Sunday, March 30, 2014

Attempts in two sates to increase the amount of caps on damages

In California, consumer advocates have filed over 800,000 signatures to place a voter initiative on the ballot in November 2014 to, among other things, raise the cap on damages in medical malpractice actions, at least allowing it to keep up with inflation.  The PopTort has more information and links.

Meanwhile, the TortsProf blog is reporting that in Kansas  the state Senate and House have passed similar bills to gradually raise the non-economic damages cap in personal injury cases from $250,000 to $350,000. The major difference between the bills concerns the collateral source rule. The Senate version would allow jurors to hear testimony about whether a plaintiff's damages were covered by insurance; the House struck that provision.

Hopefully, the House version will prevail. One important goal of tort law is to shift the cost of accidents onto the persons who are responsible for the harm. The collateral source rule helps preserve this goal because, without it, it’s likely that costs would be shifted away from the wrongdoer to the injured party and his or her insurance provider.  Exonerating the tortfeasor because the plaintiff can "afford" the cost of the accident also does nothing to advance another goal of tort law: deterrence.

Thursday, March 27, 2014

Illinois Appellate Court decides parents can recover extraordinary expenses in wrongful pregnancy action

Last month, the Illinois Court of Appeals, First District, issued an opinion in an interesting case on the character of the compensation that can be recovered in a wrongful pregnancy case. I think the case reaches the correct result, and I am sure it will eventually reach the state supreme court.  The case is called Williams v. Rosner and you can read the opinion here.

The facts of the case are relatively simple. Knowing there was a good chance that her children could be born with sickle cell disease, a woman had a doctor perform a procedure to prevent her from getting pregnant. Eventually, however, she did get pregnant and gave birth to a daughter who suffers from sickle cell disease. Arguing the doctor was negligent, the woman and her husband sued seeking compensation for their injuries including compensation for the extraordinary expenses that they would incur in raising their daughter.  The defendants filed a motion to dismiss arguing the plaintiffs could not recover for extraordinary expenses.

In Illinois, unlike in some other states, parents who seek to recover compensation for a pregnancy that they had sought to avoid (typically referred to as a "wrongful pregnancy" or "wrongful conception" case) have been limited to recover costs associated with the unsuccessful operation, the pain and suffering involved, any medical complications caused by the pregnancy, the costs of delivery, lost wages,and loss of consortium.  In part, this view is based on the notion that the birth of a normal healthy child should not be judged to be an injury to the parents.

On the other hand, Illinois has recognized the right to recover for extraordinary expenses in "wrongful birth" cases.  In these cases, the parents allege that they would not have conceived a child or carried their child to term but for the negligence of the doctor who administered neonatal testing or genetic testing and failed to counsel them of the likelihood of giving birth to a physically or mentally impaired child. In such cases, parents can recover extraordinary damages, including the medical, institutional and educational expenses that are necessary to properly manage and treat their child's congenital or genetic disorder up to the age of majority.

In Williams, the plaintiffs argued, correctly in my view, that if we apply basic torts principles, they should be allowed to recover extraordinary expenses.  A defendant in a negligence action should be liable for those injuries which are foreseeable consequences of the negligent conduct.  For this reason, if the pleadings establish that the birth of the sick child is a foreseeable consequence of a negligently performed sterilization procedure, then wrongful pregnancy plaintiffs should be able to obtain an award of extraordinary damages.  And this is precisely what the court of appeals held.

If we are going to recognize the right to recover for extraordinary damages in wrongful birth cases, it would not make sense not to recognize them in wrongful pregnancy cases.  Stay tuned.

Now, having said all that, the case creates an anomaly that should be corrected.  Assume Mom and Dad Parents decide not to have any more children because of financial reasons.  They simply can't afford another child. They go to the doctor and inform the doctor of the reason for wanting a sterilization procedure.  The doctor is negligent and the parents have another child.  The child is healthy but the parents (and the child) suffer hardship because they don't have enough financial means.  According to the current state of the law, those parents can't recover for that hardship.  They can't recover the cost of raising that child, which is precisely the value of the foreseeable consequence of the negligent conduct of the doctor.  In contrast, according to the court in Williams, the parents of a child with an inherited condition can recover because that is the foreseeable consequence of the negligent conduct.

I think the issue in both cases is the same and the cases should lead to the same result.  Thus, eventually, when Williams gets to the Illinois supreme court, I hope the court takes the opportunity to overrule the old case in which it limited recovery in wrongful pregnancy cases.

