Teenager charged with battery for kissing girl's hand without consent

For those of you who think that law professors' hypos have no basis in reality, here is a story from yesterday's headlines.  As reported by NBC Chicago and the Chicago Tribune

An 18-year-old Mundelein man has reportedly been charged after he allegedly kissed a girl’s hand without her consent. The man was sitting on a bus next to a juvenile girl on Aug. 27 when he asked her to give him a high-five, according to the Chicago Tribune. The girl gave the man a high-five and as she did so he allegedly grabbed her hand and kissed it. The man reportedly exited the bus in the 100 block of Hawthorn Center at Hawthorn Mall and was later arrested. The girl was not injured, the Tribune reported. Police said the man was charged with an ordinance offense for battery and is scheduled to appear in Mundelein Branch Court Thursday.

These facts combine the facts of at least two hypos I use in class and raise questions related to battery, intent, implied consent, and the scope of consent.  Discuss.

Mississippi to consider (again) whether cap on non economic damages is constitutional

The Mississippi Supreme Court has considered whether the state's cap on non economic damages several times since 2011.  See here, here and here.

In one of those cases, the federal Court of Appeals for the Fifth Circuit asked the state supreme court to address the issue and later held the cap was constitutional.

Now it is getting ready for another round of arguments on the issue on September 24 in an appeal from a lower state court decision holding the cap is unconstitutional.  The cap is currently set at $1 million.

As long time readers of this blog know, I am generally against caps on damages, but, as I have said before, a cap of $1 million is certainly much better than the more common ones that typically cap recovery at amounts much lower than that. So, as caps go, the Mississippi one is quite generous.

Go here for more information.



h/t TortsProf blog

Illinois court of appeals reaffirms its policy to reject Tarasoff, ... or does it?

Just a few days ago the Illinois Court of Appeals issued an opinion in a case called Sherer v. Sarma in which it once again followed the state's policy that rejects the imposition of a duty to warn on a psychotherapist made famous by the Surpeme Court of California in Tarasoff v Regents of the University of California.  You can read the opinion here.

As you probably remember from your days in law school, in Tarasoff the court was asked to decide whether a therapist has a duty to warn an unsuspecting possible victim of the expressed intent of a patient to cause her harm.  The court found that even though the therapist did not have a relationship with the victim, he did owe her a duty to warn.  The court opined that the benefit of having the therapist help prevent an injury to someone who did not know was in danger is more important that the duty of confidentiality owed to the patient and than the possible negative effects on the process of therapy itself.

Meanwhile, in Illinois, the courts have considered the same questions and have decided to take the opposite approach, finding that not recognizing a duty to warn advances the goals of protecting the confidentiality of the medical treatment, which itself promotes better opportunities for treatment.

One can disagree whether it is better to adopt or to reject Tarasoff, but the fact of the matter is that courts in Illinois have rejected it, ... for the most part.

Now, I have to say "for the most part" because in an unnecessary attempt to qualify the ruling the opinions would recognize a duty to warn if:  (1) the patient made specific threats of violence, (2) the threats of violence were directed against a specific and readily identifiable victim, and (3) there is a direct physician-patient relationship between the defendant and the victim or a special relationship between the patient and the victim.

But wait!  If there is a duty to warn under these circumstances, including circumstances in which there is no relationship between the doctor and the victim as long as there is a relationship between the patient and the victim, how can we say that the state does not follow Tarasoff?   The three elements that would support a finding of a duty to warn are pretty much what supports the duty to warn in Tarasoff, are they not?

But wait; there's more!!  In Sherer v Sarma, the actor and the victim were both patients of the defendant and they were husband and wife.  Yet the court did not find those relationships to be special relationships for purposes of the doctrine.  If the circumstances in this case did not meet the three elements listed above, under what circumstances would Illinois recognize a duty to warn?  

More than 100 Wrongful Death Claims Filed Involving GM Ignition Switch Recall

As you know I have been posting stories on the GM debacle for months.  (Go here and scroll down to access them.)   Here is the latest. AboutLawsuits is reporting that more than 100 death claims have already been filed with a victim compensation fund established by GM.  Interestingly, however, GM has maintained that only 16 deaths and about 60 other serious injuries may have been caused by defective ignition switches in millions of Chevy, Saturn and Pontiac vehicles.  This could mean one of several things:  there are a lot more injuries that GM is aware of, GM is not disclosing everything it knows or there are a lot of questionable claims.  Experience tells me it is probably a little bit of all three...  Stay tuned...

BP seeks to remove administrator of damage claims from its 2010 oil spill.

BP has asked a federal judge to remove Patrick Juneau as administrator of damage claims from its 2010 oil spill, saying he failed to disclose a major conflict of interest.  AP has the full story here.  This is interesting since the original administrator (Ken Feinberg) at one point found himself in the middle of a controversy over whether he had a conflict (favoring BP).  See here, here, here and here.

NY Times reports that Halliburton settles Gulf Oil Spill claims for $1.1 billion

Halliburton, the company contracted by BP to cement the ill-fated Macondo oil well in the Gulf of Mexico, has reached a $1.1 billion settlement with thousands of businesses, individuals and local governments that suffered losses from the 2010 Deepwater Horizon oil rig explosion, the company and plaintiffs announced on Tuesday.  The New York Times has the full story here.

Thanks to Torts Today for the update.

Lawsuit claims $40 million in damages for injuries caused by police in Ferguson, Missouri

CNN is reporting that last Thursday five individuals arrested recently in Ferguson, Missouri, filed a lawsuit against Ferguson Police Chief Thomas Jackson, St. Louis County Police Chief Jon Belmar, Ferguson officer Justin Cosma, several unnamed officers and the city and county governments asking compensation for injuries caused by the police during the recent events in Ferguson.  The complaint includes claims for intentional infliction of emotional distress, negligence, assault and battery.  The CNN article has more details.

Panel on brand-name and generics manufacturers liability

Yesterday I posted a comment on a recent decision from the Alabama Supreme Court on the possible liability of a brand-name drug manufacturer for injuries related to defective warnings provided by a generics drug manufacturer.   Looking for some information on the topic I found the video that appears below of a panel at a conference on the subject.  I just found it a few minutes ago and I have not had a chance to watch it, so I can't comment on it.  (One note:  when the panelists (or the literature) uses the term "innovator" they are referring to the "name-brand manufacturer.")  Here is the video:

Alabama Supreme Court reaffirms holding that name brand manufacturers can be held liable for defective warnings in generic drugs they did not manufacuture

Last Friday, the Alabama Supreme Court denied a rehearing in the case of Wyeth v. Weeks thus letting stand the holding that name-brand drug manufacturers can be held liable for defective warnings in generic drugs that they did not manufacture or distribute. This is a good result that should be followed by other courts.  As of now, this view is in the minority, but with some luck the tide may begin to turn OR the FDA rules that apply to generic manufacturers will be changed.

As you probably know, current FDA rules prevent generic drug manufacturers from altering, updating or changing the content of warnings in the labels of the drugs they manufacture.  That content is determined by the name brand manufacturers based on FDA guidelines.  If name brand manufacturers issue defective warnings, there is nothing the generic manufacturers can do to fix them.  For this reason, they have enjoyed immunity from lawsuits.  In a recent example, the Court of Appeals for the Third Circuit affirmed a trial court’s order dismissing a claim against a number of generic drug manufacturers in a case related to the drug Fosamax.

So, let's assume that a consumer is injured because of a defective warning in a generic drug that originates in the warning provided by the name brand manufacturer.  Because the consumer probably can't recover from the manufacturer of the generic drug (because of preemption), some plaintiffs have attempted to sue the brand name manufacturers.  After all it was their warning that caused the problem to begin with.  But in response to that, name brand manufacturers have tried to avoid liability arguing they should not be liable for injuries caused by drugs they did not manufacture or distribute and that the claims are preempted by federal law.

These arguments may be a valid if the claim is based on either manufacturing or design defects but not necessarily when it relates to warnings.  Otherwise, the consumer has no recourse at all.  They can't sue the generics because they don't have control over the warning, and they can't recover from the brand-name companies because they did not produce the product.  Tough luck.

Given this state of affairs, there are two possible approaches.  One is to recognize a cause of action against the brand name manufacturers.  That's the approach taken by the court in Alabama and by a few other courts.  One key to this approach is that the claim against the manufacturer of the generic product does not have to be based on products liability principles at all.  (If it is, the plaintiffs may have a hard time arguing against the preemption argument.)  Instead, the claim can be based on simple negligent misrepresentation.  There is a short article in this month's issue of Trial magazine which explains the difference.  The article is called Brand-name Liability for Inadequate Drug Labels.

The other alternative is to change the FDA rules and allow (and presumably encourage) generic manufacturers to provide their own content when it comes to labels and warnings.

As you know, there has a been quite a debate recently about whether the FDA should change the rules (see here, here, here, and here), and not surprisingly generic drug manufacturers have opposed the proposal. 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 profit than safety, the manufacturers hired a consulting firm in an attempt to show that changes in the rules would be bad for consumers.  Consumer agencies, on the other hand, have campaigned for the adoption of new rules (also here).

The decision by the Alabama Supreme Court has also generated some debate.  Here is an article arguing that the court reached the correct decision.  Here is an article criticizing it.

As I said above, I am with those who think the decision is correct.  It makes logical sense and it is based on good public policy.  The article arguing the decision is wrong, makes several mistakes.  First, it is not true that products liability has been based on privity of contract.  That has not been the case for ages.   The whole notion of products liability is based on the idea that consumers should be allowed to recover for injuries from defendants with whom they have had no relationship.  Also, the fact that the injury may happen years after the manufacturer places the product in the market is very common and if it is a problem it is the plaintiff's problem since he or she has the burden to prove causation.  Neither argument points to anything wrong or unfair about recognizing a cause of action.

And, of course, no article regarding possible liability of drug manufacturers is complete without a reminder that possible liability means no more life saving drugs, dogs and cats living together and the end of the world.  Do you really think that one of the most profitable industries in the US and world wide will stop manufacturing or reduce its ability to make more profits?  I don't.  Making a few million less a year to assure our safety while staying profitable is not that much to ask.

UPDATE 5/14/15:  The Alabama legislature has sent a bill to the governor that would overturn the result in Wyeth v. Weeks.  The bill passed the Senate 32-9 and the House 86-14.  Legal Newsline has the story.

GM ignition switch compensation program receives more than 300 claims, including 107 death-related

For months, I have been following developments related to the recalls, defects, lawsuits, settlement claims and other issues affecting General Motors Co.  Go here and scroll down to see stories between March 2014 and now.  Here is the latest:  GM ignition switch compensation program receives more than 300 claims, including 107 death-related.  Go here for details.

Thanks to Torts Today for the link.