Article on the peanut butter case

Here is a link to a new article on the issues raised by the recent news regarding the the role of the FDA in the peanut butter case. Click here for the article. Thanks to TortsProf Blog for the information.

More comments on Obama's administration and the future of tort law

The Pop Tort Blog has posted a note critical of the Obama Administration as "business as usual." Here is an excerpt (the links are from the original post): "When word emerged that the U.S. Chamber of Commerce’s top lobbyist had visited the Obama transition office 16 times, and then “pronounced himself satisfied that the incoming administration will consider the needs of corporate America,” we were left thinking, WTF did that mean? Well, here we go. Obama has chosen Mark Gitenstein to head his Justice Department’s Office of Legal Policy, office overseeing legal policy and judicial nominations. And as the Los Angeles Times reports, Gitenstein faces ethics problems because he was a lobbyist for the U.S. Chamber of Commerce’s Institute for Legal Reform, a group dedicated to eviscerating the civil justice system, using front groups to funnel dirty corporate money into local judicial and Attorney General campaigns, and using the deplorable practice of funding negative attack ads against pro-consumer judges and AG’s."

Suicides in the military part 2

Last week I posted a note on a recent report on the rates of suicides among the armed forces. See here. Today, Prof. Jonathan Turley comments on one specific case: "As Congress struggles to understand the shocking report of a massive increase in suicides in the Army, they might want to study the case of Army Pvt. Adam Lieberman to see how some officers treat soldiers in mental distress. Lieberman was experiencing severe mental problems after a year in Iraq . . . When he tried to kill himself, he wrote his suicide note on the wall in his room. The Army reportedly responded to the suicide attempt by charging him criminally and cut a deal with this mom. If she re-painted the wall, his charges would not include defacing of government property. After she painted the wall with the help of her handicapped sister, they charged him anyway with the crime. . . . . Under this logic, if a soldier jumps from a window and splatters over a bench or crushes a car’s roof, they would be guilty of the same offense if they survive. The military continues to enjoy immunity from tort lawsuits under the infamous Feres Doctrine [which prohibits military personnel from suing the government for injuries that occur in service.] In the case of private employers ignoring the signs of mental illness and self-medication that the mother has described, there would be a serious threat of liability. Ultimately, most suicide attempts are not treated as a matter for liability for an employer. However, Feres has been blamed for decades in producing a lack of response or concern in many cases." Note to my students: we will discuss the Feres Doctrine in class as part of our discussion of the Federal Torts Claims Act -- the act that recognizes a limited right to sue the Federal Government arguing tort liability.

Religious rights or torts liability?

Last month I posted a comment on whether there should be a cause of action for injuries to a child when parents refuse medical services for religious reasons (available here). Last week, FindLaw.com published two interesting related articles. In the first one, Cornell University Prof. Sherry Colb discusses a recent case in Wisconsin where prosecutors charged the parents of an 11 year old child with second-degree reckless homicide for failing to prevent her death. She died of untreated diabetes while her parents prayed for her recovery and chose not to consult a medical professional.

The facts of the case are very similar to those in Lundman v. McKwon, 530 NW2d 807 (MinnApp 1995) in which the court discussed whether to impose tort liability for the same conduct. Although Prof. Colb's article is not about torts liability, the issues discussed are essentially the same. She concludes that whether there should be liability is not as easy as it looks at first glance:

"Perhaps the most striking fact about the Neumanns, viewed in this way, is that they apparently did not mean for any harm to befall their daughter. They were not trying to discipline her, teach her a lesson, or deprive her of what she needed. They loved her and had, until this tragic episode, apparently taken good care of her. They thought that God would protect Kara, if only they prayed hard enough. By comparison to other, more aggressive zealots, their tragically misguided conduct might seem, in relative terms, far less malevolent." 

Prof. Colb's full article is available here.

In the second article, Benjamin N. Cardozo School of Law Prof. Marci A. Hamilton discusses the grand jury investigation by a Los Angeles US Attorney into allegations of a child sex abuse coverup by the Catholic Church's Los Angeles Archdiocese. In it, she discusses the claim that the investigation is unnecessary given that the Church has settled torts claims with the victims. In response to this argument, Prof. Hamilton states:

"The apparent reasons behind the settlement are very pertinent: First, early on, the church hierarchy succeeded in getting many claims consolidated . . ., so as to avoid individual litigation. Many survivors wanted their day in court and opposed consolidation, but this procedural move by the hierarchy meant that large collections of cases were treated as though they were single cases with judges overseeing many at one time. That way, the hierarchy could argue to reduce per-person claims, because the size of the total award would be large no matter what and the hierarchy could more effectively and efficiently control what information about the coverup would be released. Second, the Archdiocese settled essentially on the eve of trial, when it appeared that the Cardinal would have to testify regarding his obvious knowledge of a great deal of abuse. In other words, the settlement was a tactic to keep a further lid on damaging information. Thus, despite the settlement, relatively little information, especially given the amount that is still under the sole control of the Archdiocese, has reached the public." 

As you can probably guess from this excerpt, Prof. Hamilton supports the grand jury investigation. Her article is available here.

 Also recall the recent decision by the Sixth Circuit Court of Appeals recognizing a possible claim against The Vatican for similar conduct. See here.

Ban on direct to consumer advertising?

