Wednesday, February 22, 2017
The jurisdictions wrestle with the line between battery and negligence, especially negligence based on informed consent. The Virginia Supreme Court just drew the line in a case in which a physician fused the wrong level on the patient's spine (C-6 and C-7 instead of C-5 and C-6). The court ruled this was an issue of negligence, not battery:
In the case of battery, there has been precedent that defines it as any unwanted bodily contact or the consent of the patient. Whereas the tort of negligence has been set up to ensure individuals act with reasonable care. As well, in battery there is the question of intent whereas intent is not a consideration in negligence.
“These considerations lead us to conclude that a physician is not liable for battery unless the plaintiff establishes a prima facie case that the physician performed an operation ‘against the patient’s will or substantially at variance with the consent given,’” according to the court's opinion.
The court also concluded that whether or not Mayr disclosed the risks involved with the surgery will also fall under the tort of negligence.
“When a patient has consented to surgery but complains that the physician has not disclosed certain risks, the dispositive question is whether the physician breached the standard of care by failing to disclose those risks. Breach of the standard of care falls within the realm of negligence and does not constitute an intentional tort,” the opinion states.
Forbes has the story.
Thursday, February 2, 2017
Thursday, January 19, 2017
Wednesday, January 18, 2017
Monday, January 16, 2017
In late December, the Connecticut Supreme Court reaffirmed its commitment to 402(A), but also modified existing doctrine. Jennifer Brooks Crozier and Adam Masin explain at JD Supra Business Advisor. The gist:
In arguably the most important Connecticut tort-law decision in decades, the Connecticut Supreme Court in Bifolck v. Philip Morris, Inc., --- A.3d ---, 2016 WL 7509118 (Conn. Dec. 29, 2016), declined to adopt the approach of the Restatement (Third) to product liability design-defect claims and “reaffirm[ed] its allegiance” to a “true strict liability” standard under § 402A of the Restatement (Second). The Court also made a number of “modest refinements” to the Court’s existing interpretation of § 402A. Most importantly, the Court held that every product liability design-defect claim must allege that the product was “unreasonably dangerous,” but declined to box plaintiffs into one definition of that term for purposes of stating a claim. The Court also refused to limit punitive damages under the Connecticut Product Liability Act (“CPLA”) to the “litigation expenses less costs” limit under the common-law rule set forth in Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 477 A.2d 988 (1984). Given the Court’s cautious approach to remaking the state’s tort law, Bifolck is in practice a reaffirmation of the status quo in Connecticut—at least for now. The Court did leave open the possibility that it might adopt the Restatement (Third) at some point in the future should its standards under § 402A prove “unworkable.”
Friday, January 13, 2017
Becker's Hospital Review provides a state-by-state comparison of malpractice suits and costs per 100,000 residents, in order from the largest amount (Louisiana at 44.1 suits per 100,000 residents) to the smallest (Hawaii at 4.9). The list is here.
Thursday, January 12, 2017
Tentative Draft No. 1 of the Restatement of Intentional Torts includes Section 104 on the Purposeful Infliction of Bodily Harm:
§ 104. Purposeful Infliction of Bodily Harm
An actor is subject to liability to another for purposeful infliction of bodily harm if:
(a) the actor purposely causes bodily harm to the other, either by the actor’s affirmative conduct or by the actor’s failure to prevent bodily harm when the actor has a duty to prevent such harm …
Wednesday, January 11, 2017
In the National Law Review, Walter Latimer has a column about a recent Eleventh Circuit products case upholding the economic loss rule:
The Economic Loss Rule is a doctrine of law that prohibits a product liability claim being brought against a manufacturer for a defective product that only destroys itself, without harm to other property or to a person. In those instances where the product fails but only damages itself and nothing else, the plaintiff’s only remedy is to sue for breach of contract against the manufacturer of the product. The plaintiff cannot seek recovery from the manufacturer under product liability causes of action. The Economic Loss Rule has historically served as the boundary between tort and contract law. Despite the fact it is part of the basic fabric that makes up tort law, it is still challenged by plaintiffs in product liability actions.
In Eiber v. Toshiba Americas Medical Systems, the plaintiff radiologist tried to sue an international electronics manufacturer for failing to maintain an MRI scanner that was out of date. The manufacturer advised the radiologist that the scanner had reached the end of its useful life, and the manufacturer would no longer provide service to it under contract. The aging scanner eventually stopped working, which the plaintiff claimed was due to negligent repairs rather than a failure of the scanner.
The Eleventh Circuit affirmed the district court's dismissal on the basis of the economic loss rule.
Wednesday, January 4, 2017
The AALS Section on Torts and Compensation Systems panel information:
Wednesday, December 28, 2016
NJ: Federal Law Does Not Preempt Claims of Failure by a Generic Drug Manufacturer to Update Warnings in a Timely Manner
The National Law Review analyzes New Jersey's ruling that "federal law does not pre-empt state law claims alleging that a generic drug manufacturer failed to timely update the warnings for its product to match those of the brand-name counterpart."
Thursday, December 15, 2016
Sean Woods, the basketball coach at Morehead State, has been accused of battering two players during a game last month. One player said the coach backhanded him in the chest in the locker room at halftime and another player said the coach shoved him during a timeout and in the locker room. Woods has been suspended, and criminal battery charges have been filed. The Lexington Herald Leader has the story. Thanks to David Raeker-Jordan for the tip.
Wednesday, December 14, 2016
Peter Hayes, of Bloomberg BNA, has a piece on the potential for a new wave of tort suits based on nanotechnology (essentially the technology of really small things). Nanotechnology can be used to make almost anything, but there have been concerns about health side effects. Hayes notes many experts predicted such a wave a decade ago, and inquires of several experts whether the predictions were wrong or whether the wave is still coming. His piece, "Nanotech Tort Litigation: Potential Sleeping Giant", is here.
Friday, December 9, 2016
On NPR's All Things Considered, Audie Cornish discussed the recent increase in fake news and possible recourse for it with Derigan Silver, professor of media, First Amendment, and Internet Law at the University of Denver. NPR's website has the story.
Friday, December 2, 2016
The California Supreme Court is reviewing a case by one of the courts of appeal that adopted "innovator liability" in products cases, the doctrine imposing liability on brand name manufacturers for injuries caused by their generic versions. Most jurisdictions have rejected the doctrine. The Pacific Legal Foundation's Liberty Blog urges rejection of the theory:
As we argue in our brief, that decision has no connection to any conceivable rationale normally employed in tort. Generally, tort law exists to deter unreasonably dangerous behavior, and to compensate wrongful injuries. But there can be no deterrence where an injury occurs after the generic manufacturer sells the production rights to someone else, and relinquishes control over how the drug is produced and labeled. Only those entities that can monitor, label, test, or otherwise control a product have an incentive to make that product safer. The decision is also unfair, because it imposes never-ending liability for statements that generic manufacturers make. Not even leaving the market and selling the production rights to someone else will relieve a brand drug company from liability.
Tuesday, November 29, 2016
Monday, November 28, 2016
Two people were injured in an off-reservation auto accident with a Mohegan Tribe-owned limousine. The Connecticut Supreme Court ruled that the tribe's sovereign immunity protected the driver from tort claims arising from the accident. Now the USSC has agreed to hear the case. Two weeks ago, lawyers for the plaintiffs argued that Native American tribes’ sovereign immunity does not shield tribal employees from tort claims brought against them in their individual capacities. Law 360 has the story.
Wednesday, November 23, 2016
R. J. Reynolds is arguing to the Florida Supreme Court that Engle is preempted by FDA v. Brown & Williamson Tobacco Corp. to the extent that Florida state tort law threatens to ban the sale of cigarettes. Moreover, Reynolds argues that applying Engle to all subsequent cases is a violation of due process. Florida Record has the story.
Monday, November 21, 2016
The Pennsylvania Superior Court affirmed a trial court ruling that a general contractor is immune from suit for the death of a worker at a drilling site. The subcontractor paid workers' comp to the worker's fiancé on behalf of his son, and the worker's estate filed a negligence suit against the general contractor. The estate argued that because the general contractor was leasing the land, it should be designated a property owner rather than a general contractor. The court rejected the estate's argument based on its interpretation of Pennsylvania's workers' comp statute. Law 360 has the story.
Thursday, November 17, 2016
Approximately 250 residents of East Chicago, Indiana have filed notices of claim against several officials, including Vice President-elect Mike Pence, alleging the officials knew of lead- and arsenic-contaminated soil but did nothing to prevent future exposure:
The pending lawsuits — filed Oct. 27 — claim city and state officials knew about the pollution at the construction of the 346-unit West Calumet Housing Complex, built in 1972.
The complex and Carrie Gosch Elementary School sit on about 50 acres of the roughly 400-acre USS Lead Superfund site. Soil testing in the area began decades ago. Two lead smelter operations also once operated on the site of the public housing complex and the school, according to EPA documents.
(nwi.com has the story)
Wednesday, November 9, 2016
Plaintiffs in Jesner v. Arab Bank have filed a petition for cert with the USSC, asking for a resolution of the issue whether the Alien Tort Statute permits corporate liability for violations of the law of nations:
The question the Jesner plaintiffs, represented by Stanford Law School and two law firms, now ask the Court to address is the question left unanswered in Kiobel: whether a corporation, as opposed to a natural person, can be found liable under the ATS. The certiorari petition notes that several Courts of Appeal—by a margin of, according to the petition, “four to one”—have decided that the ATS permits corporate liability. Plaintiffs also argue that the Supreme Court’s decision in Kiobel suggests (or appears to suggest) that the ATS contemplates corporate liability. The petition disputes what it describes as the Second Circuit’s outlier position that, following Kiobel’s introduction of the “touch and concern” test, the issue of whether the ATS allows corporate liability will “rarely” matter. In support, and among other arguments, the petition points to another case currently making its way through the Second Circuit, involving terror financing allegations against another financial institution.
Lexology has details.