Connecticut does not find horses are inherently dangerous

While Maryland is still discussing whether dogs are inherently dangerous (see here), the Connecticut supreme court has issued a decision on the possible liability for injuries caused by horses.  The court affirmed a lower court decision that had ruled that horses are, by nature, vicious animals.  However, while it affirmed the lower court's decision, the court did not find that horses are, by nature, vicious animals.

The question for the court was whether a defendant has a duty to take reasonable steps to prevent animals from causing foreseeable injuries.  Thus, the case involved a negligence claim, not a strict liability issue.  In ruling that a defendant does have a duty to prevent foreseeable injuries, the court simply applied the traditional rule that applies in all negligence cases.  The case is called Vendrella v. Astriab Family Limited Partnership.  You can read the opinion here.  Go here for more on the story.

Maryland legislature again considers bill regarding liability for dog attacks

Two years ago I reported (here) that the Court of Appeals of Maryland issued an opinion in a case called Tracey v. Solesky holding that the owner of a pit bull could be held strictly liable for the injuries caused by the dog.

Soon thereafter pit bull owners and their advocates persuaded state legislators to convene a task force aimed at overriding the decision of the Court of Appeals.  See here.

However, after a very long process, the attempt by the legislature to enact a statute to override the holding in Tracey appeared to have failed. Both the House and the Senate approved statutes but they did not agree on the approach to use to deal with the issue.  A committee was formed to reconcile the bills, but the resulting compromise bill did not have the votes to pass.

A few days ago, however, the ABA Law reported that the legislature is still considering the issue.  The State and House will have to pass a single bill.  Reportedly, the legislation would create a presumption that all dog owners are liable for bites by their pets, no matter what breed. The presumption could be overcome with proof the pet had been docile before the attack.  The Washington Post has more here.

This proposal makes no sense to me.  The law has never been that there is a presumption of liability.  The law is that a plaintiff has the burden of proof of either negligence or that the defendant knew or should have known of the dog's dangerous propensities.  What Tracey held was that a plaintiff only had to prove the animal was a pit bull to meet the requirement of proving that knowledge.

Instead of scaling back the reach of the Tracey ruling, this proposal actually appears to expand it.  Now all dog owners are presumed to have knowledge and the burden would shift to them to prove the negative.  After Tracey, pitbulls were thought to be inherently dangerous; now all dogs are presumed inherently dangerous.  I can't believe animal rights people would be in favor of this approach.

Tuesday, March 25, 2014

Is a cause of action for breach of fiduciary duty a torts claim?

As you probably know, a cause of action against a lawyer for "breach of fiduciary duty" is different than a cause of action for malpractice.  The latter is clearly a cause of action in tort which requires the plaintiff to meet the elements of a negligence claim.  The former, however, is different and, in fact, sometimes allows a plaintiff to state a claim under circumstances where a claim for malpractice will not be recognized.  See Tante v. Herring  453 S.E.2d 686 (Ga. 1994) for an example of this.

Having said this, then is a cause of action for breach of fiduciary duty not a torts claim?  If not, what type of claim is it?  A claim for breach of contract, perhaps?  I imagine there are cases out there that have addressed this question, but I have not done the research to determine what seems to be the majority view on this.

What I can tell you today is that there is a new case on the subject and that it holds the claim is a torts claim.  Interestingly, the holding worked in favor of the defendant because the statute of limitations just happened to be shorter for torts claims.

As reported in the Legal Profession Blog, the Connecticut Supreme Court concluded that "the plaintiff’s allegations sound in tort rather than in breach of contract, and, as a consequence, the plaintiff’s claim is barred by the three year statute of limitations applicable to tort claims."

The case is called Meyers v. Livingston and you care read it here.

Sunday, March 23, 2014

New study questions whether surgical checklist procedures reduce risks

The use of surgical checklists has become a growing practice in many hospitals, and many have suggested their adoption as a way to reduce the risk of complications and medical mistakes.  Unfortunately, according to a new study is questioning the effectiveness of the procedure, finding that the use of surgical checklists failed to improve outcomes.  Go here for the full story.

It seems to me that if you are looking for the use of checklists to eliminate the risks or to completely prevent mistakes, you are going to be disappointed.  Obviously, there will always be risks and possible mistakes.  The question is whether the procedure reduces the risks.

