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.
Tuesday, November 8, 2016
On Friday, a federal jury in Charlottesville, Virginia determined that Rolling Stone defamed a University of Virginia administrator in its story about the gang rape of "Jackie" at a fraternity party:
The 10-member jury in Charlottesville sided with administrator Nicole Eramo, who claimed the article portrayed her as a villain. Jurors found that journalist Sabrina Rubin Erdely was responsible for libel, with actual malice, and that Rolling Stone and its publisher were also responsible for defaming Eramo.
Eramo claimed the November 2014 article falsely said she discouraged the woman identified only as Jackie from reporting the incident to police. A police investigation found no evidence to back up Jackie's claims.
The Richmond Times-Dispatch has the story.
Thursday, November 3, 2016
Friday, October 28, 2016
The Washington Post ran a story this week about using race and gender to calculate damages. (See prior coverage here.) Among others, the story quotes Martha Chamallas and Jenny Wriggins. Here's a sample:
The practice of using race and gender to determine personal injury damages, which dates back at least a century, has produced some striking results.
The case of the male fetus and 6-year-old girl came in 1996, after a collision between a postal truck and a car left the car’s passengers – the girl and her godmother, a pregnant 33-year-old – dead.
In the case, which took place in a federal court in the Southern District of Georgia, both sides agreed the male fetus’s award to be higher than the girl’s, largely because of the difference in how much they were expected to earn over their lifetime, commonly known as “future lost income.” That’s despite testimony that the girl “exhibited a level of intellectual ability and behavior that surpassed that of most other students” and had a college fund in the works. The fetus’s mother had not completed college and the father was unknown, according to court records.
Tuesday, October 25, 2016
According to data from the Administrative Office of Pennsylvania Courts covering 2012-2014, Lackawanna County has 3.2 filings for every 1,000 residents, second in the state only to Philadelphia. Why so high? Lawyers and commentators discuss advertising, the number of lawyers, the presence of multiple courthouses, the presence of governmental organizations with in-house staff, the proximity of major highways, and the lack of tort reform. The Times-Tribune has the story.
Thursday, October 20, 2016
Lisa Rickard & Mark Behrens have a piece in Law360 arguing for disclosure regarding 3rd-party litigation funding. The conclusion:
The U.S. Chamber Institute for Legal Reform and others have urged the Advisory Committee on Civil Rules to adopt an amendment to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure that would require disclosure of third-party litigation funding at the outset of a lawsuit. So far, the committee has taken a “wait and see” approach. The Catch-22 is that, because third-party funding of lawsuits occurs in secrecy, the proof needed to support reform is elusive.
Federal judges in individual cases, particularly those managing multidistrict litigations, have the power to bring about transparency regarding the presence of third-party litigation funders in their courts. They should make all case management orders provide for the disclosure of third-party litigation funding. This would improve justice in those courts and give the Advisory Committee the data it needs to determine how best to bring third-party litigation funding into the sunlight.
Monday, October 17, 2016
Bruce Kaufman at Bloomberg has just completed a 4-part series on amusement park injuries. The links are below:
Sunday, October 16, 2016
A Connecticut judge dismissed the case filed by parents of children killed at Sandy Hook Elementary School against gun manufacturers. The parents alleged negligent entrustment in an attempt to get around the Protection of Lawful Commerce in Arms Act. The judge ruled the plaintiffs did not meet the exception. WaPo has the story.
Friday, October 14, 2016
Alberto Galasso (Toronto-Strategic Management) & Hong Luo (Harvard Business School) have published Tort Reform and Innovation. The abstract provides:
Current academic and policy debates focus on the impact of tort reforms on physicians’ behavior and medical costs. This paper examines whether these reforms also affect incentives to develop new technologies. We find that, on average, laws that limit the liability exposure of healthcare providers are associated with a significant reduction in medical device patenting and that the effect is predominantly driven by innovators located in the states passing the reforms. Tort laws have the strongest impact in medical fields in which the probability of facing a malpractice claim is the largest, and they do not seem to affect the amount of new technologies of the highest and lowest quality. Our results underscore the importance of considering dynamic effects in the economic analysis of tort laws.
Download here: Download GalassoHong_27Sept16 (1)
Thursday, October 13, 2016
The Arkansas Supreme Court has just killed the ballot initiative to amend the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. The court ruled the ballot title left critical elements, including "noneconomic damages", undefined. Arkansas Times has the story.
At Ralph Nader's "Breaking Through Power" conference two weeks ago, Margaret Jane Radin proposed a new tort: deceptive deprivation of core legal rights. Her focus is on the use of fine print boilerplate to take rights away from consumers and she offers a specific example:
“Pre-dispute arbitration clauses that erase class actions and jury trial would be a good candidate, because in cases of widespread small harms — such a $5 per month overcharge by a cable company, for example — no one party can get legal redress, and the company achieves large extra gains by aggregating small losses of a large number of people.”
Corporate Crime Reporter has the story.
Monday, October 10, 2016
In November, the people of Arkansas are supposed to vote on a ballot measure amending the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. A special judge has determined there are flaws in the petition process; nursing home employees allegedly solicited signatures from nursing home residents. Family members of the residents question whether the residents were able to understand what they were signing. The issue now goes to the state supreme court. A big issue, however, is whether some of the judges should recuse themselves. The only member of the court not to receive campaign contributions from the nursing home industry is the chief justice. Arkansasmatters.com has the story.
Friday, October 7, 2016
A recent Washington Court of Appeals decision expanded the scope of duty owed by professionals designing structures. The court held an engineer's duty to developers and property owners includes "the prevention of safety risks" even if no personal injury or property damage has occurred. Ross Siler at Lexology has details.
Wednesday, October 5, 2016
South Dakota physician Lars Aanning admits he lied to protect a colleague in a med mal case 15 years ago. He then takes it a step further:
“In essence, no supporting testimony from a defendant physician’s colleagues can ever be deemed trustworthy, truthful or true—because those colleagues have essentially sworn an oath of loyalty to each other” in their employment contract, Aanning wrote.
The ABA Journal has the story.