Monday, November 26, 2012

Another comment on the ruling in the 9/11 litigation

The Jurist has a short post on the recent ruling granting a motion for summary judgment in the In re September 11 Litigation case here.  In my previous comment (here) I pointed out the fact that the recent ruling seems to contradict the ruling on a similar motion filed back in 2003.  The Jurist points out the new ruling also "deviated significantly" from a previous ruling by the judge back in September of this year.

Did the Founders' Constitution Permit Federal Tort Reform?

Randy Barnett has this post today at "The Volokh Conspiracy," linking to two contrasting views on the subject that you can access here and here.

Thanks to How Appealing for the links.

Federal judge grants motion for summary judgment in favor of United Airlines in September 11 litigation

Five days ago, the federal judge who has been overseeing the torts claims based on the terrorist attacks on September 11, 2001, granted a motion for summary judgment in favor of United Airlines holding that the injury was not a foreseeable consequence of the risk created by United's negligence. In other words, the plaintiffs could not support the element of proximate cause. (And, by the way the Judge cited Cardozo's opinion in Palsgraf v Long Island RR in support of his conclusion). The New York Times has the story here. The case is called In re September 11 Litigation and the opinion is now available on Westlaw at 2012 WL 587014.

I find the result surprising because this is the opposite conclusion the same judge reached when deciding the first motions to dismiss in the case back in 2003. See, In re September 11 Litigation, 280 F.Supp.2d 279 (S.D.N.Y. 2003). In that case, the airlines, the airport security companies, the airport operators, the airplane manufacturer and the operators and owners of the World Trade Center argued in their motions to dismiss that the plaintiffs could not support their arguments of duty and proximate cause because "the defendants could not reasonably have anticipated that terrorists would hijack several jumbo jet airplanes and crash them, killing passengers, crew, thousands on the ground, and themselves."

In deciding to deny the motions to dismiss back then, the judge concluded that "[a]t this early stage of the case and in the absence of a factual record, I find that plaintiffs have pleaded sufficient facts to allege legal proximate cause. . . . I . . . decline at this stage to find that the acts of the terrorists qualify as “extraordinary” intervening cause . . . The defendants may well be able to show at a later stage in this litigation that the conduct of the terrorists [was unforeseeable]. . . . Discovery will either supply evidence to substantiate or eviscerate the parties’ divergent claims about foreseeability. . . . At this point, however, both plaintiffs and defendants should be allowed to proceed to discovery on these issues of causation."

Apparently, discovery did help at least one of the defendants after all. At first I found the two decisions difficult to reconcile because the new one did not make clear to me that it was based on any new facts found in discovery. The decision, which is really short, discusses the same issue it addressed in 2003 - even suggesting it refers to whether the plaintiff can establish a prima facie case-, approaches the question with the same analysis, but reaches the opposite conclusion. Citing Palsgraf, the judge simply concluded that it was not foreseeable "that terrorists would slip through the PWM security screening checkpoint, fly to Logan, proceed through another air carrier's security screening and board that air carrier's flight, hijack the flight and crash it into 1 World Trade Center, let alone that 1 World Trade Center would therefore collapse and cause Tower 7 to collapse."

Given this conclusion, now it seems to me, that the difference between the two decisions relates to the fact that this particular defendant seemed to be arguing more intervening events happened between its conduct and the end result than the defendants in the older opinion. In other words, the defendants in the older opinion argued that the terrorists' conduct was an intervening event and the judge found that that alone was not enough to defeat the claims. Here, it appears United was arguing a number of additional intervening events made a difference.  And what is even more interesting is that reasoning the plaintiff can't satisfy proximate cause because of the number of intervening events that also contributed to the end result is the basis for the analysis suggested by Judge Andrews - not by Cardozo - in Palsgraf

The judge, however, does not make this distinction clear and his new opinion does not discuss the old one at all.  

In the end, quite frankly, I think the explanation for the two opinions lies elsewhere.  I think that back in 2003 the events of 9/11 were still too recent and the judge simply did not want to be remembered as the judge who dismissed the claims of the victims.  Nine years later, being more detached from the incident, it is easier to dismiss the claim.  The judge, as stated in the passage quoted above, just wanted to give the victims a chance to try to support their claim, even though it is possible that the judge already thought back then that the motion to dismiss was solid.  Could the judge have dismissed the case back in 2003?  Absolutely; and the recent decision shows why.