Studies like this new one are important, not to discourage the use of checklist procedures but to discourage legislatures from listening to proposals to immunize tortfeasors if they comply with the checklists.

Thursday, March 20, 2014

Illinois Supreme Court interprets Good Samaritan Statute

The Illinois Supreme Court announced today an interesting decision interpreting the state’s Good Samaritan Statute. The question for the court was essentially whether the statute provides immunity to a physician who provides emergency services while working in a hospital when the physician had no doctor-patient relationship with the plaintiff and was not an employee of the hospital. The injury occurred when an emergency room physician responded to a Code Blue outside the emergency room area of the hospital. The physician claimed immunity under the Good Samaritan Act. The trial court agreed and dismissed the claim, but the appellate court reversed and the Illinois Supreme Court affirmed.
Interpreting the policy behind of the statute and its text, the supreme court said that the purpose of the statute is to encourage physicians to volunteer to help under circumstances where they don’t have a duty to do so. Because the physician in this case, although employed in the emergency room, was expected to respond to Code Blues at the hospital as part of his job, the court decided the statute did not apply to him.
To resolve the issue, the court discussed two different lines of authority that had interpreted the statute in the past. The statute states, in part, that physicians will be immune from lawsuits if the services are not provided “for a fee” and in emergency circumstances. Based on that language and some cases, the defendant argued that the statute grants immunity as long as the physician does not bill the patient. In response, the plaintiffs argued that the notion of the “fee” can refer either to a patient being billed or a physician being paid in general.
The supreme court agreed with the plaintiff’s interpretation. Agreeing with a case previously decided by the Federal District Court applying Illinois law, the court explained that the statute was originally designed to “encourage physicians fearful of malpractice suits to stop and render aid to those injured in automobile accidents” and to encourage people to volunteer their time and talents to help others. For this reason, the court concluded that the cases cited by the defendants had been wrongly decided because they thwarted the “unmistakably obvious legislative intent.”
In the end, the court agreed with the appellate court’s conclusion that the defendant did not provide his services to the plaintiff “without fee.” He was fully compensated for his time that day, and it is clear that he responded to the emergency not because he was volunteering to help but because it was his job to do so. Thus, the statute did not apply to him.
You can read the opinion here and you can go here and here for commentary on the issues written before the opinion was issued.
UPDATE (3/23/14): The Appellate Strategist just published a review of the opinion here.

Comments on recent studies on the dangers of Tylenol

The Five Thirty Eight blog has an interesting article criticizing recent studies on the possible dangers of taking Tylenol during pregnancy.

Auto industry problems: GM recalls over 3 million cars and admits to quality control failures while Toyota agrees to pay 1.2 billion dollars to avoid criminal prosecution

This has been a bad week for the auto industry.  In a video message to GM employees, CEO Mary Barra admitted that the company’s quality control process have failed, resulting in “terrible things,” a reference to problems with more than 3 million cars that GM has recalled recently.  The first recall related to ignition problems that resulted in a recall of 1.6 million cars.  More recently, the company announced three new recalls, bringing the total number of recalled vehicles to over 3 million. AboutLawsuits has more details here.

Meanwhile, yesterday it was reported that Toyota has agreed to pay $1.2 billion to avoid criminal prosecution for hiding information in a recall case. It was also announced that the federal government has filed a criminal charge alleging the company defrauded consumers by issuing misleading statements about safety issues in Toyota and Lexus vehicles.  The Chicago Daily Law Bulletin has more information here.  Reportedly, shortly after the announcement, Attorney General Eric Holder issued an apparent warning to GM and other automakers, saying the Toyota deal was “not necessarily the only time we will use this approach.”

If that's the case, GM should be worried. It is facing a federal criminal probe over delays in recalling small cars with a deadly ignition switch problem.  Even though the company has admitted knowing about the ignition-switch problem for more than a decade, it failed to recall the affected cars (1.6 million of them) until last month. During the wait, at least a dozen people died in crashes.

Saturday, March 15, 2014

Florida Supreme Court finds that damages caps in medical malpractice cases are unconstitutional

In an opinion that refutes many of the myths usually cited by tort reformers in favor of imposing caps on damages, the Florida Supreme Court has found that the caps are unconstitutional.  The caps were part of reforms approved last year reportedly "in an effort to lower the cost of malpractice insurance rates and to keep doctors from moving out of state."

