About a week ago I reported that a recently filed lawsuit against Panera Bread Co. alleges it should be liable for the death of a young woman who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.
Now comes news that a second wrongful death lawsuit (on behalf of the beneficiaries of a 46-year old man) based on similar allegations has been filed in Delaware. The Hill has the story. NPR also has coverage.
Two years ago I reported that a California Appellate Court held that Amazon can be liable in products liability for products sold by other vendors through Amazon. See here. A few months later, the Texas Supreme Court reached the exact opposite result. See here.
I am writing about this today again because a a federal court in Louisiana recently declined to issue judgment in favor of Amazon on its argument that it is not liable for products sold by about two million “third party sellers,” such as the one that sold a defective battery charger that caused a deadly house fire resulting in this wrongful death lawsuit. You can read the decision here.
December 4, 2023
Back in 2012-2013 there was a lot of discussion on possible claims for damages caused by "high energy" (read: highly caffeinated) drinks. Go here and scroll down to refresh your memory.
The topic is now back in the news. A recently filed lawsuit against Panera Bread Co. alleges it should be liable for the death of a young woman who suffered cardiac arrest after drinking Panera's "charged lemonade" which allegedly contained more than 300 ml of caffeine at the time.
The Legal Eagle YouTube channel has a detailed explanation of the case.
UPDATE 12/10/23:
Additional coverage on the case at The Legal Examiner
A second wrongful death lawsuit has been filed in Delaware. See here.
In an important, and somewhat surprising, decision, a state judge has ruled that a teacher who was shot by a 6-year-old student in Virginia can proceed with a $40 million lawsuit against a school system over claims of negligence by school administrators.
The issue in the case was whether the claim should be considered to be a claim for a work related injury. If so, the claim could only be brought as a workers’ compensation claim which would have provided much lower compensation for the plaintiff.
Given the ruling, the plaintiff can proceed with the torts claim she filed in court, which asked for $40 million in damages.
The judge based its decision on the conclusion that the plaintiff's injuries “did not arise out of her employment” and therefore did not “fall within the exclusive provisions of workers’ compensation coverage.” The judge also concluded that “[t]he danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher.”
You can read more about the story Courthouse Network News, NPR and The Hill.
As the case moves forward now, I expect it will raise issues related to intervening causes, proximate cause, and governmental immunity. Stay tuned!
Three passengers who claimed to have suffered emotional distress as a result of a recent incident in an Alaska Airlines flight have filed a complaint against the airline, and have asked for the case to be recognized as a class action. The claim is based on the incident in which an Alaska Airlines flight that was nearly downed due to an alleged attempt by an off-duty pilot to shut down the engines last month have filed a class-action suit against the airline. The lawsuit alleges that the airline did not properly follow its policy by allowing the off duty pilot to fly in the cockpit’s jump seat, despite him admitting that he was not right of mind.
For the story on the original incident, go here. For more on the recently filed complaint, go here.
I do not understand why this claim would be considered to be a class action, but we'll have to wait and see what happens to that request.
October 21, 2023
If you have been following the news about the lawsuit filed by the surviving families of the Sandy Hook school shooting against millionaire conspiracy theorist Alex Jones, you know that a Connecticut jury ordered Jones to pay $965 million in damages to 15 relatives of the victims. Soon, Jones tried to weasel his way out of having to pay for the damages he caused by filing for bankruptcy.
But I just learned that another judge has ruled that Jones can’t use bankruptcy protections to avoid paying money to the families of the victims. The Hill has more on the story here.
Unfortunately, it may be a while before the families see any of the money, but I hope they do sooner rather than later.
UPDATE 10/27/23: Above the Law has an update and commentary here.
Day on Torts is reporting (here) on a recent case in Tennessee that reminds us of the importance of the difference between a wrongful death claim and a claim under a survival statute. And what is that difference? In a nutshell, the recovery in a wrongful death claim goes to the beneficiary as defined in the wrongful death statute, which is usually the decedent's surviving spouse; but the recovery in a claim under the survival statute goes to the decedent's estate. This means that in a case under the survival statute, it is possible the surviving spouse will get a much more reduced recovery - or none at all.
In this new case, called Sanders v. Higgins (available here), the plaintiff was the surviving spouse of someone who died in an accident. Plaintiff brought a claim against the decedent’s insurance company alleging misrepresentation and negligence. The parties reached a settlement on the negligence claims, and the trial court ordered disbursement of the settlement proceeds to plaintiff as surviving spouse but the decedent’s estate appealed arguing that the proceeds should have been distributed to the estate. On appeal, the court of appeals agreed with the estate and reversed.
Back in August of last year I reported that professional golfer Patrick Reed filed a defamation claim against a number of defendants including commentators for the Golf Channel, and I explained how the complaint was a good model to teach how NOT to draft a complaint. See here.