UPDATE 11/26/12: The Jurist has a short post on the recent ruling granting a motion for summary judgment in the In re September 11 Litigation case here. Interestingly, The Jurist points out the new ruling "deviated significantly" from a previous ruling by the judge back in September of this year.

Sunday, November 25, 2012

Excellent comments on discovery practice and litigation management

Over at the Litigation and Trial blog, Max Kennerly has published two excellent comments on issues related to discovery and litigation management.  In the first one (here), he concludes that "when courts forbid plaintiffs’ lawyers from sharing relevant discovery evidence amongst themselves, they inadvertently enable the defendants to engage in discovery fraud by cherry-picking which evidence they produce in each case."  In the second article (here), he reviews a new article by the federal judge (and the special masters he appointed) who oversaw the 9/11 Responders litigation which reveals another critical component of a successful and fair resolution of high-stakes litigation: judges need to make sure the cases move forward.  Professional Responsibility:  A Contemporary Approach also has a comment on the article here.

Thanksgiving torts

Here is a link to Prof. Jonathan Turley's annual compilation of Thanksgiving themed torts. And here are two links (here and here)to some videos on how not to prepare a turkey....   Enjoy!

Thursday, November 15, 2012

Can too much caffeine cause death (part 3)? FDA discloses report on yet another "energy drink" mentioned in multiple deaths reports

Following up on the two stories I recently posted on the FDA's reports on the possible risks associated with so called "energy drinks" which contain high levels of caffeine, the New York Times is reporting today that the FDA has released records on fatality and injury filings that mentioned the possible involvement of three top-selling products. In my previous post I mentioned the report on "5-hour energy" (see here).  The NYT article focuses on the report on a product called "Rockstar Energy."  You can read the full article here.   In addition to the reports on these two products, last October, the F.D.A. confirmed that it had received five fatality reports that cited Monster Energy.

UPDATE (11-19-12): About Lawsuits has more on the story here.      

Wednesday, November 14, 2012

Can too much caffeine cause death (part 2)? FDA reveals "5 Hour Energy" drink mentioned in 13 deaths reports

Yesterday I posted a comment on a recent case filed against the manufacturer of an "energy drink" that alleges the high level of caffeine in the drink contributed to cause someone's death.  Go here for that story. 

Today, the New York Times has published a story (here) discussing the fact that the FDA have received reports of thirteen deaths over the last four years that cited the possible involvement of 5-Hour Energy, a highly caffeinated energy drink.

One might think that thirteen incidents in four years may not sound like much.  But, as the NYT story states, that has to be looked at in the context of the number of fatality reports filed with the F.D.A. that relate to all products.  In 2010, for example, the F.D.A. received a total of 17 fatality reports that mentioned a dietary supplement or a weight loss product, two broad categories that cover more than 50,000 products.

So, as I said in my post yesterday, can too much caffeine cause death? Perhaps manufacturers of "energy drinks" should be concerned.

UPDATE (11/15/12):  The blog Injured has more information here.

UPDATE (11/18/12):  About Lawsuits has picked up the story here.

Tuesday, November 13, 2012

On the dangers of texting and ______...

We all know (or should) about the dangers of texting and driving.  But, quite frankly, at this point we should be talking about the dangers of texting, period.  The other day, I saw a woman literally walk into a lamp post because she was not paying attention while texting and walking.  And now, to quote the folks at Lowering the Bar, from the world of terrible ideas comes the ski goggles that let you see texts and emails on the goggles while you are skiing.  'Cause nothing says "fun" like skiing down a mountain at high speeds around other skiers - let alone trees - while reading your mail...  Lowering the Bar has more (it is worth it).

The goggles let you read emails on the slopes, as well as listen to music and make phone calls.  For more information on the product go here.

Okay maybe not quite -- the second one is from Lowering the Bar -- but you get the idea.

