$150 million jury verdict against Jeep for death caused by fuel tank fire

About ten years ago, I remember reading that Jeep Liberty SUVs had the gas tank closer to the ground than any car on the market.  I don't know if it was true, but I remember the story because we (my wife and I) owned one at the time!  More recently, back in July of last year I reported that the U.S. National Highway Traffic Safety Administration (NHTSA) concluded that Chrysler dragged its feet in issuing a Jeep recall that ultimately impacted 2.5 million vehicles, and was taking too long to make repairs necessary prevent gas tanks from exploding. Jeep Grand Cherokee and Jeep Liberty model SUVs were linked to at least 51 fiery crashes over the past three years. (See here.)

I am recalling these stories today because AboutLawsuits is reporting that a Georgia jury has awarded $150 million to the family of a 4-year-old boy who was killed when a Jeep Grand Cherokee burst into flames after an auto accident. The child died in March 2012 when the 1999 Jeep Grand Cherokee he was riding in was rear-ended, causing the fuel tank to leak and then catch on fire. The boy’s death is one of at least 75 fatalities linked to Jeep fuel tank fires.  Go here for the full story.  The New York Times also has the story here.

Maryland Court of Appeals upholds cap on damages against local governments

I recently reported that the Indiana Court of Appeals upheld the constitutionality of that state's damages cap for claims against the state (see here) and that a Tennessee circuit court judge ruled that the state's cap on non-economic damages is unconstitutional (see here).  Now comes news that the Maryland Court of Appeals has upheld that state's cap on damages against local governments. (Go here for the story and more links).

Illinois Supreme Court considers whether to recognize a cause of action for wrongful death as a result of intentional infliction of emotional distress when the decedent commits suicide

About two weeks ago, the Illinois Supreme Court heard oral arguments in an interesting case that asks the court to recognize a cause of action for wrongful death when the death was caused by the decedent's suicide.  The case is called Turcios v DeBruler Company.

Illinois has decided that, in the context of a negligence claim, a suicide is unforeseeable, which means that it operates as a superseding cause that defeats the element of proximate cause.  This makes it almost impossible for a plaintiff to recover for wrongful death in a case involving suicide if the claim is based on negligence.  Turcios, however, was brought as an intentional tort claim based on intentional infliction of emotional distress.

Much of the oral argument is devoted to the question of whether "proximate cause" should be considered to be an element in an intentional tort claim.  If so, the defendant argues, there is no cause of action because it has already been decided that a suicide is a superseding cause that defeats the element of proximate cause.  If not, the plaintiff argues, all that matters is whether the intentional conduct is a cause in fact of the injury in which case the plaintiff can establish the prima facie case.

The plaintiff's position is consistent with the typical analysis in other jurisdictions.  In intentional torts cases, proximate cause is typically not an issue.  As Diamond, et al, state in Understanding Torts (4th ed.), p. 188:

"Proximate cause rarely becomes a factor in intentional torts cases, because those cases do not ordinarily test the limits of what should constitute legal responsibility.  Authority is sparse as to when, if ever, proximate cause will preclude liability for intentional torts. In light of the greater culpability inherent in intentional wrongdoing, courts appear, at the very least, ready to stretch to find liability."

And this is precisely what the plaintiff in Turcios is arguing: that because of the significant difference in terms of culpability between conduct that is negligent and conduct that is intentional, the notion of cause in intentional torts cases should not be limited by the analysis of proximate cause.

However, the plaintiff's argument is not necessarily consistent with the language used by the Illinois Supreme Court in the past.  While in many states courts say that a plaintiff in an intentional tort case must show simply "causation," (and usually appear to interpret this to mean only cause in fact), the Illinois Supreme Court has stated the plaintiff must show "proximate cause" usually then adding that proximate cause means cause in fact and legal cause.

You can listen to the oral argument here.  (Note it is very unusual in that the justices do not ask a single question during the appellant's argument!)

UPDATE:  5/16/15 The Appellate Strategist has a a comment on the case here.

UPDATE: 5/21/15:  The Illinois Supreme Court issued its opinion on the case today.  Go here to read my comment on the opinion and for a link to the opinion itself.

Public Citizen urges FDA to resist pharmaceutical companies challenge the plan to allow generic drug companies to update their labels

Earlier today I posted a note on the pharmaceutical companies challenge to the FDA's plan to allow generic drug companies to update their labels.  The consumer protection group Public Citizen is urging the FDA not to give in to the pressure by pharmaceutical companies.  Torts Today has the story here.

Illinois Appellate Court applies good samaritan type statute aimed at protecting paramedics to physician asked by the paramedics to ride in ambulance

Here is an interesting recent case out of the Illinois Appellate Court holding that an emergency-room physician who rode in an ambulance transporting a patient between hospitals is immune from malpractice actions under a state law primarily aimed at protecting paramedics.  The court found that EMS medical directors — who are immune under the Emergency Medical Services Act — may engage doctors to ride in an ambulance when an emergency situation requires more advanced medical skills that paramedics don’t have and that "[a]n opposite outcome would serve to discourage EMS [m]edical [d]irectors from utilizing medical personnel with advanced training during such emergencies and non-emergency transports, which would defeat the very purpose behind the [a]ct and its immunity provision.”

I am not sure I agree with this last statement.  If anything, the opposite outcome may serve to discourage doctors from agreeing to help EMS personnel because it is the doctors who might risk possible liability, not the EMS directors.  But in the end, the policy question is the same.  If accompanying the paramedics is optional, then offering immunity is a way to encourage doctors to do so.

You can read the full opinion here.

The lawsuit that could be the end of pee wee football?