The complaint was based on obviously wrong arguments and I predicted it would be dismissed. My prediction was correct and the case was dismissed in November. But the dismissal was without prejudice and, thus, Reed and his lawyers were given a chance to amend the complaint and try again.
They shouldn't have because, as I argued back then, the claim was flawed from the start; but they did.
And, predictably, they lost again. As expected, the court found that the alleged defamatory statements were either not defamatory, rhetorical hyperbole, true or substantially true, or statements of opinion.
You can read the opinion, which is pretty detailed and long, here.
I have to confess that I assumed that, as part of the analysis of cause in fact, all states required a plaintiff in a legal malpractice cased based on alleged negligence in handling the litigation of case to argue that they would have won "the case within the case" (or, in other words, that they would have won the underlying case had it not been for the negligent conduct of the defendant lawyer). But it turns out that until recently, Idaho apparently did not require this. Now they do.
Last week, the Legal Profession Blog reported that the Idaho Supreme Court decided a case in which it rejected a standard that the suing plaintiff only had to show "some chance of success" in the underlying medical malpractice case. In doing so, the Court adopted the much more popular test of requiring the plaintiff to show that they would have won the underlying case (had it not been for the negligent conduct of the defendant lawyer). This analysis is usually referred to as the "case within the case" analysis because it requires the plaintiff to show that they would have won the underlying (old) case in order to be able to win the new case they are litigating. (Note that the court apparently says that showing the case within the case is needed to meet the element of proximate cause, although it is more accurate to say it relates to cause in fact.)
Meeting the case within the case standard makes it more difficult for the plaintiff to support their claim but it is the logical analysis that is consistent with the notion of cause in fact. And, like I said, I always thought it was "universally" accepted, but now I see I was wrong about that.
So I wonder if there are any other states that still recognize a cause of action without requiring that the plaintiff meet the "case within the case" approach. Do you know of any?
The case is called Rich v. Hepworth Holzer and you can read the opinion here.
A few days ago, I posted a story questioning why Rudy Giuliani would concede the main elements of a cause of action for defamation he had been fighting (based on his comments about two election workers). Giuliani -- or perhaps, more accurately, the lawyer representing him -- apparently thought that it was a good tactic in order to avoid complying with a discovery request, but that made no sense. My original comment explaining why the tactic was likely to fail is here.
As I predicted, the tactic not only failed, it backfired spectacularly. See here. First it resulted in an order to explain his argument and eventually in a finding of liability by default.
Maybe Giuliani and his lawyer did not realize that what they did amounted to conceding the main elements of the cause of action and for that reason, and because of the fact that they did not comply with discovery, the court has found Giuliani liable by default.
Now that default judgment has been imposed, the case will move to trial on the question of the value of the injury, ie, on the damages issue alone. And if you have been paying attention to the story in the news and have watched some of the testimony by the plaintiffs, you know it is fair to say that the value will likely be high. Plus, Giuliani will have to pay attorneys' fees to the plaintiff's lawyers and more in sanctions.
Giuliani is in real trouble. He is reportedly in dire financial trouble and a huge verdict against him in this case will cause him a lot of distress. He has been trying to find funding for his legal bills, which include pending disbarment proceedings in New York and Washington DC, the indictment in Georgia, and at least one other defamation case. Reportedly, Trump is not contributing to his defense fund and Giuliani has put up his NY condo up for sale and is hosting events in attempts to raise funds. (Trump apparently agreed to appear in one of them, although I won't be surprised if he makes the appearance all about himself and ends up trying to get contributions for his legal defense fund rather than for Giuliani, but that's another story for another day.)
You can read the court's opinion here. You can find reports and commentary on the default judgment against Giuliani in the following:
Back in May I reported that the Illinois General Assembly was considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute. In that post I explained why I thought the bill was a good idea (and why the old doctrine it sought to replace was wrong). See here.
Today, I am here to report that just a few days ago, on August 11, Illinois Governor J.B. Pritzker signed the bill into law. The new law allows the recovery of punitive damages in wrongful death and survival actions.
However, as I argued in my previous post, the bill did not go gar enough because punitive damages still are not recoverable in actions against doctors, lawyers, and public entities.
Last Friday I posted a story about how Rudy Giuliani attempted to prevent having to comply discovery in a defamation case by conceding all the elements of the cause of action against him and, at the same time, trying to raise defenses in the case. And, after explaining the situation I concluded "Unfortunately for Giuliani, that’s not how anything works." My original story is here.