Now, I know what you are going to say...  This is for people to use while taking a break, while at the lodge sipping hot chocolate, etc.  Noone would be dumb enough to read emails while skiing.   Yeah, that's the same thing they said about driving.... but now we know better, don't we?:

Can too much caffeine cause death? Perhaps manufacturers of "energy drinks" should be concerned

Friends of the blog at Abnormal Use have posted a short update on an issue that has been raised before regarding so called "energy drinks." According to a recently filed claim, the parents of a 14-year old are arguing that their daughter went into “cardiac arrhythmia due to caffeine toxicity” after two drinking two 24-ounce cans of Monster Energy on consecutive days. According to the report, the high caffeine level of the drink complicated an existing heart valve condition in the teen. She was taken to the hospital but died six days later.

Obviously, the big question is going to be whether the Monster Energy drink should be considered to be unreasonably dangerous given its high level of caffeine. This is one of the main allegations in the lawsuit. Simply put, that the product is defective in its design because it simply contains too much caffeine.

Accoring to Abnormal Use, one can of Monster Energy contain 240 mg of caffeine, while a single venti (20oz) cup of regular coffee from Starbucks contains 415mg of caffeine.

This seems to suggest that the level of caffeine in the drink is actually not that high.  But this, in my opinion, does not take into account what I think is the most interesting part of the issue:   the marketing scheme for the product. This is a product that is clearly targetting younger consumers. For example, it sponsors “X-games” type activities. For that reason, the question that needs to be explored is not whether the level of caffeine is OK when compared with a cup of coffee, but whether the level of caffeine is too high for younger consumers. I don’t know the answer to that….

Also, the Monster drinnk cans contain a warning that states: “Limit 3 cans per day. Not recommended for children, pregnant women, or people sensitive to caffeine.” 

Apparently it is unclear whether this warning was on the cans when the plaintiffs’ daughter consumed the Monster Energy, but assuming that it was, the question remains whether the warning should be considered to be adequate under the law. 

Pfizer settles case for $67.5 million

Pfizer has agreed to pay $67.5 million to settle a class-action litigation in which the plaintiffs alleged that adverse side effect data for its Pristiq medication was not disclosed properly.  Pharmalot has more details.

Statute of limitations and the Federal Torts Claims Act

In my torts class, last week we discussed defense based on a statute of limitations.  This week we will discuss the Federal Torts Claims Act.  This post relates to both. 

As reported in Circuit Splits:

The doctrine of equitable tolling is a “drastic remedy” which allows a court, under extraordinary circumstances, to overlook a plaintiff’s failure to file a complaint within the statutorily allotted period of time. Under the Federal Tort Claims Act this period of time is “six months after the date of mailing . . . of final denial of the claim by the agency to which it was presented.”  However, there is a split among jurisdictions as to whether the remedy of "equitable tolling" is available for plaintiffs who fail to file in time. 

This question is back in the news because last week the Court of Appeals for the Second Circuit issued an opinion in Goldblatt v. Nat’l Credit Union Administration holding that, “[i]n this Circuit, it is an open question whether equitable tolling is available for tort claims brought pursuant to the FTCA.”  The court further noted that “[o]ther circuits are split on this issue. Compare Santos ex rel. Beato v. United States, 559 F.3d 189, 194-97 (3d Cir. 2009), with Adams v. United States, 658 F.3d 928, 933 (9th Cir. 2011), and In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011).”

As with all other cases where the circuit courts are divided, there is a chance the Supreme Court might take an appeal to resolve the split.

Monday, November 5, 2012

Update on the Aurora theater shooting fund plan

According to a protocol engineered by "special master" Ken Feinberg, whose handling of the BP oil spill fund was quite controversial (see here and here), the families of the twelve people who died in the Aurora theater shooting and the victims who were brain injured or paralyzed will split 70 percent of the $5 million left in the Aurora Victim Relief Fund, while those who suffered less severe physical injuries will share the remaining 30 percent. Torts Today has more details and links here.

