Friday, December 30, 2011

More end of the year lists - UPDATED

Continuing our coverage of the end of the year's lists, here is a link to Drug and Device Law Blog's Top Ten "Best" cases of the year.  I will let you know if Litigation and Trial blog posts a reply to this one as it did to the Top Ten "worst" cases list. (See here.)

UPDATE 1/3/11:  here is the reply in Litigation and Trial.

Wednesday, December 28, 2011

Another end of the year top ten list

Here is a non-law related list of interest:  Top ten science blog posts of 2011, as selected by Smithonian magazine's Surprising Science blog.  Smithonian is my favorite magazine, by the way.

End of the year "Top ten lists"

As usual, around this time of the year we start seeing "top ten lists" for everything.  Here are a few lists of interest:

Abnormal Use has a list of their favorite posts from their own blog here. It is a good one.  Note that it is in chronological order, rather than the more typical "top ten" order.  Also note that the second one of their posts from way back in February involves a discussion with me!  Does that make my comments one of the top ten of the year too?

Drug and Device law blog has a list of what they consider to be the worst cases of the year here.  If you take the time to read this list, you must also read the next one.

Litigation and Trial has a great response to Drug and Device here, in which it argues D&D is wrong about these cases. 

Similarly, The Week has a list it calls the 8 craziest (by which it means most frivolous) lawsuits of 2011, and David Waterbury and Eric Turkewitz reply to it here arguing many of these cases are not frivolous at all.

Finally, take a look here for the Top Legal Ethics Stories of the Year list as compiled by the Legal Ethics Forum.

Thursday, December 15, 2011

Report of possible mass tort scandal in France

Prof. Jonathan Turley is reporting today (here) that France is experiencing a massive tort scandal after it was discovered thousands of women were given breast implants containing industrial silicone rather than medical silicone.  He recently also reported on cases in the United States of people posing as doctors who performed procedures for others using materials purchased from auto and home repair stores. (See here).  However, these cases do not come close to the French scandal. Over 30,000 women in France (as well as some in Spain and the UK) may have had the defective products from Poly Implant Prosthesis (PIP).  PIP is one of the world’s leading producers of the implants and reportedly saved €1 billion a year by using industrial silicone instead of medical-grade fillers. The company has now closed after women developed cancer and other illnesses.

On a side note, if these cases were ever to be litigated one would think they would justify the imposition of punitive damages.  However, it is unlikely that France recognizes punitive damages.  

Wednesday, December 14, 2011

Why is my blog not communicating with Google Reader?

I just noticed that Google Reader is not updating the posts on this blog.  The last post my reader shows is from December 7.  Anyone know why this happens and how it can be solved?

UPDATE:   Ok; I don't know exactly how I did it, but I think I solved the problem...  Carry on....

Legal Malpractice on 34th Street

Abnormal Use has an interesting take on the movie Miracle on 34th Street, a Christmas classic.  As you may recall, the movie's climax is a trial scene.  Abnormal Use reviews the film and discusses how inaccurate the courtroom scenes are here.

Tuesday, December 13, 2011

NTSB calls for ban on use of cellphones (and other devices) while driving

Earlier today, the National Transportation Safety Board (NTSB) officially called for the first-ever nationwide ban on driver use of personal electronic devices (PEDs) while operating a motor vehicle. The recommendation extends to all PEDs, whether hand-held or hands-free. According to a report by Public Citizen, the NTSB does not have authority to impose this policy by regulation, but its views are often held in high regard by federal and state policy makers. You can read the NTSB press release here and a summary of its report here.

Monday, December 12, 2011

Tobacco Companies Preparing for Supreme Court Review of Graphic Labels

Back in June I reported that the FDA enacted a regulation to mandate new labels for cigarette packs with various graphic images and messages such as “Smoking can kill you.” (See here)  Some time later, after five of the nation's largest cigarette manufacturers filed suit against the FDA, the federal judge presiding over the case granted a preliminary injunction that prevents the FDA from enforcing the new rule.  See here and here.

Today, the Blog of the Legal Times is reporting that in a new motion filed today, the cigarette manufacturers suing the FDA are hinting that they already have their sights set on the Supreme Court.  See the motion here.  Read the story here.

Saturday, December 10, 2011

Recent developments in medical malpractice

The Maryland Medical Malpractice Attorney Blog has a list of recent developments in med mal here.

Friday, December 9, 2011

Update on the claims related to the Indiana sate fair stage collapse - UPDATED

ThePopTort has been covering the developments on the claims related to the Indiana state fair stage collapse, particularly the effect of the state's cap on damages.  In the most recent comment, it states that Ken Feinberg, who created a lot of controversy for the way he managed the Gulf oil spill on behalf of BP, has been recruited to do a similar job in Indiana.  According to the report, he announced yesterday that the families of the seven people killed will get only $300,000 and that Feinberg "is pressuring these families to sign quickly and requiring a complete liability release, so if they take this paltry sum, these families can’t even challenge the cap in court."  The post also comments on similar developments in two other cases in Philadelphia and West Virginia. Read the full story here.

UPDATE:  12/9/11:  ABC news reports that the offers expire next Monday.  If that is accurate and the offers were made on the 7th when the report came out, I think it is fair to say what The PopTort characterized as "pressuring the families" to settle.  According to the ABC article, though, the offers may be for more than $300,000 for certain category of plaintiffs.

Wednesday, December 7, 2011

Debate on medical malpractice reform (and tort reform in general)

On October 20, the Cato Institute published a study by economics professor at California State University, Northridge Shirley Svorny claiming that existing empirical evidence suggests that "medical malpractice awards do track actual damages" and that noneconomic damage caps and other "policies that reduce liability or shield physicians from oversight by carriers may harm consumers."  Evidently, Svorny's position is at odds with those who support tort reform and she has agreed to a debate on the issue.  The featured discussion is available here.

New information on Summers v. Tice

The blog Concurring Opinions has a short comment on the classic old case Summer v Tice - the case most law students remember as the case of the hunters who shot the plaintiff in the eye.  The post, by Kyle Graham, states he visited the California State Archive and reviewed the old case file where he found some interesting new information.

The case, as you may remember, is used to discuss the issues that arise when the plaintiff can't identify who from among two negligent actors actually caused the injury.  In the case, there were two negligent actors but  only one could have actually caused the injury. Given these circumstances, the court decided to switch the burden of proof to the defendants to show that they did not cause the injury.

The old case file, apparently, tells a slightly different story.

Apparently, Tice argued that the plaintiff could have identified the person whose conduct caused the injury but lost that chance due to his own negligence.  Tice testified that he had been using No. 6 shot, whereas Simonson (the other shooter) had been using No. 7½ shot. He argued that the two pellets are of slightly different size, and capable of distinction and that the reason that the distinction was not made was that the plaintiff lost the pellet after it was removed.  In fact, the plaintiff himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home.

Thanks to TortsProf for the link to the new information.

Oregon finally gets its share of punitive damages in tobacco case

In Oregon awards for punitive damages are shared by the party who wins the judgment of the award and the state.  According to a state statute the plaintiff gets 40% and the state gets 60%.  I've always been surprised more states don't adopt this approach to punitives, but that is a different story.

