Some surprising risk factors that play into many car accidents

Don't ride in a pick-up truck with a beer-drinking recently divorced doctor on Super Bowl Sunday. Go here for an explanation.

Video Quiz

Here is a video quiz. How many torts can you spot? (If you are getting this by email, you may have to go to the actual website to see the video). According to reports I have read, the video was taken during an early round tennis match at the US Open. Apparently, the young man arguing with the woman had been swearing loudly and acting obnoxious in the stands before being confronted by the woman. I imagine she asked him to "watch his language" or something like that. This, as recorded by another fan in the stands, is what happened next:

Thanks to Jonathan Turley for the link to the video.

Attorney files for false imprisonment after being arrested for refusing to show ID

Readers familiar with the Prosser Torts textbook might remember Enright v Groves, the case used in the book to illustrate the concept of false arrest. In that case, an officer of the law arrested a woman when she refused to show him an ID after he had spotted her walking a dog without a leash. Yesterday, the Baltimore Sun published a similar story. In this instance, a lawyer arrived at a courthouse about 20 minutes before closing time to file some documents in the clerk's office. In a hurry, he refused to show an ID to a police officer who was serving as courthouse security guard. He was arrested, left in a hot police car until he vomited, and transported to the police station where he was cuffed to a basement pipe. The charges were later dropped and he has now filed a $700,000 lawsuit claiming false arrest, false imprisonment and assault. Go here for the full story. Interestingly, the story says the officer said the plaintiff did not look "lawyerly." I wonder if that is a tacit admission that officials only ask people who have a certain "look" for IDs. Wouldn't that be a good question to ask during discovery? Someone should tell this guy to stop talking to the press.

Jury awards $1.8 million in legal malpractice case

Typically, a plaintiff in a legal malpractice case arguing that the defendant was negligent in handling litigation has to show she would have won the original case had it not been for the conduct of the defendant. And, typically, this is a very difficult standard to meet, which makes this news item very interesting. Law.com is reporting today that a Philadelphia jury has awarded nearly $1.8 million in a legal malpractice case in which the plaintiff alleged her attorney failed to plead all of the relevant theories in her medical malpractice case, leading to the necessity of settling her case for $1 million, despite having received a $2.5 million verdict. As you can see, the other intersting aspect of the case is that the plaintiff actually won her underlying case. Her argument was that she could have done even better -- that her lawyer's negligence resulted in her having to settle for less than the value of the judgment. Go here for the full story.

Blame the lawyers...

There is a story running around the internet about a school district in West Virginia that has dismantled all playground swing sets. "Swings are being removed from Cabell County schools in southern West Virginia in part because of lawsuits over injuries," says the story. ("In part?" I wonder what the other part is.) Yet, other equipment, such as "monkey bars" will remain. Then there's an editorial in something called "Investors.com" that says: "Fearing lawsuits over injuries, a West Virginia county is removing swing sets from elementary schools. A minor, local issue? No. America's litigious society has changed the way kids play." So, lawsuits have changed the way kids play. They are no longer exposed to dangerous surfaces or products. Isn't that sad?! Boy do I miss the days when my kids could really hurt themselves!! What the "investors" are not telling you is that, perhaps, just perhaps, changes in playground equipment have been a possitive thing. Maybe, just maybe, our kids are safer now thanks, "in part," to lawsuits.... As Eric Turkewitz eloquently states in his comment about the subject, "In the parks we’ve gone to over the past years, we’ve seen an abundance of swings, slides and things to climb on and scamper over. I see happy faces running up, over and around equipment that was far safer than the public parks I went to as a kid. The only thing I see missing from my youth is the merry-go-round you stood on that others would spin ’round and ’round ’till you puked or were catapulted off onto the concrete. I know, some people liked to see their kids in danger. Perhaps Investors Business Daily would like to return to the days of dangerous products, exploding Pintos, crippled children and Dalkon Shields." Jonathan Turley adds "The position of the district in my view is nonsensical. Monkey bars and other equipment will remain and could also be used as launch pads for Spiderman-wannabes. Moreover, such obvious and patent dangers are generally not the basis for liability so long as the equipment is not defective. One area of liability for playgrounds has been the lack of cushion on the ground such as wood chips or the use of particular rubber mats that heat up to a dangerous level. Just having a swing set is not a particularly strong torts case." His full comment can be found here.

