TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Wednesday, January 13, 2016

DC: Over 80 to Sue Metro Over Smoke Inhalation

On January 12, 2015 an electrical malfunction caused a Metro train to fill with smoke.  Dozens were allegedly sickened and filed individual lawsuits yesterday, the anniversary of the fire:

Attorneys say their clients have suffered ongoing health complications from the smoke inhalation, although a version of the complaint shared with reporters on Monday does not provide details. The lawsuit also says Metro has failed to disclose the chemical compounds that were part of the smoke, which may have impaired treatment for patients.

One woman died and her sons have also filed suit.  WJLA in DC has details.

January 13, 2016 in Current Affairs | Permalink | Comments (0)

Sunday, January 10, 2016

TX Rejects "Dual-Role Theory" in Premises Liability

In 1992, Occidental Chemical installed a pH-balancing system on its premises in order to keep its employees from having to haul containers up a ladder.  Six years later, the company sold the premises.  Eight years after the sale, an employee of the new owner was injured on the system.  Is Occidental liable for the injury?  The "dual-role theory" would hold owners of property liable in premises liability and as designers of defective equipment.  Reversing the intermediate appellate court's opinion for the plaintiff, the Texas Supreme Court wrote:

We conclude, however, that a claim against a previous owner for injury allegedly caused by

a dangerous condition of real property remains a premises-liability claim, regardless of the previous

property owner’s role in creating the condition. Because the previous owner sold the property

several years before the plaintiff’s accident and did not otherwise owe the plaintiff a duty of care

apart from its ownership and control of the property, we reverse the court of appeals’ judgment and

render judgment that the plaintiff take nothing.

The opinion is here.  Commentary by Wen Fa of Pacific Legal Foundation is here.

January 10, 2016 in Current Affairs | Permalink | Comments (0)

Monday, January 4, 2016

Challenging Indiana's Med Mal Cap

In 2003, Juliann Bobbitt was born a quadriplegic and unable to speak.  Her parents filed a medical malpractice action in 2005.  An expert estimated her lifetime care costs between $8 and $10 million.  In 2013, a jury awarded $15 million in damages to her parents.  Indiana, however, has a $1.25 million med mal damages cap.  To date, Medicaid has paid over $500,000 on Juliann's care, an amount that would have to be reimbursed out of the proceeds of any verdict or settlement.  The parents are challenging the constitutionality of the cap.  The Elkhart Truth has the story.

January 4, 2016 in Current Affairs | Permalink | Comments (0)

Monday, December 21, 2015

The Las Vegas Strip Attacks, Automobile Insurance, and Tort Law

Automobile injuries are pervasive in tort law--over half of tort claims and three-quarters of all payouts.  They are not seen as interesting, however, and are rarely discussed.  A story out of Las Vegas is receiving uncharacteristic attention.  A 24-year-old woman, with a 3-year-old in her car, allegedly ran down 38 pedestrians on the Las Vegas Strip.  One person has died and 37 others have been injured.  Authorities have concluded she acted intentionally. 

From the perspective of compensating the victims, these facts reveal a lot about gaps in the system.  First, it appears the driver was a recent arrival in Nevada.  She was, therefore, subject to Nevada's financial responsibility, and not compulsory automobile insurance, law.  In theory, that means she would only have to provide proof of security after causing an accident of $750 or more.  Because only New Hampshire operates solely with a financial responsibility law, the driver was likely coming from a state that required some amount of automobile insurance.  Of course, she could have been one of the millions of drivers who operate without insurance regardless of the requirement.  Moreover, even if she had been a lawful Nevada resident and purchased insurance pursuant to the compulsory automobile insurance law, the limits are $15,000 per person, $30,000 per occurrence, and $10,000 for property damage.  In other words, she may have had as little as $30,000 to compensate for 1 death and 37 injuries, many of them serious.  

