Monday, May 30, 2016

Movie mini review: Attacking the Devil: Harold Evans and the Last Nazi War Crime

The 2014 documentary "Attacking the Devil: Harold Evans and the Last Nazi War Crime" is now available for streaming on Netflix.  If you have access to it, I recommend it.

Before there was a "spotlight" team at the Boston Globe, there was the "insight team" at London's The Sunday Times.  This documentary tells the story of how Harold Evans, the editor of the Sunday Times pursued the story behind the injuries caused by the drug Thalidomide which was used to control morning sickness but which caused tens of thousands of children to be born with serious defects.

Under Evans' leadership, the Times pursued the story and fought restrictive laws that limited the publication of the facts behind the story.  The story is not only about products liability and the pursuit of justice for the injured victims but also about restrictions on freedom of the press. 

The Sunday Times' fight to win compensation for the victims took more than a decade, as Evans tenaciously pursued the drug companies through the English courts and beyond.

Saturday, May 28, 2016

Judge awards $7 million in case involving a wife getting exposed to asbestos in her husband's work clothes

As you probably know, mesothelioma is a rare form of cancer caused by exposure to, and breathing of, asbestos fibers. Most asbestos cases involve plaintiffs who were exposed to asbestos directly (usually at work), but there are a few cases that have recognized liability for "second hand exposure."  These usually involve plaintiffs who were exposed to asbestos when the person who had been exposed directly brought the fibers home embedded in their clothes.

For example, back in 2013, I reported (here) that a jury in California awarded $27.3 million in damages to a woman who developed mesothelioma as a result of her contact with her husband's clothes.  Just about a year ago, I reported (here) that a Washington state jury awarded $3.5 million to the estate of a woman who died of mesothelioma for the same reason.

Now comes news (also here) that a trial judge in Louisiana has awarded $7 million to the surviving family members of a woman who died of cancer after years of washing her husband's asbestos-tainted clothes.

Plaintiffs in these cases argue that the defendant should be liable because the injury is a foreseeable consequence of the risk created by the negligence conduct or product (depending on whether the claim is for negligence or strict liability).  This, obviously, is just an argument in support of the element of proximate cause and defendants, therefore, reply that viewed this way, liability could extend too far thus defeating the reason for proximate cause in the first place.  Since the notion of proximate cause is used to limit the reach of possible liability, they argue liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.  What if the worker, instead of going straight home after work, went to a bar every day for a beer or two with friends and other co-workers.  Any "regulars" at the bar could have a cause of action. 

It is not a frivolous argument, and I am guessing some courts have (or will) accept it.  But, as we have seen, a few have either rejected it or at least replied to it that even if the possible liability should be limited to exclude those bystanders, it should not exclude the immediate family members.  

Friday, May 27, 2016

More thoughts on possible liability for the consequences of the conduct of app users: Is Uber dangerous?

Over at the New York Personal Injury Lawyer Blog, Eric Turkewitz has posted a very interesting short comment called Uber Cars are Uber Dangerous.  You should read the full comment but the bottom line is that it is possible to argue that the way Uber works, it encourages its drivers to check and reply to text messages while driving.  If this is the case, it can then be argued that Uber is acting in a way that creates unreasonable risks of harm to others, and therefore, that it should be liable for injuries that result.  This would be particularly important in jurisdictions that have adopted the view that someone who sends a text may be liable if he or she knows that the recipient is driving at the time and is likely to be distracted by the text.  There are reported cases on this in at least two states.

It should also be noted that this theory of liability is not dependent on finding that Uber drivers are employees as it would be if the argument is based on vicarious liability (an issue that is currently being litigated in several cases in different jurisdictions).

Wednesday, May 11, 2016

Thoughts on tort liability and autonomous vehicles

There is a growing amount of literature on possible issues related to tort liability and autonomous vehicles, aka self-driving cars.  If you search using those phrases in SSRN, for example you will find 10 to 20 articles. 

I have to confess I have not been keeping up with the literature but today I was reading an article in Smithsonian magazine (my favorite magazine, by the way) and found this quote by Chris Gerdes, who is described as “one of the leading engineers identifying novel problems facing autonomous driving and writing the code to solve them”:   “Autonomous vehicles don’t eliminate human error.  They shift it from the driver to the programmer.”

Obviously, this notion might prove to be extremely important in the future when someone has to decide whether to impose liability for injuries caused by an autonomous vehicle.

I also found interesting the description of how the programmer is working to identify and help solve the future problems: “Part of what Gerdes does is huddle with a team that includes not just engineers and programmers but also moral philosophers, and what has emerged is an ethical framework, or set of decision trees.”

The mention of moral philosophers, of course, made me think of the “trolley problem” (or here) which makes sense because this is the type of decision a programmer may have to find a solution to in order for the autonomous car to “act.”  

If you are not familiar with the “trolley problem” take a look at the first 13 minutes of this video.  Essentially, the question is whether you would act to switch a trolley from one track where it is headed to kill five people onto a track where it will kill one other person.  I would not want to be the computer programmer in charge of deciding this type of thing in order to tell a car what to do. 

And if you think the trolley problem is too far fetched, think of a more common problem.  How should the autonomous car react when a child darts in front of it?  Should it simply stop even though it senses there is a car behind which might hit it and hurt the passengers in it?  Should it veer to avoid the child but head to a collision into another car? And so on.  The possibilities are endless. 

Currently, we - humans - make those decisions based on reaction time and instinct and when injuries are caused, other humans pass value judgment on the conduct based on legal standards which depend on the circumstances. 

How would - or should - all of this change in cases of injuries caused by autonomous vehicles given that the responsibility for making decisions is transferred to a computer programmer?   Should the standard of care change to take into account the work of the programmer rather than the circumstances of the accident? 

Tuesday, May 10, 2016

Child has a claim for wrongful death even though father died before child was born

The ABA Journal is reporting (with links to more information) that the Iowa Supreme Court has decided that a child whose father died before she was born can sue for loss of companionship in a wrongful death case. Similar opinions have been published in

This is an interesting question that I know a little bit about.  One of the very first cases I ever handled as a young lawyer in private practice involved the same issue.  In my case, a couple were expecting a child when the father was killed by a negligent driver in an accident.  The child was later born without incident and the mother hired our firm to represent her in a claim against the driver.  We included a claim for the child based on wrongful death.  Like in the case in Iowa, the defendant argued that the child could not claim to have suffered an injury since the child never met the father (along the lines of you can't miss what you never had to begin with).  I prepared a brief in reply to the motion to dismiss and won, and the case settled soon after that.

I had not looked into the issue since then, so now I am interested in catching up to see what has been written about it.  Apparently, in addition to the case in Iowa, there are other reported decisions in Massachusetts and Wisconsin. I will add them to my summer reading list.

Should a social media app company be liable for the damages caused by a driver distracted by the app while driving? -- UPDATED

Earlier today I posted a note about a recent case on whether a person who sends a text to someone who is driving should be liable for injuries caused by the driver if the driver is distracted by the text.  Now, here is a story with a similar theme.

Abnormal Use is reporting on an interesting case from Georgia in which social media giant Snapchat has been sued for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application.  You should go to AU and read the full report to get the whole story, which I will just summarize here.

The plaintiff in the case is claiming that the defendant driver struck her car while going at more than 100 miles an hour while using Snapchat.  According to the report Snapchat has a feature that will show the speed you are going when taking a photo or posting a video.  Apparently, according to the plaintiff's allegations, the driver wanted to show the world she was going more than 100 mph (with passengers in her car, one of whom was pregnant, by the way).  She failed in her attempt to show this because she rammed into the car in front of her just before posting causing the plaintiff brain damage.  But she was definitely able to show how stupid and reckless she is, and more since after the accident, she had the bright idea to snap and post a photo of herself on a stretcher.

But now back to whether the plaintiff should have a cause of action against Snapchat.  One could argue that Snapchat should not be liable for the irresponsible conduct of the driver in this case.  After all, the driver was the one that acted and caused the accident, right?  Why should the social media company be responsible for how the user uses the app?