I fully expected Giuliani's tactic to be rejected and that is just what happened. Reportedly, the judge overseeing the case has given Giuliani the following options. He can:
1. submit a new stipulation conceding liability to the claims “all factual allegations ... as to his liability for plaintiffs’ defamation, intentional infliction of emotional distress, and civil conspiracy claims, and his liability as to plaintiffs’ claim for punitive damages” and that a default judgment as to his liability is appropriate, or
2. explain why he is declining to submit such a stipulation by clarifying “what precisely his original stipulation conceded regarding the plaintiffs’ factual allegations and legal claims.”
Should Giuliani fail to choose one or two, the judge will convene a hearing (on August 15) to determine how, if at all, he has complied with her prior order to search and produce all materials responsive to the plaintiffs' discovery requests.
Stay tuned!
Last Tuesday Rudy Giuliani filed a two-page stipulation in a long-running defamation lawsuit by two Georgia election workers stating that he “does not contest” that his statements about the plaintiffs were “false” and “carry meaning that is defamatory.” According to the reporting, Giuliani’s attorney added that Giuliani was not in fact “admitting” to the plaintiffs’ allegations against him but making a decision to stop contesting them, which he says should end the plaintiffs’ effort to seek further factual evidence – emails, text messages and other communications – from Giuliani.
Unfortunately, for Giuliani, that’s not how anything works.
First of all, trying to make a distinction between conceding the allegations and not contesting them is nonsense. You can’t have it both ways. In the document, Giuliani conceded that he made the statements alleged in the complaint, that the statements were false and that they were defamatory per se. That means he conceded all the elements of the cause of action. Period, end of story. All Giuliani has left after that is arguing affirmative defenses. And which ones are there? I don’t see any.
He apparently claims that either the statements were statements of opinion or that they were constitutionally protected. Both arguments are wrong.
Once he admits that the statements he made were “false” he has admitted they were not opinions. By definition opinions can’t be true or false – that’s what distinguishes them from statements of fact. But Giuliani has conceded they were statements of fact. So that argument is out - he defeated it himself!
The other possible argument – that the statements were constitutionally protected, is also flawed. First, the notion of defamation is based on the doctrine that not all speech is protected and that if it is not protected, it can result in possible liability. That’s what defamation law is all about. So the question becomes whether the plaintiff can meet the standard needed to show that the speech is not protected and, therefore, should subject the defendant to liability.
On that, the doctrine has created different standards for different categories of plaintiffs. If the plaintiff is a public official or a public figure, the plaintiff has to meet a higher standard because speech about them is more protected. But the plaintiffs in this case were neither. They were private persons performing a volunteer job as election officials. I could be wrong about this, but I don’t think they were elected officials for that job, and they were not known celebrities before the elections and before Giuliani and others started accusing them of misconduct. If I am correct in those assumptions, the plaintiffs in this case do not have to show actual malice on the part of the defendant and will have an easier time defeating the argument that the statements were constitutionally protected.
Second, Giuliani can’t just say that he wants to end discovery because he does not want to disclose more information. Discovery exists to allow the parties access to information and, as everyone knows, discovery is not limited to evidence that can be used at trial. You can use discovery to get access to evidence that will likely lead to evidence that can be used at trial.
The fact Giuliani says he is conceding the element of the claim to end the plaintiffs’ effort to seek further factual evidence just makes me wonder what he has that wants to hide so badly.
And, further, defamation was not the only claim in this case. The plaintiffs’ also sued for emotional distress which is a separate cause of action and they should have the right to continue discovery in order to get evidence related to that claim, which should include the evidence that Giuliani apparently does not want them to get access to.
For these reasons, it seems to me the decision to concede the elements of the cause of action was not a very smart one. It defeats one of his defenses, makes it easier for the plaintiffs to support their claim and should not stop discovery.
Finally, as an aside, I also can't imagine that publicly admitting that he lied in a way that caused so much injury to private individuals is going to help Giuliani's chances to avoid discipline in the various disciplinary proceedings he is facing.
For coverage of Giuliani's confession see Politico, NPR, MSNBC, The Guardian, The Hill, The Conversation and Above the Law.
UPDATE: 8/9/23: As expected, the judge did not buy it. See here.
UPDATE: 9/3/23: The story continues here.
Christopher Robertson (Boston University) has published a very good short piece in The Hill explaining how Tort Law is, and will continue to be, relevant as "AI" becomes more prevalent and may (or may not) lead to injuries. The article is called "A simple solution to regulate AI" and you can find it here.
Here is the gist:
[Executives from the leading artificial intelligence (AI) companies] . . . may be genuinely concerned about the profound dangers of AI. But as a law professor, I have seen this dynamic before, and I worry that these executives may write laws that actually leave us less safe. . . .
. . . I am reminded of the industrial-age transition from horses to trains and then automobiles, a revolution that also changed the way the law manages risk at an industrial scale. . . .
