TortsProf Blog

Drones and Tort Law

A recent Volokh Conspiracy column analyzed the applicability of various existing laws to the increasing use of drones.  Discussed are:  intrusion upon seclusion, publication of private facts, battery, assault, negligence, trespass, and nuisance.

PA: No Manufacturing Defect/Implied Warranty Claims Against Pharmaceutical/Medical Device Companies

In Pennsylvania, a federal split is resolved:  manufacturing defect and implied warranty claims are not viable against pharmaceutical and medical device companies.  It was already clear that design and warning defect claims were not viable.  Thus, under current Pennsylvania law, negligence is the only cause of action plaintiffs have against pharmaceutical and medical device companies.  The Legal Intelligencer has the story. 

"The New Doctrinalism" at Penn Law

...includes a paper presentation by Ben Zipursky ("Reasonableness in and out of Negligence Law") and Greg Keating as a panelist.  The symposium is October 24th and 25th.  The program is here and you can RSVP.  Thanks to Karen Wong of the University of Pennsylvania Law Review for the tip.

PA: AG's Office Invokes Victim Fault in Rape Suit

A 24-year-old typist at a prison in Bellefonte, PA was brutally raped last year by one of the inmates.  The inmate had been convicted three times previously of sex-related crimes and then transferred from a different prison for assaulting a female employee there.  Despite this, the inmate had access to the typist's office, even after she states she complained to her bosses about the inmate's behavior toward her.  The victim filed suit in federal court against the state Department of Corrections and several individual employees.  The AG's office, charged with defending the lawsuit, included in the answer the allegation that the woman "acted in a manner which in whole or in part contributed to the events."  In essence, the AG's office was pleading comparative fault, resulting in a political firestorm.  The issue was covered on CNN and the Attorney General herself felt compelled to address the filing. 

The best defense of the allegation is that it was necessary to preserve a defense of comparative fault for trial.  A lawyer has to defend his or her client and FRCP 8 requires the pleading of, among other things, contributory negligence.  It seems to me, however, that this should have been handled differently.  Given:  (1) the sensitive nature of the plaintiff's complaint; (2) the fact that Rule 15 allows liberal amendments; and (3) the fact that the DA in the county fully supported the typist and successfully prosecuted the inmate for rape, apparently without uncovering any evidence that the she contributed to the attack on herself, this allegation should not have been included in the answer. 

MS: Case to Determine Constitutionality of Non-Economic Damages Cap Settles

As I reported here, yesterday the Mississippi Supreme Court was supposed to hear oral arguments on the constitutionality of the state's $1M non-economic damages cap.  Instead the parties filed a joint motion on September 17th representing they have settled the case.  The court canceled oral arguments and gave the parties 90 days to finalize the settlement.  The Jackson Free Press has the story. 

PA: General Liability Coverage Providers Must Defend Products Claims

Last week, the Pennsylvania Supreme Court refused to hear an appeal from a Superior Court ruling, leaving in place a holding that general liability coverage providers are required to defend products claims brought against their policyholders.  In a series of cases filed against door and window manufacturers, the Superior Court held that because the company's allegedly defective products allegedly led to other damaged property as well as personal injuries, there were "occurrences" under the policy:

In issuing its opinion, the Superior Court specifically rejected the application of the “gist of action” theory to bar tort claims in insurance coverage disputes. In Pennsylvania law, the doctrine serves to prevent plaintiffs from reshaping breach of contract claims into tort claims.

“Ultimately, because the gist of the action doctrine has never been adopted by our Supreme Court in an insurance coverage context, we are convinced that, at this juncture of a duty to defend claim, applying the gist of the action doctrine is inappropriate,” Judge Shogan said.

Law 360 has the story.

JOTWELL Torts: Scheuerman on Adar on Punies

Over at JOTWELL, Sheila Scheuerman reviews Yehuda Adar's Touring the Punitive Damages Forest:  A Proposed Roadmap.

Study: Cost of Defensive Medicine 2.9% of Healthcare Costs

A study with a lead author from the Cleveland Clinic, published in JAMA Internal Medicine, concludes that purely defensive medicine accounts for 2.9% of U.S. healthcare costs.  The study is available for purchase here.  The L.A. Times's "The Economy Hub" discusses the study here.