The problem is that the issue is not that simple.  The fact that one actor is more culpable than the other, does not mean the other is not culpable at all.  The relevant question is whether Snapchat should be considered culpable at all, and to answer that question first we have to ask whether the plaintiff can make an argument in support of a claim against Snapchat.

I think she can. As, Abnormal Use points out, "While a speed filter may be an interesting piece of technology, we assume in order for it to be useful there would need to be “speed” involved. The filter probably lacks the appeal of users taking a leisurely stroll through Central Park. We can appreciate the plaintiffs’ argument that the filter incentivizes users to go fast and, unfortunately, the most available means of doing so is by car."

In other words, Snapchat created a feature that it knew or should have known would induce users to speed thus creating risks of harm.  Thus, it seems to me that you can argue that Snapchat created an unreasonable risk of a foreseeable type of harm, which gives the plaintiff support for a prima facie case.

Whether Snapchat should be as liable as the driver,... that's is different another question.

But whether you can make an argument that Snapchat should be liable at all...  Yes, I think you can...

UPDATE 5/10/16, 8:40 pm:  Abnormal Use has a published a longer post on the Snapchat lawsuit after downloading and testing the app.

New case on whether a person who sends a text to someone who is driving can be liable if the driver gets distracted by the text

Back in 2013 I reported that the New Jersey State Appeals Court had ruled that texting someone while that person is driving may cause the sender to be liable if an accident occurs. See here, here and here.  To my knowledge, that was the only case that had been decided that way.  Until now.

Eric Turkewitz of the NY Personal Injury Law Blog is reporting that a lower court in Pennsylvania has reached a similar result in a case called Gallatin-v-Gargiulo. You can read Eric's comment here.

Monday, May 9, 2016

Case against Uber based on alleged sexual assault by driver can go forward; Court rejects motion to dismiss based on allegation that the driver was independent contractor

The ABA Journal is reporting today that a San Francisco federal judge has denied Uber’s motion to dismiss cases based on sexual assaults committed by Uber drivers.  Uber's argument was based on the allegation that the drivers in question were independent contractors.

Obviously, if it is true that the drivers are independent contractors, the claims based on vicarious liability will be dismissed eventually.  But the judge thought it is too early to tell.  The question of the relationship between Uber and its drivers is being litigated elsewhere.  There are at least two pending class actions against Uber, regarding whether drivers should be classified as employees or independent contractors.

So the claims based on vicarious liability are still in play.  In addition, the plaintiffs have alleged claims based on direct liability based on negligence in hiring.  Those claims would not be affected if it is ultimately decided that the drivers are independent contractors.

Saturday, May 7, 2016

Medical errors are now the third leading cause of death in the US; Yet, Oregon upholds cap to prevent victims of medical errors to recover full amount of damages

Here are two stories published within days of each other this week.

A new study concludes that medical malpractice has now become the third leading cause of death in the United States, which supports the arguments of those who for years have been advocating for reforms to minimize medical errors and to strengthen protections for those who suffer damages because of those errors.  Go here for an article and a podcast on the new study.

Yet, at the same time, the response of tort reformers in many states is to continue to pursue measures intended to make it more difficult for victims of malpractice to pursue claims or to lower the amount of compensation they can recover is they do pursue the claims.  For example, I recently commented on measures taken, or about to be taken, in Missouri, and Arkansas.

Now comes news of a recent decision by the Oregon Supreme Court which upheld a $3 million  cap on damages against the state and its employees.  Now, I understand that $3 million sounds like a lot of money (and it is!), but the fact is that measures like these have the effect of affecting much more those who suffer the worst types of injuries.

This case is a perfect example.  The Court's ruling reduces a $12 million jury verdict in a case that involved a botched surgery that nearly killed a then 8-year-old boy.  Here is what is important:  the plaintiffs proved they would need $6 million to cover future medical need for the child.  Yet, the Court cut down the award to half of that.  The $3 million that is left out must now be absorbed by the family.  The defendant caused the injury but the family has to pay at least half of the costs.  OregonLive has the story.