Saturday, December 26, 2015

Claim of injuries to vets caused by exposure to toxins back in the news

Back in 2010 I posted a few stories on the possible health hazards soldiers were getting exposed to in Iraq and Afghanistan as a result of the burning of hazardous and medical waste.  See here and here, for example.  Two years later, I reported on an $85 million verdict against a military contractor for negligently exposing soldiers to a cancer causing toxin.  See here.

The issue is now back in the news.  NPR has posted a story here, or you can listen to it below by pressing the play button. 

Short podcast on driverless (self driving) cars

A few days ago I posted links to two stories on driverless, or self driving, cars.  See here.  Today, Bloomberg law posted a short podcasts on the same issues.  You can listen to the podcast here (16 minutes) or to a shorter version here (3 minutes).

Friday, December 25, 2015

American Museum of Tort Law, interview with Ralph Nader (video)

Earlier this year the American Museum of Tort Law opened its doors in Connecticut.  Here is a short introduction by Ralph Nader:

A conversation with four Fordham Law professors about tort law

The Fordham Law News just published a conversation among four torts professors:  Ben Zipursky, Howard Erichson, Michael Martin, and Jed Shugerman.  They answer questions about frivolous lawsuits, efficiency, insurance, and more.  Check it out here.

Thanks to TortsProf Blog for the link!

Tuesday, December 22, 2015

Two interesting stories about driverless, or self driving, cars

I have posted a couple of stories on possible legal issues related to driverless cars before (see here, for example).  So, to follow up on that, in case you haven't seen them, here are two interesting recent stories about issues related to driverless, or self driving, cars:

Self-Driving Cars Have Twice The Accidents, But Only Because Humans Aren't Used To Vehicles Following The Rules

The Ethical and Legal Dilemmas of Self-Driving Cars

Sunday, December 13, 2015

On the possible liability of parents who don't vaccinate their children, again

Long time readers of this blog know I have posted a series of comments on whether there should a cause of action against parents who do not vaccinate their children.  See here, here, here and here.   With that in mind, here is a link to an article in Slate on tolerance of anti-vaccine parents.  It starts: "Tolerance of racial and cultural diversity is good. Tolerance of those who endanger the community by refusing to vaccinate their kids is not. An Australian primary school just learned that the hard way."

In a newsletter to parents, the school’s principal directly told parents that they should tolerate the vaccine dodgers among them stating "[w]e expect all community members to act respectfully and with tolerance when interacting with other parents and carers who may have a differing opinion to their own. This includes an opposing understanding about child immunisation."

As the article then states, those words may sound “respectful” and “admirable,” ... until 25 percent of your school is suddenly infected with chickepox within two weeks (which, of course, is what happened).

Tuesday, December 8, 2015

Article on whether universities have, or should have, a duty to protect students -- UPDATED

Back in October I posted that a California appeals court issued an opinion (with one dissenting judge) reaffirming the generally accepted view that state public colleges and universities do not have a general duty to protect adult students from violent acts by other students.   Go here to read my original post.

In that case, the court ruled that "While colleges and universities may properly adopt policies and provide student services that reduce the likelihood such incidents will occur on their campuses, they are not liable for the criminal wrongdoing of mentally ill third parties, regardless of whether such conduct might be in some sense foreseeable."  And I stated that this approach is not surprising and appears to be the majority view on the issue, whether because the conduct of the actor is considered a superseding cause or whether because of the long standing (although often criticized) rule that there is no duty to help.

In response to the case, the blog "New Private Law" has published a very well written post arguing the case was wrongly decided.  It argues that the case was wrongly decided because the issue in the case is "by far" closer to Tarasoff than to any of the cases that hold universities do not have a duty to protect students.  In support of this conclusion, it argues that "the gist of the complaint is not that the University failed to do enough to enforce general policies (such as those against underage drinking), but rather that the University had reason to believe that a particular student posed a serious danger to his fellow students and other members of the university community.

 You can read the full post here.

UPDATE (12-7-15):  As I reported elsewhere, the Washington Supreme Court is currently considering whether the extend the notion of a therapist's duty to warn identifiable possible victims under a Tarasoff approach, to a duty to warn the general public.  See here.

UPDATE (12-8-15):  Here is another article on the decision in University of California v. Superior Court of Los Angeles County, in which the court rejected the request to impose a duty on a university.

Washington Supreme Court to decide whether doctors have a duty to warn “all foreseeable victims” of potentially dangerous patients in their care

Last month the Supreme Court of the State of Washington heard oral arguments in a case called Volk v. DeMeerleer which raises the issue of whether doctors have a duty to warn “all foreseeable victims” of potentially dangerous patients in their care. In the case, a psychiatrist was sued after one of his patients shot and killed an ex-girlfriend and her son before killing himself. The trial court dismissed the complaint (on summary judgment) on the grounds that the doctor did not have a duty because the patient haad made no specific threats the victims during his treatment. The appeals court reversed (with one judge dissenting), however, holding that the plaintiff could support a cause of action because the patient's conduct was foreseeable and holding that "a question of fact exists as to whether Dr. Howard Ashby and his employer, Spokane Psychiatric Clinic, P.S., owed a duty to protect the general public, including plaintiffs, from violent behavior of patient Jan DeMeerleer." You can read the full appeals court's opinion here.

Leaving aside the fact that this is an odd ruling because the question of whether there is a duty is usually thought of as a question for the court, not the jury, the issue before the court is very interesting.  It calls for the court to expand on the doctrine created by Tarasoff v Regents of the University of California, which I am sure you are familiar with.  In that case, the California Supreme Court held that a therapist does have a duty to protect an identifiable victim.  The plaintiffs in Volk are asking the court to extend this notion further because the victims were not identifiable.  The plaintiffs are asking for a duty to "protect the general public."

Tarasoff is a well known case, and a popular one, but it has been rejected by a number jurisdictions.  Also, back in 1979 the Washington Court of Appeals decided a case in which it refused to expand the reach of the Tarasoff doctrine in a case where the victim already knew of the possible threat to her safety. (Interestingly, that case involved a lawyer, rather than a therapist) who arguably had confidential information about a client's intent to harm someone else.)  For these reasons, it would not be entirely surprising if the Washington Supreme Court reverses the Court of Appeals.  Yet, it will be very interesting to see what happens.

A finding for the plaintiff will have serious implications for the medical profession, and potentially for the legal profession too, because such a ruling will affect the principle of confidentiality.  It is because of the importance of confidentiality that courts have either rejected Tarasoff or refused to expand its reach.  Take a look at Thapar v Zezulka, 994 SW2d 635 (Tex 1999) (medical profession) and Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979) (legal profession).

The New York Times published an Op-Ed piece on this case written by a doctor in which he argues the court should reject the plaintiffs' claim and protect the value of confidentiality in the doctor-patient relationship.  You can read it here.  The argument is a good one, although the author makes a horrible mistake in his analysis when he illustrates his duty of confidentiality by telling a story of a time when he destroyed illegal drugs handed to him by a patient in order to help the patient avoid arrest.  In doing so, the doctor was not protecting the patient's confidentiality but, at helping someone destroy evidence of a crime; but I suppose that is another story.  (The article generated two letters to the editor, one of which points out this issue.)

On the question of a possible duty in tort, I do agree the court should rule for the defendant.  Even if the duty recognized in Tarasoff applies in the jurisdiction, a duty to warn the general public when there is no indication of specific plans or specific possible victims is too broad. 

