TortsProf Blog

PA: Med Mal Reform on Venue?

Yesterday's The Patriot-News (Harrisburg) featured a front-page article by David Wenner entitled "Is the deck stacked against patients?".  In 2002, during the middle of an alleged crisis in malpractice, the legislature passed a law that, among other things, added a certificate of merit requirement and restricted venue to the place of the alleged malpractice. The latter was largely aimed at keeping cases out of Philadelphia, where juries tend to be more liberal on both liability and damages.  The Pennsylvania Supreme Court adopted the venue restriction into the rules of civil procedure, fixing a constitutional problem with the legislation.  Since the reforms, the number of cases filed in Pennsylvania has been cut nearly in half.  A committee of the Supreme Court is now considering eliminating the rule against venue shopping.  The article contains prominent voices on both sides of the issue debating the merits.

IN: No Need for Seller to Provide Product Warnings in Spanish

Plaintiff alleged an Indiana hardware store was negligent in renting to him and two co-workers an aerial lift without warnings in Spanish, given that the three spoke limited English.  Plaintiff was severely shocked when he either touched an electric line or was the victim of electrical arcing.  The Indiana Court of Appeals ruled that the hardware store did not have to provide warnings in Spanish.  Instead the court stated that, absent special circumstances, if the manufacturer provides adequate warnings and the seller passes them along, the seller has no obligation to provide additional warnings.  Unlike several other cases, the court did not focus on whether the product had been marketed to non-English speakers.  The case is here.  Thanks to Susan Raeker-Jordan for the tip.

PA: Wrongful Death Suit Against Gun Store, Manufacturer Dismissed

In 2016, a 13-year-old and 14-year-old were left with a babysitter and three younger children in Mt. Pleasant, PA.  The 14-year-old found a gun and it discharged, killing the 13-year-old.  The deceased's parents sued:

The Gustafsons’ lawsuit alleged Springfield Armory and Saloom made and sold a 9mm semiautomatic handgun without warnings and safety features, including one that would prevent a gun from firing when the magazine is removed.

The judge dismissed the case, citing the 2005 Protection of Lawful Commerce in Arms Act.  Trib Live has the story.

MA: 12-Year-Old Safely Pulls Car Over After Grandfather Suffers Stroke on Interstate

A 12-year-old boy took the wheel when his grandfather suffered a stroke driving on Interstate 495 near Boston.  The boy successfully steered off the road and called 911.  Emergency responders arrived and administered a "stroke-busting drug."  Grandfather and grandson are both doing well.  There are a number of interesting torts angles here:  sudden physical illness, the applicability of the child standard and adult activities exception, and the emergency doctrine.  This could easily be incorporated into an exam.  The Boston Globe has the story. 

NY: Parents Sue Supportive Living Center for Negligence, Mishandling of Son's Body

A Troy non-profit supportive living center has been sued by the parents of a former resident.  The plaintiff's decedent completed rehabilitation for drug addiction and then moved into the facility in November 2017.  His parents last spoke to him on December 3 of that year.  Around 6 days later, when no one had heard from him, the parents asked the facility where their son was.  A staff member allegedly informed the parents their son had left several days earlier.   On Jan. 11, 2018, they learned the truth: Raolik had never left the facility.  A pest control worker entered his room and found his body on the bed.  Allegedly staff members were checking the wrong room.  The condition of the body made it difficult to determine a cause of death, but it appears the man died of a heart attack on December 4, 2017.  Toxicologists found no traces of illicit drugs in his system.  The Times Union has the story, including a copy of the suit.

Neethling & Potgieter on Municipal Responsibility for Rape

Johann Neethling & J.M. Potgieter have posted to SSRN Delictual Liability of a Municipality for the Rape of a Mentally Disabled Woman --Bridgman v. Witzenberg Municipality.  The abstract provides:

An 18-year-old woman (L) with a mental disability (she functioned cognitively at the level of a 6 to 8 year old child) was abducted and raped by three youths at the Pine Forest Holiday Resort in Ceres, Western Cape (South Africa), where she was staying with her adoptive parents. The resort was owned, managed and controlled by the defendant, the Witzenberg Municipality (the Municipality). The plaintiff, in his capacity as the curator ad litem of L, instituted an action against the Municipality, claiming damages arising from injuries suffered by L as a consequence of the rape. He submitted that the rape was caused by the negligent omissions and conduct of the Municipality. The Municipality denied that it had been negligent. In the alternative it argued that, if it had been negligent, the rape had been caused partly through its own negligence, and partly through the negligence of L’s parents.

Are Apps Products?

Couple breaks up.  Upset former lover creates fake profiles on a dating app that leads to harassment of ex, including over a dozen instances of people showing up at the person's home and workplace ready for sex.  The victim files police reports and eventually obtains a restraining order against the company that created the dating app.  The victim sues the company alleging, among other things, products liability.  The trial court dismisses the action based on section 230 of the Telecommunications Decency Act of 1996, protecting those providing interactive computer services from the statements of third parties.  Today the Second Circuit hears an appeal of that case, Herrick v. Grindr.  In the meantime, Dave Ingram of NBC has an interesting piece on the issue of whether apps qualify as products for purposes of products liability.