In any case, the blog "Injured" is reporting today on a twelve year old battle over the payment of punitive damages in a case against Philip Morris from back in 1999.  The case resulted in an award of $79.5 million in punitive damages but it wasn't until 2009 that U.S. Supreme Court denied the tobacco company's appeal.  It ended up paying 40% of the original $79.5 million plus 9% interest to the plaintiff in the original case.  PM then fought against the state of Oregon but the Oregon Supreme Court ruled last week that the company must pay the remaining 60% of the punitive damages to the state, plus interest. In total, the company will end up paying around $99 million.

Woman stabbed by classmate in anger management class sues the company that ran the class

Here is an interesting story that would be funny if the result hadn't been that someone suffered real injuries as a result.  A certain organization held an anger management class during which one of the students got so angry she stabbed another one.  The student who was injured has sued the organization running the class.  What made the student so angry?  A video of "Dr. Phil."  The ABA Journal has more on the story.

Comment on Virginia Tech's negligence during massacre in 2007 and effect of caps on claims by victims - UPDATED

In the first trial of its kind, Virginia Tech University is challenging a $55,000 fine levied by the Department of Education over the university's handling of the April 16, 2007, massacre that left 33 people dead. Professor Jonathan Turley has posted a comment related to the negligence of Virginia Tech during the massacre of students back in 2007 and the effect of damages caps on the claims by the victims. Read the full comment here.

For more on the story go the Blog of the Legal Times here.

Monday, December 5, 2011

New comment about old topic: the (no) relation between tort reform and doctors' migration

The PopTort is reporting today (here) on an article in the Washington Post blog that reminds us once again that there is little or no relation between the number of doctors available in certain states or the patterns of migration of doctors among states and tort reform.  The claim that lawsuits, or fear of lawsuits, or the lack of tort reform contributes significantly to doctors abandoning their practices or moving to other states has been discredited by a number of studies and reports over the years.  This new article serves as a reminder (even though apparently the article itself did not acknowledge those older studies on the same issue.)

Not one of the top blogs

Once again, my blogs did NOT make it into the list of the "best" law blogs.  What's the matter with you people?!  Don't you like me?   C'mon...  I am getting discouraged here!!!   I guess I need to get organized and start a campaign much sooner next year...  Is it that my blogs don't have "catchy" titles?   Then help me come up with a better one...  Torts Talk?  Today in Torts?  All About Torts?  ....

All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam....  Decide for yourself after you read his post here.

Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.

Thursday, December 1, 2011

Yet another article criticizing Congress' attempt to "reform" medical malpractice

I have criticized the proposed attempts by Republicans in Congress to enact tort reform legislation (particularly a medical malpractice bill) herehereherehereherehereherehere and here.  See also here.

I don't really know what happened to the bill that was originally proposed, but now reports are coming in that the U.S. Senate is set to consider on the Republicans' Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas.

Hopefully, someone will point out to the Senators Public Citizen's recently published report documenting the failures of tort reform in Texas (see here).

In the meantime, you can read an article by Shirley Svorny on the subject in which she argues that caps on damages not only (obviously) hurt the most severely-injured individuals who seek compensation for their injuries, but also increase the risk of injury because they reduce medical professional liability insurers' financial incentives to reduce practice risk.  You can read her full article here.

Wednesday, November 30, 2011

FDA appeals ruling on new cigarette labels

Back in June I reported that the FDA enacted a regulation to mandate new labels for cigarette packs with various graphic images and messages such as “Smoking can kill you.”  Some time later, after five of the nation's largest cigarette manufacturers filed suit against the FDA, the federal judge presiding over the case granted a preliminary injunction that prevents the FDA from enforcing the new rule. Now comes news that the FDA has filed notice that it intends to appeal the judge's order.  For more on this story, including links to some of the relevant documents go to the Blog of the Legal Times and the First Amendment Center.

Monday, November 28, 2011

Should we recognize a cause of action for loss of a pet?

Courts have traditionally held that animals are "chattels" and that there is no cause of action for emotional distress, loss of companionship and the like when they are injured by others. Usually, if a cause of action is recognized, the injuries are valued based on the "market value" of the animal.

I don't think anyone would question that owners feel affection for their pets and that injuries to pets can cause their owners sadness, grief and emotional distress. Thus, I really don't see why owners should not have to right to try to claim these types of injuries.

The reason I am writing about this today is that the TortsProf blog recently reported that the Texas Court of Appeals has held "that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet."  The case is called Medlen v. Strickland and it is available here.

For more on this story go to Courthouse News Service and the Animal Law Blog.

Comment on why Merck did not update the warnings on Propecia in the US even though it did so in other countries

Why didn’t Merck update its U.S. labels back in, say, 2008, when it updated the Swedish warning?  Maxwell Kennerly has a good comment on it here in which he discusses this issue.  He also argues that when, eventually, the company did change the warning, it adopted language that is "designed to make doctors and consumers ignore the warning."

New case on the Alien Tort Statute could result in the end of statute as we know it

As I reported a few weeks ago, the Supreme Court has agreed to review two cases on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  For more details, go here and scroll down to see multiple posts on the subject.

Now, a petition for certiorari has been filed with the court making a series of arguments clearly contrary to the majority trend among courts regarding other aspects of the application of the ATS.  Were the court to decide the case in favor of the petitioners, the result would essentially mean the end of the ATS as we know it.

The new case is Sarei v. Rio Tinto, PLC, a case that has been going up and down from the district court to the court of appeals (of the 9th circuit) for years.  In the most recent decision in the case, the Ninth Circuit voted (en banc) 7-4 to permit an ATS suit to proceed against a mining company accused of aiding and abetting the government of Papua New Guinea in violating the human rights of residents of the island of Bougainville.

The petition for certiorari, available here, lists the following issues:

1. Whether U.S. courts should recognize a federal common law claim under the ATS arising from conduct occurring entirely within the jurisdiction of a foreign sovereign, especially where the claim addresses the foreign sovereign’s own conduct on its own soil toward its own citizens.

2. Whether U.S. courts should recognize a federal common law claim under the ATS based on aiding-and-abetting liability, even absent concrete factual allegations establishing that the purpose of the defendant’s conduct was to advance the principal actor’s violations of international law.

3. Whether a plaintiff asserting a federal common law claim under the ATS addressed to conduct occurring entirely within the jurisdiction of a foreign sovereign must seek to exhaust available remedies in the courts of that sovereign before filing suit in the United States, as international and domestic law require.

4. Whether federal common law claims asserted under the ATS for violations of international human rights law norms may be brought against corporate entities.

None of these issues is new.  They have all been addressed by a number of courts in other cases, the vast majority of which have rejected the arguments of the petitoners.

Very recently, for example, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011), Judge Posner concluded that the argument that plaintiffs must exhaust legal remedies in the nation in which the alleged violation of customary international law occurred "border[s] on the ridiculous" and that there is no basis for the argument that the statute has no extraterritorial application except to violations of customary international law that are committed on the high seas.  As Judge Posner points out, "Courts have been applying the statute extraterritorially (and not just to violations at sea) since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially; and Sosa [the only case on the ATS decided by the Supreme Court] was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained. Deny extraterritorial application, and the statute would be superfluous . . ."