Additionally, because the driver is alleged to have acted intentionally, the intentional acts exclusion, designed to counter moral hazard, will mean there is no liability insurance money available to the victims.  Some jurisdictions have ruled the intentional acts exclusion is invalid in the context of a compulsory automobile insurance law, but most have not.  Nevada appears to uphold the validity of the exclusion.  Thus, the tort cause of action available to victims would be battery and they would not likely be compensated through liability insurance.  The odds that the driver has enough assets to compensate for her wrongs are astronomically long. 

December 21, 2015 in Current Affairs | Permalink | Comments (0)

PBS Newshour Coverage of the American Museum of Tort Law

...is here.

December 21, 2015 in Current Affairs, Television | Permalink | Comments (0)

Friday, December 4, 2015

WA: No Gender-Based Strict Liability for Ram

From Roger McEowen (Iowa State Center for Agricultural Law and Taxation):

 The parties are friends and neighbors and are both farmers.  The plaintiff has raised various types of livestock, but the summer of 2012 was his first time raising sheep.  The defendant had bred sheep for over 30 years.  On occasion, the plaintiff allowed the defendant to keep livestock on the plaintiff's property.  In the summer of 2012, the parties went together to a livestock yard where the defendant bought a lamb ram to replace his existing ram.  The ram showed no vicious tendencies.  After ewes had been put in the pasture with the ram, the plaintiff was butted repeatedly by the ram as he attempted to turn on sprinklers in the pasture.  At the time of the incident, the plaintiff was 82 years old.  He suffered a concussion, five broken ribs, a broken sternum and a broken shoulder.  The plaintiff was hospitalized for 16 days.  The plaintiff sued based solely on a theory of gender based strict liability irrespective of whether or not the defendant knew the ram was abnormally dangerous.  The trial court granted summary judgment for the defendant.  On appeal, the court affirmed.  The appellate court noted that the standard of care under state (WA) law is ordinary care if the animal is not inclined to commit mischief, unless it is shown that the animal's owner knew that the animal had vicious tendencies.  In that event, strict liability is the rule.  The court noted that this approach was consistent with Restatement (Second) of Torts Secs. 509 and 518.  Under Restatement (Second) of Torts Sec. 509 comment e, rams have not historically been regarded as being inherently dangerous animals, but comment 23 of the Restatement (Third) of Torts propose a possible gender-or-breed-based modification of the general rule treating domestic animals as not excessively dangerous.  The court, however, referenced the policy reasons for not holding owners of male domestic livestock to a strict liability standard.  In addition, the court noted that the legislature could modify the law and had already done so with respect to dogs in certain situations.  Rhodes v. MacHugh, No. 32509-1-III, 2015 Wash. App. LEXIS 2687 (Wash. Ct. App. Nov. 3, 2015).  

December 4, 2015 in Current Affairs | Permalink | Comments (1)

Thursday, December 3, 2015

Practicing Reduces Malpractice

Philadelphia hospitals started running simulations of high-risk incidents, such as child birth, and the results are encouraging:

Such training has helped Penn cut malpractice costs by 26 percent since 2011, to $92.2 million in the year ended June 30, even as revenue has risen 28 percent, to $4.3 billion.

Temple University Health System has logged an even steeper decline in liability costs, to $11.3 million in fiscal 2015 from $48.1 million in 2011, records show.

The Philadelphia Inquirer has the story.

December 3, 2015 in Current Affairs | Permalink | Comments (0)

Wednesday, November 25, 2015

Stein & Fox on Military Medical Malpractice

I referenced the Feres Doctrine yesterday.  Over at Bill of Health, there is a post about an amicus brief filed by Alex Stein and Dov Fox urging the Supreme Court to grant cert in a Tenth Circuit case, Ortiz v. U.S.:

When a civilian spouse of a serviceman receives negligent prenatal care from military doctors and delivers an injured baby as a result of that malpractice, there is no question that Feres immunity does not apply and that the baby can sue the United States under the FTCA. When military medical malpractice injures the baby of a servicewoman, this baby should be equally able to obtain redress under the FTCA.  A system that would single out the civilian children of servicewomen for adverse treatment discriminates against women who serve in the armed forces. . . To interpret the FTCA as the Tenth Circuit did permits discrimination between these two classes of similarly situated victims of military malpractice and violates fundamental principles of equal protection.

The brief is here:  Download OrtizAmicusSteinFox

November 25, 2015 in Current Affairs, Weblogs | Permalink | Comments (0)

Monday, November 23, 2015

PA: $10.1M Med Mal Award Against CHOP

A Philadelphia jury has awarded $10.1M to a mother and son for the failure of Children's Hospital of Philadelphia to diagnose bacterial meningitis in the boy despite several trips to the emergency room.  The child, now 6, suffers from hearing loss, language disorder, developmental and learning delays, and a loss of balance.  The trial lasted 4 weeks, but the jury made its decision in 3 hours.  Philly.com has the story.

November 23, 2015 in Current Affairs | Permalink | Comments (0)

Monday, November 16, 2015

When Are Falls Medical Malpractice?

Because of the hurdles many states place on med mal cases, it is beneficial for defendants to classify falls in hospitals as malpractice.  The Texas Supreme Court recently attempted to clarify the distinction between med mal and a premises liability slip-and-fall:

 In Reddic v. East Texas Medical Center, decided on October 30, 2015, the Court stated that there must be “a substantive relationship between the safety standards the visitor alleged the hospital breached and the provision of health care” for the case to be considered medical malpractice.

Michael Ksiazek has more at The National Law Review.

November 16, 2015 in Current Affairs | Permalink | Comments (0)

Friday, November 13, 2015

Open-Heart Surgery Infection Cases Spread

Last week, I reported that open-heart surgery patients at York Hospital may have been exposed to bacteria that could lead to infections.  This week, Penn State Hershey Medical Center announced that its open-heart surgery patients may have also been exposed to bacteria.  This appears to be developing into potential products liability cases, perhaps all over the world:

The infections have been linked to heater-cooler devices that are part of the process of controlling patients' body temperature during open heart surgery. A department of health spokeswoman said heater-coolers are used in all open heart surgeries.

Pennlive has the story, including pictures of the device in question.

November 13, 2015 in Current Affairs, Products Liability | Permalink | Comments (0)

Wednesday, November 11, 2015

UVa Fraternity Files $25M Defamation Suit Against Rolling Stone

Phi Kappa Psi, the fraternity where an alleged gang rape occurred, has sued Rolling Stone and the author of a sensational article for publishing the account.  Rolling Stone relied on the allegations of the alleged victim, but  subsequent investigations found no evidence to substantiate the claims.  Three individual members of the fraternity are suing for at least $225,000 each and an associate dean is suing for $7.5 million dollars.  Virginia Lawyers Weekly has the story.

Updated:  Because I practiced in Charlottesville, I have been looking for the name of the attorney representing the plaintiffs.  It turns out that Tom Albro, for whom I worked for seven years, is that attorney.  Rolling Stone had better be prepared.

November 11, 2015 in Current Affairs | Permalink | Comments (0)

Monday, November 9, 2015

The El Faro Tragedy and Litigation

Craig Allen (University of Washington) has posted to SSRN Investigations and Litigation Follow S.S. El Faro Tragedy.  The abstract provides:

On October 1, 2015, the U.S. flag cargo ship El Faro sank with all hands in the Atlantic Ocean east of The Bahamas, during Hurricane Joaquin.  The casualty is under investigation by the U.S. Coast Guard and the National Transportation Safety Board. In response to claims by families of some of the 33 crew member, the vessel owner invoked the U.S. Shipowner Limitation of Liability Act.  Events leading up to the tragedy will be given strict scrutiny in the coming months.

November 9, 2015 in Current Affairs, Scholarship | Permalink | Comments (0)

Thursday, November 5, 2015

York Hospital Open-Heart Surgery Infection Cases Loom

In a local case that made national news, York Hospital announced that as many as 1,300 patients who had open-heart surgery over several years could have been exposed to bacteria.  The York Daily Record is reporting that attorneys throughout the region are receiving phone calls and setting appointments.

