signed into law New lawsuit against Bayer Pharmaceuticals alleging Yaz birth control pill causes pulmonary emboli and deep vein thrombosis New study reports that use some diabetes drugs may increase the risk of bone fractures

Thursday, October 1, 2009

Supreme Court to hear case re immunity for prosecutorial misconduct

On Wednesday, November 4, the U.S. Supreme Court will hear oral arguments in a case called Pottawattamie County, Iowa v. Harrington. It will be an important case with implications for the two courses I teach (torts and professional responsibility). The professional responsibility angle comes from the fact that the issue in the case originates in prosecutorial misconduct. Two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights. Prosecutors are lawyers subject to the ethical mandates of the rules of professional conduct. They have a lot of discretion in the performance of their functions but they are also considered ministers of justice whose main duty is to see justice done, not to advocate for a client or for a predetermined result.But this case is not about the misconduct. It is about a civil cause of action for damages based on the misconduct. As to that cause of action, the prosecutors contend that they have absolute immunity from liability. (The Obama administration has filed an amicus brief in support of this position, by the way.) Here is the interesting part: prosecutors generally have absolute immunity from civil liability for their conduct in the process of prosecuting the case, but in addition to being just prosecutors, prosecutors are members of the law enforcement team that investigates and "builds" the cases that they later prosecute. This "dual role" is simply part of their role in the system. Should their right to immunity (or, more accurately, the level of that immunity) change depending on the role they are playing at the time of the alleged violation of civil rights? In this case, the prosecutors' misconduct initially took place while they were involved in investigating the crime since they allegedly conspired with the police to manufacture false evidence. Their misconduct then continued during the trial since they presented perjured testimony. Therefore, the question is whether prosecutors should be entitled to absolute immunity when they engage in misconduct during the investigative phase of a case even if that misconduct is the basis for subsequent misconduct for which they have absolute immunity. For a lot more information, on this case copies of the briefs and other documents go to the Supreme Court Wiki site here. Thanks to the Drug & Device Law Blog for the info and links.

Former Toyota in house counsel turned whistleblower referred to disciplinary authorities for disclosing information

Here is another update on the continuing saga of the former in-house counsel for Toyota that claimed the company destroyed evidence in rollover cases: a judge has referred the lawyer to the State Bar of California for possibly violating the rules of professional conduct by disclosing confidential attorney-client information. For this aspect of the story go here.

Good Samaritan turned bad: Dr accused of abandoning rescue attempt to steal victim's Rolex

Prof. Jonathan Turley is reporting today that a California doctor has been sued for allegedly abandoning an effort to resuscitate man in order to steal his watch. The victim was brought into a hospital with cardiac arrest where the doctor assumed the responsibility of resuscitating him. The plaintiffs' argue that the Doctor then abandoned his efforts to resuscitate decedent leaving decedent to die in order to keep the victim's watch. According to the complaint, the nursing staff noticed that the timepiece was gone and then two nurses reportedly saw a wristwatch-shaped bulge in the doctor’s pocket. For more on the story, go here.

Drug companies hide results of bad clinical trials

A new study shows that drug companies regularly hide the results of bad clinical trials that may have a negative impact on their medications and attempt to only publish studies that show their products in a positive light. Go here for the full story.

Chrysler wrongful death settlement approved by bankruptcy court

A bankruptcy judge has approved a $24 million settlement for the family of a California longshoreman who brought a wrongful death lawsuit against Chrysler before the company went bankrupt. Go here for the full story.

Judge orders Toyota to preserve evidence

Following a whistleblower's claim that Toyota Motor Corporation had destroyed evidence relevant to a case about rollover accidents in some Toyota vehicles (see here and here), a federal judge has issued a temporary restraining order against Toyota, ordering the company not to destroy any evidence on the crashworthiness of its vehicles. Go here for the full story.