Another lawsuit against the makers of JUUL vaping products

Yesterday I reported on a class action filed against the manufacturers of JUUL vaping products.  Today, there is news of another lawsuit, this one an individual product liability claim brought by a 19 year old in Colorado.  Go here for a copy of the complaint.  Go here for more general information on the case.

Class action filed against manufacturers of JUUL vaping products

AboutLawsuits is reporting that a complaint was filed last month in the U.S. District Court for the Western District of Tennessee against the makers of JUUL vaping products arguing that the defendants intentionally exploited teens to create a new generation of nicotine-addicted customers.

Go here for a copy of the complaint.

Idaho lower court rejects so-called "innovator liability"

Long time readers of this blog will remember the debate over the so called "innovator liability" about which I have posted in the past. You can find some of those posts by going to the "warnings" label and scrolling down.

In an nutshell, the debate is this:  Current FDA regulations require manufacturers of generic prescription drugs to use exactly the same warnings that the name brand manufacturers use.  By "name brand manufacturers" I mean the manufacturers of the original drugs of which the generics are now an option.  The manufacturers of generics are not allowed to deviate from those warnings even if they think that they should provide better warnings that could make the product safer.  And, the language of the warnings are largely determined by the name brand manufacturers themselves, not by the FDA.

Because of this, manufacturers of generics can say that it is not their fault that the warning is inadequate since their hands are tied when it comes to deciding what the warning should say.  For that reason, at some point plaintiffs' lawyers started to file claims against the name brand manufacturers arguing that since the problem was that the warning was inadequate, it is the party that decided what the warning should be who should be liable, even if that defendant was not the person who manufactured the drug used by the plaintiff.  This theory of liability is what is not often referred to as "innovator liability."

To me, it makes perfect sense because the claim is not based on a manufacturing problem, but on the lack of, or adequacy of, a warning.  But, not surprisingly, brand name manufacturers and their lawyers have reacted negatively to the possibility of liability.

Some courts have adopted innovator liability as a possible way to support a claim; others have rejected it, and just a few days ago I heard of a recent decision by a state court in Idaho rejecting it.  The case is called Sterling v. Novartis and you can read the opinion here.

It is interesting that the court starts its discussion of the issue by pointing out what it refers to as the “crucial fact” that “Novartis did not manufacture the drug that caused the injuries.”

Obviously, sated that way it sound like imposing liability on the defendant would be contrary to basic principles of tort law.  After all, as the court also points out the common law generally does not impose  liability on a company for injuries caused by other companies.

But here is the thing.  That "crucial fact" is also irrelevant.

That fact would be crucial if the claim was for an injury related to the manufacturing or design of the product because in a case like that the plaintiff would be trying to impose liability on the defendant for the conduct of the generics manufacturer.

This claim is based on an inadequate warning and the brand name manufacturer is the one whose conduct is related to the warning.  Thus, the possible liability is not for the conduct of another but for the conduct of the defendant.

The question is whether the duty owed by the defendant to its customers should extend to the customers of the generics manufacturers.  Applying the most commonly adopted analysis for this question, we would say the duty should extend to those whose injuries are a foreseeable consequence of the risk created.  If the risk was created by the defendant given its role in determining the content of the warning, then it makes sense to extend the duty and to recognize the possibility of liability for the resulting injuries.

Here is a comment from the perspective of the defendant which argues against my view.

Pennsylvania Supreme Court declares med mal statute of repose unconstitutonal

About two weeks ago, in a 4-3 ruling, the Supreme Court of Pennsylvania held that a 7-year statute of repose for medical malpractice, enacted in 2002 as part of a "tort reform" effort is unconstitutional.  The court found the statute violated the right of access to the courts and had no substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.  Courts in at least 6 other states--Alabama, Indiana, Kentucky, New Hampshire, Rhode Island, and Utah--have also held med mal statutes of repose to be unconstitutional.  The case is called Yanakos v UPMC and you can read the opinion here.

Here are a few key passages from the opinion:

...we conclude the governmental interest in controlling the rising costs of medical malpractice insurance premiums and of medical care is important. However, the MCARE Act’s statute of repose as enacted is not substantially related to achieving those goals.
. . . .
The effect of the seven-year repose period for most medical malpractice actions is to limit the “discovery rule” to seven years.  In most cases, if a malpractice victim discovers the injury and its cause within seven years, the victim may bring a timely lawsuit; however, after seven years, the statute of repose bars the victim’s action. Additionally, foreign objects cases are exempt from the statute of repose, and minors can file a lawsuit either seven years from the date of injury or until their twentieth birthday, whichever is later.  Thus, the statute of repose prevents most medical malpractice victims, except foreign objects plaintiffs and certain minors, from exercising the constitutional right to a remedy after seven years.
. . . .
In this case, there was no evidence to show the initially proposed four-year statute of repose would provide actuarial certainty, except that it “seemed like a reasonable resolution” to “provide some stability and predictability” to insurers. . . .  Moreover, there is no evidence in the legislative history as to how the General Assembly arrived at a seven-year statute of repose with exceptions for foreign objects cases and minors. The legislature did not cite any statistics on the number of medical malpractice actions that are commenced after seven years of the occurrence giving rise to the action.  There is no indication that such a time period, as opposed to a longer or shorter period, will have any effect on malpractice insurance costs.  Likewise, the parties in their current briefing failed to suggest the seven-year repose period has any substantial relationship to the legislative goal of controlling
malpractice insurance costs. 