. . . Courts developed a flexible set of laws that require everyone who creates risks to take reasonable precautions to protect against foreseeable harms. . . .
. . . .
The beauty of negligence law is its flexibility; it puts the onus on companies to recognize those risks and to fix them, long before anyone is injured. In contrast, given the almost limitless number of ways that AI could cause harm, I worry that legislators or regulators will be slow and unimaginative.
. . . .
Read the full article here.
As reported in the TortsProf blog: The Fourth Circuit has now joined the Third and Eighth Circuits in holding that TSA screeners are subject to suit pursuant to the Federal Tort Claims Act. Osmon v. United States, 66 F.4th 144, 147 (4th Cir. 2023) (“[T]he FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government.”).
It has finally happened: someone has sued ChatGPT maker OpenAI over an AI “hallucination” (i.e., confidently spewing out something that is blatantly wrong). The complaint, filed by Mark Walters, in state court in Georgia, argues that OpenAI made up false and defamatory claims about himself. TechDirt has the full story here.
As reported in Day on Torts:
A federal judge in Chicago has agreed to allow a jury to consider whether airplane crash victims experience preimpact terror before their deaths. Faced with no Illinois law directly on point, the federal court determined that the reasoning in Haley v. Pan American World Airways, Inc., 746 F.2d 311, 314-15 (5th Cir. 1984), was persuasive. The Haley court found the courts of Louisiana would permit recovery for emotional distress “during a negligently produced ordeal”
From the opinion:
A jury could reasonably infer from the evidence that will be presented at trial that the passengers on ET 302 perceived that they were going to crash, horrifically, to their certain death. Boeing has not demonstrated that Illinois authority bars plaintiffs from recovering for the preimpact emotional distress they suffered as a result, and the Court concludes that the Illinois Supreme Court likely would permit recovery of such damages.
The Court also concluded that there was sufficient evidence of emotional distress to create a jury question given the anticipated testimony about the movements of the plane before the crash.
You can read the opinion here.
I have never been able to figure out the public policy reasons behind the principle of Illinois law that holds that the right to seek punitive damages for personal injuries does not survive the death of the injured party. This means that punitive damages are not recoverable in actions brought pursuant to the Illinois Wrongful Death Act and the Survival Act. I first wrote about this anomaly back in 2011. See here.
I call this Illinois rule an anomaly because I don't know of any other jurisdiction that recognizes the right to seek punitive damages in some cases but not in death cases.
I also call it wrong because the policy results in a perverse incentive to cause more harm rather than to deter wrongful conduct, which is one of the main goals of tort law.
Thankfully, after all these years, it is possible this wrongheaded policy might be partially abandoned.
The Illinois General Assembly is currently considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute. You can read the bill here.
Unfortunately, the bill does not go far enough because it still recognizes an exception for medical and legal malpractice cases. This means that plaintiffs who seek to recover for the death of a decedent will not have access to punitive damages regardless of the degree of negligence or reprehensibility of the conduct of the defendant.
This should change too. But we are moving in the right direction, even if we are doing it one slow step at a time. (The bill also recognizes an exception for claims against the state, but that is not unusual. The Federal Torts Claim Act, as well as typical state versions, do not recognize a right to punitive damages in claims against the state.)
Not surprisingly, organizations dedicated to advocating for the interests of those whose conduct puts others at risk and causes injury, and their insurers, are not happy about this development. Lacking sound policy arguments, as usual, they resort to using insults and exaggerations, calling the proposal a “calamity,” and a “shameless attack on businesses” and referring to the state a “judicial hellhole.” See this post by the American Tort Reform Foundation, for example.
I do agree with the ATRF that the exception for medical and legal malpractice cases does not make sense, but the solution to that disparity is not to reject the proposal altogether, thus depriving the plaintiffs of all access to recovery, but rather to eliminate the exception and thus to provide access to justice to those who deserve it. After all, punitive damages are awarded in a very small minority of cases anyway.
UPDATE August 15, 2023:
Illinois statute eliminates ban on punitive damages in death cases
Last week, in a closed-door ceremony shut out to reporters, Florida Governor Ron DeSantis signed into law one of the most sweeping tort reform bills in the state’s history, targeting attorney fees, medical reimbursement and liability in negligence cases.
Supporters of the new law have called it an antidote to frivolous lawsuits and rising insurance rates but what it really does (and what it was intended to do) is make it more difficult for victims of accidents to recover for their injuries, and, for those who do get to recover, to make it so that they recover less. The idea is not to limit frivolous lawsuits, but to limit valid lawsuits in order to protect the insurance industry.
Courthouse News Service has more on the story.
New York Governor Vetoes Bill to Expand Wrongful Death Lawsuit Benefits. Read the story here.
