TortsProf Blog

Opening: Director, DOJ Federal Tort Claims Act Section

The Director of the Federal Tort Claims Section is open.   Details on how to apply are here.

- SBS

Virginia Expands Wrongful Discharge Tort

In a case involving alleged sexual harassment, the Fourth Circuit certified a question to the Virginia Supreme Court, which rephrased the question slightly:

“Does Virginia law recognize a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as in the capacity of a supervisor or manager?”

In a 4-3 decision, the court answered the question in the affirmative.

Legal Newsline has an extensive recap here.

--CJR

IL Supreme Court Recognizes Intrusion Upon Seclusion Tort

In Lawlor v. North American Corporation of Illinois, (pdf) Case No. 112530 (Oct. 18, 2012), the Illinois Supreme Court recognized the tort of intrusion upon seclusion.  As commentators have noted, this was not surprising as the Illinois appellate courts uniformly have recognized this tort, but the Illinois Supreme Court has now set out the elements of the tort.   Littler Mendelson has a briefing on the case.

- SBS

Rudy Giuliani on Tort Reform

Rudy Giuliani, former mayor of New York City, was the keynote speaker at the U.S. Chamber of Commerce's annual Legal Reform Summit held yesterday in Washington, D.C..  Using his experience as mayor, Giuliani discussed his views on why tort reform was necessary. C-SPAN has video of the speech. BLT also has the story.  

- SBS

Meningitis Lawsuits

The Sunday Boston Globe contained an article by Jay Fitzgerald on the potential suits from the outbreak of meningitis linked to a Framingham drug compounding pharmacy.  Suffolk's Mike Rustad is quoted in the piece.

--CJR

5th Circuit Asks for Supplemental Briefs in Mississippi Non-Economic Damages Cap Case

The Fifth Circuit has asked for supplement briefs in a case addressing the constitutionality of Mississippi's $1 million cap on non-economic damages.  The Mississippi Press has more.

- SBS

Conk on Exploding Gas Cans, Products Liability, and Plaintiff's Misconduct

His coverage at Torts Today is here and he links to the NYT story (quoting Marshall Shapo and Frank Vandall).

--CJR

Kiobel/Alien Tort Statute Roundup

I intended to create this myself, but I see that Alberto Bernabe has done the work for me here.

--CJR

Bill Childs Update!

A shout out to our former co-blogger and blog founder, Bill Childs!   With great excitement, we received an email from our former co-blogger's new firm announcing his new position.  Bill is Senior Counsel at Bowman and Brooke in the firm's Austin, Texas office.  Bill is a part of the firm's pharma and medical device product liability litigation groups. 

Best wishes to Bill!

- SBS & CJR

 

IL: Railroad Had No Duty to Child Trespasser

Last week, the Supreme Court of Illinois handed down Choate v.  Indiana Harbor Belt RR Co., in which the company was held to have no duty to a 12-year-old boy who was trespassing on the railroad's right-of-way when he was injured.  Mark Weber, who was kind enough to send me the case, summarized the takeaway point.  The case does not make new law, but it demonstrates the trend toward narrower liability, especially for older children engaged in clearly dangerous acts (attempting to jump onto a train). 

The opinion is here.

--CJR

 

"Philly Regrets Flood of Cases"

The Wall Street Journal reports that mass tort filings in the Philadelphia Court of Common Pleas have "skyrocketed from 550 in 2008 to nearly 2,700 last year. The surge left an already busy court system buried in lawsuits and scrambling to repair the damage."    The article reports:

Also contributing to the surge of cases: the success of the Complex Litigation Center, a specialized Philadelphia court established in 1992 largely to handle the growing asbestos and pharmaceutical docket. The center adopted techniques that were designed to move cases through quickly, such as setting early trial dates, holding frequent meetings among the lawyers, and consolidating similar cases.

The Complex Litigation Center drew more mass-tort cases to Philadelphia. But until recently, it was largely able to manage its docket. Since 2008, the backlog of asbestos and pharmaceutical cases has shot up from about 2,600 to more than 6,100 through last month. Last year, 88% of the pharmaceutical cases were filed by out-of-state plaintiffs, according to the court.

The mess is now largely Judge Herron's to deal with. Since taking over as the administrative judge late last year, he has put into place several measures designed to reverse the trend—and to send a message to out-of-state lawyers to take their lawsuits to other courts. "Go elsewhere," he says, when asked to describe the message he is hoping to send to out-of-state lawyers. "There are a lot of really wonderful courts in the U.S., and you should make broader use of them."

- SBS

 

Colorado Movie Shootings Lawsuits Begin

Three victims of the Colorado shootings last summer during the premier of "Dark Knight" have filed suit in federal district court against the theater owner.  The suit alleges that the company was negligent in providing security at the theater.  CNN has the story.

- SBS

Fraud in Indiana State Fair Fund Claims

The Associated Press reports that a woman has pled guilty for submitting false claims to the state tort fund created to compenstate the victims of the Indiana State Fair stage collapse in 2011.   This example raises the interesting question about how to prevent fraudulent claims when administering a compensation fund.

- SBS

Genomic Forensics and Tort Litigation

Stanford's Law & Biosciences Blog has an interesting story discussing genomic forensics - sequencing a strain of bacteria - and tort litigation against hospitals and medical care providers for hospital acquired infections. 

- SBS

Yankee Stadium's New Immunity

The SAFETY Act was passed in 2002 as part of the legislation creating the Department of Homeland Security.   According to the website, the SAFETY Act "provides important legal liability protections for providers of Qualified Anti-Terrorism Technologies – whether they are products or services." In other words, the Act immunizes designated companies from tort liability stemming from a terrorist-related incident.   Most companies on the list are technology manufacturers, who obtain civil immunity by meeting a battery of tests and getting Homeland Security's approval.

Now on the list? Yankee Stadium.   As reported on NBC News.com, Yankee Stadium has become the first sports facility to earn the Safety Act designation.  Thus, the venue is immune from civil liability by any future victims of a terrorist attack.  Also on the list?  According to NBC: Superbowl venues (generically listed as the NFL).

- SBS

 

SDNY Dismisses ATS Suit Based on Sovereign Immunity

In Tawfik v. al Sabah, the Southern District of New York dismissed an Alien Tort Claims Act suit brought by Egyptian nationals against the Emir of Kuwait based on sovereign immunity principles.  The court found the State Department's suggestion of immunity controlling.   

Download Tawfik v al Sabah Decision 2012.08.16 (pdf).

Thanks to Lee Dunst (Gibson Dunn) for a copy of the decision. 

- SBS

 

PA: Is R3:PL the Law or Not?

This week, Amaris Elliott-Engel, of PA Law Weekly, wrote the first of a series of articles on tort law.  Her first piece is on the uncertainty in Pennsylvania products law.  Twice in the last 3 years, the U.S. Court of Appeals for the Third Circuit has opined that the Pennsylvania Supreme Court would adopt the Restatement Third (Products Liability).  However, the state Supreme Court has not directly addressed the issue, although there has been some provocative dicta and one instance in which the justices announced they had improvidently granted allocatur to consider whether section 2 of R3 should replace 402A of R2.  Thus, in general, state courts are applying 402A and federal courts are applying R3, though even among federal courts, some apply 402A.  As elsewhere, most plaintiffs' lawyers tend to prefer 402A and most defense lawyers tend to prefer R3.

Thanks to Scott Cooper for the tip.

--CJR

"Perfect for a First Year Torts Exam"

On Monday, the United States Court of Appeals for the Ninth Circuit certified three questions to the Washington Supreme Court in a caes "perfect for a first year torts exam."  McKown v. Simon Property Group Inc. (pdf) involved a shooting at the Tacoma Mall in 2005.  The plaintiff, a store employee at the mall, was injured and sued the mall owner.   The Ninth Circuit certified three questions concerning the scope of the mall owner's duty to protect a mall employee from the criminal acts of a third party:

1) Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law?
2) To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party's criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence?
3) If proof of previous acts of similar violence is required, what are the characteristics which determine whether the previous acts are indeed similar?

Courthouse News Service has more on the case.

- SBS

Missouri Supreme Court Holds Cap on Non-Economic Damages Violates State Constitution

In a decision issued July 31st, the Missouri Supreme Court struck down the state's statutory cap on non-economic damages as violating the Missouri state constitution.  Specifically, the court found that the cap violated the right to a trial by jury.  A copy of the decision is available here (pdf).

- SBS

OK Med-Mal Judgments At 10 Year Low

The Tulsa World reports that medical malpractice judgments in Oklahoma are at a ten-year low.  Both tort reform proponents and opponents attribute the stats to the impact of OK's 2009 tort reform law, but disagree on whether the result is a good thing.  

- SBS