Ninth Circuit upholds right to sue under the Alien Tort Statute; Washington Legal Foundation asks Supreme Court to overturn

Long time readers of this blog know I have followed the cases on the Alien Tort Statute (ATS) for some time.  For my posts on this topic, go here and scroll down.

I had not heard of any new developments in ATS case law in quite a while now.... until just a few days ago, when I read that the Court of Appeals for the Ninth Circuit held that a lawsuit filed by citizens of Mali who, as children, worked on Ivory Coast cocoa farms should be permitted to go forward under the Alien Tort Statute (ATS).  The plaintiffs allege that cocoa processors and chocolate manufacturers aided and abetted in human rights violations by farmers in the Ivory Coast.  

Not surprisingly, the Washington Legal Foundation (WLF), an American "public interest law firm" (and, essentially a right wing think tank), quickly filed an amicus brief asking the U.S. Supreme Court to review (and ultimately overturn) the decision of the appeals court.  You can read the brief here.

Among other things, the WLF argues that the apparent purpose of the lawsuit is to assist with a human-rights campaign being waged in the press and before legislatures, not to seriously pursue claims against those who purchase products from farmers who engage in abusive labor practices.

California has adopted a statute banning use of race, gender, or ethnicity in the calculation of tort damages

California has adopted a statute that prohibits the use of race, gender, and ethnicity in the calculation of lost earnings or impaired earning capacity in tort damages.  The crucial language of S.B. 41 is: "estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender."

Thanks to TortProf blog for the update.

Recent developments on whether colleges and universities have a duty to protect students from harm -- UPDATED

August

Last year I published an article on whether colleges or universities have a duty to protect students from harm (available here).  In it I discussed the then most recent cases on the subject.  One involved a claim against a university based on an attack by one student on another.  The other case involved a student who committed suicide.  In both cases, the courts found that the institution owed a limited duty of care to protect the students, which was a hint of the beginning of a new trend on the issue.

I am writing about this today because, sadly, there are two recent stories that combine both types of cases.

The first story involves the the death of a 24-year-old Ph.D. student of Chinese and Indian heritage at Utah State University.  According to a complaint filed recently, she ended her life after eight months of racist bullying by classmates.  The complaint names as defendants Utah State University, the head of the psychology department, and some students and professors, and it alleges negligence, wrongful death, and intentional infliction of emotional distress.

The claim against the University and its employees is based on the allegation that the decedent  complained about the alleged bullying to professors and a department chairperson but that the University took no action.

This claim is similar to the one filed in the case I discussed in my article so it will be interesting to see if the courts continue the trend to recognize, and impose, more of a duty to protect.  The one significant difference between the two cases however is that Utah State University is a state actor and, therefore, may be protected by immunity under a state "torts claims act" type statute.

You can read more about the case here.

A second related item involves  a Missouri college student who allegedly was “fascinated” with death and gave five other students advice on how to commit suicide. The student is now being sued by parents of two of the students who killed themselves, along with the University the students attended and the Fraternity they belonged to.  However, from the news account it is not too clear how strong the connection between the conduct of the student and the alleged conduct of the university really is.

You can read more about this case here.

For my posts on cases involving suicide, including some cases involving claims against colleges and universities, or against students for hazing, go here and scroll down.


UPDATE 11/3/19:  CBS has an article on the case here.

Why it might be difficult to determine when a person is an employee or an independent contractor

Although know the basics related to the concept of vicarious liability, we don't have time to discuss the details or to read cases that explore the different types of issues that can arise when trying to apply the doctrine.  For that reason, I thought I would provide a link to a recent article discussing three reasons why it is difficult to determine whether a worker is an employee or an independent contractor.

Yet another lawsuit fled against 3M related to faulty earplugs

If you have been following the blog recently, you know I have following the 3M Combat Arms Earplug lawsuits pending throughout the federal court system. My most recent posts are here and here and here.

Now, here is the latest.  According to allegations raised in a recently filed product liability lawsuit, 3M Company ignored warning signs that its Combat Arms earplugs could damage the hearing of military personnel as part of an effort to win and maintain lucrative government contracts.

AboutLawsuits has more details.

Remember Byrne v. Boadle (the barrel of flour)?

Modern Byrne v. Boadle; watch the video below: