TortsProf Blog

Virginia: No Charitable Immunity for Public Hospital Foundations

The Virginia Supreme Court ruled earlier today that the University of Virginia does not have charitable immunity for medical malpractice cases.  I'll have a follow-up post after I've read the opinion.

--CJR

Vioxx Lecture at Cardozo

Cardozo is hosting a lecture entitled "The Vioxx Story:  Mass Settlement Without Class Actions" on Tuesday, March 11 at 6:30 p.m.  The featured speaker is Christopher Seeger (Seeger Weiss), one of the principal architects of the Vioxx settlement.  Professor Howard Erichson (Seton Hall; Co-Editor of Mass Tort Litigation Blog) and Kathleen O'Connor (Dechert) will provide commentary.  Professor Anthony Sebok (Cardozo; Findlaw's Writ Columnist) will serve as moderator.  RSVP at [email protected].

--CJR

Alcohol Death; Families Sue Drinker's Friends

Minnesota Public Radio's News Cut blog summarizes the sad case, and litigation aftermath, of Amanda Jax:

Where do we start with the sad case of Amanda Jax, the legal adult who drank herself to death on her birthday? Our time to discuss it intelligently is short. What's happened today is the stuff talk radio hosts dream of and once they awake, well, you know.

According to a story by MPR's Art Hughes, five of her friends are among those being sued by the Jax family. Their alleged crime? They, not Amanda, bought the drinks for her.

Local accounts indicate that her friends documented the evening of heavy drinking with photographs, including allegedly pictures of Jax, after she became unconscious.  The complaint (filed today) alleges that Jax had the equivalent of seventeen shots.

The family's lawsuit also names the bar that served Jax those shots.

--BC

Updates in AutoAdmit Litigation

The lawsuit for defamation, IIED, and so on against various posters on the AutoAdmit forums continues, with one of the pseudonymous defendants ("AK47"), who declared that people named Jill and another common name "should be raped," seeking to quash a subpoena against his ISP.

--BC

Nussim on Distributive Effects of Negligence and Strict Liability

Jacob Nussim (Bar-Ilan University-Faculty of Law) has posted Distributive Aspects of Legal Standards on SSRN.  Here is the abstract:

There are various differences between a negligence regime and a strict liability regime; there are various differences between price and quantity controls of behavior. This study shows that, typically, these legal mechanisms differ in their distributive outcome as well. In reality, tort victims as well as externality victims are heterogeneous in the potential harm they would suffer if injured, but potential injurers cannot observe individualized harm ex ante (e.g., car accidents, pollution). Therefore, a uniform rather than individualized legal standard of behavior is applied. It is shown that a negligence regime with a uniform care standard redistributes among potential victims, while an equally (second best) efficient strict liability regime does not. A similar conclusion follows for the choice between quantity and price instruments.

Via Solum/Legal Theory Blog.

--CJR

Another Kentucky Kingdom Update

I've been following the case related to Katie Lassiter, the young girl whose feet were severed while on the "Superman: Tower of Power" drop ride manufactured by Intamin for Six Flags Kentucky Kingdom. Local news reports that the ride is being dismantled and that the victim had a bone removed a few days ago.

In related news, the Kentucky Commissioner of Agriculture recently called for more inspectors for that state's amusement rides, saying the state was lucky that there had been nothing worse than serious injuries on its rides.

--BC

Alaskan Village Sues Energy Companies for Global Warming

The New York Times reports on a suit filed yesterday by the Alaska native village of Kivalina against 20 oil, electric, and coal companies. The village, which is being forced to relocate because of flooding caused by global warming, accuses the companies of creating a public nuisance and also of conspiracy:

“There has been a long campaign by power, coal and oil companies to mislead the public about the science of global warming,” the suit says. The campaign, it says, contributed “to the public nuisance of global warming by convincing the public at large and the victims of global warming that the process is not man-made when in fact it is.”

The suit alleges that the cost for relocating the village is $400 million.

- SBS

 

Crime or Malpractice? In California, Both

The New York Times reports on the prosecution of a California doctor for allegedly hastening the death of a patient in order to retrieve his organs.    According to the criminal complaint, the doctor "ordered excessive doses of morphine and Ativan, an anti-anxiety medicine, both of which are used to comfort dying patients."   The complaint also charges that the doctor introduced Betadine, a topical antiseptic which may cause death if ingested, into the patient. 

“If you think a malpractice lawsuit is scaring surgeons off, wait to see what happens when people see a surgeon being charged criminally and going to jail,” said Dr. Goran B. Klintmalm, president of the American Society of Transplant Surgeons, who added that he considered the case unprecedented.

The patient's mother also has filed a civil suit against the doctor, the donor network, and other doctors in the operating room.   The mother separately settled a civil suit against the hospital. 

- SBS

WSJ Editorial on AGs Outsourcing Legal Work

Yesterday's WSJ includes an editorial, "Lawsuit, Inc.," which addresses the practice of state attorneys general outsourcing lawsuits to private plaintiffs' attorneys.    The editorial notes that the Mississippi Senate recently passed a bill that would require competitive bidding on such contracts of more than $500,000.   But, Mississippi Attorney General Jim Hood reportedly is trying to block passage of the bill in the state house.

