Tuesday, February 23, 2016
Yesterday a judge in Bridgeport Superior Court heard arguments over dismissing the lawsuit filed by families of victims of the Sandy Hook Elementary School shooting against manufacturers of the AR-15. In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), which broadly shields gun manufacturers from liability. One of the exceptions to immunity is negligent entrustment:
In a 48-page brief arguing against dismissal of the case, attorney Josh Koskoff is trying to establish that the common law theory of negligent entrustment applies to the introduction of the AR-15 into the market by the Bushmaster Firearms International, the manufacturer of the weapon used by Adam Lanza in his shooting spree inside the school that left 26 people, including 20 children, dead.
"Their argument is what is negligent here is not selling the gun by the gun shop but what is negligent here is releasing the weapon into the market in the first place," Georgia State University Law Professor Timothy Lytton said.
In his brief, Koskoff argues that the AR-15 has no business being sold to civilians, that it was made for the military and "is built for mass casualty assaults" and to deliver "more wounds, of greater severity, in more victims, in less time."
A ruling is not expected soon. The Hartford Courant has the story.
Thursday, February 18, 2016
This past Saturday morning on Interstate 78, there was a terrible 64-vehicle crash that injured 73, including 3 fatalities. Many people cited a "whiteout" of snow as one of the causes. Weather, however, is a relatively rare cause of automobile accidents. According to local data, nearly 80 percent of accidents occur when there is no rain, sleet, fog, or snow. There were 109,000 accidents in 7 local counties between 2009 and 2014 and less than 6% of them occurred during snow or sleet (nationally, AAA states that 3.4% of accidents occur on snow-covered roads). On the other hand, aggressive driving was a factor in 64,000 of 109,000 accidents, and distracted driving was also a large contributor. Pennlive has details.
Wednesday, February 17, 2016
Wednesday, February 10, 2016
In 1999, the Institute of Medicine published "To Err is Human:"
One of the report’s main conclusions is that the majority of medical errors do not result from individual recklessness or the actions of a particular group--this is not a "bad apple" problem. More commonly, errors are caused by faulty systems, processes, and conditions that lead people to make mistakes or fail to prevent them.
A new study from Lebanon suggests that conclusion may hold for other country's malpractice problems as well:
Most medical errors are the result of broader failures of the country’s health care system and not individual negligence, according to an upcoming report from the American University of Beirut Faculty of Health Sciences.
The Daily Star has the story.
Tuesday, January 26, 2016
Friday, January 22, 2016
The NYT is reporting that Ted Cruz worked as both a defender of tort reform (including caps) and a defender of large verdicts. It's not unusual for lawyers to take cases on different sides of an issue, but as he is touting one side of his work to voters, this is information some of them may find troubling.
Thursday, January 21, 2016
On Friday, Canada's first law against "revenge porn," the non-consensual sharing of intimate images often by an ex-lover, went into effect in Manitoba. The law provides a civil remedy for the victim against the perpetrator. Explicit consent is required before such images may be shared. In the U.S., 9 states have civil remedies and 27 states have criminal provisions regarding revenge porn. VICE News has the story.
Friday, January 15, 2016
Out of Kentucky comes a case that may help resolve issues surrounding drones and trespass. A hobbyist whose drone was shot out of the sky while recording video over private property has filed suit for $1,500 in damages. The big question is limits of the ad coelum doctrine. How far above the ground would the drone have to fly not to be a trespasser? Witnesses stated the drone was flying below the level of the trees; the drone owner claims the drone was flying about 200 feet above the ground. Drones also raise issues regarding intrusion upon seclusion. The ABA Journal has the story.
Wednesday, January 13, 2016
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.
Sunday, January 10, 2016
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.
Monday, January 4, 2016
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.
Monday, December 21, 2015
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.
Friday, December 4, 2015
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).
Thursday, December 3, 2015
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.
Wednesday, November 25, 2015
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
Monday, November 23, 2015
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.
Monday, November 16, 2015
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.
Friday, November 13, 2015
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.
Wednesday, November 11, 2015
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.