Monday, September 1, 2014
There are a lot of stories on the med mal front. First, two from the MICRA fight:
An analysis from the The Fresno Bee finds that the anti-cap increase ads are misleading. Here's a taste:
But the ad goes too far by unequivocally claiming that raising the cap will increase malpractice insurance costs and that the result would certainly be higher costs for consumers. Five health economists contacted by The Bee had mixed opinions on those questions.
An editorial in the The Sacramento Bee urges rejection of the initiative, stating that the cynicism of attaching the drug-testing measure is reason enough to vote against it.
In other news, Law Firm Newswire is reporting that misdiagnosis is the most common form of med mal, surpassing surgical errors and medication mixups. This is described as surprising, but it is consistent with my memory of med mal cases in the period I practiced law.
Finally, in August, HHS ruled that all malpractice payments under state liability laws must be reported to the National Practitioner Data Base. The ruling was meant to address issues raised by recent "early offer"-type programs enacted in Massachusetts and Oregon.
Wednesday, August 6, 2014
In a pleading seeking a lead counsel role in the MDL, Joe Rice revealed that the City of Providence, RI intends to sue General Motors as part of the ignition-switch litigation coordinated in the Southern District of New York. From news reports, it sounds like Providence intends to bring a diminished value claim, similar to claims brought against Toyota a few years ago. (I've written about these kinds of risk-liability suits here).
National Law Journal has the story.
Friday, August 1, 2014
As previously mentioned here, crews have begun working on Ralph Nader's American Musuem of Tort Law. Just this week, the Winsted Planning and Zoning Commission approved the site application plan for the musuem. The Register Citizen reports:
Exhibits will include historical cases of precedent that built the “edifice of common law of torts,” along with major cases, including judicial decisions in auto safety, tobacco, asbestos and invasion of privacy. Plans were in the works for a website to be set up as well, to extend the reach of the museum’s mission to include contemporary and future developments, according to Nader. The museum could also host events.
Wednesday, July 30, 2014
Most TortsProfs probably don't cover the common law right of publicity, but if you do, here's a good one to use in class: General Manuel Noriega (yes that one) has sued manufacturers of the video game "Black Ops II" for misappropriating his likeness in said video. According to the complaint, Noriega's portyal in the video as "as a kidnapper, murderer and enemy of the state" has damaged his reputation.
Wednesday, July 23, 2014
Here's a good one for your class on negligence:
A California appellate court has held that a man who fell off a cliff while drunk can sue the friends who brought him to the cliff to watch the sunrise after a night of partying. The court found that the plaintiff "created a triable issue of material fact as to whether [the defendant] breached a duty owed to [the plaintiff] by bringing him to the cliff side when she knew he was intoxicated and waiting several hours to call 911 or otherwise summon aid after the fall."
Courthouse News has more.
Tuesday, July 22, 2014
On Monday in my home county, a jury returned a defense verdict in the tragic case of a man who became a quadriplegic in a sprint-car racing accident at the Williams Grove Speedway on September 5, 2008. The plaintiff argued the speedway should have had a device (a catch fence) in place that would have greatly reduced the likelihood of injuries. In addition to denying that allegation, the speedway presented a waiver supposedly signed by the plaintiff. (Like many jurisdictions, Pennsylvania upholds the express assumption of risk doctrine in the recreational context.) Plaintiff argued that the date and witness lines of the waiver form were not filled in and the waiver was, thus, invalid. The jury deliberated 3 hours before determining the waiver was valid and, therefore, reaching a defense verdict. The Patriot-News has details.
Monday, July 21, 2014
Like many, we were stunned to learn of the death of Dan Markel over the weekend. Dan, a professor at Florida State College of Law, was a co-founder of PrawfsBlawg and a prolific scholar in the area of punishment and retributive justice. The local ABC News station reports that Dan was shot at his home on Friday and passed away the following day at an area hospital.
PrawfsBlawg has an on-line memorial for their colleague and friend here.
Paul Caron has collected the news reports on this tragedy here.
- Sheila and Chris
Friday, July 18, 2014
About a year ago, we reported that Ralph Nader had purchased an old bank in his hometown of Winfield, Connecticut for his "American Museum of Tort Law."
The Associated Press now reports that construction crews have begun inside demolition work on the building. Nader hopes that the museum will open in Fall 2015.
Thursday, July 17, 2014
In Bostic v. Georgia Pacific Corp., the Texas Supreme Court rejected the "any exposure" or "some exposure" theory of causation, and held that a "substantial factor test" applies to causation in asbestos cases.
Debra J. LaFetra at Pacific Legal Foundation has a full write up of the decision.
