Sunday, March 31, 2019

Story on the possible liability of the private companies that transport prisoners

The Marshall Project has a disturbing story on "the dangerous prisoner transport business" and how it has dodged responsibility for “gross negligence.”  You can read the full story here.

Tuesday, March 26, 2019

Supreme Court finds manufacturer can be sued under maritime law for exposure to asbestos even if product is modified by a third party as long as defendant knows of modification

Back in October of last year I wrote that the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment.

Last week, the Court announced its decision ruling that, under maritime law, manufacturers can be sued for the injuries caused by their products even if the products were modified by third parties as long as those modifications were known by the manufacturer.

As reported in Jurist:
The suit was brought by two veterans, Kenneth McAfee and John DeVries, who alleged that they were exposed to asbestos while enlisted and developed terminal cancer as a result. The defendants manufactured equipment for ships for the US Navy, on which the plaintiffs served. Though the equipment was not produced with asbestos by the defendants, integration of the carcinogen was performed by the Navy after the installation of the equipment pursuant to instructions by the manufacturers. The suit argued that the two crewmembers were not given sufficient notice that they were being exposed to a dangerous material by the manufacturer, while the companies claimed that they were not liable because they did not install the asbestos materials themselves. Though a federal district court ruled in favor of the manufacturers, the US Court of Appeals for the Third Circuit reversed the decision, after which the manufacturers appealed to the Supreme Court.
In a 6-3 decision, Justice Brett Kavanaugh wrote that there were three different approaches that the court could take to constrain defendant liability in maritime product liability law. The first, a forseeability approach, would require manufacturers to anyone who came into contact with their product of any dangers that could be reasonably caused by their equipment, even if it is modified by a third party. Kavanaugh dismissed this test, stating that it would cause “confusion” and “overdisclosure” while being a substantial burden. The second test, the “bare-metal” defense asserted by the defendants, would prevent manufacturers from being held liable for any modifications undertaken by a third party. Kavanaugh stated that this test “goes too far in the opposite direction” from the forseeability test, allowing manufacturers to wash their hands of dangerous products by hiding behind third parties. The court therefore held that a middle-ground test is appropriate, holding manufacturers responsible for harm caused by third-party modifications that are undertaken with the manufacturer’s “knowledge or intention” that such a modification would make the product dangerous.
The case is called Air and Liquid Systems Corp. v. DeVries , and you can read the opinion here.  You can read other documents relevant to the case here.

The SCotUS blog has analysis here.

Sunday, March 24, 2019

How the Cosmetics Industry Got to Regulate Itself and Downplayed Cancer Risks

Interesting article related to products' regulation, and possible liability.  Take a look here.

Devin Nunes files lawsuit for $250 million against Twitter; does it violate the rules against frivolous suits?

By now, I am sure you have heard all the jokes about the lawsuit filed by Rep. Devin Nunes.  If not, here is the bottom line: Rep. Devin Nunes has sued Twitter, some satire Twitter accounts, and a real political commentator for a variety of "offenses" including defamation based on allegations that anyone with a basic understanding of the law should know would not support a claim for defamation.  He is asking for $250 million in compensation.  The defamation claim is frivolous.

Of course, frivolous lawsuits are not new, but this is the same Devin Nunes who co-sponsored the Discouraging Frivolous Lawsuits Act and who once voted for a House Amendment "to express a sense of Congress that free speech should be protected."

For a detailed analysis of the complaint, go to TechDirt.

You can read more comments in ABA Journal, and The Daily Beast.

For the jokes I mentioned above, you can go here, and here for some examples.

Sunday, March 17, 2019

Connecticut Supreme Court reverses lower court allowing case against gun manufacturer to go forward -- UPDATED

In a 4-3 opinion issued on March 14 (available here), the Connecticut Supreme Court has cleared the way for families of children killed in 2012 at Sandy Hook Elementary School to proceed with a lawsuit against Remington, which manufactured the AR-15 Bushmaster semi-automatic rifle that was used during the school shooting. 

The court held that Remington can be sued over its marketing practices under a Connecticut state law, despite protections offered to gun manufacturers by federal law.  Specifically, the court held that the federal Protection of Lawful Commerce in Arms Act protects gun manufacturers and sellers from liability for the acts of people who use their weapons, but not from a claim under the Connecticut Unfair Trade Practices Act based on allegations that Remington and other defendants were involved in the selling of a weapon that was designed for military use, knowing it had no legitimate civilian purposes and could only be effectively used by civilians for criminal activity.

You can read more details on the story in NPRAboutLawsuits, Jurist, Courthouse news, the Legal Profession blog and The ABA Journal.

UPDATE (3/19/19):  TortsProf blog has posted a comment here.