TortsProf Blog

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.

Pittsburgh Steelers WR Antonio Brown Sued for Assault, IIED

Antonio Brown allegedly flew into a violent rage back in April, throwing furniture off a 14th story balcony:

The Pittsburgh Steelers star WR has been sued by Ophir Sternberg -- who claims his 22-month-old son was walking around the pool at a high-end apartment complex with his grandfather when suddenly "large objects started to fall from the building many floors above them."

Sternberg claims the items included 2 very large vases, a heavy ottoman and other pieces of furniture -- which landed within a mere foot or 2 from the toddler and his grandfather. 

Suit was filed for both assault and IIED.  TMZ Sports has the story.  Thanks to Shannon Costa for the tip.

3d Cir: Court, En Banc, Will Reconsider Shielding TSA Screeners from Liability

Back in July, I posted that the 3rd Circuit held TSA screeners were not law enforcement officers for purposes of the Federal Tort Claims Act.  As a result, claims related to their conduct were barred by sovereign immunity.  Now the court has decided to review the 2-1 decision en banc on February 20, 2019.  U.S. News has the story.

AR: Poll Finds Roughly 2-1 Margin Against Tort Reform

KATV in Little Rock is reporting about a Talk Business & Politics-Hendrix College poll on the issue of whether the state constitution should be amended to cap attorney fees, limit damages in personal injury, property damage, or wrongful death lawsuits, and give the legislature the authority to control the rules of court procedure.  The results?  25% of voters are in favor and 47% are opposed.  More details are available here.  It would be interesting to know if the advocacy of a Christian group against tort reform has had an effect.

Verchick Podcasts on Climate Change Tort Litigation

Rob Verchick has edited two podcasts on climate change tort litigation for the Center for Progressive Reform.  He describes them as follows:

 

The episodes, which are part of CPR’s “Connect the Dots” with Rob Verchick, examine climate change tort lawsuits brought by municipalities against oil and gas companies for damages related to climate change impacts. 

 

Episodes 5 and 6 feature an interview with Kate Sears, a member of the Board of Supervisors for Marin County, California, which is part of the high-profile case against Chevron et al. over costs of preparing for climate change. (Sears is also a lawyer.) We discuss climate impacts in Marin, costs of climate adaptation, the oil industry’s early knowledge about climate impacts, federal and state common law theories, preemption, displacement, and removal to federal court—all while trying to keep the discussion engaging and accessible to a lay audience.

 

Episode 6, in addition to the interview with Sears, also features an interview with our friend Tom McGarity of U. of Texas about the evolution of tort law in climate litigation and the relationship between this and the tobacco litigation. Tom also weighs in on what a future "Justice Kavanaugh” might think about all this. 

 

Episode 5 is here.

Episode 6 is here.

NC: $8.8M Verdict for Alienation of Affections & Criminal Conversation

The heartbalm torts--torts used to soothe a spouse's heart if cheated upon--have been abrogated in most jurisdictions.  Six jurisdictions, however, retain some version of alienation of affections, criminal conversation, or both:  Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah.  In these states, a cheated-upon spouse can sue the interloper in the marriage, not the other spouse.  North Carolina makes the most use of these torts, and this week a man was hit with an $8.8M verdict for conducting a 16-month affair with another man's wife.  Most of the verdict was in punitive damages, but $2.2M was in compensatory damages.  When the plaintiff learned of his wife's infidelity, his business lost revenue and a valued employee (his wife).  CNN has the story.

OH: State Fair Ride Disaster, One Year Later

On July 26, 2017, a ride at the Ohio State Fair catastrophically failed, killing one, seriously injuring four, and injuring 22 others.  The "Fire Ball," which has six "arms" that spin riders around, had one arm crack off due to rust.  It was later discovered that all six arms had significant corrosion.  Ohio Department of Agriculture inspectors had reviewed the ride a few hours prior to the incident.  State inspectors, however, have a form of qualified immunity that protects them from liability for negligence.  The ride manufacturer is protected by a statute of repose.  Several settlements have been reached, including an approximate $1.3M settlement on behalf of the 18-year-old man who was killed.  Those settlements are with the ride operator, which has an aggregate $10M insurance policy in place, and a private company that inspected the ride.  The Columbus Dispatch wrote a great update piece yesterday (you may need to sign in to obtain access).

PA: Federal Judge Blocks PA from Taking Approximately $300M from Med Mal JUA

Judge Christopher Conner has issued a preliminary injunction stopping the Commonwealth of Pennsylvania from absorbing the JUA (and its money) into its Insurance Department.  In May, Judge Conner ruled Pennsylvania could not take $200M from the JUA in an attempt to balance its budget because the money was private property and such a seizure violated the Takings Clause of the United States Constitution.  The current ruling indicates those principles apply equally to an absorption.  The May ruling is on appeal to the Third Circuit.  PennLive has the story.  Thanks to Dan Noon for the tip.

3d Cir: TSA Screeners Not Law Enforcement Under FTCA; Claim Barred by Sovereign Immunity

In a case of first impression at the circuit level, the Third Circuit ruled that TSA screeners are not law enforcement officers under the Federal Tort Claims Act; claims related to their conduct are barred by sovereign immunity:

In a statement, U.S. Attorney William M. McSwain said he is pleased with the decision.

“Through the Federal Tort Claims Act, Congress sought carefully to balance the federal government’s sovereign immunity and duty to protect taxpayer dollars against the need to provide a remedy for plaintiffs in certain cases,” McSwain said. “The court rightly concluded that Congress did not provide for suits against the government for the acts of federal employees, including Transportation Security Administration Officers, who are not empowered by law with traditional law enforcement responsibilities.”

Lizzy McLellan of The Legal Intelligencer has the story.

PA: Families of Girls Killed in Fire Sue Manufacturer of Hoverboard

Last March,  a tragic fire here in Harrisburg killed two girls (a two-year-old and a ten-year-old).  The fire allegedly occurred when a LayZBoard hoverboard overheated while it was charging.  The families are now suing the manufacturer and seeking more than $500,000 in damages.  A further tragedy occurred as a fireman was responding to the call; he was killed when a driver who was high ran a stop sign.  The proximate cause implications are exam-worthy.  The Tampa Bay Times has details.