US Supreme Court to decide another maritime law tort case this term

About a week ago, the US Supreme Court heard oral arguments in a case called The Dutra Group v. Batterton, which asks the Court to decide whether a seaman can recover punitive damages in a personal injury suit based on the unseaworthiness of a vessel on which he was working.   The SCotUS blog has an analysis of the oral argument here.  You can also review all the relevant documents in the case and links to more information here.

Video on the first U.S. wrongful death suit related to the Ethiopian Airlines crash

After Ethiopia released preliminary findings from an ongoing investigation into the Ethiopian Airlines flight that crashed last month and after the first American wrongful death lawsuit against Boeing was filed, Boeing CEO Dennis Muilenburg stated that "It’s our responsibility to eliminate this risk. We own it. And we know how to do it."  (See here.)

Democracy now, has a report including an interview with the plaintiffs in that first lawsuit, filed against Boeing and the Federal Aviation Administration here.  The first part of the report are statements by family members expressing their emotional loss.

At the 22:46 mark, the attorney for the plaintiffs explains some of the evidence in support of their claims.

NY Times article on lawsuits against Purdue Pharma for its role in fostering the opioid crisis

This morning the New York Times has posted an article on the lawsuits filed against the Sackler family and Purdue Pharmaceuticals for its role in the opioid crisis.  You can read it here.

Story on the possible liability of the private companies that transport prisoners

The Marshall Project has a disturbing story on "the dangerous prisoner transport business" and how it has dodged responsibility for “gross negligence.”  You can read the full story here.

Supreme Court finds manufacturer can be sued under maritime law for exposure to asbestos even if product is modified by a third party as long as defendant knows of modification

Back in October of last year I wrote that the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment.

Last week, the Court announced its decision ruling that, under maritime law, manufacturers can be sued for the injuries caused by their products even if the products were modified by third parties as long as those modifications were known by the manufacturer.

As reported in Jurist:

The suit was brought by two veterans, Kenneth McAfee and John DeVries, who alleged that they were exposed to asbestos while enlisted and developed terminal cancer as a result. The defendants manufactured equipment for ships for the US Navy, on which the plaintiffs served. Though the equipment was not produced with asbestos by the defendants, integration of the carcinogen was performed by the Navy after the installation of the equipment pursuant to instructions by the manufacturers. The suit argued that the two crewmembers were not given sufficient notice that they were being exposed to a dangerous material by the manufacturer, while the companies claimed that they were not liable because they did not install the asbestos materials themselves. Though a federal district court ruled in favor of the manufacturers, the US Court of Appeals for the Third Circuit reversed the decision, after which the manufacturers appealed to the Supreme Court.

In a 6-3 decision, Justice Brett Kavanaugh wrote that there were three different approaches that the court could take to constrain defendant liability in maritime product liability law. The first, a forseeability approach, would require manufacturers to anyone who came into contact with their product of any dangers that could be reasonably caused by their equipment, even if it is modified by a third party. Kavanaugh dismissed this test, stating that it would cause “confusion” and “overdisclosure” while being a substantial burden. The second test, the “bare-metal” defense asserted by the defendants, would prevent manufacturers from being held liable for any modifications undertaken by a third party. Kavanaugh stated that this test “goes too far in the opposite direction” from the forseeability test, allowing manufacturers to wash their hands of dangerous products by hiding behind third parties. The court therefore held that a middle-ground test is appropriate, holding manufacturers responsible for harm caused by third-party modifications that are undertaken with the manufacturer’s “knowledge or intention” that such a modification would make the product dangerous.

The case is called Air and Liquid Systems Corp. v. DeVries , and you can read the opinion here.  You can read other documents relevant to the case here.

The SCotUS blog has analysis here.

How the Cosmetics Industry Got to Regulate Itself and Downplayed Cancer Risks

Interesting article related to products' regulation, and possible liability.  Take a look here.

Devin Nunes files lawsuit for $250 million against Twitter; does it violate the rules against frivolous suits?

By now, I am sure you have heard all the jokes about the lawsuit filed by Rep. Devin Nunes.  If not, here is the bottom line: Rep. Devin Nunes has sued Twitter, some satire Twitter accounts, and a real political commentator for a variety of "offenses" including defamation based on allegations that anyone with a basic understanding of the law should know would not support a claim for defamation.  He is asking for $250 million in compensation.  The defamation claim is frivolous.

Of course, frivolous lawsuits are not new, but this is the same Devin Nunes who co-sponsored the Discouraging Frivolous Lawsuits Act and who once voted for a House Amendment "to express a sense of Congress that free speech should be protected."

For a detailed analysis of the complaint, go to TechDirt.

You can read more comments in ABA Journal, and The Daily Beast.

For the jokes I mentioned above, you can go here, and here for some examples.

Connecticut Supreme Court reverses lower court allowing case against gun manufacturer to go forward -- UPDATED

In a 4-3 opinion issued on March 14 (available here), the Connecticut Supreme Court has 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. 

The court held that Remington can be sued over its marketing practices under a Connecticut state law, despite protections offered to gun manufacturers by federal law.  Specifically, the court held that the federal Protection of Lawful Commerce in Arms Act protects gun manufacturers and sellers from liability for the acts of people who use their weapons, but not from a claim under the Connecticut Unfair Trade Practices Act based on allegations that Remington and other defendants were involved in the selling of a weapon that was designed for military use, knowing it had no legitimate civilian purposes and could only be effectively used by civilians for criminal activity.

You can read more details on the story in NPR, AboutLawsuits, Jurist, Courthouse news, the Legal Profession blog and The ABA Journal.

UPDATE (3/19/19):  TortsProf blog has posted a comment here.

NJ Supreme Court to decide whether defendant has a duty to warn about asbestos exposure due to a replacement part in its product

The New Jersey Supreme Court has agreed to hear an appeal that will decide a manufacturer’s liability for asbestos-containing replacement parts that it did not manufacture or sell.  The Supreme Court granted certification after the Superior Court, Appellate Division, held that a manufacturer has a duty to warn of risks not just from the products it manufactures or sells, but also from asbestos-containing replacement parts necessary for its products to function.  You can read the lower court opinion here.

Here is a link to a short article that summarizes the possible approaches to the question and the issues involved.

Article proposing changes to the view that suicide is a superseding cause

As you may know, courts often rule that a person's decision to commit suicide operates as a superseding cause which results in dismissing wrongful death claims against defendants whose conduct allegedly drove the decedent to commit suicide.

A few years ago, I commented how this approach to the issue has resulted in a confused state of the law in Illinois.  See here.    I have also argued that the analysis has never made much sense to me because, by definition, a superseding cause is superseding only if it is unforeseeable and suicide is not always unforeseeable. 

However, for some, the act of committing suicide is still so inconceivable that for them it should always be considered to be unforeseeable.  Perhaps this is based on the notion that life, however bad it might be, is always preferable to death, and therefore it is inconceivable that someone might prefer to die.  This categorical approach, however, fails to consider the many possible reasons and circumstances that might lead someone to consider suicide.

Thus I have argued that the analysis in suicide cases should be exactly the same as that in all other cases that involve intervening causes:  is the injury a foreseeable consequence of the risk created by the negligent conduct?  Two years ago, I reported on a case that agreed with my view.  See here.

I am writing about this today because I just saw a new article on the subject.  It is called  Abolishing the Suicide Rule, and here is the abstract:

Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed “the suicide rule” in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death.

You can find the full article in SSRN, here.