TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, February 17, 2015

TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility

The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero.  The case (pdf) is here:  Download TX Sup Ct = Seat Belt Admiss  From the opinion:

We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a

plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of

apportioning responsibility under our proportionate-responsibility statute, provided that the

plaintiff’s conduct caused or was a cause of his damages.

Thanks to Jill Lens (Baylor) for the tip.

February 17, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

AZ: Learned Intermediary Doctrine Is Inconsistent With Uniform Contribution Among Tortfeasors Act

In Watts v. Medicis Pharmaceutical Corp., an intermediate appellate court in Arizona reversed the dismissal of plaintiff's complaint, holding that the Uniform Contribution Among Tortfeasors Act abrogates the learned intermediary doctrine.  The opinion is here:  Download AMANDA WATTS, an adultindividual, PlaintiffAppellant, v. MEDICIS PHARMACEUTICAL CORPORATION.  Thanks to Bob Bohrer (Cal Western) for the tip.

February 11, 2015 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

FL: Woman Shot in Common Area of Apartment Complex Loses Premises Case

In a case out of Palm Beach County, a woman who had repeatedly been told to stay off the premises was shot in the leg at a common area of an apartment complex.  Pursuant to Florida law, the premises liability status categories are invitee, discovered trespasser, and undiscovered trespasser.  The duty of care owed to the entrant on land varies with the category; the standards are negligence for invitees, gross negligence for discovered trespassers, and intentional conduct for undiscovered trespassers.  Because the plaintiff was a discovered trespasser, the apartment complex was only liable for gross negligence, which was not proved.  The Naples Daily News has the story

February 9, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2015

Med Mal Suit Over Joan Rivers' Death

Melissa Rivers, daughter of comedian Joan Rivers, has instituted a lawsuit claiming medical malpractice against the clinic where Joan Rivers was undergoing surgery at the time of her death, and the doctor who performed it.    There are allegations that, during the procedure, the staff at the clinic were acting like "groupies," taking "selfies" with the comedian while she was under anesthesia.  The main complaint, however, is the doctor's failure to perform a tracheotomy, which allegedly could have enabled Joan Rivers to begin to breathe again after her breathing stopped during the surgery.  There are other allegations that the staff performed two unauthorized procedures on the comedian.   It is alleged that Joan Rivers would be alive today had a tracheotomy been administered.  The doctor was terminated by the clinic soon after the Joan Rivers' death.  Due to the amount of projects the comedian was working on at the time of her death (fashion police television show, writing books, and performing stand-up), it is predicted that the Rivers' family could receive millions in damages.  Rolling Stone has the story

January 30, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 28, 2015

NE: "Total Idiot" Not Defamatory

The Nebraska Supreme Court has upheld the dismissal of a libel lawsuit based on an e-mail in which a home inspector was called a "total idiot."  Olson/Overlawyered

January 28, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

IN: Governmental Damages Cap Upheld

Last month, I reported that the Indiana Court of Appeals (the intermediate appellate court) heard arguments on whether Indiana's tort claims damages cap for governmental defendants was constitutional.  On Wednesday, the court upheld the damages cap as constitutional, mirroring a similar ruling from Pennsylvania in November.

January 16, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, January 15, 2015

Some Cities Limit Sledding Due to Liability Concerns

Dubuque, Iowa is moving ahead with an ordinance banning sledding in all but 2 of its 50 parks based on liability concerns and demands from the city's insurer.  In the past decade, there have been sled injury verdicts of $2M or more in Omaha, Nebraska and Sioux City, Iowa.  Several cities have started banning sledding, while other post signs warning of the risks.  ABC News has the story.

January 15, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2014

NYT Story on GM Ignition Switch Cases

... is here, with a focus on whether litigation is uncovering less information about dangerous products than it used to.  John Goldberg and Victor Schwartz are quoted.

December 31, 2014 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2014

Med Mal Insurer Returns 5% of Premiums

For the eighth time since 2008, Louisiana-based LAMMICO is returning a percentage of premiums to its customers.  The physician-owned company will return five percent of premiums during the first quarter of 2015.  The Daily Journal has details.

December 30, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, December 27, 2014

DOJ Seeks $16B for BP Oil Spill

Coverage at George Conk's Torts Today.

December 27, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, December 18, 2014

PA: Statutory Bad Faith Claim Is Assignable

Back in July, I posted about a case in front of the Pennsylvania Supreme Court over whether the statutory component of bad faith is assignable.  The issue, specifically, was whether the statutory bad faith remedies, sounding in tort, are, like the common law bad faith contract action, assignable.  On Monday, the court answered in the affirmative.  The court stated:

We recognize that the policy considerations (which are ably developed in the

arguments of the litigants and their amici) are mixed in character. On balance,

however, we find that consideration of the occasion and necessity for Section 8371, the

object to be attained, the previous legal landscape, as well as the consequences of our

interpretation, favor Wolfe’s position. Centrally, we simply do not believe the General

Assembly contemplated that the supplementation of the redress available for bad faith

on the part of insurance carriers in relation to their insureds would result either in a

curtailment of assignments of pre-existing causes of action in connection with

settlements or the splitting of actions. Certainly, if we are incorrect in our assessment in

this regard, the General Assembly may seek to implement curative measures pertaining

to future cases, subject to constitutional limitations.

Widener alumnus Scott Cooper co-authored an amicus brief, cited in the opinion, on behalf of the Pennsylvania Association for Justice.