As to the second issue - on whether there can be a claim for aiding and abetting under the ATS - there is no doubt the established law recognizes the cause of action.  At one point in the past there was a debate as to whether the definition of aiding and abetting should be based on notions of national or international standards, but the clear trend now is to apply the international standard.  If the issue raised by the petitioners in Rio Tinto is merely whether the plaintiffs' allegation in the particular case actually meet the requirements of the standard, that's one thing, but if the petitioners are arguing that there should be no cause of action for aiding and abetting altogether, they are clearly swimming against the current.

Finally, the fourth issue is the one currently before the court in Kiobel.

Is it likely that the Supreme Court would decide a case in favor of petitioners making arguments that have been rejected by the majority of courts that have considered them?  It is not easy to say.  One thing I can say is that Justices Scalia and Thomas agreed in Sosa that the ATS should only be used to support claims based on the same type of conduct that had been recognized as supporting a claim when the statute was enacted in 1789, which did not include violations of human rights.  Unless they have changed their minds since then (2004), more than likely that's two votes against the plaintiffs' right there.

Sunday, November 27, 2011

Missouri Supreme Court considers challenge to state's cap on punitive damages

According to The Kansas City Star (here) about three weeks ago, the Missouri Supreme Court heard oral arguments in a case that challenges the punitive damages cap in Missouri.  The case is called Estate of Max E. Overbey and Glenna J. Overbey v. Franklin.  The plaintiffs argued that the state’s punitive damages cap is unconstitutional because violates the constitutional separation of powers, the right to trial by jury, the right to equal protection of the law and due process, among other things. Go here for more information.

Friday, November 18, 2011

Video quiz

Here is a video that raises a few interesting questions. Take a look first and keep reading below.

Obviously, we don't have all the necessary information, but we can see the guard hits the button to close the gate and then walks away before it is completely closed. Assuming the guard was too far to notice what was happening to the woman, is this negligence by the guard?

Then let's talk about the woman. She seems to be aware the gate is closing and decides to chance it anyway. Is this negligence on her part? Is it assumption of the risk? How do you distinguish between conduct that is negligent (which may allow the plaintiff to recover some value of her injury) and conduct that is assumption of the risk (which will eliminate her right to recover entirely)?

Thanks to Prof. Jonathan Turley for the video.

Thursday, November 17, 2011

Video on the Penn State sex scandal -- UPDATED (to add a podcast)

The Wall Street Journal law blog has a video discussing the legal issues related to the Penn State sex scandal here.

UPDATE:  The Legal Talk Network has a podcast discussing the case issues here.

For previous comments on the issue, go here.

Tuesday, November 15, 2011

Archdiocese of Chicago agrees to settle sexual abuse lawsuit for $3.2 million

Archdiocese of Chicago, Cardinal George, and the Catholic Bishop of Chicago have agreed to settle a claim based on the sexual abuse of a minor boy by former Rev. Daniel McCormack in the amount of $3.2 million dollars.  The victim had alleged that the Archdiocese and the Cardinal failed to remove their priest, Rev. Daniel McCormack, from access to children although they had knowledge that he had sexually abused minors. McCormack was arrested in January 2006, charged with multiple counts of criminal sexual assault and subsequently pleaded guilty to those charges in 2007.  For more on this story go here.

Monday, November 14, 2011

Supreme Court to hear case on possible immunity

The Supreme Court has announced its schedule for oral arguments during the month of January and it includes a case on the law of lawyering and torts. The case is called Filarsky v. Delia is about there private lawyers should have the benefit of immunity for the consequences of their conduct while working temporarily for the government. I have mentioned the case before here. For more information and links to all the relevant documents, including the lower court's opinion and the parties' briefs go here.

Comments on the Penn State's sex scandal - UPDATED

Originally posted Nov 12, 2011; the update appears below:

Because I was so busy getting ready for my trip to Switzerland (see my previous post), I missed most of the build up regarding the Penn State sexual abuse scandal.  I did try to catch up a little bit before I left, but I am not sure I got all the details.  So I will let others do the blogging on this one and provide you with some links instead.

The New York Times claims Penn State and Joe Paterno could face civil liability.

Professor Jonathan Turley has a detailed explanation of the issues here.

The PopTort reports on an article in the Philadelphia Inquirer here about Penn State's potential liability.

Eric Turkewitz has a comment here.

The only thing I would like to add to the discussion is the possible relationship between mandatory reporting statutes and negligence per se.  The Prosser Torts Casebook which I use in my class has a very interesting case right on point called Perry v. SN.  In that case, the parents of abused children sued the employees of a day care center arguing that they had a duty to disclose suspected abuse to the authorities under a specific statute and that the violation of the statute constituted negligence per se.  In other words, the plaintiffs argued that the text of the statute was an expression of the duty in tort law and the violation was evidence of breach.  The court declined to apply the negligence per se analysis, however, because it did not want to create a duty to help when the Common Law has already rejected such a duty.

UPDATE (11/13/11):

In case you don't get the comments to this blog, let me highlight the comment (below) and article by Max Kennerly of the Litigation and Trial blog (available here) in which he points out that there are cases in Pennsylvania that take the position rejected by the court in Perry v SN.  Thank very much for the comment!  The article itself if well worth reading.  It covers this and several other issues very well.  I have not read the cases, but will add a comment on the issue in general at the end of this update.

The TortsProf blog reports that Donald Gilliland of the (Harrisburg) Patriot-News wrote a column about the school's potential legal troubles.

The question of whether a court should allow the plaintiff to use a statute as an expression of a duty and its violation as evidence of breach is interesting given that there are so many statutes out there can be argued to express a duty.  If a violation of such a statute causes an injury, should courts recognize a remedy in tort?  Courts have been inconsistent on this question.  I can see the logic in saying that given that the common law has closed the door to imposing liability to for failure to help, a plaintiff should not be allowed the right to go through a "back door" by using negligence per se.  On the other hand, I don't see any problem in saying that a legislature has, by adopting a statute, decided to express what the legislature would want to be considered a duty to act under certain circumstances.  Of course, judges who prefer the first view, would say that if the legislature had really wanted to create a new duty in tort, it would have recognized a cause of action for the violation of the statute in the statute itself. Also, the court in Perry expressed a concern in not exposing a defendant to civil liability which would be disproportionate to the level of liability expressed in the statute itself. I will take a look at the cases in Pennsylvania to see how they deal with the issue.

Having said all that, assuming the evidence is there to show the defendants had enough knowledge and that the circumstances where such that they could be liable under the reporting statute, I would vote to hold them liable.

UPDATE 11/14/11: 

WSJ law blog has more on the possibility of civil claims here.  It cites an ABC News available here.

Saturday, November 12, 2011

Why is tort reform on the agenda...?

The PopTort has an interesting story (here) about the fact that the small business lobby group called the National Federation of Independent Businesses spend a great deal of time and resources on "tort reform" when its members don't think it is a priority.  In a recent survey by the group listing the 75 issues that are most important to NFIB’s members, tort reform came in at #65.  Read the full story here.

Greetings from Europe

I am coming to you "live" today from Lucerne, Switzerland!  I came here to teach a class on International Torts at the University of Lucerne's Law School, with which my law school has an exchange program.  If you are interested in what I will be covering in that course, go here.  The book I put together for the course is about 150 pages long right now, but it will be shorter next summer when the Supreme Court decides some of the cases I have in the book.  For more about that go here, here and here.

Monday, November 7, 2011

Judge grants injunction stopping the implementation of the new FDA rules regarding cigarette warning labels

Back in June I reported that the FDA enacted a new regulation to mandate new graphic labels for cigarette pack with various images accompanied by messages such as “Smoking can kill you.”   Some time later five of the nation's largest cigarette manufacturers filed suit against the FDA challenging the new regulations.  For more on the background story and links to more information go here.

Today, the federal judge presiding over the case sided with the tobacco companies and granted a preliminary injunction that prevents the FDA from enforcing the new rule. The judge said the companies were substantially likely to prevail in their arguments that the new rule unconstitutionally compels speech in violation of the First Amendment.  You can read the order here.

Here are some links to more coverage on this latest development:

Public Citizen

First Amendment Center

Drug and Device Blog

Jonathan Turley

Happy Birthday to the Blog!

This blog is three years old today!  I started it on November 7, 2008.  Since then I have posted 1145 posts! A few days later, I started my Professional Responsibility blog (which is available here).  I thank you for your support and hope you will continue to follow the blog in the years to come.

Thursday, November 3, 2011

Maryland court clarifies that locality rule does not apply anymore

According to the so-called "locality rule," the conduct of a doctor should be evaluated by comparing it to the standard of care specific to the community in which the medical care was given. Although this doctrine has been abandoned, courts often still use confusing language that might suggest it still applies in some jurisdictions.  Apparently, this is the case in Maryland where a statute still mentions that a medical malpractice expert must give testimony that the care given by the defendant doctor "is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities."

A few weeks ago, however, the notion that the locality rule still applies in Maryland was dispelled by a Maryland District Court judge in a case called Willison v Pandey (available here).

Thanks to the Maryland Medical Malpractice Attorney Blog and the Maryland Injury Lawyer Blog for the links.

Negligence claim for injuries caused by roaming animal requires proof of negligence

In our class last night, we discussed strict liability claims for injuries caused by animals.  Interestingly, here is a report from Day on Torts on a case involving a roaming horse. In this case, the plaintiff was injured when her vehicle collided with a horse on a dark roadway. The defendant landowner proved that he had fenced in the horses and had no explanation for how or why the horses had escaped. Neither did the plaintiff and, since plaintiff must prove that the horse owner was negligent in allowing the horse to be on the road, the court held the defendant was entitled to summary judgment. The plaintiff simply failed to prove one of the elements of the cause of action.

There is nothing strange about this ruling. The question I have is why did the plaintiff not sue under a theory of strict liability?  I assume the answer to my question is somewhere in the law of Mississippi.  For example, I wonder if whether by statute or common law, horses are considered domesticated animals or pets in Mississippi.

The case is called Ladnier v Hester and it is available here.

Comments on Wisconsin's proposed preemption bill

A few days ago, I reported (here) that a state Senate committee has proposed a bill that would protect drug and device makers from liability in state lawsuits, so long as their products were approved by the FDA, unless the manufacturer committed fraud against the FDA.

In response to the bill, the Center for Justice and Democracy has published a report, available here, explaining why the bill is a bad idea.

According to the CJ&D press release, "[t]his legislation would be devastating to Wisconsin residents. It would prevent them from seeking compensation for real injuries, no matter how severe, caused by dangerous drugs and devices. And it would leave drug and device companies completely off the hook for marketing products that harm or even kill, once the under-resourced FDA has approved them.” . . . “Despite . . . the terrible impact of Michigan’s drug immunity law on victims and taxpayers in that state, Wisconsin may be headed in the same direction, stripping away residents’ access to the civil justice system and granting negligent companies extensive immunity.  This is terrible legislation and it should be stopped.”

For more comments on the proposed bill go herehere and here.

Wednesday, October 26, 2011

"Personhood" amendments and tort law

A few days ago, I discussed pre-natal torts in my class.  Among many other things we talked about whether a jurisdiction should recognize a cause of action for the wrongful death of a fetus.  In some states this question has been decided by statute, while in others it depends on the interpretation of the word "person" in wrongful death statutes that recognize a cause of action for the wrongful death of a person. 

Here is a link to an article in the New York Times about a constitutional amendment facing voters in Mississippi on Nov. 8, and similar initiatives brewing in half a dozen other states including Florida and Ohio, that seek to declare a fertilized human egg to be a legal person.  It has been argued such an amendment would effectively brand abortion and some forms of birth control as murder. For the same reason, it could have an effect on the interpretation of wrongful death statutes and affect the outcome of other pre-natal tort type claims.

Thanks to Christine Livingood for the link.

Tuesday, October 25, 2011

New Public Citizen Report on tort reform in Texas

Last month I reported on a new study on tort reform in Texas by Texas Watch.  See here.  Now, consumer protection organization Public Citizen has released a report on the failure of a $250,000 medical malpractice cap in Texas to lower health care costs. Here is the abstract of the report:
A common perception among policymakers and pundits is that medical malpractice litigation is significantly, or even chiefly, to blame for skyrocketing health care costs and steadily diminishing access to care. But analysis of data in Texas, which in 2003 imposed some of the strictest liability caps in the country, tells a far different story. While litigation over malpractice in Texas has plummeted dramatically since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure.
You can read the full report here.  For some comments on the report go here and here.

Here are some of the findings:

-- The cap did not prevent increases in health care costs.

-- Since 2003, Medicare costs rose 13% faster than the national average.

-- Health insurance costs have outpaced the national average and the percentage of residents lacking health insurance has risen.

-- Medicare spending specifically for outpatient service has risen 30.7 percent faster than the national average;

-- Medicare diagnostic testing expenditure have risen 25.6 percent faster than the national average;

-- Premiums for private health insurance have risen faster (51.7 percent) than the national average (50 percent);

-- The percentage of Texans who lack health insurance has risen to 24.6 percent, solidifying the state’s dubious distinction of having the highest uninsured rate in the country;

-- The per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the cap; and

-- The prevalence of physicians in non-metropolitan areas has declined.

These last two findings are interesting given that a typical argument for tort reform is that we need tort reform to avoid doctors leaving practice or moving to other states.

The one thing the cap resulted in was fewer lawsuits.  This is an obvious consequence of tort reform.  As I have stated before (see here, for example), if you make it more difficult for injured victims to sue (or recover) there will be fewer lawsuits.  We don't need a special study for that.  All that shows is the real goal of tort law: to make it more difficult for injured victims to get compensation for their injuries and to allow those who cause their injuries to avoid liability.

A lot of people think this is a good idea until they (or someone close to them) suffers an injury. They often change their opinion once they realize the real consequences of tort reform.  See here and  here for example.

Is there a connection between tort reform and the "occupy Wall Street" movement?

The Pop Tort thinks so:  here.

Updated list on cases about corporate liability under the Alien Tort Statute and the Torture Victim Protection Act

Here is an updated list of cases on the issue of corporate liability for international torts:

Deciding that corporations can NOT be sued under the Alien Tort Statute:
 -- Kiobel v Royal Dutch Petroleum (2nd Cir 2010)

Deciding that corporations CAN be sued under the Alien Tort Statute:
-- Doe v. Exxon (DC Cir 2011)
-- Flomo v. Firestone  (7th Cir 2011).  Judge Posner wrote the opinion in this case.  He flatly states that the factual premise of the majority opinion in the Kiobel is simply incorrect.

Deciding that corporations can NOT be sued under the TVPA
-- Bowoto v Chevron (9th Cir 2010)
-- Mohamad v Rajoub (DC Cir 2011)
--Aziz v. Alcolac, Inc. (4th Cir. Sept. 19, 2011)

Deciding that corporations CAN be sued under the TVPA 
-- Aldana v. Del Monte (11th Cir 2005).  The court in Bowoto states this case holds corporations can be sued under the TVPA although it does not state so explicitly.

Tuesday, October 18, 2011

More on the cases granted by the Supreme Court

Courtesy of the SCOTUS blog, here is a list of references to coverage of the Supreme Court's decision to grant cert in the cases related to the Alien Tort Statute and the Torture Victim Protection Act:

Greg Stohr of Bloomberg.

Mark Sherman of the Associated Press.

Adam Liptak of the New York Times.

The Wall Street Journal Law Blog.

The Huffington Post.

Finally, you can read a debate among several participants in the SCOTUS "community" site here.

Wisconsoin considers new preemption statute

At the request of Wisconsin Governor Scott Walker, a state Senate committee has proposed a bill that would protect drug and device makers from liability in state lawsuits, so long as their products were approved by the FDA, unless the manufacturer committed fraud against the FDA. The measure seems to be modeled after a statute in Michigan (see here), which has been described as the most restrictive in the country - meaning that it provides the most protection to manufacturers from injured victims' claims. An attempt to enact similar legislation in North Carolina was recently abandoned (see here). Pharmalot has more details here.  You can read the bill here.

Mohamad v. Rajoub - "the other case" granted by the Supreme Court & the corporate liability scorecard so far

As I reported earlier today, the Supreme Court has now officially agreed to review cases on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act. Kiobel v Royal Dutch Petroleum, decided by the Court of Appeals for the Second Circuit, was the first one to hold that corporations can't be sued under the Alien Tort Statute.  Since then at least two other Circuit Courts have rejected its reasoning.

Meanwhile Bowoto v. Chevron reached the same result under the Torture Victim Protection Act.  However, the Court has not yet granted review in Bowoto.  Instead, it granted review in a case called Mohamad v Rajoub, a decision from the DC Circuit which essentially copies the reasoning in Bowoto.  I don't understand why the Court would grant review in Rajoub and not in Bowoto since they hold the same thing, so I would not be surprised if the Court consolidates the cases... but we will have to wait and see.

What I want to point out here is an interesting development that relates to the Rajoub case.

At the time Rajoub was decided by the Court of Appeals for the DC Circuit, the issue of corporate liability under the ATS was pending before that same court in another case called Doe v Exxon. That case has since been decided, in favor of the plaintiffs.

This means that the DC Circuit has decided that corporations can not be sued under the TVPA but can be sued under the ATS.

So what is the scoreboard at the moment?  Here it is:

Deciding that corporations can NOT be sued under the Alien Tort Statute:
 -- Kiobel v Royal Dutch Petroleum (2nd Cir 2010)

Deciding that corporations CAN be sued under the Alien Tort Statute:
-- Doe v. Exxon (DC Cir 2011)
-- Flomo v. Firestone  (7th Cir 2011).  Judge Posner wrote the opinion in this case.  He flatly states that the factual premise of the majority opinion in the Kiobel is simply incorrect.

Deciding that corporations can NOT be sued under the TVPA
-- Bowoto v Chevron (9th Cir 2010)
-- Mohamad v Rajoub (DC Cir 2011)
--Aziz v. Alcolac, Inc. (4th Cir. Sept. 19, 2011)

Deciding that corporations CAN be sued under the TVPA 
-- Aldana v. Del Monte (11th Cir 2005).  The court in Bowoto states this case holds corporations can be sued under the TVPA although it does not state so explicitly.

Monday, October 17, 2011

Supreme Court grants review in cases regarding possible corporate liability for "international torts" -- UPDATED

A few days ago, I posted a note about two cases pending before the US Supreme Court on the issue of whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  Kiobel v Royal Dutch Petroleum decided that corporations can't be held liable for damages for violating the law of nations under the Alien Tort Act while  Bowoto v. Chevron reached the same result under the Torture Victim Protection Act.  As expected, the Court has now officially granted review in Kiobel.  For more go here.

Go here for more information on the issue and for links to the cases and other important documents.

UPDATE:   more information here

UPDATE #2:  the Wall Street Journal law blog has some comments here.

Friday, October 14, 2011

Strange result due to decision in Pliva v Mensing

As you probably remember, back in June the Supreme Court issued a decision PLIVA v. Mensing on the right to sue in state court when a generic drug maker fails to change its label to warn consumers of new harmful side-effects. Go here and here for some background and lots of links.  In a 5 to 4 decision, the Court decided that federal law preempts state lawsuits because their effect could be to force the defendants to offer labeling that is different from what appears on the label of the brand-name drug.

As you probably also remember, in March 2009 the Court decided 6-3 in Wyeth v. Levine that federal law did not preempt a failure to warn case.

Now here is the interesting part:  if you take the facts of Wyeth and substitute the drug used with a generic brand one, the case is preempted.  So let's say the plaintiff, suffering from pain and nausea, goes to the hospital and is administered an injection of "Phenergan".  The injection is accidentally put in plaintiff's artery instead of her vein and the resulting vascular injury requires amputation of plaintiff's right arm. Under Wyeth v. Levine, if that drug is a brand name, the claim is not preempted, but because that drug is, in fact, a generic the court in Schork v. Baxter Healthcare Corporation, 2011 U.S. Dist. LEXIS 107687 (S.D. Ind. Sept. 22, 2011) decided the claim is preempted under the ruling in Pliva.

Thanks to the Drug and Device Law Blog for the information.

More critical comments on Congress' attempt to enact tort reform legislation

I have criticized the proposed attempts by Republicans in Congress to enact tort reform legislation (particularly a medical malpractice bill) herehereherehereherehereherehere and here.

Now here is some criticism from the right.  "Tea Party" supporter Rob Natelson of the Independence Institute in Colorado, has been described as the first conservative legal scholar to forcefully argue that federally imposed limits on medical malpractice and other health care-related lawsuits are unconstitutional.  See this letter back in April and this article back in May.

Thanks to Eric Turkewitz of the NY Personal Injury Law Blog for the links.

Short article on the issue of corporate liability under the Alien Tort Statute

As I said a couple of days ago, the cases pending before the US Supreme Court on the issue of whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act (Kiobel v Royal Dutch Petroleum are Bowoto v. Chevron) were scheduled to be discussed during today's Supreme Court's conference.  I will post any announcement on them as soon as I find out.  Meanwhile, here is a link to a short article on the subject from the National Law Journal.