The fact that both these arguments (and other similar ones) have been debunked over and over again by many different studies hasn't stopped tort reformers from advancing legislation the real purpose of which is to make it more difficult for victims of medical malpractice to get access to adequate compensation.  (Go here and scroll down for links to many such studies.)

Fortunately, every now and then courts make things right again.  Last week, the Florida Supreme Court held that caps on non-economic damages "serve[] no purpose other than to arbitrarily punish the most grievously injured or their surviving family members."  Or, in other words, that the real purpose of the statute is to make it more difficult for victims to get access to adequate compensation, but, er, I repeat myself.

Some of the court's statements also address the other typical tort reformer claims.  For example, the court finds that the claim that increases in medical malpractice liability insurance rates are forcing physicians to practice medicine without professional liability insurance, to leave Florida, or to retire early from the practice of medicine is unsupported. The court also found that "available data indicates ...the finding that non economic damage awards by juries are a primary cause of the purported medical malpractice crisis in Florida is most questionable."

Finally, the court also questioned whether imposing caps on damages would lower malpractice insurance rates holding that "the record and available data fail to establish a legitimate relationship between the cap on wrongful death non economic damages and the lowering of medical malpractice insurance premiums."

You can read the court's opinion here.

The PopTort has a comment on the opinion here.

UPDATE 3/20/14:  About Lawsuits has more coverage here.

NY Times op-ed piece on defective automobile safety issues

After recent reports that General Motors failed to identify and fix an ignition defect linked to at least twelve deaths and that air bag failures may have contributed to hundreds of deaths, the New York Times has published a short op-ed piece on the subject.

Pubic Citizen urges FDA to Finalize New Generic Drug Labeling Rules

Back in November I posted that the FDA proposed a new regulations that would allow (and presumably encourage) generic drug manufacturers to add or update the safety warnings on their products. Go here and here for the background on the controversy.  More recently, I posted a comment on the manufacturers' objections to the proposed new regulations.  See here.

Now comes news that the prominent consumer advocacy group Public Citizen has published its comments on the issue, urging the FDA to move expeditiously to finalize the proposed rule.  Go here for the comments and here for more on the story.

Wednesday, March 12, 2014

Follow up on the McDonald's case: having read the complaint I can now say I was right about its nature, but it should be dismissed anyway

Yesterday I commented on a story about a new case against McDonald's that has received some attention over the internet.  I just had a chance to read the actual complaint so now I can comment on the claim itself.

First of all, in my comment yesterday I mentioned that I doubted an attorney would take the risk of filing a complaint that sounded so frivolous as the press was making it sound.  Well, the complaint was filed pro-se by the plaintiff himself, which explains a lot.

Second, I was right that the claim is not based on the number of napkins provided but on the effects of the altercation that followed.  The gist of the complaint is that the plaintiff suffered emotional distress because of the way McDonald's manager treated him and because of his language (and attitude).  (The plaintiff uses some other words to try to support his claim, like "slander," "discrimination," etc but they are irrelevant because they clearly do not apply.)

Third, if the facts were different, the claim, again as I argued yesterday, would raise interesting issues regarding the reach of a possible claim for emotional distress based on the effect of race related language.

But most importantly, fourth, I say "if the facts were different" because the facts alleged are not enough to raise those issues.  The facts alleged do not rise to the level necessary to support the claim.

Simply stated, I think the conduct falls below that threshold that courts usually set to consider claims for intentional infliction of emotional distress.  Courts usually limit the cause of action to circumstances where the conduct can be characterized as "extreme and outrageous" or "beyond decency", etc., and in this case, the conduct does not reach that level.

Some people are rude, insulting and offensive toward others, but it has long been accepted that people in society have to learn to tolerate their conduct. We are not going to recognize a cause of action every time someone feels offended because of the way they are treated in a store unless the circumstances are extreme.

Assuming it is all true, as we should at this point, the conduct described in the complaint may be considered to have been offensive, but it was not extreme and outrageous.  I can, no doubt, believe the plaintiff would have felt angry, embarrassed, offended and upset, but that alone is not enough to support the claim.

Thanks to Daniel Robbin for sending me a copy of the complaint!

Recent Illinois Appellate Court opinion shows Illinois law is out of touch with generally accepted principles of tort law

I just read a recent opinion of the Illinois Appellate Court which, based on an analysis developed by the Illinois Supreme Court, makes me think Illinois is due for a nice makeover when it comes to the notion of causation.  The case is called O'Neill v. General Motors and here is my quick comment.