Medical Malpractice By the Numbers

The Center for Justice & Democracy has released its updated "Briefing Book:  Medical Malpractice By the Numbers."  Available here.  Insurancenewsnet.com has highlighted some statistics from the book:

* Medical malpractice insurance companies are making twice the profit of the entire property/casualty insurance industry. In fact, the med mal insurance industry has had seven years of underwriting profit - something completely unheard of in the property/casualty sector. (Page 53.)

* After Texas enacted severe limits on medical malpractice lawsuits, including "caps" on damages, rates of preventable errors rose, "consistent with hospitals gradually relaxing (or doing less to reinforce) patient safety standards." (Page 83.)

* Researchers have found, "a strong association between introduction of a comprehensive obstetric patient safety initiative and a dramatic reduction in liability claims and liability payments." (Page 24.)

* "On any given day, approximately one in 25 U.S. patients has at least one infection contracted during the course of their hospital care." (Page 65.)

* "Despite a slew of news accounts about patients being set on fire in operating rooms across the country, adoption of precautionary measures has been slow, often implemented only after a hospital experiences an accident." (Page 66.)

* "At least eight doctors whose medical licenses were suspended or revoked collectively billedMedicare more than $7 million in 2012." (Page 7.)

* "An average of 103,000 doctors, nurses, medical technicians and health care aides a year were abusing or dependent on illicit drugs." (Page 7.)

* As unsafe as are civilian hospitals, military hospitals are worse. (Page 87.)

* Medical malpractice premiums are not rising; other factors are contributing to the plight of physicians, specifically "health insurers that clamp down on the size of physician fees and deny payment for services that they deem unnecessary." (Page 56.)

* When asked their main reason for leavingNew York state, newly trained physicians cited the "Cost ofMalpractice Insurance" practically dead last on a list of many factors, the most important of which was "Proximity to Family." Even the general category "Other" outranked "Cost ofMalpractice Insurance." Moreover, New York's liability laws were not even mentioned as a factor. (Page 52.)

* Among the many ways doctors, dentists and other medical providers are cashing in on vulnerable patients is by selling them credit cards to pay for procedures using deceptive sales tactics; many patients have been hit with substantial debt from these credit cards while waiting for procedures. (Page 37.)

Local Governments on Prop 46

Director of the CA State Association of Counties opposes Prop 46 here.

LA County supervisors consider motion to oppose here.

Hedley on the Nature of Private Law

Steve Hedley (University College Cork) has posted to SSRN Obligations:  (Local) Politics or (Universal) Reason?.  The abstract provides:

Obligations is both a local institution, influenced by politics, and a universal institution, influenced by reason. It is a distraction to ask which vision should be allowed to predominate: neither truth should be allowed to obscure the other. The real question is how best to accommodate both.  This paper approaches the question by comparing two very different descriptions of private law: Ernest Weinrib’s "The Idea of Private Law" (a universal description not expressly tied to any legal system, beyond that it is based on the common law) and Merkin and Steele’s "Insurance and the Law of Obligations" (which is explicitly tied to the legal system of England/Wales). While there are considerable differences between the two (and I imagine that neither approach seems to value the other very much) there are also some surprising similarities between them, raising questions as to the proper perspective from which to describe private law.

Oberdiek's Introduction to Philosophical Foundations of the Law of Torts

John Oberdiek (Rutgers-Camden) has posted to SSRN Introduction:  Philosophical Foundations of the Law of Torts.  The abstract provides:

This Introduction to Philosophical Foundations of the Law of Torts (John Oberdiek, ed., Oxford University Press, 2014) provides a brief history of the discipline of tort theory, maps out current debates in the field, and introduces the volume's nineteen chapters.  Along the way, this Introduction addresses many of the core problems in the philosophy of tort law, draws connections between them.

IL: Stay in the Crosswalk!

The First District Appellate Court of Illinois determined the City of Chicago owed no duty to a pedestrian who broke his foot in a pothole that was a few inches outside of a crosswalk.  The pedestrian was apparently straddling the line, partially in and partially out of the crosswalk.  The court applied settled law that municipalities have a duty to keep streets reasonably safe for pedestrians only in those areas in which pedestrians are permitted to walk.  The National Law Review has the story.

