Saturday, November 23, 2019

Auto accidents no longer the leading cause of traumatic brain injury deaths in the US

This is a truly sad and alarming bit of news: According to researchers with the U.S. Centers for Disease Control and Prevention (CDC), suicide is now the leading cause of traumatic brain injury deaths, passing automobile accidents for the first time.  Story here.

Friday, November 22, 2019

News about vaping products keep piling up

Here are a few bits of news related to vaping:

The American Medical Association has called for an immediate ban on all electronic cigarettes and vaping devices.

Yet another complaint has been filed against the manufacturer of vaping products.  In this one, an 11-year old child alleges to have developed a nicotine addiction from JUUL, indicating that the manufacturer’s aggressive marketing practices not caused vaping problems among high school and middle school students, but also ensnared children still in elementary school.  The story is here.

A new study suggests that JUUL products deliver much higher amounts of nicotine than other e-cigarettes, increasing the risk of addiction and other health problems.  Story here.

Another sports story: Mary Cain's claims against Alberto Salazar and Nike

Yesterday I wrote about the possibility of supporting a claim related to a fight on the football field.  Today I want to point out another story related to sports.

If you are a track and field fan, you probably have heard about Alberto Salazar.  Once a famous and successful runner, he then became a famous and successful coach. 

Now he is famous for other reasons.  Bad reasons. Over the years, Salazar became known for operating in a gray area, using unconventional methods and pushing the envelope of what might be allowable under the letter of the doping rules.  In 2015 he was accused of using his son as a guinea pig, and was forced to admit he had been testing a testosterone gel on his sons.

Then, earlier this year, after a multi-year US Anti Doping Agency investigation, Salazar was found guilty of doping violations linked to the Nike Oregon Project training camp. In addition it was determined that Salazar ran experiments with supplements and testosterone and possessed and trafficked a banned substance. As a result, he was suspended for four years.

I had heard that bit of news (and the accusation of using his sons as guinea pigs) back when it was announced, but it was not until a week ago that I had heard the allegations by female athletes against Salazar.

I first heard about this controversy when I saw a New York Times video in which Mary Cain discusses her experience as a female athlete in the Nike system.  You can watch the video below.  She is not the first female athlete to make similar claims.   Kara Goucher claimed she was pressured by Salazar to take thyroid medication not prescribed by her doctor to lose weight gained during her pregnancy in 2010.

I am writing about this today because I just read an excellent short comment on the issue linking it to the same question I asked about the football case:  Could an athlete support a claim under these circumstances.  The comment is written by lawyer (and athlete) Eric Turkewitz.  In it, he addresses the difference between assumption of the risk for participating in a sport and what he calls "coaching malpractice."  It is worth reading.  Go here for the full text.

Can Mason Rudolph (Pittsburgh Steelers quarterback) support a claim for battery against Myles Garrett?

If you are a football fan, and maybe even if you are not, you probably heard about or saw the video of a fight at the end of the game between the Cleveland Browns and the Pittsburgh Steelers a couple about a week ago.  At the end of the game, Myles Garrett (of the Browns) tore off Pittsburgh's quarterback Mason Rudolph’s helmet, and hit Rudolph in the head with it.  The NFL quickly responded by suspending Garrett for the rest of the season.  You can see the video here with the actual helmet to head contact here and here

Could Rudolph support a claim for battery against Garrett?

In sports cases, it is often said that players consent to conduct that would otherwise constitute battery if the conduct is inherent to the sport.  Likewise, if the claim were for negligence, it is often said that players assume the risks inherent to the sport.  For this reasons, given the violence inherent to football most of the time players can't support a claim.

But, is the risk of having an opponent rip off your helmet and use it against you like a weapon inherent to the sport of football?  I don't think so.  I think the conduct in this case is so far outside the inherent risks of the game that the quarterback should be allowed to have a cause of action.  What do you think?

Wednesday, November 20, 2019

California sues JUUL Labs

California and the city of Los Angeles sued e-cigarette maker Juul Labs on Monday, claiming the company caused a public health crisis by targeting teens with fruity, fun flavored vaping products and did not verify the age of its customers for online sales.  Here is the full story.  Bloomberg law podcast has a 7 minute comment on the claim here.