Charlie Sheen’s Ex-Fiancée Sues Over Sheen’s Failure to Disclose HIV Status; does she have a case?

Charlie Sheen’s ex-fiancée sues over Sheen’s failure to disclose HIV status.  Does she have a case?  Two articles discuss the issues here and here.

FDA delays implementation of the generic drug labeling rules until July 2016 (at least)

Back in November, 2013, 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 most recent post on the background on the controversy.

The rules were supposed to be finalized this month, but the FDA recently confirmed that implementation of the generic drug labeling rules will be delayed until at least July 2016.  This is not entirely surprising given the tremendous pressure the pharmaceutical industry has exerted on this issue and since it has taken this long to even get to this point.  It is disappointing, though, since the announcement back in 2013 gave some hope that the FDA would do something to improve the current state of the law.

As reported in, "[t]he prominent consumer watchdog group Public Citizen criticized the move in a press release issued December 3, indicating that the FDA’s decision to once-again delay implementing rules originally proposed several years ago, which would allow generic drug makers to up date their warning labels, will place consumers at serious risk."

Monday, December 7, 2015

Maryland legislature task force recommends creation of a no fault system for handling birth injuries caused by malpractice

A task force created by the Maryland legislature is recommending the creation of a birth injury compensation fund, which would prevent families from filing medical malpractice lawsuits for injuries caused to the baby during delivery.  The proposal is to create a fund that would provide compensation for birth injuries.  The no-fault fund was recommended in a report issued on December 1, by the Maryland Work Group To Study Access to Obstetric Services, which is a group consisting of representatives from the health care, insurance and legal services industries.  For more details you can go to

Creating a fund and a no-fault system is not necessarily a bad idea and it may, in fact, result in a more efficient way to solve disputes.  However, like any other no-fault system, its efficacy would depend on whether it is sufficiently funded and implemented efficiently and fairly.  If neither of these conditions are met, the new system will fail to provide proper remedies and compensation to the victims and will only allow defendants and their insurance companies to avoid having to fully compensate for the injuries they cause. 

I have not seen anything yet to suggest how these two criteria would be met under the proposal.  And, what I have read is that the proposal is based on the premise that medical liability costs linked to birth injury malpractice lawsuits constitute a threat to healthcare access, which is an argument that has been proven false time and time again.  (If you are interested in information about that, go to the "medical malpractice" tab on the right side and scroll down.  You will find many posts with links to studies on the issue.)

The proposal is just one page (Appendix D) in a 24 page report and it is summarized in the report as follows:
"The work group recommends the establishment of a No-Fault Birth Injury Fund to stabilize medical liability costs and provide a clear and critical incentive for hospitals to continue to provide this vital community service. Such a fund would provide, direct, timely compensation, medical care and other services, without the uncertainty of protracted litigation, to children who suffer a devastating birth injury. In addition, providers covered by the fund would receive a credit discount on medical liability premiums, a direct incentive to continue practicing obstetrics."
I don't know about you, but in my mind this does not even begin to address the major concerns that the proposal raises.  There is no evidence to support its conclusion and no indication on how the fund would be, well, funded.  Since we are talking about "devastating" (and life long) injuries here, to be able to provide adequate funding, the fund will have to have a tremendous amount of money available.  Where is that money going to come from?   It seems evident, to me at least, it should not come from raising taxes on the general public since that means that Maryland residents, including possible victims of malpractice, would be covering part of the compensation that should be paid by the tortfeasors.  Thus, to be fair, the fund needs to be funded by the insurance companies, who more than likely would then turn around and pass on the costs to the insured doctors, no?  Is that an efficient way to minimize healthcare costs?  Maybe it is; I just don't know and the report does not address it.

Are the insurance companies ready to fund the system for the benefit of the victims?  Evidently not.  In a statement filed with the report the Medical Mutual Liability Insurance Society of Maryland explained it abstained from supporting the proposal because it was concerned that it would be funded by imposing a surcharge on liability premiums.  That won't do!  As they suggest in the statement, such a fund could benefit the entire populace but there is no evidence of "proportionate benefit" to them.  This was the approach of an earlier attempt by Maryland to address the issue and the MMLIS did not support it then.  My guess is they abstained here because the source of the fund for this proposal has not yet been determined.

In contrast to the short-on-details proposal, and the very lukewarm support from Medical Mutual, the Maryland Association for Justice filed a critical statement which addresses the concerns I have mentioned and more.  It appears in Appendix E of the report. On the issue of funding it states that, as I suspected, the task force failed to reach a consensus on how to pay for the costs of injuries (in other words on how to fund the fund from which compensation would be provided to victims), and that the task force "overwhelmingly reject[ed] a proposal that a birth injury fund should be paid for by hospitals (the funding mechanism proposed in the last legislative session). Under earlier proposals, the costs of a birth injury fund would be borne by Maryland’s small businesses and working class families , in the form of higher health insurance costs. MAJ opposes any funding mechanism that would increase costs to Maryland’s small businesses and working class families."

American Medical Association calls for an end of direct to consumer advertising -- UPDATED

The American Medical Association, which represents 250,000 doctors, has called for an end to direct-to-consumer advertising for prescription drugs, a $4.5 billion-per-year industry in the United States, AdWeek reports.  The US is one of very few countries in the world that allows such a practice.  Of course, the AMA does not dictate policy for the FDA or Congress but its position may have some influence.

UPDATE (12/7/2015):  Torts Today and have more on the story.

UPDATE (12/13/15):  The New York Times has a short editorial on the issue here.

Sunday, December 6, 2015

Illinois Supreme Court Agrees to Clarify When Workers’ Comp Settlement Eliminates Contribution Claim from Third-Party Tortfeasor

According to Illinois law, when a party settles a claim in good faith against one tortfeasor, the finding of good faith automatically discharges that tortfeasor from any liability for contribution to another tortfeasor.  Now, the Appellate Strategist is reporting that the Illinois Supreme Court had agreed to clarify whether a workers’ compensation settlement eliminates the right to a contribution claim the same way.  Go here for the full story.

Take the test: the most recent PopTort medical malpractice quiz is available now; Dept of Defense expands program to encourage alternative dispute resolution of med mal claims

The PopTort has its most recent quiz on medical malpractice issues here.  Go and see how well you do.

The last question in the quiz asks "how often do medical providers voluntarily disclose errors to patients?"  You can go take the quiz to find the answer ...  but along that theme, the TortsProf blog reported recently as follows:  "The Department of Defense is expanding a program, already underway at eight facilities, in which conversations are encouraged between medical practitioners and patients about medical injuries.  The program allows patients and providers an avenue to discuss injuries and apologize.  Alternative dispute resolution is also provided.  The program does not require a waiver of malpractice actions, though the Feres Doctrine already prevents active-duty troops from suing for med mal.  Pursuant to the program, no determinations about negligence are made.  Military Times has the story."

FDA approves drug for sexual condition in women even though it has been found barely effective -- UPDATED

Long time readers of this blog will remember that since back in 2009, I have been following the debate as to whether the so-called Hypoactive Sexual Desire Disorder in women is really a medical condition or something the pharmaceutical industry came up with in order to convince women to buy a product they don't need. See here. The drugmaker (Boehringer Ingelheim) geared up an enormous publicity effort to promote the pill, but the FDA was not impressed and decided the pill was neither safe nor effective. See here.

What appears below is the same story I originally posted in August of this year.  The UPDATE appears at the end. 

At that time, all 11 members of the FDA advisory committee decided the side effects of the drug were unacceptable, and 10 ruled the pill is not effective. For the full story up to that point (including links to more information), go here.