Parkland Shooting Cases

Marjory Douglas Stoneman High School has at least 103 claims pending against it related to a February 14, 2018 mass shooting.  Judges made rulings recently in two of them.  The father of one of the 17 people killed that day filed suit in state court against a number of defendants, including the law enforcement officer assigned to protect the high school.  The officer stayed outside the building instead of going inside when the shooting began.  The officer's attorneys filed a motion to dismiss, arguing that tort law does not impose “a duty of care to prevent a person from harming another.”  Broward County Circuit Judge Patti Englander Henning denied the motion, holding the officer had a duty to the school community as someone whose job was security.  The officer had an ‘obligation to act reasonably’ under the circumstances of the shooting.  The judge also denied the officer was entitled to sovereign immunity.  

In a federal civil rights suit filed by 15 students present during the shooting who allege psychological injuries, U.S. District Judge Beth Bloom ruled to dismiss all of the constitutional rights violations claimed by the plaintiffs.  The plaintiffs' claims hinged on the Due Process Clause, which protects people from actions taken by the state.  The judge stated that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” 

OPB has the story.

PA: Supreme Court Holds There Is a Legal Duty to Protect Employee's Sensitive Personal Information

Late last month, the the Supreme Court of Pennsylvania held that an employer has a legal duty to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.  The case is Dittman v. UPMC.  Data Protection Report has details.

OH: Method of Drug Testing Can Be an Invasion of Privacy

An Ohio appellate court has ruled that direct observation of an employee's genitals during a mandatory drug screening can state a valid cause of action pursuant to the common law tort of invasion of privacy.  Ohio and other jurisdictions have ruled drug screening itself is not an invasion of privacy, but left open the issue regarding the testing method.  The case is Lunsford v. Sterilite of Ohio, LLC,  108 N.E.3d 1235 (Ohio Ct. App. 2018).

IN: Misuse Is a Complete Bar to Recovery in Products Cases

Last month, the Supreme Court of Indiana held that Indiana's statutory defense of misuse is an absolute bar to recovery and not a mere factor in a comparative fault analysis.  In dicta, earlier cases had leaned in the other direction.  The court issued a caveat:

This is not to say that any allegation on the part of a seller that a plaintiff misused the product will suffice. The misuse defense is qualified by the plain language in the statute. That is, in order to successfully employ misuse as a defense, the seller must show both that the misuse of the product is: 1) the cause of the harm; and 2) not reasonably expected by the seller. If a plaintiff misuses a product but it is not the cause of the harm and/or the misuse can reasonably be expected by the seller, then the misuse would not serve as a complete defense and comparative fault principles would apply.

The case is Campbell Hausfeld/Scott Fetzer Co. v. Johnson, , 109 N.E.3d 953 (Ind. 2018).

IL: Father of Man Killed in Indonesian Plane Crash Sues Boeing

An Indonesian resident has filed suit on behalf of his son, who died last month when a newly delivered Boeing 737 Max 8 crashed off the coast of Indonesia.  The complaint was filed in Illinois' Cook County Circuit Court and alleges strict product liability, negligence, and failure to warn.  Plaintiff specifically alleges the new Boeing flight control system contributed to the plane's crash, and further alleges the defendant's plane lacked proper and adequate instructions and warnings regarding the design and functions of the auto-dive system.  The Cook County Record has details.

WA: Dep't of Corrections Not Grossly Negligent In Case of Felon Killing Girlfriend

Last week, the Washington Supreme Court ruled unanimously that the Department of Corrections did not act grossly negligent in the supervision of a felon who killed his girlfriend.  The felon was a serial domestic abuser who killed his girlfriend 15 days after his release from prison (for punching the girlfriend) in October 2012.  The gross negligence standard, applicable to a governmental unit, was not met:

A Corrections Department victim liaison spoke with Patricelli four times before Miller’s release to ensure she had a safety plan in place, and Patricelli assured the liaison she was moving to a new residence, had no interest in seeing Miller and would call the police if she did, the opinion says.

“It turns out that Miller, his mother, and Patricelli herself lied to DOC about Miller’s living arrangements while on probation, the opinion states. “In fact, Patricelli had seen Miller, even though she said she had not. And Miller was not staying with his mother, despite his mother saying, in a signed document, that he was.

“Miller was actually living with Patricelli. But the only people who knew that fact were Patricelli, her daughters, their roommate, and Miller. And all of them were actively hiding the relationship from DOC and others.”

The News Tribune has the story.

OH: Football Widow's CTE Case Allowed to Proceed

At Legally Speaking Ohio, Marianna Bettman has an extensive analysis.  She summarizes:

On October 31, 2018, the Supreme Court of Ohio handed down a merit decision in Schmitz v. Natl. Collegiate Athletic Assn., Slip Opinion No. 2018-Ohio-4391. In a decision written by Justice French, joined in full by Chief Justice O’Connor and Justices DeWine and DeGenaro, the court allowed a lawsuit to proceed which was filed by the widow of a football player who sustained repetitive blows to the head during his college playing days in the 1970’s, but who was not diagnosed with chronic traumatic encephalopathy (“CTE”) until December of 2012. The court ruled that the 12(B)(6) motions to dismiss the claims as time-barred should have been denied. Justice Fischer concurred in judgment only. Justice Kennedy, joined by Justice O’Donnell, concurred in part, and concurred in judgment only in part, with an opinion. The case was argued April 11, 2018.