Tuesday, November 19, 2019

More news on vaping: Trump flip flops on regulation of vaping products

At some point earlier this fall, President Trump announced he was going to look into ways to keep vaping products away from teenagers and even stated his administration would ban most flavored e-cigarettes.  Of course, as is so often the case, he was only pretending to know what he was talking about and now that someone told him that such a move might cost him some votes, the plan is off the table.  You can now add that to the growing list of Trump's unfulfilled promises.  More on the story here.

Sunday, November 17, 2019

Supreme Court denies cert in case against gun manufacturer related to Sandy Hook school shooting

This is the big news of the week in the world of Torts.  

Back in March, I reported that the Connecticut Supreme Court 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.  After that ruling Remington appealed arguing it should be immune from liability because of the federal Protection of Lawful Commerce in Arms Act (2006) which grants gun manufacturers broad immunity from civil lawsuits that arise out of the criminal misuse of a weapon.

However, the Supreme Court denied review of the case on Nov. 12.  As explained by Prof. Timothy Lytton in the best analysis of the decision I saw this week,
". . . [the immunity granted by the federal statute] does not apply where a manufacturer “knowingly violated a state or federal statute applicable to the sale or marketing” of a firearm. 
The Sandy Hook families allege that Remington, by marketing certain guns to civilians, engaged in “unethical” business methods in violation of the Connecticut Unfair Trade Practices Act. Specifically, they argued Remington “marketed, advertised and promoted the Bushmaster XM15-E2S for civilians to use to carry out offensive, military-style combat missions against their perceived enemies.” 
Remington asked the court to throw out the lawsuit based on the federal immunity statute, but the Connecticut Supreme Court held that a violation of the state’s unfair trade practices law qualifies as an exception to the industry’s liability shield. 
Now that the U.S. Supreme Court has refused to hear Remington’s appeal, the case will move into discovery and, potentially, trial in a Connecticut state court. 
Since many states have unfair trade practices laws like Connecticut’s, gun violence victims are likely to bring similar claims elsewhere, effectively ending the gun industry’s federal immunity from civil lawsuits."
 For more links to the story go to:



Courthouse News

The ABA Journal

TortsProf Blog

More news related to JUUL nicotine products

In a complaint filed earlier this month in the U.S. District Court for the Northern District of Oklahoma, 20 year-old Wayne Childs, Jr. argues that he and potentially millions of other young adults and teens in the United States were victims of an “orchestrated effort” by the makers of JUUL, which has resulted in widespread “JUULing” addictions due to high levels of nicotine delivered by the e-cigarettes.  That story is here.

Meanwhile, the U.S. District Judge recently appointed to preside over all federal JUUL addiction lawsuits has indicated that he intends to move the litigation forward in a quick and efficient manner, given the urgency and gravity of the significant public health concerns that are raised in the cases.  That story is here.

Finally, here is a story about a different type of lawsuit the manufacturers are now facing: "The makers of JUUL e-cigarettes face a growing number of nicotine addiction lawsuits, not just from teens and parents, but also from school districts that have become the “front line” in a battle against the growing teen vaping epidemic in the United States.  Over the last month, several districts nationwide have filed JUUL lawsuits, alleging that the manufacturer’s marketing tactics specifically targeted teens, resulting in widespread underage nicotine addiction."  You can read that story here.

Tuesday, November 12, 2019

Another lawsuit against the makers of JUUL vaping products

Yesterday I reported on a class action filed against the manufacturers of JUUL vaping products.  Today, there is news of another lawsuit, this one an individual product liability claim brought by a 19 year old in Colorado.  Go here for a copy of the complaint.  Go here for more general information on the case.

Monday, November 11, 2019

Class action filed against manufacturers of JUUL vaping products

AboutLawsuits is reporting that a complaint was filed last month in the U.S. District Court for the Western District of Tennessee against the makers of JUUL vaping products arguing that the defendants intentionally exploited teens to create a new generation of nicotine-addicted customers.

Go here for a copy of the complaint.