Because of this failed effort, the manufacturer decided to discontinue development entirely. For more on the story go here.

Soon thereafter, however, Sprout Pharmaceuticals picked it up and again submitted it for approval in 2013. Since there was no new evidence to contradict the earlier findings, the FDA rejected it, again.

Somehow, however, with still no new evidence, two years later, the FDA has indeed approved the drug.  How, or why, did this happen?

Sprout smartly enlisted thousands of women’s activists and members of Congress in a campaign about gender double standards and sexual politics, in an attempt to avoid the discussion of the fact that the medical evidence that the drug actually works safely is weak and that the FDA rejected drug twice because its minimal benefits failed to outweigh the safety risks.  

Converting the discussion from one about health and safety into one about gender (based on the argument that it’s time that the agency gave the same priority to drugs to treat women’s sexual problems as it has to drugs for men) apparently provided enough pressure on the FDA to change its ruling, even though the scientific evidence is still the same.

It has been reported that the FDA approval comes with a requirement that the company take steps to ensure doctors prescribe the drug carefully and make women aware of its health risks.  But isn't that true of all drugs?  That statement adds absolutely nothing to current standards of the medical profession.

The FDA is also mandating that the drug will have with a black box warning — the strongest FDA warning language — to highlight the risk of severe blood pressure drops and fainting in patients who drink alcohol or use certain other drugs during treatment.  That is a good thing, but perversely, because of the state of the law regarding preemption in cases based on inadequate warnings, it will make it more difficult for plaintiffs to recover for injuries caused by the drug.

So, as I said in one of my recent posts on the subject, when the drug is shown to cause injuries, and the medical evidence and past history shows it more than likely will, it will inevitably result in litigation. The story is just beginning.

For more on the story you can go here, here and here.

Go here for videos on a documentary about this issue.

UPDATE (12-5-15):   The website VITALS has a very good overview of the debate and controversy over the now approved drug, which is now officially called "Addyi" here.  The article is called "Is the “Female Viagra” Worth It?" and it concludes that for most women, given the risks, costs and uncertainty, the answer is no.  If you are interested in the topic, the article (and the comments) are well worth reading.

Thursday, December 3, 2015

Plaintiffs suing General Motors over faulty ignition switches can seek punitive damages despite GM's reorganization after bankruptcy

Back in May I wrote about the possibility that a large number of lawsuits filed against General Motors could be dismissed following a ruling blocking lawsuits filed against GM over actions that predate its 2009 bankruptcy, declaring that “New GM” and “Old GM” are two different companies and that the new company is not liable for the actions of the old one.  The back story on that is here, here and here.  But the Chicago Daily Law Bulletin is reporting now that "[a] federal bankruptcy judge has ruled that people suing General Motors over faulty ignition switches can seek punitive damages that could cost the company millions of dollars or more.  When General Motors emerged from a 2009 bankruptcy, it became known as “New GM.” The new company essentially was shielded from liabilities of the old company that was left behind.  But Judge Robert Gerber in New York ruled Monday that employees and knowledge transferred from the “Old GM” to the new company. Plaintiffs, he ruled, can seek punitive damages if they can show that “New GM” knew of the faulty switches but covered it up."

Saturday, October 24, 2015

California court of appeals reaffirms view that universities do not have a duty to protect adult students from violent acts of other students

A couple of weeks ago, a California appeals court issued an opinion (with one dissenting judge) reaffirming the generally accepted view that state public colleges and universities do not have a general duty to protect adult students from violent acts by other students.  Obviously, with so many frequent stories of violence on college campuses, the question of whether an institution of higher education can be liable is important and timely. The case is called Regents of the University of California v. Superior Court of Los Angeles County and you can read the opinion here

The case involved a claim by a former student at the University of California at Los Angeles who in 2009 was stabbed by a fellow student in a chemistry lab. The suit charged that UCLA didn't do enough to protect students, even as it learned of the serious mental health issues faced by the student who committed the stabbing.

Finding that there is no general duty to help the court ruled that "While colleges and universities may properly adopt policies and provide student services that reduce the likelihood such incidents will occur on their campuses, they are not liable for the criminal wrongdoing of mentally ill third parties, regardless of whether such conduct might be in some sense foreseeable."

This approach is not surprising and appears to be the majority view on the issue, whether because the conduct of the actor is considered a superseding cause or whether because of the long standing (although often criticized) rule that there is no duty to help.

The dissenting opinion, however, argued that the University should be subject to liability because it had adopted a duty to help.  The dissenting judge quoted from university materials distributed to students and parents that included statements like "Welcome to one of the most secure campuses in the country."  The dissenting judge also pointed out that "[o]ther promotional materials assure prospective students and their families that ‘UCLA is committed to maintaining a safe and respectful learning environment and takes an unwavering stand against any act that violates the True Bruin values.’"  Based on these statements, the dissenting judge argued, parents and students are entitled to expect that the university would provide better safety measures.

The dissenting judge also argued that the university could be subject to liability under the exception to the no duty rule based on "special relationships."  Traditionally limited to common carriers or innkeepers, courts in many jurisdictions have disagreed on whether to expand the notion of a special relationship to include other types of relationships.  Again, many have held that the relationship between a university and its adult students should not be included within the exception, even if that of an elementary school and its students has been.  Usually, the fact that students in an elementary school are minors who are not entirely equipped to defend themselves and who are not as mature as adults justifies the distinction.

The dissenting judge, however, thought that this distinction should not be given as much weight as it has in the past saying that "I would find such a special relationship exists between a college and its enrolled students, at least when the student is in a classroom under the direct supervision of an instructor..."  In such cases, the dissenting judge would find that "the school has a duty to take reasonable steps to keep its classrooms safe from foreseeable threats of violence."

Inside Higher Ed has more on the story here.

Friday, October 16, 2015

Eighth Circuit reinstates wrongful death claim based on alleged defect on Remington rifle

A widow's wrongful death suit against the Remington Arms Co. is reinstated after a divided Eighth Circuit said sufficient circumstantial evidence pointed to a defect that could affect as many as 2 million rifles (O'Neal v. Remington Arms Co., 2015 BL 337378, 8th Cir., No. 14-2883, 10/14/15).

Wednesday, October 14, 2015

Wisconsin jury grants $5 million in case against gun store for negligent sale of a gun which was later used to kill two police officers

In 2005, Congress enacted a statute that gives gun dealers immunity from liability for injuries caused by guns sold by them unless the sellers knew or should have known the sale was illegal or likely to pose a danger.  (See the Protection of Lawful Commerce in Arms Act).  More than 30 states have adopted similar laws.

Since 2005 only one case against a gun seller had reached a jury and the jury found for the defendant.  That changed two days ago when a jury in Wisconsin awarded more than $5 million in damages to two police officers who had been severely wounded with a pistol that a local gun shop sold to a straw buyer in 2009.  The New York Times has more details here.  Slate has more here (including links to other sources).

The jury found that the store had been negligent in selling the gun because there were signs that the person seeking to buy the gun was fronting for an 18-year-old who accompanied him to the store. One month after the purchase, the 18-year-old shot the plaintiffs, leaving one of them with brain damage and a destroyed eye.

The decision is surprising for a couple of reasons.  First, usually the effect of the federal statute, and of similar state statutes, is to prevent liability of gun sellers for the consequences of the conduct of those who use the guns. 

