TortsProf Blog

Condo/Co-Op Liability Following Hurricane Sandy

The New York Law Journal has an interesting story about negligence suits filed against Condo and Co-Op Associations following Hurricane Sandy.

Thanks to Lisa Smith-Butler for the alert.

- SBS

Can a texter be liable for sending text and distracting driver?

The ABA Law Journal reports on an novel theory being tested in the New Jersey appellate courts:  Does sending a text to someone you know is driving create tort liability?    The plaintiffs were injured by a driver who was distracted by a text message.  In a twist, the plaintiffs sued both the driver and the sender of the text message.  The plaintiffs argued that "the court should impose a duty of care on those who know the recipient is both behind the wheel and likely to be reading texts while driving."  In response, the defendant-texter has argued that she could not control when the message is read.   Let's see what the New Jersey appellate court decides.

- SBS

The Compensation Fund: Feinberg's Back

Massachusetts Governor Deval Patrick and Boston Mayor Tom Menino have appointed Ken Feinberg to run the One Fund Boston for victims of the Boston marathon bombing.   The Enterprise has an interview with Feinberg as does MSNBC.   Similar to his work in prior compensation funds, Feinberg will be holding town hall meetings with the public (today and tomorrow), and meeting privately with victims.   According to The Enterprise:  

The final protocol and claim forms will be available on the fund’s website by May 15, and people will have a month to register. Feinberg, who has sole authority over the fund, said the money will be distributed to Boston victims by the end of June.

Currently, the One Fund has received a bit over $28 million in donations.  The full story is here. 

- SBS

2013 Med Mal Payouts

Diederich Healthcare has released the 2013 statistics for med mal payouts.  It's a treasure trove of data.  Some quick takes:

• $3.6 billion in med mal payouts in 2012
• 12,142 total payouts in 2012
• Payouts were 3.4% lower than 2011 (continuing a downward trend since 2003)
• 5% of payouts were judgments versus 93% settlements
• The largest alleged injury (31%) was death

--CJR

PA: Venue Rule Covering Out-of-State Doctors Is Constitutional

A Philadelphia judge has held that a rule allowing venue over out-of-state doctors in any county in Pennsylvania is constitutional.  Amaris Elliott-Engel has the full story for The Legal Intelligencer (behind a pay wall).

--CJR

Sudden Unintended Acceleration Claims Filed Against Ford

The National Law Journal reports that consumers have filed economic loss claims against Ford based on the risk of sudden unintended acceleration.  The national class action has been filed in federal court in West Virginia.  Unsurprisingly, the claims exclude potential personal injury or wrongful death claims. Rather, the claims sound in contract and include Magnuson-Moss, state warranty, consumer protection and unfair trade practices claims.  The full article is behind a free registration wall.

I have written about these risk-based claims in Against Liability for Private Risk-Exposure.

- SBS

Defamation Claim by Boston Rocker Dismissed

The National Law Journal reports that a Massachusetts trial court has granted summary judgment in a defamation suit brought by Boston rock band founder Donald Scholz against the Boston Herald and two journalists.  According to the article, the Herald articles "insinuated that [lead singer Brad] Delp's rocky relationship with Scholz drove [Delp] to take his own life."  The trial court found that Scholz could not prove defamation because the statements constituted "non-actionable opinion."

The full article is behind a free registration wall. 

- SBS

Teaching Insurance in 1L Torts Classes

Randy Maniloff of White & Williams writes a free bi-weekly insurance news letter, Coverage Opinions.  In his latest issue (pdf), Maniloff explored whether insurance liabilty coverage should be covered within the first-year Torts class.  He asked a third year student at Penn to analyze how Katko v. Briney (the infamous spring gun case) would have played out if the Brineys had homeowners insurance coverage.  Very interesting and worth a read.

- SBS

WSJ on Asbestos Claims and Fraud

A front page article in yesterday's Wall Street Journal reported on a WSJ investigation into the state of asbestos litigation.  The article, "Asbestos Claims Rise, So Do Worries About Fraud,"  is behind a pay wall. In part, the article reports:

The Wall Street Journal reviewed trust claims and court cases of roughly 850,000 people filed since the late 1980s until as recently as 2012.

The analysis found numerous apparent anomalies: More than 2,000 applicants to the Manville trust said they were exposed to asbestos working in industrial jobs before they were 12 years old.

Hundreds of others claimed to have the most-severe form of asbestos-related cancer in paperwork filed to Manville but said they had lesser cancers to other trusts or in court cases.

The Manville trust declined to comment on individual cases, citing privacy concerns. The trust's general counsel, David Austern, said the trust tightened its oversight after a 2005 claims scandal, adding: "We audit periodically and haven't found any fraud." 

Accompanying the article is a neat graphic showing the connections between various law firms and the asbestos bankruptcy trusts. 

- SBS

Court Denies Summary Judgment in Jackson Wrongful Death Case

The National Law Journal reports that a California trial judge has denied summary judgment in the Michael Jackson wrongful death case.   Jackson's mother and children have sued the concert promoter, AEG Live LLC, for negligence in hiring and supervising Dr. Conrad Murray, Jackson's physician. Trial is scheduled to being April 2nd.  The full story is behind a free registration wall.

Thanks to Lisa Smith-Butler for the alert. 

- SBS

 

The Food Court

The Recorder has an interesting article about the "food litigation" docket in the Nothern District of California.

Thanks to Lisa Smith-Butler for the alert.

- SBS

Idaho Declines to Adopt Baseball Rule

In an interlocutory appeal, the Idaho Supreme Court declined to adopt the "baseball rule," limiting a stadium operator's liability for foul balls.  The case, Rountree v. Boise Ball (pdf), involved a Boise Hawks minor league game.  Bud Rountree was hit in the eye by a foul ball, and sued the stadium owners and the Boise Hawks for negligence.   On interlocutory appeal, the Idaho Supreme Court held that "[w]hether watching baseball is inherently dangerous, and the degrees of fault to be apportioned to Rountree and Boise Baseball, are questions for the jury."   A Retuers report has more.

- SBS

Does Duty to Warn Extend to Bystander of a Bystander?

An amicus brief by Pacific Legal Foundation alerted me to an interesting case in the Maryland appellate courts.  In Georgia Pacific LLC v. Farrar, the family member of an employee who worked near other workers using asbestos sued an asbestos manufacturer for failure to warn of the risks of asbestos.  The worker, the plaintiff's grandfather, did not himself work with asbestos.   Thus, the case raises the question of whether the duty to warn extends to a bystander of a bystander.   The Court of Special Appeals held that the manufacturer did have a duty to warn, and the case is now before the Maryland Court of Appeals. 

- SBS

Pfizer Seeks Rehearing in Generic Liability Case

Forbes reports that Pfizer is asking the Alabama Supreme Court to reconsider its decision holding Pfizer liable for failing to warn a consumer who took a generic version of the drug Reglan.  The article points out the regulation, not litigation, may answer this one:

Meanwhile, though, the issue may be decided by the FDA. The agency recently disclosed plans to revise its regulations so that generic drugmakers can update product labeling and warn patients about risks associated with their drugs. If the FDA were to make such a change, generic drugmakers could be sued in state courts – if they become aware of evidence of serious side effects, but do not take action to update the product labeling (back story). 

- SBS

And the Carnival Cruise ship law suits begin....

The Associated Press has the story.

- SBS

Can Google Be Liable for Defamatory Comments Made on A Blog Which it Hosted?

The answer is maybe.  Neil Foster (Newcastle) sends word of an interesting English Court of Appeals case:  Tamiz v. Google Inc.   The court found that, in some circumstances, Google could be liable for defamatory comments made on a blog hosted by Google:  "Thus, if Google Inc allows defamatory material to remain on a Blogger blog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material."

- SBS

Steroid Meningitis MDL Sent to Massachusetts

Claims regarding the meningitis outbreak tied to injectable steroids has been consolidated in a MDL before Judge F. Dennis Saylor of the District of Massachusetts.  The National Law Journal has the full story (behind a free registration wall).

Thanks to Lisa Smith-Butler for the alert. 

- SBS

Torts Professor Named to Queen's Bench in Alberta

Professor Russ Brown of the University of Alberta has been appointed as a Justice to the Alberta Court of Queen's Bench.  Brown taught Torts, Civil Procedure, Property and Wills.  His research focused within tort law on economic loss and causation. 

- SBS

Mass Tort Filings Down 70% in Philly

The Pennsylvania Record reports that rules changes to the mass torts program at the Philadelphia Court of Common Pleas have resulted in a 70% drop in mass tort filings. 

- SBS

Georgia Proposes Tort Reform Bill

On Friday, Georgia state Senator Brandon Beach introduced a bill that would create a hearings-system to handle medical malpractice claims.    The proposed system would be similar to the worker's comp system:

[The bill] would create a system in which patients take complaints of doctor or hospital mistakes to a panel of physicians for hearings rather than filing lawsuits in court. If the panel concludes compensation is warranted, it pays out of a fund all providers pay into, like the no-fault system that covers on-the-job injuries.

The Augusta Chronicle has more.

- SBS