New article on intentional infliction of emotional distress

We just started to cover Intentional Infliction of Emotional Distress in my torts class, so I thought the following announcement (taken from the TortsProf Blog) is rather timely: Geoffrey Rapp (Toledo) has posted to SSRN Defense Against Outrage and the Perils of Parasitic Torts. The abstract provides: "In Snyder v. Phelps, the Supreme Court will soon weigh whether protestors at a slain soldier’s funeral committed the tort of Intentional Infliction of Emotional Distress (IIED) or engaged in protected speech. Imagine that Mr. Snyder, the IIED plaintiff and soldier’s father, had, rather than bring a tort claim, used physical force to defend himself from the arguably tortious conduct of Phelps and his crowd. Can force be used to defend against intentional extreme or outrageous conduct threatening a person with severe emotional distress? The answer in the case law and articulated doctrine appears to be “no.” Two prominent narratives in tort law scholarship address the increasing recognition of claims for loss of emotional tranquility and the expanding privilege to use force in defense of self and others. This Article explores a puzzle in tort law that challenges these traditional accounts. The law permits the use of force to protect dignitary interests, in the case of offensive battery and assault, but seems to deny the use of force to protect against IIED. No basis for this distinction appears in the leading theoretical accounts of tort law – economics, corrective justice, and civil recourse theory. Rather, the basis of the rule seems to be the childhood maxim, “Sticks and stones…,” without strong theoretical or policy justification. Two implications arise. First, the law continues to privilege physical security above emotional well-being. Second, although it is arguably the most successful “new” tort of the twentieth century, IIED remains a tort whose boundaries are murky and whose place in tort doctrine is unclear. The parasitic nature of IIED has complicated the effort to build clear doctrine around all but the most essential elements of the claim." Thanks to Chris Robinette of the TortsProf blog for the information.

Michael Douglas and medical malpractice

New York personal injury lawyer and blogger Eric Turkewitz wonders if Michael Dougals was the victim of medical malpractice. See his comment here.

Easter District of PA denies preemption argument

Yesterday, Judge John Fullam (Eastern District of Pennsylvania) denied Wyeth’s preemption-based summary judgment motion in a number of Effexor SSRI suicide cases. The court concluded that the plaintiffs’ failure to warn claims were not preempted because Wyeth had not presented “clear evidence” supporting its defense. The case is called Baumgardner v. Wyeth Pharm and the opinion of the court is available here. For a comment on the decision from the defendant's perspective go here.

Pharma products news roundup

There are many stories on different aspects of the pharmeceutical industry related to products liability today. Here is a quick roundup with links... 1. A panel of judges has decided to give AstraZeneca Plc. more time to settle as many Seroquel lawsuits as possible, vacating a prior order that would have sent thousands of cases back to the federal district court where they were originally filed for trial. Go here for the full story. 2. Remember the salmonella oubreak that was traced back to a peanut processing plant a couple of years ago? AboutLawsuits.com is reporting today that a $12 million settlement has been approved by a federal judge to be distributed among victims of the massive food poisoning. Go here for the story. 3. The FDA has sent a warning letter to Baxter CEO Robert Parkinson, Jr., accusing the company of deceptive advertising in a physician brochure for Aralast NP. The FDA has determined that the brochure misbrands Aralast NP illegally, making overstated claims of efficacy reportedly also saying the company has a disturbing trend of overstating the effectiveness of its drugs and medical products. Go here for the story. 4. Pharmalot has a comment called Should The FDA Have Moved Faster On Meridia? 5. A clinical study funded by Abbott Laboratories has concluded that the side effects of Meridia, a weight loss drug, may increase the risk of heart attack and stroke. Story here. 6. Pharmalot asks "Did the American Heart Association’s Circulation journal publish a ghostwritten article about Avandia?" Go here for the story.

Pharmaceutical Co. pleads guilty to charges it illegally marketed drug

Allergan Inc. has agreed to plead guilty to charges that it illegally marketed Botox for off-label uses, and will pay $600 million to settle the charges brought by the U.S. government. Although not strictly a torts story, I am posting it here because I think it is of interest to anyone following issues related to the pharmaceutical industry. The story is being covered widely over the internet. For details you can check the following: WSJ Law Blog, AboutLawsuits, Law.com, Pharmalot and the FDA Law Blog. As part of Allergan's Botox settlement, the company was forced to drop its First Amendment-based suit against the FDA's restrictions on truthful promotion of off-label use. For a comment on that part of the story, go here.