TortsProf Blog

IL: Suit Claims Jimmy John's "Freaky Fast" Delivery Slogan Led to Accident

A mother and daughter injured in an auto accident claim that Jimmy John's "freaky fast" delivery slogan is responsible.  The Madison-St. Clair Record has details.

CA: Family Injured in Amusement Park Incident

On Saturday, at Castle Park in Riverside, a family of three was injured--the mother critically--on a log flume ride.  According to reports, the ride malfunctioned and the family's log flipped, throwing the family into the water:

"What it appeared is that there was no water flowing on the ride. There was a pump that had malfunctioned on the ride that caused that one car to come down the descent rapidly," Fire Captain Brian Guzzetta told KTLA-TV.

Castle Park stated that each of their rides is tested every day.  USA Today has the story.

Florida Becomes a Daubert Jurisdiction

The Florida Supreme Court has adopted the Daubert standard pursuant to its rulemaking authority, reversing a recent reaffirmation of the Frye standard.  

The decision is here:  Download 2019-107_disposition_146334_d29

Thanks to Mark Behrens for the tip.

USSC Clarifies "Clear Evidence" for Preemption

Yesterday, in Merck Sharpe & Dohme v. Albrecht, the Court held that judges, not juries, should decide whether FDA actions preempt state tort suit alleging failure to warn.  The opinion explained that Wyeth v. Levine's "clear evidence" standard contemplates an irreconcilable conflict between federal and state law, rather than a heightened standard of evidentiary proof:

This point of procedural clarity has enormous strategic value for products-liability defendants because it confirms that courts may conclusively rule on the pre-emption defense as early as a pre-answer motion, though the factual complexity of FDA communications likely will push the issue in many drug-pre-emption cases to summary judgment. 

Elizabeth McCuskey at SCOTUSblog has details.

USSC Refuses to Reconsider Feres Doctrine

Yesterday the Court refused to hear a case reconsidering the Feres Doctrine.  Justices Ginsburg and Thomas dissented from that decision.  ABA Journal has the story.

IN: Insurer Posts List of STD Tests in Online Portal; Privacy and IIED Claims Dismissed

While attempting to reconcile with her husband, wife is tested for STDs.  The insurer posts the list of diseases for which wife was tested in an online portal that is accessed by her husband as the primary policyholder.  Husband ceases reconciliation efforts and proceeds with a divorce.  Wife sues insurer for disclosure of private facts, intrusion upon seclusion, and IIED (also called outrage in Indiana).  A divided Indiana Court of Appeals dismissed the disclosure claim because Indiana does not recognize disclosure claims, and dismissed the intrusion claim because Indiana does not recognize intrusion claims that only invade a person's emotional solace.  Regarding outrage, the court dismissed it, as well, because posting the list of tested diseases in the online portal was not extreme and outrageous:

“This is not conduct which is utterly intolerable in a civilized community but, rather, routine in today’s technologically-driven society,” Judge Cale Bradford wrote for the divided panel, with Judge Elaine Brown concurring. “Health insurance companies maintain web portals to allow policyholders instant access to their personal medical information, insurance claims, etc., and the current matter is no exception.”

The Indiana Lawyer has the story.

Feldman on the Sandy Hook Ruling

Heidi Li Feldman has posted to SSRN Why the Latest Ruling in the Sandy Hook Shooting Litigation Matters.  The abstract provides:

On March 19, 2019 the Connecticut Supreme Court officially released its opinion in Soto v. Bushmaster Firearms International, LLC. Because the decision greenlights civil discovery and trial for the Sandy Hook plaintiffs seeking compensation from the maker, distributor, and retailer of the gun used by the shooter, the ruling received much attention in the popular press. It is, however, very easy to get the wrong impression about the significance of the Connecticut Supreme Court’s decision and the avenues it creates for both the plaintiffs and the defendants in the litigation. The decision is both more and less significant than it seems at first glance. It opens a serious pathway to liability under the PLCAA and creates a strategic dilemma for the defendant as to whether to appeal or go to trial. Yet the PLCAA remains a bar to most types of civil action to which other product makers and sellers are subject. In the absence of comprehensive congressional regulation, it will remain difficult to require or motivate gun makers to enhance the safety of firearms design and distribution.

NJ: Jewish Man Files Tort Claim Notice Over Alleged Religious Harassment in Jail

A 29-year-old Jewish man has filed a tort claim notice against Ocean County, New Jersey regarding alleged harassment he suffered while incarcerated.  According to the notice, the man was placed in a cell with two large swastikas and a large target mark with the words "pop him" and his last name.  Moreover:

One officer allegedly made the comment, "You Jews own everything. You buy off Lakewood and Toms River and Jackson. Out there you may make the rules but in here we make the rules," according to the tort claim.

The claim alleges that corrections officers elicited other inmates to join in the mistreatment. The claim alleges that inmates threatened [the claimant's] life several times, with one inmate allegedly threatening to "knife him."

app has the story.