Wrongful death of a fetus

Just days after we finished discussing pre-natal torts in class, comes news that a lawsuit has been filed in Nebraska asking the court to recognize a claim for the wrongful death of a fetus for the first time.  At issue in the case is the applicability of a state statute that extended legal protections to fetuses at any stage of development.  Although the law is not a wrongful death statute itself, the plaintiffs are arguing it should be taken into account when deciding the wrongful death case.  For more on this story go to The San Francisco Chronicle and the ABA

The issue, of course, is not new.  You may remember that last February, the Alabama Supreme Court decided in a case called Hamilton v. Scott that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.  See here.  And, as you may also know the wrongful death statute in Illinois recognizes a claim for the wrongful death of a fetus.  It is not clear whether this is a majority approach or even a "trend" among jurisdictions.  Last time I checked, the majority view on this subject was to "draw the line" at viability.  The third option, followed by another minority of states, is to recognize the wrongful death claim only if the child is born alive, survives for an instant on his or her own and then dies.  Those states draw the line at birth.  

Military contractors, the Feres Doctrine and The Good Wife

Last Saturday I posted a note about a recently decided case against a military contractor for injuries to soldiers from exposure to dangerous materials.  See here.  I also posted a separate note on the continued reports on sexual assaults on female cadets at the Air Force Academy and the effect of the Feres doctrine on the possible liability of the state for those injuries.  See here.

Today, the PopTort blog has posted a note that relates to both issues based on last night's episode of the TV show "The Good Wife."

Before going any further, though. let me say two things: I did not see the episode and, the reason I did not see the episode is basically because I think that show sucks.  I have seen a couple of shows in the past and all I can say is that they really need some legal consultants.  For a show about lawyers, at least in the episodes I saw, they got the law and the practice of law wrong every time; although that is not unusual when it comes to law related shows...

But I digress...

According to the PopTort, last night's episode was about a male defense contractor accused of sexually assaulting a female officer, who then sued him for civil damages.   The storyline had the contractor trying to assert absolute immunity under the Feres doctrine.  So, I might try to give this episode a try at some point this week...

On the legal question itself, as quoted by the PopTort, in a report by the Congressional Research Service:
The Feres doctrine currently does not bar suits against government contractors working for the military, although some contractors have argued that it should be extended to preclude such suits, and some commentators have asserted that the Feres doctrine leads service members to seek damages from contractors that they could not recover from the government. Contractors have also attempted to assert derivative Feres or “intramilitary” immunity, although with little success. Where a party is immune from suit, the court cannot exercise jurisdiction over the claim against it.
 Go here for the PopTort's full comment.

Comment on issues created by triangular relationship and the appointment of independent counsel to represent an insured

The New York Personal Injury Law blog has a good short comment on the duties of an attorney hired by an insurance company to represent one of several insured parties involved in a medical malpractice claim.  The case scenario discussed in the comment is not too uncommon.  The plaintiff sued two physicians (and "attending" and a "resident") for injuries during a procedure but it is not clear which one of them actually caused the injury.  The both want to claim it was the other, but their actions are covered by one same insurance policy.  The insurance company assigns the case to two separate attorneys to represent each individual defendant separately.  Also, and again not unusual, the insurance company retains the right to agree to the terms of any settlement.  What happens when the insurance company wants to agree to a settlement that includes placing the blame on only one of the doctors?  How can it determine which one to blame and what are the rights of that doctor in the negotiating process?  What happens if the insurance company does not invite the attorney for one of the doctors to participate in the negotiation of a settlement?  These are some of the issues discussed.  You can read the comment here.

I think the comment is correct in the end - the bottom line being that the attorney assigned to represent the insured has a duty to demand to be part of all negotiations and a duty to defend the client's interests even if they are contrary to those of the insurance company.  The comment argues that even if the client does not have a financial interest at issue in the negotiation of the settlement, there are other interests at stake that require that he or she be represented fully.

I agree with the bottom line.  However, I think the comment is not entirely accurate in one small point.  It starts from the premise that the resident does not have a financial interest in the settlement negotiations "because the hospital has vicarious liability for its resident."   In other words, according to the premise, the insurance company justifies not inviting the attorney for the resident doctor to participate in the settlement process because the resident does not have to contribute to the settlement from her own funds," or because he or she "has no out-of-pocket responsibility to pay any part of the settlement amount."

It is true the resident doctor has no responsibility to contribute to the settlement amount, but that does not mean that he or she does not have a financial interest at stake.   It is not entirely correct to say that because there is vicarious liability, the resident does not have to contribute to the settlement.  The fact that there is vicarious liability allows the plaintiff to recover the full amount of compensation from the employer but it does not relieve the actor/tortfeasor from his or her liability to the employer.  The employer has the right to be indemnified in full.  The fact that employers rarely, if ever, decide to exercise that right does not mean the right does not exist.