Sunday, November 10, 2019

Idaho lower court rejects so-called "innovator liability"

Long time readers of this blog will remember the debate over the so called "innovator liability" about which I have posted in the past. You can find some of those posts by going to the "warnings" label and scrolling down.

In an nutshell, the debate is this:  Current FDA regulations require manufacturers of generic prescription drugs to use exactly the same warnings that the name brand manufacturers use.  By "name brand manufacturers" I mean the manufacturers of the original drugs of which the generics are now an option.  The manufacturers of generics are not allowed to deviate from those warnings even if they think that they should provide better warnings that could make the product safer.  And, the language of the warnings are largely determined by the name brand manufacturers themselves, not by the FDA.

Because of this, manufacturers of generics can say that it is not their fault that the warning is inadequate since their hands are tied when it comes to deciding what the warning should say.  For that reason, at some point plaintiffs' lawyers started to file claims against the name brand manufacturers arguing that since the problem was that the warning was inadequate, it is the party that decided what the warning should be who should be liable, even if that defendant was not the person who manufactured the drug used by the plaintiff.  This theory of liability is what is not often referred to as "innovator liability."

To me, it makes perfect sense because the claim is not based on a manufacturing problem, but on the lack of, or adequacy of, a warning.  But, not surprisingly, brand name manufacturers and their lawyers have reacted negatively to the possibility of liability.

Some courts have adopted innovator liability as a possible way to support a claim; others have rejected it, and just a few days ago I heard of a recent decision by a state court in Idaho rejecting it.  The case is called Sterling v. Novartis and you can read the opinion here.

It is interesting that the court starts its discussion of the issue by pointing out what it refers to as the “crucial fact” that “Novartis did not manufacture the drug that caused the injuries.”

Obviously, sated that way it sound like imposing liability on the defendant would be contrary to basic principles of tort law.  After all, as the court also points out the common law generally does not impose  liability on a company for injuries caused by other companies.

But here is the thing.  That "crucial fact" is also irrelevant.

That fact would be crucial if the claim was for an injury related to the manufacturing or design of the product because in a case like that the plaintiff would be trying to impose liability on the defendant for the conduct of the generics manufacturer.

This claim is based on an inadequate warning and the brand name manufacturer is the one whose conduct is related to the warning.  Thus, the possible liability is not for the conduct of another but for the conduct of the defendant.

The question is whether the duty owed by the defendant to its customers should extend to the customers of the generics manufacturers.  Applying the most commonly adopted analysis for this question, we would say the duty should extend to those whose injuries are a foreseeable consequence of the risk created.  If the risk was created by the defendant given its role in determining the content of the warning, then it makes sense to extend the duty and to recognize the possibility of liability for the resulting injuries.

Here is a comment from the perspective of the defendant which argues against my view.

Saturday, November 9, 2019

Pennsylvania Supreme Court declares med mal statute of repose unconstitutonal

About two weeks ago, in a 4-3 ruling, the Supreme Court of Pennsylvania held that a 7-year statute of repose for medical malpractice, enacted in 2002 as part of a "tort reform" effort is unconstitutional.  The court found the statute violated the right of access to the courts and had no substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.  Courts in at least 6 other states--Alabama, Indiana, Kentucky, New Hampshire, Rhode Island, and Utah--have also held med mal statutes of repose to be unconstitutional.  The case is called Yanakos v UPMC and you can read the opinion here.