Here is a story about a lawsuit recently filed in federal court in Wisconsin by the mother of a young man who committed suicide.  The lawsuit claims that the plaintiff's son’s involvement in a football program for children between the ages of 11 and 14 led to traumatic brain injury that eventually sent him into a spiral of paranoia and depression, culminating in his death.  You can read the complaint here.  It reads like a protest poster against football.  In it, the complainant argues that football is not a contact sport, but a combat sport and cites a number of famous football personalities describing the violent culture of the sport.  In short, the complaint argues (using several different theories of liability) that the defendant should be liable for allowing young children to play football.

The argument is interesting, but I don't think it has a good chance. There is no question that football is a dangerous sport, but courts are reluctant to recognize claims for injuries suffered in sports as long as the injury occurs as part of the rules and customs of the game.  Also, participating in the sport is voluntary and I am sure the parents signed a waiver when they decided to sign up the child for the league.  This brings up the defenses of implied assumption of the risk and express assumption of the risk.  Finally, the defendant will probably argue that the decision to commit suicide should be seen as a superseding cause - although that may be left to the jury if it can be argued that it was an "irresistible impulse."

The article points out that the plaintiff has been "quite vocal in her position that tackle football for kids should be abolished, and she hopes that her suit will lead to exactly that result, by making the activity too expensive to carry on."  Frankly, maybe kids football should be abolished, but I am not sure that this lawsuit is the best way to achieve that goal.

Pharmaceutical companies continue to challenge the plan to require generic drug companies to update their labels

Back in November, 2013, I posted that the FDA proposed a new regulations that would allow (and presumably encourage) generic drug manufacturers to add or update the safety warnings on their products.  Go here for my original post and the background on the controversy. In a nutshell, the key is that generics are required to use the exact same label and warnings as the brand name manufacturers.  They can't deviate and update the warnings on their own.  Go here for a recent post on generic drugs by the PopTort.

You would think that manufacturers interested in making sure their products are safe would welcome the new rule.  However, because the current system works to immunize generics manufacturers, a change that would work to make the products safer would also open the door to possible liability.  Thus, as you would expect from those who are more interested in profits than safety, the manufacturers hired a consulting firm  to conduct a cost-beneift analysis of the consequences of the new rule.  And, not surprisingly, the analysis concludes that the change is not good for consumers.  You can read the report here.  Then, go here for a report by Center for Justice & Democracy (called "America’s Unaccountable Generic Drug Industry; How Legal Immunity Could Be Making You Sick") which explains how deficient the current system is. You can then form your own opinion.  For more on this issue go here, here, here, here and here (video).

Because the prevailing rules result in immunity for the generic drugs manufacturers, the issue has led to another interesting question: whether the manufacturers brand name drugs can be held liable for injuries caused by generic drugs.  In August of last year, the Alabama Supreme Court held they could.

Not much has happened since apparently and a few days ago the New York Times published a story with the latest news. You can read the story here. It starts by stating that

The pharmaceutical industry mounted a new challenge on Friday to a federal plan that would require generic drug companies to take the initiative to update their labels to warn consumers whenever health risks were discovered, a shift that would expose the companies to legal liability.

During a public meeting at the Food and Drug Administration, the industry proposed instead that the F.D.A. itself should decide whether new warnings on drug labels are required and, if so, order companies to make the changes. But consumer advocacy groups said the companies were trying to shift responsibility to an agency that lacks the resources to track the vast array of drugs on the market.

. . . .

Under current rules, generic drug makers are not allowed to update such health warnings unless the F.D.A. orders them to do so — a peculiarity of the 1984 law that governs the generics. Brand-name producers make changes as they discover risks, and the F.D.A. approves them later, prompting changes in generic labels.

In 2013, the F.D.A. proposed a rule giving generic drug makers the same control over their labels that brand-name drug makers have.

Tennessee Appeals Court holds that the state's cap on non economic damages is unconstitutional

A couple of weeks ago, a Tennessee circuit court judge ruled that the state's cap on non-economic damages is unconstitutional, likely triggering review by the Tennessee Supreme Court. Go here for more on the story (including a video).  Interestingly, the cap in Tennessee is relatively high in comparison to that of many other states.

Yet another report on the dangers of energy drinks

As you may remember, a couple of years ago there was a lot of discussion on whether "energy" (ie, highly caffeinated) drinks are harmful to children. Go here for links to my posts on the issue.  Now, AboutLawsuits.com is reporting that according to yet another new report, consumers of energy drinks may face serious health risks.  Go here for the full story.

Podcast on legal issues related to "driverless cars"

Lawyer-2-Lawyer has posted a new podcast on the many legal issues related to "driverless cars."  You can listen to it by clicking on the play button below or, if you can't see that button, by going here.  Here is the description:

Are you tired of driving yourself to work? Have you always wanted a chauffeur but never could afford one? If this sounds like you, then happy days are here with the advent of the driverless car. Institutions like Google, Carnegie Mellon, and Uber are developing what they hope to be totally autonomous vehicles capable of ushering passengers to and from destinations without the need for a human driver. But what does that mean for the law, safety standards, and our freedoms?

In this episode of Lawyer 2 Lawyer, host J. Craig Williams interviews attorney and author of Robots Are People Too John Weaver, researcher and writer for Michigan Auto Law Todd Berg, and litigator and author of Motorista Anna Eby. Together they discuss liability for passengers, possible federal regulations, and risks associated with vehicle hacks. In addition, they debate when the government might pilot your driverless car, how medical emergencies in autonomous vehicles will be handled, and the possibility of the repo man summoning your automobile. Tune in to hear about existing driverless car laws and much much more!

Here is the podcast: