Monday, February 25, 2013

Wednesday, February 20, 2013

Update on Millbrook v. United States

A few days ago, I commented on a case now before the US Supreme Court called Milbrook v. US in which the Court will consider whether a plaintiff can recover under the Federal Torts Claims Act for injuries caused by law enforcement officers other than when they are executing a search, seizing evidence or making arrests for violations of federal law.

The Court heard oral arguments yesterday and here are a few links to commentary on it.

Here is a preview of the argument.

Here is a comment on the oral argument itself.

Here is a comment published on NPR (which includes a link to a short report from the radio program Morning Edition).

 The New York Times published this short editorial on the case today.

The impact of tort reform on nursing home abuse cases in Wisconsin

The PopTort is reporting today on a new report by the nonprofit Wisconsin Center for Investigative Journalism  about the impact of Wisconsin’s new nursing home “tort reform” law.  According to the article, the recently adopted tort reform initiatives make it extremely difficult for families to sue on behalf of their abused or neglected relatives.  One interesting aspect of the laws is that they prohibit plaintiffs from using any state investigation records as evidence in a lawsuit.  Also, they make it extremely difficult for plaintiffs to recover punitive damages even against grossly negligent defendants.  Go here for the short article and some links to more information.

Monday, February 18, 2013

Supreme Court ready to hear another case on the Federal Torts Claims Act

About a month ago, the US Supreme Court heard oral arguments in a case brought under the Federal Torts Claims Act asking whether a battery claim against the United States for injuries allegedly caused by military medical personnel is barred by sovereign immunity.  See here

Tomorrow, the Court will hear another case against the US based on the Federal Torts Claims Act challenging a narrow interpretation of the Act by the Court of Appeals for the Third Circuit.  The case involves a claim filed by an inmate in a federal prison who alleges he was beaten up and forced to perform oral sex on a prison guard.  The District Court dismissed the complaint and the Court of Appeals for the Third Circuit affirmed holding that the government is liable only for injuries committed by law enforcement officers when they are “executing a search, seizing evidence or making arrests for violations of federal law.” 

It is not too surprising to see the court interpret the statute so narrowly.  Federal courts have tended to favor a narrow interpretation of the statute in order to protect the government of the possible liability, but, at least according to some sources, the Third Circuit is in the minority when it comes to the interpretation of the particular section of the statute relevant to the case. 

Interestingly, the US government itself has changed its position since the beginning of the case.  In its brief, the solicitor general is now arguing that the proper interpreation of the statute should be broader, suggesting that law enforcement officers should be liable for wrongs done while acting within the scope of their employment, regardless of whether they occur during a search, a seizure of evidence, or an arrest.  The solicitor general now seems to support the position that the Third Circuit’s approach improperly limits the courts’ ability to remedy government wrongdoing as Congress intended.

The case is called Millbrook v. United States.  Go here for all the relevant documents, including briefs and lower court opinions.

UPDATE (2/20/13):  For an update and links go here.

UPDATE (2/25/13):  To listen to the oral argument go here.

Sunday, February 17, 2013

Possible reform in medical malpractice cases in Georgia, and the problems it creates

About a week ago, the Augusta Chronicle reported that Georgia state Senator Brandon Beach introduced a bill that would create a hearings-system to handle medical malpractice claims.  The bill proposes a system in which patients take complaints of doctor or hospital mistakes to a panel of physicians for hearings rather than to the courts.  If the panel concludes compensation is warranted, it pays out of a fund all providers pay into, like the no-fault system that covers on-the-job injuries.

This is not a new idea.  The notion of medical malpractice panels has been proposed and discussed many times before with little success.  One reason for this is that such systems create a number of problems that are difficult to get around.  For example, the proposal could be interpreted as an attempt to take away injured patients’ right to a jury trial.  Worse, it could be eliminating the right to a jury trial without providing an alternative system (run by physicians) that offers equal or better protection than our civil justice system.   Second, bcause the proposal is modeled on the workers’ compensation system, it will likely suffer from the same flaws as the workers’ compensation system.  Third, there is no assurance of fairness when it comes to calculating the value of the injuries.  More than likely, the system would end up imposing a de facto cap on injury claims.  Finally, the proposal is premised on arguments that have been proven to be false (ie, that reform will reduce health care insurance costs and health care costs in general).

As I have said many times before, the real purpose of proposals like this one is not to eliminate frivolous lawsuits but to make it more difficult for victims to bring valid ones or to reduce the amount to be paid in compensation for them.

Thanks to TortsProf Blog for the link.

Saturday, February 16, 2013

FDA considering abandoning rule that requires generics to use same warnings as brand name drugs

In June 2011, the U.S. Supreme Court held in Pliva v. Mensing that injured patients' state-law failure-to-warn claims against generic-drug manufacturers are preempted by federal law because the Food and Drug Administration requires those manufacturers to use labeling that is the same as the brand-name labeling.

Surprisingly, it is now being reported that the FDA is considering a regulatory change that would allow generic manufacturers to change their labeling in appropriate circumstances.  If such a regulatory change is adopted, it could eliminate pre-emption of failure-to-warn claims against generic-drug manufacturers.  For more details go to Thomson-Reuters, AboutLawsuits and Pharmalot.

Interestingly, in this case the regulatory change might actually be a reaction to the reality of practice.  According to a recent study, manufacturers of generic drugs have been changing the warnings they use for their products already even though there are not supposed to.  (Their study concluded that that nearly 78 percent of generic medicines have safety warnings that differ from labeling on equivalent brand-name drugs.) (Here is an abstract).  For more on the study and some links go here.

Wednesday, February 13, 2013

Update on Washington case on emotional distress: federal court follows state supreme court's lead and recognizes cause of action

A few days ago I reported that the Washington Supreme Court held that a plaintiff could support a claim for emotional distress absent physical injury.  As a explained in that post, the issue arose in a federal case and the federal court asked the Washington Supreme Court for guidance.  Now comes news that, In light of the Washington Supreme Court’s decision, the federal court of appeals concluded that the plaintiff must be given another opportunity to amend his complaint, and remanded to the district court to determine whether the plaintiff after amendment has pled the necessary facts to support his emotional damages claim.  Bloomberg news has a report here and the actual opinion is available here.

Wednesday, February 6, 2013

Washington state Supreme Court recognizes cause of action for emotional distress absent physical injury in a products liability case

A week ago, the Supreme Court of the state of Washington decided for the first time that a plaintiff could recover for pure emotional distress as part of a product liability claim based on strict liability.  The case is called Bylsma v. Burger King Corp..

The claim was brought by a plaintiff who alleged he found a glob of phlegm/spit on a burger he bought at Burger King.  (It was later determined the spit was deposited there by a BK employee.)  The plaintiff discovered the spit on his burger before he bit into it, but claiming to have suffered emotional distress (and physical manifestations) as a result, he sued in federal court.  The trial court dismissed the claim concluding that Washington law did not recognize a cause of action for emotional distress absent a physical injury.  (It would recognize a cause of action for emotional distress suffered as a result of a physical injury, but not a cause of action for emotional distress absent a physical injury.)

The plaintiff appealed to the Court of Appeals and the Court then certified the question to the Washington Supreme Court which disagreed with the interpretation of the law by the federal trial court.

As explained by the court, the Washington Product Liability Act (WPLA) is mostly a copy of the Model Uniform Product Liability Act (UPLA), except that the WPLA did not adopt the UPLA's definition of "harm."  In its definition of harm, the UPLA includes emotional distress only if it is the result of a physical injury.  The common law in the state of Washington, however, recognizes claims for emotional distress absent physical injury as long as there is proof that the emotional distress manifests itself physically.

Given that the plaintiff in the case did allege to be suffering from physical manifestations of the alleged emotional distress, the court found his claim should be allowed to go forward.  As the court puts it in its conclusion:  "The WPLA permits relief for emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product, if the emotional distress is a reasonable response and manifest by objective symptomatology."

This, of course, does not mean that the plaintiff wins the case, though.  It only means that he has a right to seek recovery.  Whether he will get to recover (and how much) will depend on many additional factors.  

For a comment on the case go to Abnormal Use blog.

UPDATE 2/13/13:  In light of the Washington Supreme Court’s decision, the federal court of appeals concluded that the plaintiff must be given another opportunity to amend his complaint, and remanded to the district court to determine whether the plaintiff after amendment has pled the necessary facts to support his emotional damages claim.  Bloomberg news has a report here and the actual opinion is available here.

Sunday, February 3, 2013

Is a fox a wild animal even if domesticated?

A few years ago I wrote about concerns raised by the so-called "wolf-dog" hybrid breed of dogs and whether they should be considered wild, even if their owners kept them as pets.  See here.  Now, here is a post about domesticated foxes. 

Saturday, February 2, 2013

New report on contingency fees

The Center for Justice & Democracy has published a new study called Courthouse Cornerstone: Contingency Fees and Their Importance for Everyday Americans in which it discusses the debate over the use of contingency fees and the efforts by tort reformers to limit or eliminate the use of contingency fees in the US.  You can download a copy of the report here.  For a summary Fact Sheet click here.  For the Press Release announcing the report click here.

On football, brain injuries and tort litigation

On the eve of the Superbowl, I would like to recommend that you check out Max Kennerly's recent post at Litigation and Trial on the debate surrounding the litigation against the NFL related to retired players' brain injuries.

Lawsuit against Pfizer argues Zoloft is no more effective at treating depression than sugar is reporting (here) that a class action lawsuit has been filed against pharmaceutical company Pfizer arguing that Pfizer has defrauded patients of $30 billion by selling them an antidepressant that does not provide any benefits.  In fact, the plaintiffs argue that studies show Zoloft is no more effective at treating depression than a sugar pill.  The complaint is available here. 

So close!

As my students know, I like to play golf, so here is a video for all of you.  It shows how close professional golfer Phil Mickelson came to scoring 59 on his round a couple of days ago.   59 is the lowest score ever recorded in a professional tournament and it has been done only 5 or 6 times ever.  Watch to see what happens.  Now, since this post has nothing to do with torts, I will provide the following link to this post (which also has links to more posts) in which I discuss the concepts of duty and assumption of the risk as they relate to playing golf.