Here are a few key passages from the opinion:
...we conclude the governmental interest in controlling the rising costs of medical malpractice insurance premiums and of medical care is important. However, the MCARE Act’s statute of repose as enacted is not substantially related to achieving those goals.
. . . .
The effect of the seven-year repose period for most medical malpractice actions is to limit the “discovery rule” to seven years.  In most cases, if a malpractice victim discovers the injury and its cause within seven years, the victim may bring a timely lawsuit; however, after seven years, the statute of repose bars the victim’s action. Additionally, foreign objects cases are exempt from the statute of repose, and minors can file a lawsuit either seven years from the date of injury or until their twentieth birthday, whichever is later.  Thus, the statute of repose prevents most medical malpractice victims, except foreign objects plaintiffs and certain minors, from exercising the constitutional right to a remedy after seven years.
. . . .
In this case, there was no evidence to show the initially proposed four-year statute of repose would provide actuarial certainty, except that it “seemed like a reasonable resolution” to “provide some stability and predictability” to insurers. . . .  Moreover, there is no evidence in the legislative history as to how the General Assembly arrived at a seven-year statute of repose with exceptions for foreign objects cases and minors. The legislature did not cite any statistics on the number of medical malpractice actions that are commenced after seven years of the occurrence giving rise to the action.  There is no indication that such a time period, as opposed to a longer or shorter period, will have any effect on malpractice insurance costs.  Likewise, the parties in their current briefing failed to suggest the seven-year repose period has any substantial relationship to the legislative goal of controlling
malpractice insurance costs. 

Sunday, November 3, 2019

Ninth Circuit upholds right to sue under the Alien Tort Statute; Washington Legal Foundation asks Supreme Court to overturn

Long time readers of this blog know I have followed the cases on the Alien Tort Statute (ATS) for some time.  For my posts on this topic, go here and scroll down.

I had not heard of any new developments in ATS case law in quite a while now.... until just a few days ago, when I read that the Court of Appeals for the Ninth Circuit held that a lawsuit filed by citizens of Mali who, as children, worked on Ivory Coast cocoa farms should be permitted to go forward under the Alien Tort Statute (ATS).  The plaintiffs allege that cocoa processors and chocolate manufacturers aided and abetted in human rights violations by farmers in the Ivory Coast.  

Not surprisingly, the Washington Legal Foundation (WLF), an American "public interest law firm" (and, essentially a right wing think tank), quickly filed an amicus brief asking the U.S. Supreme Court to review (and ultimately overturn) the decision of the appeals court.  You can read the brief here.

Among other things, the WLF argues that the apparent purpose of the lawsuit is to assist with a human-rights campaign being waged in the press and before legislatures, not to seriously pursue claims against those who purchase products from farmers who engage in abusive labor practices.

California has adopted a statute banning use of race, gender, or ethnicity in the calculation of tort damages

California has adopted a statute that prohibits the use of race, gender, and ethnicity in the calculation of lost earnings or impaired earning capacity in tort damages.  The crucial language of S.B. 41 is: "estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender."

Thanks to TortProf blog for the update.

Recent developments on whether colleges and universities have a duty to protect students from harm -- UPDATED


Last year I published an article on whether colleges or universities have a duty to protect students from harm (available here).  In it I discussed the then most recent cases on the subject.  One involved a claim against a university based on an attack by one student on another.  The other case involved a student who committed suicide.  In both cases, the courts found that the institution owed a limited duty of care to protect the students, which was a hint of the beginning of a new trend on the issue.

I am writing about this today because, sadly, there are two recent stories that combine both types of cases.

The first story involves the the death of a 24-year-old Ph.D. student of Chinese and Indian heritage at Utah State University.  According to a complaint filed recently, she ended her life after eight months of racist bullying by classmates.  The complaint names as defendants Utah State University, the head of the psychology department, and some students and professors, and it alleges negligence, wrongful death, and intentional infliction of emotional distress.

The claim against the University and its employees is based on the allegation that the decedent  complained about the alleged bullying to professors and a department chairperson but that the University took no action.

This claim is similar to the one filed in the case I discussed in my article so it will be interesting to see if the courts continue the trend to recognize, and impose, more of a duty to protect.  The one significant difference between the two cases however is that Utah State University is a state actor and, therefore, may be protected by immunity under a state "torts claims act" type statute.

You can read more about the case here.

A second related item involves  a Missouri college student who allegedly was “fascinated” with death and gave five other students advice on how to commit suicide. The student is now being sued by parents of two of the students who killed themselves, along with the University the students attended and the Fraternity they belonged to.  However, from the news account it is not too clear how strong the connection between the conduct of the student and the alleged conduct of the university really is.

You can read more about this case here.

For my posts on cases involving suicide, including some cases involving claims against colleges and universities, or against students for hazing, go here and scroll down.

UPDATE 11/3/19:  CBS has an article on the case here.