ALI Podcast: "Consent and Sexual Assault in Criminal v. Tort Law"

...with Erin Murphy and Ken Simons is here.  The blurb:

From start to finish, criminal and tort cases differ in many ways, including how a case is initiated, in which court it is heard and decided, standards of proof, and the consequence if the defendant is found liable (punishment if defendant is convicted of a crime; payment of money damages if defendant is liable for a tort). Some cases [or fact patterns] qualify as both crimes and torts. These differences are especially evident in sexual assault claims where a single legal term, such as “consent,” may be defined quite differently, depending on the type of legal claim asserted.

In this episode, NYU Law’s Erin Murphy and UC Irvine Law’s Ken Simons explore the difference between criminal law and tort law in the United States and then focus on how “consent” is, and should be, defined in sexual assault allegations.

MI: College Not Liable for Murder Committed by Student Studying Abroad

Johnathan Hindenach was a student at Olivet College in Michigan in 2008; he took a class that included a trip to Florence, Italy.  While in Italy, Hindenach killed someone.  An Italian court found him criminally responsible and placed him in a psychiatric hospital.  Hindenach's family sued Olivet College, alleging it failed to properly monitor Hindenach's mental health before the murder.  An appellate court in Michigan sided with Olivet College, stating the school was aware Hindenach suffered from depression and took medication, but it was not foreseeable he would murder someone and be hospitalized for his actions.  WRAL.com has details.

Two Studies Find Misdiagnosis Leading Complaint in Med Mal Claims

Two recent studies concluded the most common problem for which plaintiff file med mal claims involves diagnosis:

Coverys, a malpractice carrier based in Boston, reported that a review of 1,800 closed claims against physicians from 2013 to 2017 showed 46% were related to the diagnosis. Those claims accounted for 68% of paid indemnity costs, according to the report. In 45% of the diagnosis-related cases, the patient died, Covery said.

A separate report released by The Doctors Company, also a malpractice insurer, found that 38% of malpractice claims against physicians involving the treatment of children involved a misdiagnosis. The carrier reviewed 1,215 claims closed from 2008 to 2017.

Missed, failed or wrong diagnoses are largely the result of inadequate medical assessments, according to The Doctors Company study.

Claims Journal has the story.

USSC Decides Air & Liquid Systems Corp. v. DeVries

Yesterday the Supreme Court handed down its decision in Air & Liquid Systems Corp. v. DeVries.  From the syllabus:

Petitioners produced equipment for three Navy ships. The equipment required asbestos insulation or asbestos parts to function as intended, but the manufacturers did not always incorporate the asbestos into their products. Instead, the manufacturers delivered much of the equipment to the Navy without asbestos, and the Navy later added the asbestos to the equipment. Two Navy veterans, Kenneth McAfee and John DeVries, were exposed to asbestos on the ships and developed cancer. They and their wives sued the manufacturers, alleging that the asbestos exposure caused the cancer and contending that the manufacturers were negligent in failing to warn about the dangers of asbestos in the integrated products. Raising the “bare-metal defense,” the manufacturers argued that they should not be liable for harms caused by later-added third-party parts. The District Court granted summary judgment to the manufacturers, but the Third Circuit, adopting a foreseeability approach, vacated and remanded.

Held: In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

CT: Supreme Court Allows Sandy Hook Families Trial Against Remington

Last Thursday, the Connecticut Supreme Court, in a 4-3 ruling, allowed plaintiff families from the 2012 Sandy Hook Elementary shootings to proceed to trial against Remington, the manufacturer of the Bushmaster AR-15 rifle used in the attack.  The cause of action was based on the Connecticut Unfair Trade Practices Act (CUPTA) for "personal injuries that result directly from wrongful advertising practices.”  Significantly, the court held the suit was not barred by the Protection of Lawful Commerce in Arms Act (PLCAA) of 2005, which, with limited exceptions, immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons.  The court held the plaintiffs' CUPTA claim fell within a:

“predicate exception  [that] permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or market of the [firearm], and the violation was a proximate cause of the harm for which relief is sought …’ 15 U.S.C. § 7903 (5) (A) (iii) (2012) … [I]f the defendants did indeed seek to expand the market for their assault weapons through advertising campaigns that encouraged consumers to use the weapons not for legal purposes such as self-defense, hunting, collecting, or target practice, but to launch offensive assault against their perceived enemies, then we are aware of nothing in the text or legislative history of PLCAA to indicate that Congress intended to shield the defendants from liability for the tragedy that resulted."

The court's opinion:

puts the victims’ families in a position where they may be able to try to prove a connection between Remington’s marketing for its Bushmaster AR-15 rifle and the horrific act of violence by a disturbed 20-year-old. The state Supreme Court said they can try; making the connection, lawyers and experts say, is a steep challenge.