Almost two months ago, I reported that Rep. Henry Waxman (Calif), the new chairman of the House of Representatives Energy and Commerce Committee, stated he would like to pursue the idea of giving regulators the power to ban advertisements to consumers when a new medicine first reaches the market and risks are not fully known. (Full story here.) Today, Time/CNN.com has published a story, available here, arguing that "with a new President who has vowed to fight Big Pharma to lower drug costs and a Democratic Congress with several anti-DTC advocates, drug and media companies are justifiably jittery" about a possible ban on direct to consumer advertising. As the story points out, direct-to-consumer "advertising by pharmaceutical companies has always been somewhat controversial. The U.S. is one of only two countries that permit it (New Zealand is the other). Critics claim that these advertisements encourage consumers to seek out overly expensive brand-name drugs from doctors. Their symptoms might not require such medications, and when they do, cheaper generic drugs may be available. Such marketing probably drives up overall health-care costs. More important, new drugs that are aggressively marketed can pose a safety risk. Merck's heavy promotion of pain reliever Vioxx . . . is a prime example of advertising gone awry. The drug was later taken off the market after it was found to increase risk for heart attacks."

Two items related to claims against the government for injuries to vets

Newsday.com is reporting today that the parents of a 21-year-old ex-Marine who died of a heroin overdose are suing the Department of Veterans Affairs, saying admissions personnel at a VA hospital in Pennsylvania incorrectly advised their son that he was ineligible for medical coverage assistance when he sought treatment there the day before he died. The story is available here. The suit alleges that VA officials told Robert Cafici he was ineligible because of his less than honorable discharge. Cafici had gone to a VA hospital in Lebanon, Pa., on Dec. 13, 2007, complaining of symptoms of jaundice, according to his parents, Vincent and Concetta Cafici. The lawsuit claims that a routine check of VA medical records would have shown VA personnel in Pennsylvania that Cafici was being treated for post-traumatic stress disorder and other unspecified ailments at the Veterans Administration Medical Center at Northport. Doctors there considered him a suicide risk because of a similar overdose six months earlier, according to the records.The lawsuit, which was drafted last year, comes amid allegations by veterans groups that Washington has been incompetent in addressing the psychological needs of U.S. troops and veterans stressed by more than seven years of war. Last month, both the Army and the Marines released figures showing sharp increases in suicides among uniformed personnel. In a related story, the US Army just released a report that concludes that more soldiers killed themselves than died in combat last month. A CNN story on the report, which an Army official is quoted as calling "terrifying:, is available here. Jonathan Turley also reports that the Marines are also reporting an increase in suicides: 41 in 2008, up from 33 in 2007 and 25 in 2006, according to a Marines report. The situation of the men and women in the armed forces is a huge political topic that goes beyond issues of tort law and that we don't have time to discuss here, although in our class we will discuss some aspects of it. Click here for other posts on torts stories and claims related to the military.

Top torts stories of the past week

Here is the link to this week's "Roundup" of the most interesting stories from the past week. Click here. Thanks to TortsProf Blog for the iformation.

Court invalidates Consumer Product Safety Improvement Act advisory opinion

The ongoing saga related to the Consumer Product Safety Improvement Act continues. Here is the latest: A federal judge issued a ruling today setting aside a CPSC advisory opinion issued last November 17, which stated that products violative of the ACt may continue to be sold and distributed in commerce as long as these products were manufactured prior to February 10, 2009. The court's decision, holding that the phthalate prohibitions unambiguously apply to existing inventory, is available here. Thanks to Products Liability Prof Blog for the update.

FTC files suit vs pharmacetical company

The Federal Trade Commission has filed suit in federal court in an attempt to block a deal in which a manufacturer of a brand-name testosterone-replacement drug paid three competitors to delay rolling out cheaper generic versions. The FTC said the "pay-for-delay" agreement violates antitrust laws, robs consumers of less-expensive alternatives and allows the brand-name drugmaker an unfair monopoly. The state of California joined the federal agency in its complaint, which was filed last week in U.S. District Court in the Central District of California. FTC officials are hoping the case will ultimately reach the U.S. Supreme Court. "We want to stop these unconscionable pay-for-delay deals that force consumers to overpay for much-needed drugs," said Jon Leibowitz, an FTC commissioner. More on the story here, here and here. Commenting on this development, the blog "Tort Deform" has posted the following comment: "The tort “reform” movement often argues that personal injury lawyers and lawsuits keep needed drugs from reaching the marketplace. It turns out they’re half right. Lawyers are keeping drugs from the market, but it’s the pharmaceutical industry’s lawyers – and not personal injury attorneys - that are doing it . . . When I hear a “reformer” argue in favor of FDA preemptionbecause lawsuits might be keeping drugs off the market, I have an easy litmus test to see if he or she is concerned for public safety or is merely a corporate lackey who is paid to parrot the party line: I ask how he or she feels about “pay to delay” deals. . . . The fact that pharmaceutical companies enter into agreements with competitors to keep drugs off the market shows that those companies care far more about profits than they do about patient safety. And it’s disingenuous to the extreme for those same companies to argue in favor of preemption on the grounds that lawsuits keep needed drugs off the market." What do you think?

Criticism of Consumer Product Safety Commission Chair

"What’s it going to take to finally remove the disastrous Nancy Nord as acting head of the Consumer Product Safety Commission, and replace her with a new Chair who is competent, fair and honest and actually cares about consumers - you know, the people the agency is charged with protecting?" That is the question the Blog "The Pop-Tort" is asking today in a short comment calling for President Obama to replace Nord, available here.