Second, typically, defendants in this type of case will argue that the conduct of the person using the gun should be seen as a superseding cause that severs the connection between the negligent conduct upon which the claim is based and the injury for which the plaintiff seeks recovery. I've always thought that courts tend to be receptive to this argument. If the argument was raised, I wonder if maybe, given the string of recent school shootings, opinions are starting to shift on the issue.  I don't know if this argument was made in this particular case, but I can't imagine it wasn't.  The defendant would have argued that even if it was negligent, the conduct of the person who got the gun was unforeseeable.  If the argument was raised, the court probably concluded that was for the jury to decide, and now we know how they decided it.

Saturday, October 10, 2015

Louisiana Supreme Court finds medical provider write off does not fall within the collateral source rule, which means it can be taken into account when determining value of compensation

In a recent decision, the Louisiana Supreme Court has held that a writeoff from a medical provider, negotiated by the plaintiff‟s attorney, may not be considered a collateral source from which the tortfeasor receives no set-off. Applying Louisiana law and the principles set forth in our Civil Code, the court found that such a write-off does not fall within the scope of the collateral source rule. The TortsProf blog has more information.  You can read the opinion here.

North Charleston SC agrees to pay $6.5 million in settlement for shooting of unarmed black man by Scott by police

North Charleston, S.C., has agreed to pay $6.5 million as a settlement with the family of Walter Scott, an unarmed black man shot in the back and killed by a white police officer in April.  The incident captured national attention because it was captured on a cellphone camera by a passerby. The officer, Michael Slager, was fired and eventually charged with murder.  NPR and Slate have more information.

Nevada upholds compensation cap

Jurisdictions continue to rule differently when it comes to the constitutionality of legislative caps on compensation for non-economic injuries.  Some, including Illinois, have found them unconstitutional.  Others, most recently Nevada, have rejected that position.

As reported in the TortsProf blog, a few days ago, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages.  A lower court had ruled the cap violated the constitutional right to trial by jury.  The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant.  The Las Vegas Review-Journal has the story.

Tuesday, September 15, 2015

Yet another disturbing video of football violence

Watch the defensive end of the team in the black uniform rip an opponent's helmet's off and then use it as a weapon against him.

According to, this happened last weekend during a game between New Jersey high schools Immaculata and Linden. According to the story, the player who was hit with the helmet received 10 stitches after the game. Local police is looking into the incident.

Monday, September 14, 2015

Pac Man Jones will not be suspended for violence on the football field

Sunday I commented on the conduct of Bengals corner Adam “Pacman” Jones on the football field to illustrate the recurring issue of whether conduct while participating in sports could give rise to a claim for battery.  As an update, it is now being reported that Jones will be fined but not suspended.

South Carolina redefines when the clock starts for purposes of the statute of limitations in a claim for legal malpractice

Last week, the South Carolina Supreme Court overruled prior precedent and held that the statute of limitations in a legal malpractice claim starts to run after the underlying case that gives rise to the malpractice action is resolved on appeal.

In this case, everyone agreed that the statute starts to run when the affected party knew or should have known that it had a legal malpractice claim against its trial counsel.  The question was whether the party 'knows or should have known' at the time they lose the case at the trial level, or at the time the higher court affirmed the decision of the trial level.

Overruling prior precedent on the issue, the court held as follows:  "We overrule Epstein and now hold that the statute of limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal. We find this rule comports with the discovery rule and effectuates the purpose of the statute of limitations."

The case is called  Stokes-Craven Holding Corp., v. Scott L. Robinson and Johns on McKenzie & Robinson, LLC, and it is available here. The Legal Profession Blog has more information here.

Sunday, September 13, 2015

More violence in football

By now I am sure you are familiar with the story about the high school football players who attacked an official in the middle of a game last week.  Well...  here is another incident.  For the second week in a row, a San Antonio-area high school is dealing with a player who hit an official in the middle of the game. Here is the video.

Not to be outdone, the pros began their season today and here is a video of Bengals player PacMan Jones ripping an opponent's helmet off and pushing the opponent's head into it after the play was over.

As in the story from last week, the torts issue is the same.  Are these incidents within the scope of the consent to the "inherent risks" of the game?  Is the conduct within the "customs" of the game?

UPDATE (9-14-15):  It sounds like PacMan Jones will not be suspended for his conduct.

Wednesday, September 9, 2015

Baltimore Fraternal Order of Police calls suggestion of a settlement with family of Freddie Gray "ridiculous" and "obscene"

According to a report by CNN, available here, Gene Ryan, president of the Baltimore Fraternal Order of Police, reacted to the announcement of the settlement by the city of Baltimore with the family of Freddie Gray (see here), stating that the settlement was a "ridiculous reaction" and that "[t]o suggest that there is any reason to settle prior to the adjudication of the pending criminal cases is obscene..."

Baltimore agrees to settle claim Freddie Gray's family for $6.4 million

The city of Baltimore has agreed to pay a $6.4 million settlement to the family of Freddie Gray, who died at age 25 in police custody last April after suffering a serious spinal injury in the back of a police van.  (Six city police officers are facing criminal charges in the matter also.)   Slate, NPR and Gawker have more information.

New information on breed specific regulations

The website, a very good source of information related to regulation of dogs and cases involving dogs, has released a new FAQ section on breed specific regulation.  Go here for links to a lot of information including the effectiveness of these ordinances, which breeds are involved and the three most common types of ordinances.

Tuesday, September 8, 2015

Public defender sues for arrest while trying to represent her clients -- UPDATED

Back in January several outlets reported on an incident in San Francisco involving an arrest of a public defender which was caught on video.  Today, the is reporting that she has filed a complaint against the city and the police department.

Given that the incident was caught on video, the facts are easy to observe.  The plaintiff's clients were in court that day for a hearing related to a misdemeanor robbery charge.  While hanging out with their lawyer (the plaintiff) in the hallway, a police officer approached them to talk about another case and said he needed to take photos of the clients.  The lawyer objected and the police officer then told her she would be arrested "for resisting arrest."  That is a curious charge, since the police had not said they were going to arrest anyone.  In other words, the lawyer was not interfering with the police's attempt to arrest her clients.  She was also not resisting her own arrest since the police was not trying to arrest her.  Bottom line, the cop essentially said "let me do what I want to do here or you will be arrested."  And that is exactly what happened.

From what I can see, there is basis for a claim of false imprisonment here, but it is not clear what is the level of damages.  The claim, however, is apparently not for common law false imprisonment but for violation of civil rights.

See below for a a video of the incident.   

UPDATE:  The complaint in this case eventually was dismissed by a federal district judge and that decision was affirmed on appeal.  Go here for the story.  Reading this story, however, raises several questions for me, the most important of which is why was the case argued the way it was?

It appears that the main argument for the plaintiff was that she was arrested (in violation of her constitutional rights) because she exercised her freedom of speech.  I suspect that was the argument so they could make a federal case out of what would otherwise have been a simple state torts claim.

This turned out to be a mistake.  From the limited evidence I can see (by which I am admitting that I could be totally wrong if I had all the evidence available), this was, at least on paper, an easy false arrest claim.  

The police officer arrested her for "resisting arrest" which is absurd to being with.  How can you arrest someone for resisting arrest if she was not being arrested?  You can get arrested for something, and then get charged with resisting arrest if there is evidence that you did resist arrest in the process of getting arrested for the conduct you are getting arrested to start.  

So the charge used to justify the arrest is nonsense, and the video disproves the allegation.  Then, there's the fact that the lawyer was released and not charged with anything.  The police simply arrested her so they could get her out of the way and talk to her clients without her being present.

In dismissing the complaint, the judge concluded that there was enough probable cause to conclude that the lawyer was "obstructing justice" or interfering with a valid police investigation.  

I don't think so but even if that is the case, that conclusion does not support the court's decision because that is NOT what the lawyer was arrested for.  If she had been arrested for and charged with obstruction of justice, that argument may have been a valid way to retroactively justify the arrest; but those were not the facts.

Even if there was probable case to arrest for obstruction of justice, the arrest was for something else.  Therefore, the arrest was not valid.  

Here is the video of the original arrest:

Monday, September 7, 2015

Kansas Supreme Court rules a criminal defendant does not have to show actual innocence to support legal malpractice claim

In most jurisdictions, a plaintiff suing an attorney for malpractice arising out of the attorney's representation in a criminal matter has to meet not only the elements of the cause of action but also has to show actual innocence.  This approach has been criticized by many in the literature but it continues to be the majority view.

However, a few days ago, the Kansas Supreme Court joined the minority of jurisdictions where this is no longer the case.  In a case called Mashaney v. Board of Indigents' Defense Services, the Court held that a convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence.

The Legal Profession Blog and the Chicago Legal Malpractice Lawyer Blog have more on the story here and here.

Illinois court of appeals reaffirms state's (unfair) approach to legal malpractice

In the past, I have criticized the fact that Illinois has adopted a statute of repose for legal malpractice cases.  But that is just the beginning of the problem.  Not only is there a statute of repose, it is very short and it can't be tolled.

Now, about two weeks ago, in a case called Lamet v Levine, available here, the Illinois court of appeals has reaffirmed the unfairness of the use of this type of statute.  The court explained that the statute of repose begins to run not when the negligent act is discovered by the client but when the negligent act occurred.  In other words, the statute of repose in a legal malpractice case begins to run as soon as an event giving rise to the malpractice claim occurs, regardless of whether plaintiff knows of the attorney's conduct or whether the plaintiff's injury has been realized.  Also, the court followed the consistently held view in the state that the statute of repose is not tolled merely by the continuation of the attorney-client relationship.

NY Times article on medical malpractice law

About a week ago, the NY Times published a short article on medical malpractice that is worth noting, even though, in the end it does not say anything that anyone paying attention to the subject didn't know already.  For much more on medical malpractice theory and practice go to the medical malpractice section of this blog (scroll the topics on the right hand side and click on it).  Here are some key sections of the article (you can read the full article here):

Only in Albany can a bill pass the Assembly with overwhelming bipartisan support, be sponsored by a majority of the State Senate, be endorsed by Gov. Andrew M. Cuomo, and yet never come up for a final vote. That happened to Lavern’s Law, a bill that would have helped grievously injured victims of medical malpractice have their day in court. This summer, the Senate majority leader, John J. Flanagan, a Republican, wouldn’t allow the bill to be voted on, effectively killing it.

....  Hospitals are dangerous places. In 1999 the Institute of Medicine at the National Academy of Sciences published a study, “To Err is Human,” which concluded that at least 44,000 patients were killed (and many more injured) in hospitals each year because of medical errors. By 2011, a study in the journal HealthAffairs estimated that the number of avoidable deaths was probably 10 times higher. Hundreds of thousands more patients are seriously injured through negligence. Doctors and hospitals are doing a poor job of policing themselves, yet they have been successful at keeping anyone else from doing it.
The opposition to Lavern’s Law came from the hospital and health care lobby, apparently concerned that the bill might result in more medical malpractice lawsuits. It very well might, but the actual number would probably be minuscule: Of the hundreds of possible cases we evaluate every year, only a handful are outside the statute of limitations. ...
Surprisingly, despite the frequency of avoidable errors, very few wind up as medical malpractice lawsuits. A 2013 study concluded that about 1 percent of medical errors resulted in a claim.
And even if a victim wins a medical malpractice lawsuit, awards are generally modest. Thirty-three states restrict the amount of compensation for the pain and suffering victims have endured. According to the Department of Justice, the median award by juries is $400,000; in bench trials, where the judge also serves as the jury, the median award is $631,000.

Sunday, September 6, 2015

Battery during football game or consent?

After just one day into the high school and college football season, we now have several examples of cheap shots and concussions to write about.  However, the most disturbing is the play in the video below which shows two players in a high school team attack a referee. The incident took place during a game at Marble Falls High School, northwest of Austin. The attacking players are from John Jay High, in San Antonio's large Northside Independent School District. Their team was losing and the referee had called at least one penalty on the team before the two players apparently decided to take matters into their own hands.

As any first semester law student knows, there are some cases that discuss the fine line between battery and contact within the customs of a sport.  In negligence language, it is often said that players assume the inherent risks of the sport.  For the same reason, so do the umpires and refs.  I don't think anyone would dispute that baseball umpires assume the risk of getting hit by balls, having runners run into them and getting yelled at or criticized by players.  These are known risks.  In football, some of the refs have to be positioned close to the plays and it is not uncommon to be pushed or run over.

However, I don't think that refs assume the risk of being intentionally attacked from behind by players.  The conduct of the players involved in this video is inexcusable.  They should be expelled from the team and if their conduct was suggested or even condoned by their coaches, they (the coaches) should be fired.  There is no place for this in sports.  Knowing what we know about concussions in football, this vicious attack on the ref could have caused him serious injury.

The Marble Falls Police Department is conducting an investigation and I will try to update this post when I hear more.

UPDATE (Sept. 7, 2015):  ESPN is reporting that the two players who attacked the ref have been suspended from the team and from school pending the investigation.  It also reported that the Austin Football Officials Association wants to make sure the two players are not allowed to play football again.  I would support that decision. Slate also has the story here.  NPR has an update here.

UPDATE (Sept. 8):  Slate is now reporting two new pieces of information:  the students are claiming the ref used a racial slur toward them and the  school district it is treating the incident as an assault on a school official, an offense that could lead to expulsion. 

Saturday, September 5, 2015

Court dismisses complaint for wrongful birth against sperm bank in case in which mother claimed damages because her child was not white

Just about a year ago, I wrote about a complaint for the "wrongful birth" of a mixed race child filed in Chicago by a white mother against a sperm bank because the defendant mistakenly provided her with sperm from an African-American donor.  I wrote my comments on the case here, here and here and more recently published an article on the subject (available here). I won't repeat all my arguments now - please read the previous comments if you are interested.  Suffice it to say I argued strongly that the case should be dismissed.

Given my position, I am pleased to report today that the trial judge has, in fact, dismissed the complaint.  There is no question in my mind that this was the correct decision.  However, I have not had a chance to see the actual order, and every report I have seen repeats something very odd that caught my eye, something along the lines of  "the judge rejected both claims but said that the plaintiff (the mother) could refile the suit as a “negligence claim...”

This makes absolutely no sense to me.  The complaint included two claims, one for breach of warranty under the Illinois Blood and Organ Transaction Liability Act and one for wrongful birth.  The purpose of the Act is to prevent plaintiffs from filing strict liability actions against certain defendants.  Thus, the actions that can be filed under the act, if any, would be based on negligence.

The notion of a "warranty" in such a claim comes from the text of the statue in that it states that those involved in the rendition of any of the services described in the statute "warrants . . . that he has exercised due care and followed professional standards of care," or, in other words, that the defendant was not negligent.  This statement means nothing other than what the common law already requires. The plaintiff still has the burden of proof to argue and prove the standard of care and that the defendant breached it. Thus, the statute changes nothing and provides no additional, or different, avenue of relief to a plaintiff than a normal negligence claim. The claim "for breach of warranty" under the statute would only be valid, and survive a motion to dismiss, to the extent the plaintiff can support a claim for negligence.