Thus, unless the employer has agreed beforehand to waive the right to indemnity, the resident does have a duty to repay the employer for what the employer pays in the settlement.  And, for this reason, I would say that the resident can clearly argue that he or she does have a financial interest in participating in the negotiation. 

In other words, I agree there is duty on the attorney to represent the interests of the insured in the negotiation but that duty is based not only on the insured's personal interests but also on his or her financial interests at stake.

NOTE I posted this in my Professional Responsibility blog too.

Saturday, November 3, 2012

$85 Million verdict against Kellog Brown & Root (KBR), a US Iraq War contractor, for exposing soldiers to toxins

Back in January of 2010, there were many reports on possible health hazards American soldiers were getting exposed to in Iraq and Afghanistan as a result of the burning of hazardous and medical waste.  See here and here.  A  number of lawsuits were filed. One lawsuit was filed by a group of Indiana National Guardsmen who alleged that a mission to help clean up a water treatment plant in southern Iraq left them with fatal illnesses. (See here.)

Another case, filed by Oregon Guardsmen, has now been decided.  Torts Today is reporting that after a three week trial, a jury deliberated two days before it found KBR liable for negligently exposing soldiers to sodium dichromate, a cancer causing toxin substance containing hexavalent chromium. The jury returned an $85 million verdict against Kellog Brown & Root (KBR), a US Iraq war contractor.  The Washington Post has more on story here.

A similar lawsuit is now pending in the US Court in Maryland alleging that KBR, and others, exposed US soldiers to toxins from burn pits that were built, constructed or maintained for waste disposal.

New report on ATV injuries and children

A new report on injuries suffered by children riding all-terrain vehicles (ATVs) indicates that manufacturer warnings and parental supervision are doing little to keep underage drivers off ATVs resulting in a disproportionate number of severe injuries among children from ATV accidents.  The American Academy of Pediatrics issued a statement last week, warning that labels placed on ATVs that indicate they are only to be used by those older than 16 are ineffective. The academy also indicated that dealer-sponsored training is infrequent and generally ignored by young drivers.  Drivers ages 16 and under make up 40% of all ATV accident injuries, AAP noted. However, less than 35% of those young people involved in such accidents were wearing helmets at the time. has more information and links here.

Sexual assaults at the Air Force Academy still a big problem

In just a few days we will begin our discussion of the Federal Torts Claims Act and, in particular, of the Feres Doctrine which prevents military personnel from suing for injuries while in service.  This doctrine has been severely criticized over the years but it continues to be validated by the courts.  One of the types of cases it has been used to block are claims by female cadets at the Air Force Academy for injuries caused by sexual assaults.  A few years ago, there were a number of high profile reports on this problem, but the Academy said it would take steps to correct the situation.  A new article in the New York Times from a few days ago suggests the problem is still rampant.  Go here to read the full article.  For more information on the Feres Doctrine go here.  my posts on issues related to the Feres Doctrine go here

Plaintiffs' reply to NFL motion to dismiss in case about concussions

Torts Today is reporting that the plaintiffs have responded to the NFL’s motion to dismiss in the case related to the injuries related to concussions, arguing that they deserve to have their day in court. According to the report, "[t]he plaintiffs used this as another attempt to convince Judge Brody, and the public, that their claims have nothing to do with the collective bargaining agreements. At the heart of the preemption issue, the plaintiffs have to show that their purported state-law claims are not substantially dependent upon or inextricably intertwined with the terms of the CBAs. (This is legal jargon meaning that Judge Brody can toss aside the CBAs and adjudicate the players’ claims without resort to the players’ contracts.)" Go here for the full report.

Statute of limitations extended because of hurricane Sandy

The NY Personal Injury Law Blog is reporting that Gov. Andrew Cuomo has issued an Executive Order suspending the statute of limitations in a wide variety of cases, both civil and criminal. The term of the suspension is indefinite. This affects the time to bring a suit, the time to file an appeal, and the time to bring criminal prosecutions. The Second Circuit Court of Appeals has acted also, extending the time to file a notice of appeal to some litigants.  For more information go here.