The WSJ reviewed various documents from the Hood's office, and found that "Hood retained at least 27 firms as outside counsel to pursue at least 20 state lawsuits over five years."  The WSJ further found that "these 27 law firms -- or partners in those firms -- made $543,000 in itemized campaign contributions to Mr. Hood over the past two election cycles."

- SBS

Sebok on Riegel & Preemption

In his latest Findlaw column, Tony Sebok discusses the Riegel decision and how it may reveal the Court's approach to the remaining preemption cases on the Court's docket.  In particular, Sebok finds clues in Justice Stevens's concurrence, and concludes that "Stevens seems to be telling Scalia that the theory of preemption that Stevens had developed extends only to cases of express preemption--that is, in cases where Congress has clearly stated that it wants to supplant state law, including state common law."

- SBS

Dallas Cowboy Part of Suit Challenging Texas Caps

Ron Springs, a former Dallas Cowboy football player, is one of eleven named plaintiffs in a suit challenging Texas's 2003 damage caps, reports the AP via the NYT. Springs's suit alleges medical malpractice during surgery to remove a cyst that resulted in brain damage.

--BC

Kent Argument

Ted Frank was there and summarizes.

--BC

Nader on Tort Reform

With Ralph Nader's announcement yesterday that he is again running for president, I thought it might be a good time to link to a 1995 column he wrote on tort reform for Legal Times, reproduced on the 'Lectric Law Library (still proudly sporting a 1995-era web design). You can also check out the Google cache of his 2004 statement on the issue; his new site does not appear to have anything on the subject as yet.

--BC

Valdez Case: Closure Soon?

So suggests the Washington Post story today, covering the imminent Supreme Court argument (ScotusWiki page is here).

--BC

Two Preemption Podcasts

The USSC's decision in Riegel v. Medtronic has inspired a lot of discussion.  The Federalist Society posted a podcast of Richard Epstein's comments on Riegel here.  The American Enterprise Institute hosted a conference on Thursday featuring Michael Greve (AEI), Cathy Sharkey (NYU), Daniel Troy (Sidley Austin), and Brian Wolfman (Public Citizen).  Ted Frank served as moderator.  The podcast is here.  (Via Olson/Point of Law).

--CJR

Peer Review Discovery in Bextra/Celebrex Litigation

Pharmalot has the editorial from Science. For a view on the other side (i.e., not panicked at the prospect of discovery into peer review), see my Nebraska Law Review article from last year. The SSRN draft is here; feel free to send me an e-mail to get a reprint.

--BC

Two States Consider Increasing Damages Caps

Colorado and Oregon are both considering increases to their damage caps.  Colorado is currently debating a bill that would raise the cap on noneconomic damages in medical malpractice cases from $300,000 to about $450,000.  The bill was voted out of committee on Monday and will now be sent to the Senate floor for debate.  The details are here. 

Meanwhile, Oregon is reacting to a ruling of the Oregon Supreme Court late last year that the cap on damages payable by the state was unconstitutional as applied.  A task force has been set up to study the issue of raising the cap, as was urged in a concurring opinion of last year's case.  The details are here.

--CJR

Class Action Filed Against New England Patriots

It appears a class action has been filed in a federal court in Louisiana against the New England Patriots and Coach Bill Belichick, arising out of alleged videotaping prior to the 2002 Super Bowl XXXVI between the Patriots and St. Louis Rams.  The counts include, among others, tortious interference with contract and common law fraud.  The complaint [PDF] is here:  Download gary20v20patriots20complaint1.pdf.  Thanks to Alberto Bernabe (The John Marshall Law School) for the tip.

--CJR

Updated: After Riegel

The Drug & Device Law Blog has a looking-forward post about what happens post-Riegel -- and, by implication, what happens after the rest of the preemption trilogy if, as seems at least possible, much state tort litigation related to FDA-approved drugs is preempted.

The question, as they accurately note, comes down to whether the mostly-regulatory, mostly-not-litigation approach to pharma safety can work. (Or at least whether it can work as well as the litigation-intensive system existing now.) I expect many (including me) would feel much more comfortable about a broad preemption in a world where the FDA didn't confuse factories with similar names and the like. Indeed, that's an example the D&D folks mention as "not cutting it." But that's not the world we have. Perhaps in light of the new world of preemption, FDA funding will get increased and expectations raised. We'll see.

If it does turn out to be a catastrophe, of course, Congress has the power to explicitly reject preemption, express, implied, and otherwise.

The post is worth a read. I think they've accurately captured what their clients need now to do in order to show that preemption is not a mistake.

Update: Eric Turkewitz discusses the post and links to more.

--BC

(As usual, I have done consulting to pharma clients. I realize that it's actually been a while since I've had any of that work, but I still note it in case it's of interest.)

Breaking: Riegel is Out, 7-1 for Preemption

The opinion is here [PDF]. Scalia wrote the majority opinion; Ginsburg dissented. There's some concurring in part going on too by Stevens. The opinion concludes that state common law claims based on medical devices that received premarket approval are preempted by federal law.

Update: The Drug & Device blog has a post on it; it's the first semi-in-depth post I've seen so far, at least in my usual rotation.

--BC