For this reason, re-filing the claim as a negligence claim would be essentially the same thing as filing the original complaint, which the judge already dismissed!  And if it is re-filed, what damages would be claimed?  It would have to be the out of pocket economic damages (which have been reimbursed already, and therefore for which there is no claim) and the emotional distress due to the birth of the child, which is another way of arguing the same thing as the wrongful birth claim.

The wrongful birth claim, in turn, is, by definition, a negligence claim.  The label "wrongful birth" refers to the type of injury used as a basis for the claim, not as a reference to the theory of liability upon which the claim is based.  The theory of liability is negligence.  Clearly it is not intent nor strict liability, so what else could it be?

Thus, again, re-filing as a negligence claim would mean refiling the same case!

Why would the judge allow the plaintiff to re-file a claim that the judge has decided has no merit, when re-filing it would only mean the plaintiff will re-argue the same claim again?   It makes no sense. 

Like I said, I have not seen the actual court order, and maybe the newspapers are wrong in their reporting, but I have seen the same report in the Washington Post and the Chicago Tribune. 

Friday, September 4, 2015

FDA cannot prohibit the promotion of truthful, off-label uses

A federal judge has issued a preliminary injunction preventing the FDA from enforcing key regulations designed to prevent drug companies from promoting their products “off-label” uses, which have not been established as safe and effective by the agency. AboutLawsuits has more on the story here. Trial News adds that "Plaintiff attorneys are concerned about what this ruling means for consumer safety." Go here to read the full story.

New report on food safety

The American Association for Justice has just published a new report on issues related to food safety including a discussion of instances in which food companies knowingly let Americans eat food contaminated with deadly pathogens. For more on the story go here.  To get copies of the reports by the AAJ (including reports on auto safety, products liability, the drug industry and tort reform) go here.

Trial set to begin against DuPont for injuries caused by water pollution in a huge case you probably have never heard of

Back in 2008, the PopTort reported on a case brought by 80,000 people against DuPont USA alleging that it had knowingly “polluted water supplies of two West Virginia and four Ohio water districts with a chemical used to manufacture Teflon, called C-8,” and tried to cover it up. That case was settled but it did not include a settlement for individual personal injuries caused by the chemical in the water.  Since then, thanks to an epidemiological study that showed that a “probable link exists” between the chemical and at least 6 diseases suffered at unusually high rates by the residents in the affected areas, a claim for personal injuries was filed by 3,500 individual plaintiffs. The trial on the first of these, starts later this week. Go here for more information and links on the story.

Monday, August 24, 2015

GM ignition switch defects tied to 124 deaths, 275 injuries

Attorney Kenneth Feinberg’s office has completed its review of all 4,000-plus compensation claims related to General Motors’ faulty ignition switches which prompted the recall of more than 2.6 million vehicles last year and the conclusion is that the defects have been linked to 124 deaths and 275 injuries.  Go here for the full story.

Thanks to Torts Today for the update.

Sunday, August 9, 2015

Tony Stewart Sued For Wrongful Death By Family Of Kevin Ward, Jr.

You may remember a race car accident last year in which a driver got out of his car and started walking on the racetrack yelling at the driver that hit him. That driver, Tony Stewart, then hit the first driver, Kevin Ward, who later died from his injuries. ESPN is now reporting that Kevin Ward's family has filed a wrongful death lawsuit against Tony Stewart.

It will be interesting to see how the court addresses the claim because it raises several issues.  First of all, drivers who engage in race car driving assume the inherent risks of the sport, one of which is death.  However, the plaintiffs will argue that the plaintiff does not assume the risk of having a car driven into him the way Stewart did in this instance.  In reply, Stewart will probably argue that Ward was contributorily negligent in walking on the race track as the race was ongoing.  Depending on the rule in the jurisdiction, this argument may be enough to win the case for the defendant.

According to the lawsuit, Stewart gunned the throttle of his car to kick the tail end out as he drove by Ward, unlike the other cars that had passed through that section.  “Stewart could have easily acted reasonably and with prudence to avoid striking Ward, just as all other drivers had done as they passed Ward during the yellow caution flag,” reads the lawsuit. “Stewart acted with disregard for Ward’s life and safety by driving his vehicle in a manner that would terrorize Ward ...”  In other words, the plaintiffs seem to be arguing that Stewart purposely tried to scare Ward.  If that is the case, I wonder if they also included a count for battery in the complaint.

Here is a video of the accident itself:

Thursday, August 6, 2015

GM Settlement Fund Offers $1 Million Each in 124 Ingition Switch Death Claims

Details here.

Jury finds for the defendant Kansas City Royals in the case for injury caused by mascot

Long time readers of this blog might remember the case filed against the Kansas City Royals seeking compensation for an injury caused by a hot dog thrown by the team's mascot into the crowd.  My first reports on the case are here and here (including links to comments on the claim and to the original complaint).  My most recent posts on it are here (with a video) and here.

Eventually, the case went to trial and the jury found for the defendant. However, the Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. Then, back in June 2014, the Missouri Supreme Court ruled that being hit in the eye with a flying hot dog is not an inherent risks of watching a baseball game and that, therefore, the  trial judge wrongly asked the jury to consider the defense of assumption of the risk.

The case went back to trial and just recently the jury found for the defendant.  The Kansas City Star has the story here.

Illinois Court of Appeals decides case against drug manufacturer which could be the next big case to reach the Supreme Court on the issue of preemption

Readers of the blog will remember that I have been following the debate and the cases on preemption of claims against manufacturers of generic drugs based on inadequate warnings (most recently here and here.)  

In an interesting twist to the plot, now comes a decision of the Illinois Appellate Court involving a claim based on a design defect.  In this case, called Guvenoz v. Target Corp., 2015 IL App (1st) 133940 (March 27, 2015), the plaintiff Guvenoz alleged that her husband, Lewis Guvenoz, suffered severe brain damage and eventually died from a heart attack caused by prescribed dosages of propoxyphene, a generic version of a brand name drug known as Darvocet.  The plaintiff sued the manufacturer manufactured of the generic version taken by her husband.  Six months after the decedent's cardiac arrest resulted in anoxic encephalopathy, the Food and Drug Administration banned Darvocet as unreasonably dangerous. But Guvenoz argued the manufacturers knew about correlations between Darvocet and fatal heart arrhythmias, knew the medication wasn’t very effective and knew the risk of death and serious injury outweighed the drug’s benefits. 

Because the plaintiff argued that the drug was so dangerous and of so little benefit that it should not have been manufactured or sold (the essence of a design defect claim), the crucial question of law for the Illinois Appellate Court was whether Nicole Guvenoz’s state law claims were pre-empted by the Bartlett/Mensing line of cases which hold state claims for inadequate warnings against manufacturers of generic drugs are pre-empted by federal law (because federal law forces them to use the exact same warnings used by brand name manufacturers). 

Directly addressing this question, the court concluded that “the logic of Bartlett and Mensing does not apply to plaintiff’s claims, and their holdings do not pre-empt the state law claims in this case.”  According to the court, the facts in the case at bar are very different from the facts in both Bartlett and Mensing.  In the case at bar, plaintiff alleges that there was no group of patients for whom the drug’s benefits outweighed its risks. By contrast, in both Bartlett and Mensing, the drug was safe for the vast majority of patients taking it, and only a “very small number of patients” suffered an adverse and severe reaction.  In the case at bar, plaintiff alleged that the drug was simply unsafe and should not have been sold at all, and there was no warning which could have cured the problem.