Thursday, October 13, 2011

Illinois Supreme Court declines to adopt post-sale duty to warn

About three weeks ago, the Illinois Supreme Court issued an interesting opinion in which it declined to adopt section 10 of the Restatement (Third) of Torts: Products Liability (1998), which recognizes a duty to warn of a product-related risk after the time of sale under certain circumstances. The case is called Jablonski v. Ford Motor Co. and it is available here.

The case involved an accident in which a driver slammed into the back the Jablonskis’ Ford Town Car. As a result of the crash, a large pipe wrench in the trunk of the Town Car penetrated the trunk and punctured the back of the vehicle’s fuel tank causing the car to burst into flames. The plaintiff’s husband’s died and the plaintiff suffered severe burns and permanent disfigurement.

The plaintiffs filed a complaint arguing a number of different claims against Ford which, as the court put it, “continually evolved” during the litigation. Eventually, the plaintiffs abandoned a number of strict liability claims but continued to argue that the Town Car was negligently designed and manufactured and that Ford had a duty to warn customers of the danger of the risk of trunk contents puncturing the fuel tank, which Ford learned about some time after the plaintiffs bought the car.

As to the post-sale duty to warn issue, the court found that the jury was improperly instructed that the jury could find Ford negligent for its failure to warn because that is not the law in this jurisdiction. Even though the law recognizes a “continuing duty to warn,” that duty exists only if the risk is known at the time of the sale. When a design defect is present at the time of sale, the manufacturer has a duty to take reasonable steps to warn at least the purchaser of the risk as soon as the manufacturer learns or should have learned of the risk created by its fault. However, “a manufacturer is under no duty to issue post-sale warnings or to retrofit its products to remedy defects first discoveredafter a product has left its control.”

In sum, the court found that the lower court erred in providing a jury instruction based on a duty not recognized in Illinois at the time of trial.

Because the instruction was based on section 10 ofthe Restatement (Third) of Torts: Products Liability (1998), which recognizes a post-sale duty to warn under certain circumstances, the court then addressed whether it should recognize such a duty. It declined to do so, but left the door open to consider it again in the future:
“Although we do not foreclose the possibility that a post-sale duty to warn could be recognized in the future in Illinois, we decline the invitation to expand the duty in this case under the particular facts and circumstances presented here . . . [because] there was insufficient evidence presented to the jury with regard to the enumerated circumstances under which a reasonable person would provide a warning under section 10.”

Access to clients to film documentary while case is ongoing

Friend of the blog Alan Crede, of the Boston Personal Injury Lawyer Blog, has posted a very interesting comment on the very nature of our civil justice system, particularly on the fact that the system depends on the evaluation of evidence that is available to the jury while there may be other evidence that the jury never gets to see.  You can read his comment here.

As every lawyer and law student knows, our judicial system is not based on the search for the objective truth of the facts at issue but on the concern over protecting the due process of the process itself.  That is the nature of the adversary system.  The rules of evidence allow for the exclusion of evidence that might be relevant because the policies upon which those rules are based are more important to us than the possible benefit we'd get from the admissibility of that evidence.  This is obviously true in criminal cases, but it is not less true in civil cases.

In his comment, Alan wonders about a number of things including the fact that sometimes the most important evidence appears to be the evidence that is not available to the jury.  Most of the time, we don't realize this because in most cases that evidence is, simply, never disclosed.  But sometimes the general public gets to see evidence (through the media, for example) that the jury does not get to see.  And in many of those cases, the impression the public gets is different from that reflected by the jury's decision.

Some see this as a bad thing; others as a good thing.  It depends on what you think of the jury system and the policy behind the rules of evidence to begin with.  In fact, it depends on whether you believe the adversary system of judicial decision-making (at the trial level, at least) is a good idea.

Alan concludes that it is a mistake to overrate the capacities of our judiciary.  He warns that lawyers sometimes are blind to the system's faults and limitations because of a belief that the adversary system is "the greatest engine for the search for truth."  And when that happens "we fall prey to the idea that we can reach from the well of a courtroom to the pure reality of events that transpired outside of that courtroom."

All that aside, Alan asked me to comment on a slightly different aspect of the issue.

His comment was prompted by the documentary "Paradise Lost" about the "West Memphis Three" case during the filming of which the attorneys for the defendants allowed the filmmakers to have access to some of their conversations with their clients, and to interview the clients while the case was still ongoing.  Alan wants to know my take on the ethics of the defense team's allowing such unrestricted behind-the-scenes access.

There are several issues that come to mind. First, there is the issue of whether the lawyers were trying to "try the case in the media" rather than in the courtroom.  I don't think so, simply becasue the the documentary was not going to be ready before the end of the case.  The footage would only become available until after the case was over.  However, it can be argued that the lawyers were trying to build a record that could later be used to support an appeal.  That is possible, but it is not different from many other cases which generated documentaries - often to support the defense.

I think the more interesting question is whether it is improper to allow the filmmakers to follow the lawyers and clients as they prepared for trial not knowing in advance what was going to be shown in the final version of the documentary.  As long as the clients gave informed consent, I see that as a tactical decision that may or may not turn out to be a good decision down the line.  It is pretty risky, but I guess the lawyers felt strong enough something positive would come out of it.  The one thing the lawyers had to be careful about was disclosing confidential information "on the air" that they would not want broadcast later.

Lastly, of course, I can only assume the lawyers in this case did not have an agreement with the filmmakers to get a media deal since Rule 1.8(d) (some version of which has been adopted in most, if not all, states) says that "prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."

Wednesday, October 12, 2011

Alien Tort Statute cases set for Supreme Court conference in two days

A few days ago, I posted a note about two cases pending before the US Supreme Court on the issue of whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  Kiobel v Royal Dutch Petroleum decided that corporations can't be held liable for damages for violating the law of nations under the Alien Tort Act while  Bowoto v. Chevron reached the same result under the Torture Victim Protection Act.

The Court did not take action on the cases during the first conference of the year but both Bowoto and Kiobel have been redistributed for the Justices' conference this coming Friday Oct 14.  It is possible we will know by the end of the day (Friday) if the Court will grant review.

Go here for more information on the issue and for links to the cases and other important documents.

Sunday, October 9, 2011

Tennessee approves tort reform bill - UPDATED

Tennessee has approved a new tort reform bill which, among other things, regulates some aspects of medical malpractice cases, institutes caps on non economic and punitive damages and makes it more difficult to get punitive damages.  You can read a summary of the bill here

In a news release, Gov. Bill Haslam, a supporter of the bill, claims that the bill will revise the state’s civil justice system "to make Tennessee more competitive for new jobs with surrounding states by bringing predictability and certainty to businesses calculating potential litigation risk and cost.”

You would think that Tennessee is having a hard time attracting businesses because of an out of control civil justice system.  Yet, in 2010 Tennessee was rated as the best state in the US by one publication and as the second best by another for providing a good climate for business, according to former Senator Bill Thompson who testified against the approval of the bill.  His full testimony, which makes a pretty convincing argument for why the bill is unnecessary, is available here:

Sen. Fred Thompson Testifies for Civil Justice - March 23, 2011 from TN Association for Justice on Vimeo.

Even though I don't agree with it, I can understand the argument to cap non-economic damages; and a cap of $750,000 is pretty high when compared to many other states that impose caps.

On the other hand, I have a hard time with arguments related to punitive damages.  First of all, every report I have seen on the subject shows that punitive damages are rarely awarded and that the average award is not out of the ordinary.  Every now and then you hear about a case with excessive punitive damages which grab a lot of headlines but these cases are rare and the damages are usually reduced by the courts anyway. 

Also, the fact is that punitive damages exist to punish truly outrageous, unacceptable behavior that causes injury to create a disincentive for the defendant and others to continue to engage in the type of irresponsible conduct that created the risks and caused the injury.  By placing limits on punitive damages (which are rarely awarded anyway) and, even more, by creating obstacles for people to have the right to recover punitives, tort reformers are explicitly looking to eliminate the deterrent effect of tort law.

UPDATE: (Oct 9, 2011) -- The new law went into effect on October 1.  You can find a copy of the bill here. (Thanks to the TortsProf blog for the update and link.)

DES still causing problems after all these years

Last week in class we discussed two famous cases involving claims for injuries caused by DES, a drug commonly used decades ago to prevent miscarriages and birth defects.  Coincidentally, a day or two later is reporting that the daughters of women given DES are showing high rates of breast cancer and infertility problems, according to recent research.  Go here for the details.

Friday, October 7, 2011

Today in baseball - and music - history

This post has nothing to do with torts or professional responsibility, but it's my blog, so there!

Did you know today is the anniversary of the very first time a singer sang a personalized version of the national anthem before a sporting event?

On October 7, 1968 Puerto Rican singer/guitarist Jose Feliciano stunned the crowd at Tiger Stadium in Detroit when he sang a non traditional rendition of the national anthem before Game 5 of the World Series between Detroit and St. Louis.  The reaction was not good.  He was booed, criticized, and many radio stations stopped playing his music.  Interestingly, the Tigers won the game and the final two to win the series in seven games.

I am not a big fan of the way many - indeed, most - singers try to change the national anthem these days, but there are a few renditions that I like.  Feliciano's is one of them.  Another one is Marvin Gaye's version before the NBA All-Star game in 1983.

Ironically, Marvin Gaye sang the national anthem in Detroit the day before Feliciano did.  Supposedly, Ernie Harwell specifically asked him to do a traditional rendition of the anthem.  I guess he expected Gaye to try something different.  I don't know if he told Feliciano the same thing...

Also ironically, after Harwell passed away last year, the Tigers had Feliciano sing the exact same version of the anthem before a game to honor his memory.

You can listen to Jose Feliciano's 1968 national anthem here.

You can listen to Marvin Gaye's version in 1968 here and his 1983 version here.

Saturday, October 1, 2011

Thoughts on the social benefits of the torts system

The Pop Tort blog has a comment here on the deterrence function of the torts system and on recent developement in Tennessee (new law that will "cap" damages and limit the legal accountability of nursing homes for abuse and neglect)  and New York (a proposal for “caps” on compensation for people killed or injured due to negligence in city hospitals and for other city misconduct in order to save the city money).

Florida Supreme Court to Evaluate Constitutionality of Damage Cap in Medical Negligence Cases; Louisiana case is on its way.

The Florida Supreme Court has agreed to determine whether a limit on noneconomic damages in medical malpractice cases violates the state's constitution. Go here for more details.

Meanwhile a lower court in Louisiana has declared Louisiana’s $500,000 cap on all damages in medical malpractice cases unconstitutional as a violation of the state constitution’s equal protection and adequate remedy guarantees.  The court also found that there was no correlation between medical malpractice lawsuits and any crisis in insurance for doctors or the availability and affordability of health care.  The case now moves directly to the Louisiana Supreme Court.  For more information go here.  To read the court's order go here.

Thanks to Day on Torts for the information.

Friday, September 30, 2011

No cause of action under Federal Torts Claims Act for emotional distress based on mistaken information about son's death in Iraq

Back in December of 2009, I reported on a newspaper article on a mother who was considering suing the US Government for the emotional distress she suffered when a mix-up resulted in the delivery of a message to her saying her son had died while in the military in Iraq.  What happened was that she sent her son a letter and the US Postal Service returned it undelivered and stamped "DECEASED."  Not having been informed that her son had died, this caused the mom emotional distress.  The mom asked the USPS for more information but it was not helpful and eventually, using other resources, she found out her son was alive.

Back when I heard this story, I wrote that the viability of the case would depend on whether the argument was based on negligence or intent and whether the alleged conduct was by the military or the postal service.

I never heard what happened after that until today when I saw the blog Day on Torts recently reported the case has been decided. 

The case was dismissed by the trial court and the United States Court of Appeals for the Eighth Circuit affirmed.

I understand the dismissal of the intentional infliction of emotional distress claim, since the FTCA is pretty clear that the US is immune from intentional torts [there are exceptions, but they would not apply to a case like this one].  But I thought the negligence claims might present an interesting issue, particulary if the defendant was the Postal Service because of the FTCA's exception regarding "postal matters."  More on that later.

Perhaps not too surprisingly, the government tried to avoid liability by asking the court to reinterpret the claims to be based on an intentional theory of liability - even if the plaintiff did not argue them that way.  Thus, it argued that the case was really about "misrepresentation" and that "the FTCA's waiver of sovereign immunity does not apply to "[a]ny claim arising out of . . . misrepresentation," 28 U.S.C. § 2680(h). 

This argument is nonsense.  Given the text of the statute, the misrepresentation it refers to must be intentional.  By definition, this misrepresentation requires a showing of intent, which means voluntary conduct with desire to cause harm or with knowledge to a substantial certainty that the conduct would cause harm.  I doubt that is what happened here.  The fact the information is false, or wrong, does not make the conduct misrepresentation, it just makes the information false.
To its credit, however, the court of appeals did not address this issue and decided the case on the basis of the other question presented by the case:  whether the claim should be dismissed because the FTCA does not allow any claims "arising out of the loss, miscarriage, or negligent transmission of letters or postal matter," 28 U.S.C. § 2680(b).

This is more interesting and debatable.  What happened here was that the USPS delivered a letter that had incorrect information.  The letter was not lost, or miscarried, so that part of the statute is out.  The question is whether delivering a letter with incorrect information constitutes "negligent transmission" of the letter.

Personally, I don't find that interpretation convincing but I don't know if there are other cases out there supporting it.  In my mind, negligent tranmission of letters refers to delivering it late, delivering it to the wrong address or something like that. 

But the main problem I see with the case, is that I am not sure the plaintiffs really identified the proper conduct upon which to base their claim.  It seems to me the conduct that caused the injury was not the delievery of the information, but the negligence in figuring out whether the soldier was dead before returning the letter.  The question is whether going through that process is part of what Congress had in mind when it wrote "miscarriage or negligent transmission of" letters. 

I guess the argument for the government is that the process of stamping letters with the "undeliverable" stamp is part of "handling" the mail and thus should fall within the text of the statute.  Here some postal worker mishandled the letter when he or she used the wrong stamp before he or she put it in a pile of undeliverable letters. 