November 5, 2015 in Current Affairs | Permalink | Comments (0)

Monday, November 2, 2015

A Modern Byrne v. Boadle

A man in London was seriously injured by a sofa that fell from a building.  It is not known exactly what happened, but the sofa may have fallen from scaffolding more than 100 feet above the ground.  BBC has the story.

Thanks to David Raeker-Jordan for the tip.

November 2, 2015 in Current Affairs | Permalink | Comments (0)

Thursday, October 29, 2015

Behrens Wins ILR Individual Achievement Award

Mark Behrens of Shook, Hardy & Bacon's Public Policy Group has been awarded the U.S. Chamber Institute of Legal Reform's Individual Achievement Award.  He joins Public Policy Group Co-Chair Victor Schwartz as a recipient of the award.

October 29, 2015 in Current Affairs | Permalink | Comments (0)

Tuesday, October 27, 2015

Risk Management at U.S. Hospitals: Hard Times

According to a study published this week in Aon's annual benchmark analysis of hospital and professional liability, the average cost of closed claims with indemnity at U.S hospitals ($459,000) is near an all-time high.  The effects of tort reform are an issue:

However, the experience of so-called tort reform states – where non-economic damages have been capped by statute – is particularly concerning.  The severity of average claims in these states has been increasing faster than elsewhere.  In 2008, only 2.2% of claims from tort reform states exceeded $2,000,000.  By 2013, this proportion had risen to 4.1% and last year it jumped further, to 5%. 

"Tort reform, though still valuable in restraining the cost of claims, provides less effective insulation to hospitals than was originally the case," said Steve Chang, healthcare claims team leader at Beazley.  "The plaintiffs' bar has become very adept in maximizing the economic damages which remain uncapped. Moreover, we are finding that the distinction between tort reform and non-tort reform states is becoming increasing blurred with states such as California, Maryland and Florida, all of which are tort reform states, beginning to rival their non-tort reform counterparts."

CNN Money has the story.

October 27, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, October 26, 2015

CA Reaffirms No Duty by Universities to Protect Adult Students from Violence of Other Students

A California court of appeal has reaffirmed the rule that universities do not have a duty to protect adult students from the violent acts of other students.  Alberto Bernabe discusses the opinion at Torts Blog. 

October 26, 2015 in Current Affairs | Permalink | Comments (0)

Thursday, October 22, 2015

Workers' Comp: States Limit Benefits; Federal Oversight Urged

A recent NPR/ProPublica series on workers' compensation caused 10 Democratic Senators to urge action on the part of the Labor Department:

Ten ranking Democrats on key Senate and House committees are urging the Labor Department to respond to a "pattern of detrimental changes in state workers' compensation laws" that have reduced protections and benefits for injured workers over the past decade.

In a letter to Labor Secretary Thomas Perez, the lawmakers cited an investigation by NPR and ProPublica, which found that 33 states have cut workers' comp benefits, made it more difficult to qualify for benefits or given employers more control over medical care decisions.

The letter also referred to NPR/ProPublica stories last week that detailed an emerging trend of permitting employers to drop out of state-regulated workers' comp programs, write their own injury plans and limit benefits on their own.

NPR has the story.

October 22, 2015 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, October 15, 2015

Upper East Side Aunt Sues Nephew for Enthusiastic Hug, Broken Wrist

A Manhattan woman sued her then eight-year-old nephew for an enthusiastic hug that knocked her down and broke her wrist.  A jury found the nephew was not liable.  I assume the homeowner's policy was the target, but it couldn't have helped that she testified that it hurt for her to hold a plate of hors d'oeuvres.  The Connecticut Post has the story.

Thanks to Sheila Scheuerman for the tip.  Also posted at Olson/Overlawyered.  And don't miss this coverage from Eric Turkewitz at New York Personal Injury Law Blog.

October 15, 2015 in Current Affairs | Permalink | Comments (0)