The facts of the case are relatively simple:  The plaintiffs’ car suddenly and unexpectedly stopped on the road because an electronic control module in the car malfunctioned. Later, while trying to find a solution to their problem, the plaintiffs were injured when an intoxicated driver ran into the rear of their vehicle. The defendants (the manufacturer of the component and the seller of the car) filed motions for summary judgment arguing that their conduct was not the proximate cause of plaintiffs' injuries because the conduct of the intoxicated driver was a superseding cause.  The circuit court agreed and dismissed the claims.  The plaintiffs appealed.

On appeal, using convoluted and confusing language inherited from precedent cases, the court affirmed applying an analysis that, at least in part, does not follow generally accepted principles of tort law.

Because the defendants conceded that the defective product was a cause in fact of the injuries, the only issue before the lower court was whether to take away from the jury the question of proximate cause.  To decide that, the court should have asked whether reasonable people would disagree that the plaintiffs' injuries were a foreseeable consequence of the risk created by the conduct of the defendants.  And the answer, in my opinion, clearly should have been yes.

The conduct of the defendant created the risk that the driver and occupants of the car would get stranded in the middle of the road.  For that reason, it is reasonably foreseeable that they would be exposed to the typical risks related to being stranded on the road which include being injured by another driver.  This is why courts typically hold that when a defendant's negligence exposes another to a an automobile accident, the conduct of the person who causes the accident is not a superseding cause.

In O'Neill, however, the court held the opposite.  Its analysis seems to be based, in part, on the now abandoned Second Restatement's approach and on a unique approach to the character of intervening causes.

The defendants main argument in support of the proposition that the conduct of the intoxicated driver should be considered to be, as a matter of law, a superseding cause was that the conduct was criminal in nature.  In other words, the defendants were arguing that the conduct was unforeseeable because it was criminal

To agree with this argument requires a finding that all criminal conduct is, by definition, unforeseeable, and the problem is that clearly this is not the case.  And because it is clear that not all criminal conduct is unforeseeable, the generally accepted principle is that foreseeability is not determined by the character of the conduct.  

But Illinois apparently does not follow generally accepted principles of tort law.  As the court explains, in Illinois “[a] criminal act is a superseding cause of a plaintiff's injury and relieves the originally negligent defendant of liability, except where the defendant’s acts or omissions create a condition conducive to a reasonably foreseeable intervening criminal act.”

I don't understand what this "exception" really means.  Is it just saying that a criminal act is not superseding if it is foreseeable?  If that is all this means, then I have no problem with it.  That is the generally accepted principle.  But I don't think that is what the statement says.  It seems to say that the criminal act is not superseding only if the original defendant created the risk that someone else would commit a criminal act, which does not make sense.  If the original defendant created that risk, there would be no issue of superseding cause to talk about.

In addition, the court’s analysis confuses what it is that the plaintiff should be arguing is foreseeable.  While the type of harm suffered must be reasonably foreseeable, the precise manner in which it occurs and the extent of the harm need not be foreseeable.  Given that it can be argued that the conduct of the defendant created the risk of harm associated with being stranded in the middle of a road, whether the injury was caused by a drunk driver or a negligent driver or a driver who falls asleep at the wheel should make no difference.

In the end, I think the court simply wanted to decide in favor of the defendants – maybe because the judge thought it would have been unfair not to –  and used the notion of proximate cause to justify the result.  For this reason, although I think the case was wrongly decided, the decision does illustrate that as a noted commentator has already stated “[w]hile the intervening intentional wrongdoing of a third party may, under the circumstances, be foreseeable and not superseding, the relative culpability of an intervening force will inevitably influence, particularly in a close case, the decision to characterize an intervening force as superseding.”  (Diamond, Understanding Torts, 4th ed. p. 193).

UPDATE: (3/14/14):  One of the blog's readers just wrote to me with an important clarification about this case.  The Illinois Appellate Court’s decision is an unpublished order under Illinois Supreme Court Rule 23 and, as such, the case may not be cited as precedent.  That's a good thing because it would have been really bad precedent!

Tuesday, March 11, 2014

Those making fun of the latest lawsuit against McDonald's may be missing the point

A number of outlets and blogs around the internet have been quick to criticize and make fun of a report of a new lawsuit against McDonald's. According to the news stories (all of which are very thin on details, and none of which has a link to the actual complaint), after a customer complained to a McDonald's employee that he needed more napkins, the employee responded with a racist remark and a confrontation ensued. I have not seen any more details than that.
Focusing mostly on the napkin aspect of the story, however, some outlets have found an easy way to suggest that this is another example of frivolous lawsuits or people trying to get a quick buck, etc. The New York Daily News, for example, wrote "Unhappy eater Webster Lucas reportedly wants $1.5 million from the fast-food company after he claimed the staff only gave him one napkin." (And, why does the newspaper say "reportedly", I wonder? The story seems to be based solely on what another secondary source reported (see below).)
None of the stories I found has a link to the actual complaint, so my guess is that all of us, myself included, are speculating as to the actual content of the claim. But given that I don't believe a lawyer would be willing to face almost certain sanctions for filing a complaint asking for $1.5 million in compensation based on the fact that a client was given only one napkin, I am actually going to think about what this case is really about.
Let's be real. This case is not about napkins. This case is about how the plaintiff was treated afterward, particularly about his reaction to the allegedly racist comment. This case is, in fact, just like a very important case in the history of American Tort law we all read in law school called Fisher v. Carrousel Motor Hotel in which an African American man sued for battery after being told he had to leave a hotel dining room because of his race.
If the allegation of a racist comment is true, the claim actually raises important policy and tort law related issues. Should we recognize a cause of action for the effect of racist language absent a battery or assault? That is a question we have struggled with for a long time. A case like this one can create the opportunity for a court to address that discussion again (or for the first time).
Now, like I said, I have not seen the complaint, so maybe I am all wrong. After all, the story apparently was first reported by the always reliable legal news source TMZ and maybe they are right. Maybe the case is all about that missing napkin. Maybe there was no racist comment at all. Maybe the claim is frivolous.
But I am not going to pass judgment until I see the allegations. I think there can be more to this case that what those who want to limit access to civil justice would want you to see.

Having said that, I should comment on the other aspect that others are emphasizing: the amount of money asked for as compensation. First of all, as lawyers, we all know the amount means nothing. It is just numbers on a piece of paper. It has nothing to do with the actual value of the claim. The value of the claim will be eventually determined by the parties through the negotiation of a settlement (in most cases) or by a jury (in the rare instance in which the case actually goes to trial.) and then, in many jurisdictions, it may be reduced by a statutory cap.
The number at the end of the complaint is there to do what it did: attract attention, and, for that reason, it is really just a distraction. The media (and tort reformers) love it because the story now becomes one about how much money the plaintiff's lawyer wants instead of one about the real issues in the case. This is counter productive for the plaintiff. Just like the attention given to the napkin, the emphasis on the amount of the claim detracts from the seriousness of the issue.
For this reason, I like the rule used in some jurisdictions which actually does not allow a specific amount request. New York has such a rule. It makes a lot of sense and I wish more jurisdictions would adopt it.

Monday, March 10, 2014

After all these years, a new claim against the manufacturers of DES

You may remember from your law student days having read two important cases involving claims against manufacturers of a drug usually referred to as "DES."  This was a drug often prescribed to pregnant women up until the 1970s . An estimated 4 million people were exposed in utero to the effects of DES, but because the effects continued to be transmitted to the children of those exposed in utero, the effects could continue to cause problems for many more people over generations.

How long would a manufacturer of the drug be on the hook for those possible injuries?

Well, in terms of "cause in fact", as long as the plaintiff was able to prove the connection between the injury and the exposure to the drug.  This would be a question of fact and, ultimately, depend on the availability and credibility of that evidence.  And, to help plaintiffs support the claim if they did not have all the evidence available, one of those two famous cases, Sindell v. Abbott Laboratories, created the concept of "market share liability", which made it easier for plaintiffs to support the element of cause in fact against drug manufacturers.  Interestingly, however, the concept of market share liability has not had the effect some thought (or feared) it would have for future cases, having been limited to DES cases and rejected in almost every other case it has been argued, most notably in lead paint cases.

The other case, Enright v. Eli Lilly, is used in a number of Torts textbooks to illustrate the difference between cause in fact and proximate cause because it holds that, in terms of policy (whether you call it duty or proximate cause) the court would not recognize a cause of action for plaintiffs who were not exposed to the drug in utero, even if they could make the factual connection between their injuries and the effects of the drug.

Given that the use of the drug was discontinued in the 1970s and that courts have shown to be uncomfortable with the idea of extending possible liability over generations, I thought the days of claims for injuries caused by DES were over (and with them, the notion of market share liability).

I guess I didn't realize that there could still be some people out there who could claim they had been exposed to DES in utero.  For this reason, I was surprised to read a story a few days ago about a new claim against all of the former manufacturers of DES filed by a woman in North Carolina arguing that her breast cancer was caused by the effects of the DES her mother took while she was pregnant in 1965.   You can read the full story here.

Sunday, March 2, 2014

California Supreme Court to decide case on possible social host liability

A few years ago I posted a series of stories on an important case in Illinois that presented the opportunity to address questions left open by past cases on the possible liability of social hosts for serving alcohol to their guests.  That case involved the question of whether the conduct of a commercial establishment that allowed people to bring their own booze should be analyzed under principles that apply to commercial establishments that sell alcohol or the principles that apply to social (non commercial) hosts who provide free alcohol.  The court avoided the question altogether by approaching the issue in a different way (one that I argued was absurd, but that is a different story you can read about here.)

The new case in California presents a mirror image of the Illinois case.  The case involves a social host who asked the guests to pay a fee to defer the costs of the alcohol.  While Illinois was dealing with a commercial host that did not sell alcohol, California is dealing with a social host who charges money to help pay for the alcohol.  Granted, the social host was not "selling" the alcohol to any individual guest, but was using the money to pay for the alcohol that was available to all the guests.

California does not recognize social host liability unless the host, licensed or not, sells alcohol. The question in  this new case is whether a "cover charge" (which in this case was $3 to $5 and which is common at college student parties) to cover the cost of the liquor, constituted a "sale of alcohol." If so, the defendant could be held liable for the wrongful death of the plaintiff's son who was killed by the drunk guest.

The Los Angeles Times has more on the story here.

UPDATE (3/23/14):  The Appellate Strategist has a more on the story here.

Generic drug makers argue against new FDA safety label rule

Back in November I posted that the FDA proposed a new regulations that would allow (and presumably encourage) generic drug manufacturers to add or update the safety warnings on their products.  Go here for my original post and the background on the controversy.

You would think that manufacturers interested in making sure their products are safe would welcome the new rule.  However, because the current system works to immunize generics manufacturers, a change that would work to make the products safer would also open the door to possible liability.  Thus, as you would expect from those who are more interested in profit than safety, the manufacturers hired a consulting firm  to conduct a cost-beneift analysis of the consequences of the new rule.  And, not surprisingly, the analysis concludes that the change is not good for consumers.  You can read the report here.  Then, go here for a report by Center for Justice & Democracy (called "America’s Unaccountable Generic Drug Industry; How Legal Immunity Could Be Making You Sick") which explains how deficient the current system is. You can read a short comment on it here.  and form your own opinion.

For more on this issue go here.

Another story of false arrests in Austin, Texas

A few days ago I posted a comment on a story about the arrest of a woman in Austin, Texas.  Much of the discussion was about the police's conduct, but as I pointed out, there is a torts angle to the story because the Police Chief essentially admitted to a false arrest.

Now comes another story which is just as bad, if not worse!

A couple of days ago Res Ipsa Loquitur posted a comment criticizing Autin's police department's so-called "take no changes policy" which they apparently use to arrest citizens even though they have not committed any crimes just because the police wants to make sure they don't go on to commit crimes in the near future (I guess).  Sounds like the movie Minority Report to me ...  "you are under arrest for the future murder of so and so....",  But I digress...

In any case, the story is that Austin police pulled over a man for running a red light. No problem there.  But then the police asked the man to take a voluntary breath test.  He consented and blew a 0.0. He also agreed to a blood sample and was later cleared of drugs. Having shown he was not intoxicated or under the influence of drugs, he was arrested anyway and spent the night in jail.

The story does not state what he was arrested for, but I doubt that you can be arrested and "sentenced" to a night in jail for running a red light.  The police officers apparently claimed they had a reasonable suspicion that the suspect was under the influence of a drug not covered by the test and did not want to take a chance. Such is the "take no chances policy", apparently.  The police think you did something wrong, so they have the right to arrest you for it, even if there is no evidence of it other than a mere suspicion.  The story also states this is not the first reported incident under this "policy."  The cases are routinely dismissed but not after citizens have to spend the night in jail.  

If these allegations are true and if there really is a customary practice based on this so-called policy, someone should start a practice specializing in false arrests in Austin!  (Just make sure you don't mention you specialize, but that is another story.)