Sunday, July 26, 2015

Fiat Chrysler Hit With Record $105 Million Fine For Safety Defects

Federal regulators are fining Fiat Chrysler $105 million for failing to acknowledge and address safety defects in a timely fashion. The civil penalty — the largest ever imposed by the National Highway Traffic Safety Administration — will be accompanied by three years of "unprecedented" federal oversight, the agency says.  Go here for more details.

Court upholds constitutionality of Florida statute that authorizes defendants' lawyers in medical malpractice cases to communicate directly with the plaintiffs' doctors without having to inform the plaintiffs or their lawyers

As reported in the TortsProf blog,
In 2013, the Florida legislature passed a med mal reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:   In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.  In October of 2014, the Eleventh Circuit held that the reform did not violate HIPAA.  Now the 1st District Court of Appeal has upheld the constitutionality of the reform from challenges that it violates the right to privacy and separation of powers. CBS Miami has the story.

Please help a friend of mine with her research

My colleague Prof. Cynthia Bond is working on a article and she needs your help.  Here is her request:

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).
To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:
Thanks in advance for your time and have a wonderful rest of summer!
Cynthia Bond
The John Marshall Law School
Chicago, IL

Thursday, July 9, 2015

Florida Intermediate Appellate Court Rules Med Mal Cap Unconstitutional

The TortsProf Blog is reporting that "[r]elying on the Florida Supreme Court's ruling that a cap on emotional distress damages in wrongful death cases is unconstitutional, an intermediate appellate court (the Fourth District Court of Appeal) ruled the state's medical malpractice cap on non-economic damages violates the equal protection clause of the Florida Constitution."

Tuesday, July 7, 2015

Follow up on story re vaccines

Just to follow up on my posts regarding possible liability on parents who fail to vaccinate children, here are a few update on related issues.

On June 25, the California State Assembly passed SB 277, a bill mandating that children in day care or school be vaccinated. The bill eliminates the personal-belief and religious exemptions, leaving intact only the medical exemption.  See here, here, here and here.

Five days later, the Governor signed the bill into law.  See here and here.

NY Court of Appeals reaffirms rule that immunizes dog owners for injuries caused by their negligence in handling their dogs

Eric Turkewitz, of The New York Personal Injury Law Blog, has a very interesting post on a recent decision by the NY Court of Appeals (the highest court in the state) on a topic I have written about in the past - the possible liability of a dog owner.

The facts of the case are relatively simple.  The defendant allowed his dog to run around in Central Park, and later called it to come back.  The dog bolted across the road exactly as commanded but unfortunately into the path of a bicyclist who suffered an injury as a result.  The plaintiff sued the dog owner for negligence.  Simple enough: the owner was negligent in either allowing the dog to run unleashed or in the way he called it back without taking precautions, and caused an injury as a result.

Prima facie case, right?   Not so in New York, where courts, for some reason, do not recognize causes of action for negligence in cases of injuries caused by pets, although they do in cases of injuries caused by other animals.

Instead of recognizing how illogical the current state of affairs is, however, the court reaffirmed its position and decided to continue to adhere to a rule that essentially provides immunity to dog owners who cause injury with their negligent handling of their animals.

The case is Doerr v. Goldsmith  and it is available here.  In his post, Turkewitz briefly comments on the concurring opinion and one of the dissenting opinions and I agree with him entirely.  The concurring opinion's reasoning is unpersuasive and the dissenting opinions are much more reasonable, logical and consistent with basic principles of tort law.  As Chief Judge Lippman, in dissent, points out, the position taken by the court, "serve[s] only to immunize defendant from the consequences of her own negligent actions, for no reason other than that a dog happened to be involved in the accident."

Also, as pointed out by Judge Fahey, who also dissented, "We should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation."

I agree.

Monday, June 8, 2015

FDA panel recommends approval of controversial drug FDA has rejected twice already

Almost exactly five years ago I reported on a German pharmaceutical company's attempt to market a drug claiming it helps treat a disorder related to female sexual desire while others argued that the pharmaceutical company were trying to take advantage of women to sell them something they did not need (and potentially endanger their health) in pursuit of billion dollar profits.  The FDA eventually rejected the proposal after a study showed the drug failed to meet agreed-upon criteria to establish its effectiveness.  Go here for my report, which includes the trailers of a documentary on the controversial drug.

After the failed attempt to introduce the drug in the American market, the German pharmaceutical company dropped the drug. However, Sprout Pharmaceuticals picked it up and again submitted it for approval in 2013. The FDA nixed it, again.

Yet, just a few days ago, an FDA advisory panel voted to recommend approval of the drug.  The FDA does not have to follow the advise of the panel but it usually does.

It will be interesting to see if the FDA does approve the drug this time around, since none of the reports I have seen mentions that there are different studies supporting a different conclusion than the ones available when the drug was rejected in the past.  If approved, I am sure the controversy discussed in the documentary mentioned in my earlier comment will be revived.  And when the drug is shown to cause injuries, it will inevitably result in litigation.  (Yes, I said "when" rather than "if" on purpose.  As has been discussed elsewhere, and reprinted in Smithsonian magazine "the drug also comes with side effects like sudden drops in blood pressure, sleepiness and fainting spells, it's unclear whether the benefits outweigh risks.")

For more information on the controversy, go here.  For more on the approval process, NPR has a story here.  For more on the drug itself, Smithsonian has a story here.

UPDATE 6/13/15:  The New York Times has published a short editorial on this subject here.  Among other things it concludes that "the panel’s recommendation was laced with so many caveats that it seems clear that this particular drug — flibanserin — is only marginally effective and carries some risk of serious adverse effects."

Possible liability of parents for denying medical care to child due to religious reasons, and issues related to vaccines, ... again

I have posted a number of comments on the possibility of imposing liability on parents when they cause an injury to a child when refusing to provide medical care because of religious beliefs. See here.  I have also posted on the relationship of this issue and the debates on vaccines.  See here

Here is an update: The California state Senate just overruled a long-standing law that permitted parents with religious and philosophical reservations to send their children to public and private schools without their shots.

Slate has a recent article on the issue called "Faith Healing Kills Children."  You can read it  here.

Thursday, May 21, 2015

Illinois Supreme Court holds proximate cause applies to intentional tort claims, which precludes claim for death caused by suicide but contradicts itself in the process

Back in April I wrote a comment on an oral argument before the Illinois Supreme Court in an interesting case that asked the court to recognize a cause of action for wrongful death when the defendant’s alleged intentional infliction of emotional distress caused the decedent to commit suicide.  As I explained there, Illinois has decided that, in the context of a negligence claim, a suicide is unforeseeable as a matter of law, which means that it always operates as a superseding cause that defeats the element of proximate cause.  What made the case before the Court different, however, is that it was brought as an intentional tort claim based on intentional infliction of emotional distress.  The case is called Turcios v. DeBruler Company

In my original post, I quoted a popular Torts hornbook which states that “[a]uthority is sparse as to when, if ever, proximate cause will preclude liability for intentional torts. In light of the greater culpability inherent in intentional wrongdoing, courts appear, at the very least, ready to stretch to find liability."