“It is a Herculean task,” said Victor E. Schwartz, co-chairman of the public policy practice in the Washington, D.C. office of the law firm Shook, Hardy & Bacon — quoting from the Supreme Court’s majority opinion.

The Litchfield County Times has the story.  Alberto Bernabe has coverage here.  Thanks to Don Gifford for language from the opinion.

Insurance for the Marijuana Business

Marijuana laws are undergoing a rapid transformation.  Although still criminal at the federal level, 33 states and D.C. have authorized medical marijuana and 10 states and D.C. have authorized it for recreational use.  The business incentives are certainly there.  Expected revenue from marijuana businesses in 2019 is projected at $13.7B, and will grow to $22.1B in 2022.  One problem involves insurance.  Commercial general liability, property liability, and products liability policies often provide only $1M per occurrence and $2M in the aggregate.  According to a report released yesterday by A.M. Best, that may be insufficient for marijuana businesses.  Moreover, because this is an emerging market, insurers are inclined to stick with the limits.  Business Insurance has details.

CO: 7-Year-Old Injured in After-School Science Experiment; Parents Sue

The parents of a 7-year-old Colorado Springs elementary student are suing for injuries she sustained in an after-school science experiment.  The plaintiff's attorney expects the school district and parent-teacher organization to be relieved of financial obligations early in the procedure; he believes an organization that provides hands-on, after-school science, technology, engineering and math programs on school grounds will bear responsibility:

The complaint alleges that on Feb. 28, 2017, the couple’s then 7-year-old daughter suffered first- and second-degree burns from “scalding hot liquid from a glass container that was dangerously placed on a counter on an unsupervised hot plate and knocked off.”

The girl was burned on her face, left ear, left arm, left shoulder, both legs and right foot, according to court documents. The injuries required surgical removal of the damaged tissue and skin grafts, leaving her with scars, the lawsuit states.

The Gazette has the story. 

CA: $2M Verdict for Molested Student in Negligence Suit Against School District

On Thursday, a jury in Los Angeles reached a $2M verdict against a school district for failing to properly supervise a teacher who had a sexual relationship with a student in 2013, when she was 15 years old.  The overall award was $5M, but the jury split responsibility 60% for the teacher, who was not a party to the suit, and 40% for the school district.  The teacher had been arrested in 2004 for an alleged act against a minor at another high school.  NBC4 has the story.

MO: Joinder and J&J

     Earlier this month, I reported that tort reform bills had been filed again in Missouri to alter liberal joinder rules in that state.  In the meantime, the Missouri Supreme Court ruled that allowing a non-resident to participate in joined cases was a violation of state law prohibiting the use of joinder to allow courts to hear cases they otherwise would not be able to.  The ruling may eliminate or reduce the pressure to pass legislation.  One company that may be particularly affected is J&J, a New Jersey-based company defending cases that talc included in its baby powder causes cancer.  In a December report, Reuters stated that J&J knew that talc in its baby powder tested positive for asbestos from the 1970s to the early 2000s.  J&J is facing about 13,000 cases over the issue, most of which have been consolidated in federal court in New Jersey.  The Missouri Supreme Court's ruling is potentially good news for J&J:

The St. Louis court has been a venue for more talc trials and has seen larger verdicts than any other jurisdiction. Outside of St. Louis, the only other significant talc verdicts against J&J to date have come in lawsuits filed by individual plaintiffs in New Jersey and California, where the company is currently facing jury verdicts totalling $142 million.

Tina Bellon at the Insurance Journal has the story.

CO: Planned Parenthood Mass Shooting Premises Liability Case Will Go to Jury

In 2015, Robert Dear--armed with multiple semiautomatic rifles, a shotgun, and explosives--shot several people in the parking lot of an abortion clinic and then shot through the clinic's windows, wounding several more.  A gun battle with police ensued in which one officer was killed and five were injured.  In all, 3 people were killed and 9 wounded.  Planned Parenthood of the Rocky Mountains (PPRM) was sued for negligence; the trial court granted summary judgment to PPRM.  Last week, the Colorado Court of Appeals reversed the trial court.  The appeals court found the plaintiffs raised genuine issues of material fact that PPRM knew of reasonable security measures that could have prevented the damages, and that PPRM was aware of threats against its premises.  The case will go to a jury.  The case is Wagner v. Planned Parenthood , Colo. Ct. App., No. 17CA2304.  Thanks to Susan Raeker-Jordan for the tip.

PA: Med Mal Venue Decision Delayed

Two weeks ago, I reported that the Pennsylvania Supreme Court was considering an alteration of venue rules for medical malpractice cases.  In the early 2000's, the court restricted venue to the place of the wrong to prevent plaintiffs from venue-shopping.  The court is considering a removal of this restriction, which is not in place for other types of cases.  The court has now agreed to delay action until the issue can be studied by the Legislative Budget and Finance Committee; the report is due by January 1, 2020.  Pennlive has details.

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.