PA: No Duty Because No Foreseeability

In April 2012, a woman was taken to an ER and voluntarily admitted based on a suicide attempt.  She later slipped out of the hospital, walked through the woods, and rolled into traffic on a nearby bridge.  She was struck and killed by a car; a father was driving and his (then-juvenile) daughter was a passenger.  The father and daughter filed suit against the hospital for emotional distress.  The trial judge held the hospital had no duty to the plaintiffs based on a lack of foreseeability.  The Superior Court affirmed the judge's decision.  Now the Pennsylvania Supreme Court has refused to consider the appeal.  Pennlive has the story. 

Poll: Support for Prop 46 "a mile wide and an inch deep"

A new USC Dorsife/LA Times poll found support for Prop 46 " a mile wide and an inch deep."  When likely voters were polled on Prop 46, 61% supported it, 29% opposed it, and 10% were undecided/refused to answer.  When those surveyed heard both sides' main arguments, the numbers shifted to 37% in support, 50% opposed, and 12% undecided/refused to answer.  The LA Times has the story.

Wake's Green to Receive Prosser Award

The AALS Torts & Compensation Systems Section has announced that Mike Green (Wake Forest) will receive the 2015 Prosser Award.  From the announcement:

On behalf of the Torts and Compensation Systems Executive Committee, it gives me great pleasure to announce that the recipient of the 2015 William L. Prosser Award is Michael D. Green of Wake Forest University School of Law. Through his work as Co-Reporter for the Restatement (Third) of Torts: Liability for Physical Harm, his own scholarship, his contributions to multiple casebooks, his exemplary teaching, and his generosity toward other scholars, Michael Green has made “outstanding contributions ... in scholarship, teaching and service” of the kind that the Prosser Award was designed to recognize. I hope you will join the Executive Committee in offering our congratulations.

 

The award will be presented at our section meeting at 4pm on January 4, 2015, during the AALS annual conference at the Marriott Wardman Park in Washington, D.C. We hope to see many of you there.

 

Many thanks to all of you who took the time to submit such thoughtful nominations to our nominating committee. Many thanks, too, to that committee, consisting of James Henderson, Jane Stapleton, and Jennifer Wriggins. And finally, once again, many congratulations to Mike.

Pinnacle Hip Trial is Underway; J&J Allegedly Knew of Poisoning Concern in 2001

The first of about 6,000 Pinnacle metal hip poisoning trials is underway, and plaintiff's lawyer Mark Lanier is producing e-mail evidence designed to show Johnson & Johnson knew of the concern as early as 2001.  Plaintiff claims that the Pinnacle hip's design is flawed:  the metal-on-metal version of the artificial hip produces debris in the body that can cause metal poisoning.  Johnson & Johnson reached a $2.5B settlement last year on another line of its artificial hips known as ASRs.  Bloomberg has the story (via Conk/Torts Today).

Third Circuit Revives Fraud Claim Against Attorneys

Last week, the Third Circuit revived a fraud claim alleging BASF Catalysts, Inc. took part in systematic fraud with the help of its attorneys Cahill Gordon & Reindel to hide the existence of asbestos in its products.  The case has been remanded for further proceedings.  The Washington Examiner  has the story.

MS: Is the 2004 Non-Economic Damages Cap Unconstitutional?

On September 24, the Mississippi Supreme Court will hear oral arguments in a case to determine whether the 2004 non-economic damages cap of $1M is unconstitutional.  Circuit Judge Charles Webster so held in a 2011 case seeking damages for the death of a child in an apartment complex fire.  The jury awarded the child's parents $6M in non-economic damages.  Webster upheld the award and struck down the cap, stating the Mississippi Constitution guarantees every citizen a remedy for an injury done to his lands, goods, person and reputation with that remedy to be determined by a jury.  The Miami Herald has the story.

Read more here: http://www.miamiherald.com/2014/09/08/4335402/damage-limits-in-miss-tort-laws.html#storylink=cpy

TX: New Remedy for Online Defamation

The Texas Supreme Court has ruled that a court can order an author to delete a defamatory post, but cannot prohibit the author from reposting the statements because that would be an unlawful prior restraint of free speech.  The deletion remedy is novel.  The Texas Lawyer has the story.