Essentially, the court held the discovery rule applied to the claims and the court could not rule as a matter of law that the plaintiff's negligence claims were time-barred based on the discovery rule.  Of course, the discovery process may unearth facts that establish the claims as time-barred, but the plaintiff has the chance to move forward.

FL: Patient Goes in for Back Surgery; Kidney Removed

Having just covered the "wrong ear" case for informed consent, this ripped-from-the-headlines case would do nicely to illustrate the distinction between medical negligence and informed consent.  Both are potentially here in this fact pattern.  The patient went into surgery to fuse together a couple of vertebrae.  The surgeon allegedly noticed a mass in the patient's pelvis.  Believing it to be cancerous, the surgeon cut it out.  It was the patient's kidney.  The Washington Post has the story.

Class Action Against Electric Scooter Companies

The use of electric scooters has increased substantially, particularly in urban areas.  Injuries caused by the scooters have increased as well.  Nine people claiming injuries to hands, fingers, knees, and faces filed a class action in Los Angeles Superior Court against four companies:  Bird, Line, Xiaomi, and Segway.  Allegations include gross negligence, manufacturing or design defects, and failure to warn.  Denver's ABC 7 has details.

Duck Boat Owners Invoke the Protection of Admiralty Law

In July, a duck boat operating in a Branson, Missouri lake capsized in a storm; 17 people drowned.  The families of the deceased victims are seeking damages of $100 million from the two companies operating the boat.  Those companies, however, have invoked 167-year-old admiralty law that limits a ship owner's liability to the value of a salvaged vessel and its freight (defendants claim there is no salvage value and no more than $8,000 in parts).  Admiralty experts opine the move is unlikely to succeed, but note the companies are also reaching out to the plaintiffs and trying to leverage lower settlement amounts.  Bloomberg Law has the story.

NJ Supreme Court Dismisses Hundreds of Claims Against Manufacturer of Accutane

From the Boston Globe's "Talking Points" earlier this month:

New Jersey’s Supreme Court has dismissed more than 500 lawsuits against the maker of an acne drug that caused some patients to develop a gastrointestinal disease. The court ruled Wednesday that Hoffmann-LaRoche’s warning labels for its Accutane treatment were adequate. Plaintiffs have contended the warnings should have said Accutane ‘‘causes,’’ rather than ‘‘is associated with,’’ inflammatory bowel disease. A trial court had dismissed the suits in 2015, but an appeals court had reinstated most of them. The Supreme Court also ruled the 532 product-liability claims from patients in multiple states were properly consolidated in New Jersey, where Hoffmann-LaRoche has its principal place of business.
— ASSOCIATED PRESS

NC: Case Alleging Doctor Drugged, Videotaped Sexual Assault of Wife Proceeds

The wife of a North Carolina doctor has sued her husband, three of his colleagues, and a former secretary in his office.  She alleges her husband placed video equipment in their home, obtained prescriptions from his colleagues allowing him to knock her out, and made videotapes of himself sexually assaulting her:

Wanda Leinweber filed the lawsuit claiming that her husband, Clinton Leinweber, used controlled substances that had been prescribed for her by three other oncologists to drug and sexually assault her. She claims Drs. Hyder H. Arastu, Andrew Wenhua Ju and Eleanor Elizabeth Harris wrote the prescriptions in her name or allowed their signatures to be used to write the prescriptions, even though she was not their patient.

The fifth defendant, Sharon L. Grice, is listed as a former secretary in the oncology department. The lawsuit claims that Clinton Leinweber wrote multiple prescriptions for hydrocodone-chlorpheniramine to Grice, who then filled those prescriptions and gave the drugs back to the doctor, who used them to render his wife unconscious.

Hydrocodone-chlorpheniramine is a narcotic cough suppressant.

This week, a Pitt County Superior Court judge denied a motion to dismiss filed on behalf of the three colleagues and former secretary.  Those defendants argued they had no duty to the plaintiff because they could not foresee harm to her.  Reflector.com has the story.

Bell on Thacker v. TVA

Bernard Bell has posted companion pieces to the Yale Journal on Regulation's "Notice & Comment."  His introduction captures the theme:

On September 28, the Supreme Court granted certiorari in Thacker v. Tennessee Valley Authority (“Thacker v. TVA”).  Order, Dkt. 17-1201, 2018 WL 4650382.  (The docket sheet is available here.)  The case raises the question of whether an implied discretionary function exception, akin to that in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2680(a), bars a negligence claim against the TVA.  Many readers of this blog probably spend little mental energy on the FTCA, or the interaction between tort liability and Administrative Procedure Act (“APA”) judicial review.  (And you probably expend even less contemplating the TVA or any other government corporation.)  This series of two posts previews Thacker and discusses the complementary relationship between ex post tort liability and ex ante judicial review.

Part I is here, and part II is here.