It is now clear that the Illinois Supreme Court is not willing, much less, ready, to make this “stretch.”  In reaching its decision, the Court first concluded that the concept of foreseeability, embodied in the doctrine of proximate causation, limits the liability of both negligent and intentional tortfeasors, holding that “[p]laintiffs’ view, under which legal cause plays no role in the liability of an intentional tortfeasor, essentially creates open ended and limitless liability for injury, no matter how abnormal, extraordinary, irregular, or remote the injury may be.” [Interestingly, the court noted that plaintiffs conceded during the oral argument that some line drawing must be made, and that an intentional tortfeasor is not necessarily liable for all  consequences flowing from the defendant’s conduct. You can listen to the oral argument here.]

Having decided that intentional tort liability should be limited by applying the concept of proximate cause, the Court then applied the proximate cause analysis to the context of the case and concluded, as it has done consistently in the past, that because the death of the decedent was the result of a suicide, it was unforseeable, and therefore the plaintiff failed to satisfy the element of proximate cause.

In reaching this conclusion, however, and perhaps without noticing it, the Court contradicts its long held position on suicide and opens the door for future arguments against it when it states:
"Because an intentional tortfeasor’s liability is limited by the concept of foreseeability embodied in the doctrine of proximate causation, a cause of action for wrongful death predicated on a suicide allegedly brought about by the intentional infliction of emotional distress is subject to the general rule that suicide is unforeseeable as a matter of law. Thus, the plaintiff bears a heavy burden of pleading and proving facts that would overcome application of the rule.


Accordingly, we hold that where, as here, a plaintiff seeks to recover damages for wrongful death based on the decedent’s suicide allegedly brought about through the intentional infliction of emotional distress, the plaintiff must . . . plead facts which, if proven, would overcome application of the general rule that suicide is deemed unforeseeable as a matter of law. In other words, a plaintiff must plead facts demonstrating that the suicide was foreseeable, i.e., that it was a likely result of the defendant’s conduct."
Here is what I find interesting about this.  If a plaintiff can argue that the suicide is foreseeable, then by definition, the suicide is no longer unforeseeable as a matter of law.  If it can be argued that in some cases it is foreseeable while it is not in others, then the court is implying that reasonable people could disagree as to whether it is foreseeable at all, making the question one for the jury.  Doesn't that, by definition take the question out of the realm of "a matter of law"?  And, if this is the case, then what the court is implying is that when applying the proximate cause analysis to cases where the injury is death by suicide, the analysis should be the same as in all other cases, ie, to determine if the injury is a foreseeable consequence of the risk created by the conduct.

Thus, the way I am reading this, while reiterating its long held position on whether suicide is foreseeable, the court is actually abandoning it.

The case is Turcios v. DeBruler Company and you can read the opinion here.

Tuesday, May 19, 2015

Jury awards $3.5 million in case involving a wife getting exposed to asbestos in her husband's work clothes

A Washington state jury has awarded $3.5 million to the estate of a woman who died of mesothelioma she contracted from exposure to asbestos carried home on her husband’s work clothes.  AboutLawsuits has the story here.

Most asbestos cases involve plaintiffs who were exposed to asbestos at work, but the plaintiff in this case was exposed to asbestos due to her contact with her husband, who as a result of his work, carried asbestos fibers home on his work clothes.  In a case like this, the issue of whether the possible liability of the defendant should be limited to the person exposed to asbestos directly at work. In the end, the issue is one of proximate cause or duty. Should the duty of the defendant extend to include the injuries suffered by anyone exposed to the fibers, or just to the injuries of those exposed at work?

The case is similar to a case in California in which the jury awarded $27.3 million in damages, and a case in Illinios in which the court remanded the case to allow the plaintiff a chance to support its allegation of duty.  You can read my comment on those cases here.

Friday, May 15, 2015

G.M.’s Ignition Switch Death Toll Hits 100, but many claims may be dismissed because of the effect of the company's 2009 bankruptcy

The consequences of General Motors’ long-delayed recall of defective small cars hit a grim milestone recently, when the company’s compensation fund said it had approved the 100th death claim tied to faulty ignition switches. The toll far exceeds the 13 victims that G.M. had said last year were the only known fatalities linked to ignitions that could suddenly cut off engine power and disable airbags.  The New York Times has the full story here. However, a large number of lawsuits filed against GM may be dismissed following a recent bankruptcy court ruling blocking lawsuits filed against General Motors over actions that predate its 2009 bankruptcy, declaring that “New GM” and “Old GM” are two different companies and that the new company is not liable for the actions of the old one. AboutLawsuits has that story here.

Tuesday, May 12, 2015

Comment on new book on tort reform and health care costs

The PopTort has a good comment on Steven Brill's new book on health care, called “America's Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix Our Broken Healthcare System,” in which he concludes, apparently without attempting to support that conclusison, that “Democrats resistance to ‘sensible Tort reform’” is a major reason why we have out of control health care costs.  As anyone who has been paying attention to the topic of tort reform and health care over the last few years know, this claim is not supported by the evidence.  And so it was pointed out in a recent Sunday New York Times book review of “America’s Bitter Pill.”   The PopTort has a comment on the book and the book review here.

For more on the issue of tort reform and medical costs go to my section on med mal (here) and scroll down.  Be patient and take your time.  There are more than 200 posts in that section including many with links to studies and reports clearly debunking the mythical relationship between tort reform and health care costs.

Tuesday, April 28, 2015

Missouri adopts new caps on damages

The TortsProf blog is reporting on another cap on damages legisltation, with an interesting "twist" -- it sounds like the cap is essentially optional, something I had never seen before:
In 2012, the Missouri Supreme Court struck down that state's med mal damage cap.  The legislature has passed a replacement, and it is now awaiting Governor Jay Nixon's decision whether to sign it.  In sum:  The bill, if signed into law, would place a $400,000 cap on noneconomic damage awards in medical malpractice cases. The cap would be raised to $700,000 for catastrophic and wrongful death cases. Both caps would then increase by 1.7 percent each year.
There is a catch to the law. A jury would still be able to award an amount greater than the allowed caps. If a motion is then made contesting the award, the trial court will determine whether the limitations apply in that case.
The reason I say this sounds like an "optional" cap is that the jury apparently will not be told of the cap and it will only be applied if the affected party requests it AND the court decides to apply it.  I assume that a decision not to apply it will be reviewable (and I also assume under an abuse of discretion standard, but I don't know).

UPDATE 5/12/15:  The bill has been signed into law.  Details here.

Monday, April 27, 2015

Parental immunity for "free range parents"?

Maybe it was just a coincidence, but just as I was due to teach the issues related to parental immunity in class, I have seen a number of stories related to torts involving parents and children.  I recently posted stories on a possible duty to vaccinate (here and here), possible liability for parents who expose a child to an exorcism (here), and issues related to pre natal torts (here).

Now, here is a story about "free range parents" from Above the Law (with lots of links including one to a recent article in the Washington Post).  It discusses "examples of clashes between parents who believe their kids deserve some autonomy and child protective services workers who are charged with taking every potential threat to a child’s safety seriously."

When we talk about parental immunity, we invariably discuss the policy behind the immunity as being that parents should have the right to make decisions on how to raise their children without undue interference from the state.  Parents also have the right to make mistakes and not have to be liable in all cases.  Obviously, the question then becomes when does the interference of the state ceases to be "undue" and becomes justified.

This is precisely the policy question behind the debate on free range parenting.

In addition, another by product of the debate is the possibility of using criminal or child welfare statutes as expressions of a duty in tort law (by applying the so called "negligence per se" doctrine).