I can see that argument, but before I decide whether I am convinced by it, I'd like to know more about the policy and actual practice of the USPS for determining when to use the stamp that says DECEASED in red ink.

The case is Najbar v. United States, No. 10-3015 (8th Cir. Aug. 12, 2011) and it is available here.

Thanks to Day on Torts for the update and link.

Thursday, September 29, 2011

California court upholds damages cap

Yesterday, I reported that the wrongful-death claim filed yesterday for injuries caused by the stage collapse last month in Indianapolis will most likely become a test case of an Indiana damages cap.  Meanwhile, over in California, the Court of Appeal, 5th Appellate District, has upheld the state's $250,000 noneconomic damages cap.  Go here for more details.

Thanks to the TortsProf blog for the link.

Tuesday, September 27, 2011

Second Circuit's decision holding that corporations are not liable under the Alien Tort Statute is not among those granted review by the Supreme Court... YET

Earlier today I reported that the Supreme Court had denied review in two important cases.  I was wrong.  The Court did not grant review, but it has not yet denied it.  Here is my corrected post:

In a very surprising move (at least to me), the Supreme Court announced today the list of cases it will review out of the first conference of the year and it does not include the decision of the Second Circuit in Kiobel v Royal Dutch Petroleum.  This is the case in which the court held that corporations can't be held liable for damages for violating the law of nations under the Alien Tort Act.  That opinion is available here.  The Supreme Court also decided not to review Bowoto v. Chevron (available here), which raised the same issue under the Torture Victims Protection Act.

I thought the Supreme Court would grant review on both cases not only because they involve extremely interesting and important issues but because there is a clear split among circuit courts on the question.  The Court of Appeals for the 11th Circuit and the District of Columbia Circuit have rejected the reasoning of the court in Kiobel. The more recent of these cases are Doe v Exxon Corporation (from the DC Circuit) (available here) and Flomo v. Firestone (7th Circuit) (available here).

It is still possible that the Court will eventually agree to review these cases, though.  The Court announced the cases it will review; it did not announce the petitions it has (or will) deny.  The list of cases that have been denied will not be released until next Monday.

For more information on this topic take a look at my previous posts on the subject, here, which has links to even more information including all the relevant documents filed in the Kiobel case before the Supreme Court.  Also check out my section on the Alien Torts Statute here.

For more information on these and other cases under review by the Supreme Court go to the Supreme Court blog here and here.

UPDATE (Oct 12, 2011):  Both Bowoto and Kiobel have been redistributed for the Justices' conference this coming Friday Oct 14.  It is possible we will know by the end of the day if they grant review.

Report on the effects of tort reform in Texas

Texas governor and presidential hopeful Rick Perry has argued repeatedly how we need tort reform to improve the economy.  As you think about this, take a look at the recent on the effects of tort reform in Texas by Texas Watch, a consumer advocacy group.  It starts like this: "Over the last decade, Governor Rick Perry has presided over a series of radical legislative proposals that, under the guise of so-called tort “reform,” reward those who needlessly endanger our communities at the expense of families and small business owners. This report details the impact this corporate immunity agenda has had on Texans of all walks of life."  Go here (or here) to read the full report.

New lawsuit challenges damages cap in Indiana

The wrongful-death claim filed yesterday for injuries caused by the stage collapse last month in Indianapolis will most likely become a test case of an Indiana damages cap.  The suit claims the damage cap violates the Constitution’s due process and equal protection clauses as well as the Indiana Constitution.  For more, go here and here.

Supreme Court grants review of case on attorney immunity

The Supreme Court announced this morning that it will review a case on "whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee." The case is called Filarsky v. Delia.

In this case, the District Court found the attorney was protected by qualified immunity, but the Court of Appeals for the Ninth Circuit reversed.  The opinion of the Court of Appeals is available here.  For all the documents filed before the Supreme Court go here.

For more on some surprising announcements by the Supreme Court today - on a different subject, go here.

Monday, September 26, 2011

Oregon finds that convicted defendant can bring malpractice claim against lawyers for mishandling post conviction appeal

As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.

In a slightly different type of case, the Oregon Supreme Court recently ruled, however, that a convicted criminal need not obtain exoneration of the underlying offense before suing his or her lawyers. The case is called Drollinger v. Mallon, and it is available here. The case is slightly different because the plaintiff's allegation was that the lawyer was negligent in handling a post-conviction appeal. The court found that exoneration is not required in the post-conviction malpractice setting because the policies underlying the exoneration requirement in an action involving alleged trial malpractice do not apply to an action in which a client's failure to obtain post-conviction relief is the heart of the case.

New graphic warning labels for cigarettes -- UPDATED

Back in June I reported that the FDA has mandated a significant change in the way cigarette manufacturers warn consumers about the risks of smoking.  The goal is clear, as expressed by the WSJ law blog... "to scare the bejeezus out of people."

The new labels must occupy the top half of the front and back of a cigarette pack, and the various images will be accompanied by messages such as “Smoking can kill you.”

One question left yet to be addressed is whether cigarette manufacturers will sue FDA arguing that its graphic-labeling rule violate their constitutional rights to free speech, as it has done in the past.

Go here for the full story.

UPDATE (8/17/11):  The blog of the Legal Times is reporting today that five of the nation's largest cigarette manufacturers filed suit against the U.S. Food and Drug Administration challenging the new regulations that require them to print graphic images depicting the health risks of smoking on cigarette packaging and advertisements.  First Amendment veteran Floyd Abrams, who is representing the tobacco companies, has stated that "It violates the First Amendment to require the manufacturer of a lawful product to be required to use half of its package essentially to urge people not to buy the product."

This will be a very interesting case, so stay tuned.  The Wall Street Journal law blog and Prof. Jonathan Turley have more on the story here and here (make sure you check out the comments).  The First Amendment Center has more here.  For a copy of the complaint, go here.

UPDATE #2:  The FDA law blog has more on the story here.

UPDATE #3:  Here's part of the complaint's introduction, which summarizes the industry's First Amendment challenge:  "These requirements force [the tobacco industry], not to convey purely factual and uncontroversial statements about the risks of tobacco use, but rather to become a mouthpiece for the Government's emotionally-charged anti-smoking campaign. ... This is precisely the type of compelled speech the First Amendment prohibits."  Public Citizen has more here.

UPDATE #4: (8/19/11): Tobacco Companies Seek Injunction to Delay Production of Graphic Labels

UPDATE #5 (9/12/11):   The FDA has filed its opposition brief in the lawsuit filed by five of the nation's largest cigarette manufacturers to block any delay to new regulations requiring graphic warning labels on cigarette packages.  Go to the Wall Street Journal law blog for more.

UPDATE #6 (9/26/11):  U.S. District Judge Richard Leon heard oral arguments last Wednesday, focusing much of his time on pressing the government to define where the line is drawn between fact-based warnings and advocacy. Leon also noted that regardless of how he ruled, he expected that the losing side would appeal.  The Blog of the Legal Times has more details here.

UPDATE #7 (11/7/11):  Judge grants injunction stopping the implementation of the new FDA rules regarding cigarette warning labels