Friday, July 11, 2014
TortsProfs' own Chris Robinette is quoted in this Washington Post article about the verdict against the L.A. Dodgers stemming from the 2011 beating of a Giants fan in the stadium parking lot. The victim sued the Dodgers for failure to provide adequate security. On Wednesday, a jury found for the plaintiff, and the Dodgers are liable for nearly $14 million of the verdict.
Thursday, July 10, 2014
So understandably, one bride asked theoperators of the Doubletree Hotel & Suites in historic Charleston to assure her that her courtyard ceremony "would not be disrupted by hotel guests not in attendance."* Not as understandably, the hotel allegedly agreed to this clause. Now, the wedding venue - the hotel's courtyard area - is overlooked by guestrooms, and on the big day, one hotel guest decided to bare all in the window of his room while the wedding ceremony below was in progress. The distraught bride has now sued the hotel for what sounds like an intentional infliction of emotional distress claim, and seeks actual and punitive damages.
Courthouse News has more.
(Photo credit: Doubletree Hotel & Suites. Presumably, this advertising photo is not of the wedding in question...)
*Presumably, there would be no lawsuit if the alleged nudist had been a guest of the wedding itself.
Wednesday, July 9, 2014
A Yankees fan who fell asleep at the April 13th Yankees-Red Sox game is now suing the Yankees, Major League Baseball and ESPN for defamation, following the live airing of the napping fan on ESPN and later posting of the video on mlb.com. The plaintiff is seeking $10 million in damages after the "unending verbal crusade."
Smoking Gun has a copy of the complaint.
PS. The Yankees won, 3-2.
Tuesday, July 8, 2014
Like many jurisdictions, Pennsylvania allows common law bad faith claims to be assigned from the insured/defendant in the tort case to the plaintiff in the tort case. Also like many jurisdictions, Pennsylvania has a statutory component to its bad faith law (42 Pa. C.S.A. 8371, enacted in 1990). The Third Circuit has certified a question to the Supreme Court of Pennsylvania asking it to clarify whether the statutory component, like the common law cause of action, is assignable. Judge John Jones, of the Middle District of Pennsylvania, held statutory bad faith claims are assignable, based on lower state court and prior Third Circuit cases. The issue is whether the tort basis of the statutory claim distinguishes it from the contract basis of the common law claim for purposes of assignability. The case is Allstate v. Wolfe (Docket No. 39 MAP 2014) and we should receive an answer in the coming months.
Wednesday, June 25, 2014
There is new med mal data from my home state of Pennsylvania. Since the base years of 2000-2002, med mal cases in PA have declined 43%, with the biggest drop occuring in Philly (68%). In 2003, a certificate of merit requirement and venue restrictions went into effect. In 2013, 77% of jury verdicts were for the defense; 2 of 5 non-jury verdicts were for the defense.
Monday, June 23, 2014
The California Supreme Court held yesterday that a business has no common law duty to provide automatic defibrillators in anticipation that a customer will experience heart failure while on the premises. The decision (Verdugo v. Target) is here: Download S207313.
In 2006, Iowa State created the Center for Agricultural Law & Taxation. The Center's mission is to provide information to agricultural producers in important areas such as regulation and taxation. One of the Center's points of focus is tort law. Run by Roger McEowen, the Center keeps up with tort decisions and analyzes how they will impact agriculture. For example, the Iowa Supreme Court recently ruled that neither the federal Clean Air Act nor the Iowa counterpart preempts common law claims of negligence, nuisance, and trespass against a grain processor (Freeman v. Grain Processing Corp., No. 13-0723, 2014 Iowa Sup. LEXIS 72 (Iowa Sup. Ct. Jun. 13, 2014). The Center's Kristine Tidgren analyzed the opinion and made the analysis available to producers (and the public).
Updated: The Center just added an annotation today about the Wisconsin Supreme Court's holding that spraying herbicides is an inherently dangerous activity and, therefore, a property owner may be liable for an independent contractor/sprayer's torts.
Wednesday, June 11, 2014
Victims of a Saturn Ion crash in 2004 are suing GM to reopen a case over the death of one person and serious injuries of another. GM settled the case for $75,000 and argued the driver was 100% to blame. Now lawyers argue the case should be reopened in light of the recall of defective switches in many of GM's cars, including the Ion. The Chicago Tribune has the story.
Tuesday, June 10, 2014
Wednesday, May 21, 2014
Tuesday, May 20, 2014
The discussion draft of the Restatement Third, Torts: Intentional Torts to Persons, was discussed this morning at the American Law Institute annual meeting.