December 18, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2014

CA: No Duty in Failure-to-Warn, Take-Home Asbestos Case

A California appellate court has concluded there is no duty on the part of a premises owner to warn of take-home asbestos dangers.  The court was concerned about "limitless liability."  A dissenter argued the Rowland factors establish a duty.  Legal Newsline has the story.

December 15, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, December 8, 2014

CA: Hotel Owner's Duty to Children in Multi-Story Buildings

A family with a 5-year-old son was staying in a second-floor room at a hotel in La Jolla.  The mother had asked for a ground-floor room, but none were available.  The family opened the window to hear the ocean.  While they were distracted, their son pushed through the screen, fell to the ground, and suffered serious injuries.  The hotel had safety bars in many of the windows, including other windows in the same  room, but not at the particular window through which the child fell. 

The parents filed suit alleging premises liability.  The hotel filed a motion for summary judgment and the trial court granted it.  The Court of Appeal, Fourth Appellate District reversed.  The court held the hotel had failed to carry the burden on summary judgment that it had no duty.  The court found such an incident was reasonably foreseeable and, in the process, indicated that compliance with building codes was essentially irrelevant.  The opinion is here.  JD Supra comments here.

December 8, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2014

Veterans Affairs & Med Mal

As part of the overhaul at the VA, a website is being created so veterans can check if their doctors have ever been sued for malpractice and found at fault.  CBS Los Angeles has the story, including data that is not surprising given this story from last year.

December 1, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, November 27, 2014

CA: Supreme Court to Review Constitutionality of Med Mal Damages Cap

Less than a month after voters rejected raising the $250,000 med mal damage cap in California, the state's high court is going to review whether the cap is constitutional. has the story.

November 27, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

PA: Justices Urged to Ban Informed Consent Forms from Strict Med Mal Trials

On Tuesday in Harrisburg, the justices heard arguments over whether informed consent forms should ever be admissible in strict med mal cases (those without allegations of informed consent violations).  Plaintiff's lawyer argued the forms could be used in a prejudicial way to insinuate that consent for the procedure included consent to risks caused by negligence.  Defense lawyer responded that the form could be relevant depending on the facts of the case.  Chief Justice Castille indicated that, for him, the case came down to the fact that a patient cannot consent to negligence.  Seven jurisdictions have adopted a blanket ban of informed consent forms in strict med mal cases; Pennsylvania will decide whether to become the eighth.  The Legal Intelligencer has the story.

November 20, 2014 in Current Affairs, Documents | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

Postmortem on Prop 46

The LA Times has a postmortem on Prop 46, which was defeated by over 2/3 of the vote and in every single California county.  The piece examines the politics of raising the med mal cap in a blue state. 

November 17, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2014

MD: Reaffirms No Duty to Warn Rule

In May v. Air & Liquid Systems Corp., the Court of Special Appeals of Maryland reaffirmed the rule that there is no duty to warn of asbestos-containing replacement parts that defendants did not manufacture or place in the stream of commerce.

JDSupra has coverage here.

November 3, 2014 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2014

Engstrom, Rabin & Mello on Prop 46

Nora Engstrom, Bob Rabin & Michelle Mello (Stanford) published an op-ed in Tuesday's LA Times entitled "What Prop 46 Would Fix."  They respond to arguments against adjusting the med mal non-economic damages cap to reflect inflation since 1975, and then provide reasons in favor. 

October 30, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2014

Eric Andrist: Pro-Prop 46



Proposition 46 on California’s November ballot takes three steps to improve patient safety. While the doctors, hospitals and medical malpractice insurance companies that have spent tens of millions of dollars to oppose this initiative love to say it’s about making more money for trial lawyers, what it’s really about is the safety of all of us who live here. Because any of us could be killed, maimed or disfigured by medical negligence. Any of us could be harmed by a doctor impaired by drugs or alcohol. Any of us could have our lives turned upside down by the actions of a doctor-shopping prescription drug addict who received too many pills from too many doctors.

Of course no one thinks it will happen to them. I didn’t think it would happen to me. Until it did.

Both my elderly mother and my mentally retarded sister died from medical negligence at the same prestigious Los Angeles hospital where actor John Ritter died and his family sued/settled for millions of dollars. Actress Alicia Cole also went to this hospital for a routine surgery and ended up contracting “Flesh Eating Disease” there and almost died.  After my sister’s horribly painful death, I turned to the legal system to hold those who treated her accountable and try to prevent other families from going through the same nightmare. You can see a bit about my sister’s story at

But attorney after attorney I approached told me they wouldn’t take the case, despite its merits. That’s because my sister, who was unable to work because of her disability, had no income. She never married and had no children. (I was her full-time caregiver.) And because she was dead, there were no ongoing medical bills to pay.

It wasn’t until I started trying to pursue justice in this case that I learned California has a law, enacted in 1975 and never changed since, that limits compensation for medical malpractice cases like hers to $250,000. And while that amount has been frozen for almost 40 years, the cost of taking a case to trial hasn’t – a good chunk of that cost being the enormous hourly fees paid to doctors as expert witnesses. So after the trial costs have been deducted from the $250,000, the victim’s attorney gets a percentage of the balance, a percentage that’s also limited on a sliding scale by state law. That amount is their compensation for what is often years of work on the case (these lawyers don’t receive hourly fees and don’t get a penny until their client wins an award).

Keep in mind the doctors and hospitals face no limits on what they can spend on their legal defense. In the face of that, most lawyers will look at the potential return on a case like mine where the damage award is capped and say it’s simply not worth it.

I don’t blame them. I blame the law that put them in that position in the first place.

Continue reading

October 24, 2014 in Current Affairs, Guest Blogger, Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)