Caitlin Flanagan’s “The Dark Power of Fraternities” at The Atlantic, an exposé of the “endemic, lurid, and sometimes tragic problems” that plague fraternities and how they avoid liability, is a fascinating and essential read. It’s one of the most thorough reports in recent memory of how powerful, wealthy interests insulate themselves from accountability for the harm they cause to individuals.

Before we get to the substance, the manner of Flanagan’s reporting deserves special mention. Rarely do press reports about the civil justice system give it this type of realistic, balanced treatment. Most reports treat the civil justice system as a spectacle that sometimes involves large sums of money, like a television game show, with trial lawyers filing lawsuits at random, corporate defendants who always acted in good faith paying to avoid jackpot justice, and a jury making up an answer based on junk science and sympathy. Surely we can’t take anything from the civil justice system seriously to inform our views on important issues of the day.*

Flanagan, however, appropriately portrays the civil justice system as the way our society determines responsibility for harms. It’s often the best way – sometimes the only way – to discover systemic threats to people’s safety. Civil liability is also typically the primary incentive corporations, associations, and vested interests have to reduce the risk of harm to others.

What Flanagan found when she looked at lawsuits brought by undergraduates for injuries while at school should cause any parent and future college student to think twice about the true meaning of campus safety: 
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[Update: A month after I posted the below article, researchers at the Radiological Society of North America’s annual meeting presented a cardiac MRI study showing that consumption of energy drinks “increased peak strain and peak systolic strain rates in the heart’s left ventricle,” which could potentially trigger arrhythmias.]

Few headlines are as cringeworthy to upstanding trial lawyers as those which include a phrase like “$85 million lawsuit alleges,” and earlier this week the New York Daily News reported “Brooklyn man killed by drinking Red Bull, $85 million lawsuit alleges.”

As Eric Turkewitz aptly explains about the “$85 million dollar” Red Bull wrongful death lawsuit, this practice is prohibited in many venues — like New York, where the case was filed — and yet lawyers do it anyway, either out of ignorance about the rules or to attract attention. At least here, though, our attention is drawn to what looks like an interesting case.

First, let’s start with the medicine: is it possible Red Bull contributed to the death of 33-year-old Cory Terry during a basketball game? I think the answer is clearly “maybe.” The article says his death certificate lists the cause of death as “idiopathic dilated cardiomyopathy.” “Dilated cardiomyopathy” is generally an enlargement of the heart’s left ventricle, which affects pumping, and “idiopathic” is medical speak for “I don’t know what happened to this patient.” (“Idiopathic” is a mashup of the ancient Greek words idios and pathos, together meaning “one’s own suffering.”)

In the medical field, idiopathic dilated cardiomyopathy is a complicated, frustrating problem. Consider this 2012 research article:

Despite recent advances in the management of patients with heart failure, morbidity and mortality rates remain high. Common causes of heart failure are ischaemic heart disease, uncontrolled hypertension and valvular disease. However, in up to 50 % of the cases its exact cause remains initially unknown; this condition is called idiopathic dilated cardiomyopathy (DCM).

We thus don’t know the cause of half of all heart failures, but we do know that stimulants, particularly cardiac stimulants like caffeine, can raise heart rates and cause palpitations and arrhythmias and thus can contribute towards heart failure in patients with cardiomyopathy. As The Cardiomyopathy Association says, “General advice is that people should minimise their caffeine intake.”

In sum, while we might not know the precise nature of his underlying heart problems, it is plausible — I would say likely — that the stimulants in the Red Bull contributed to his heart failure.

But does that make Red Bull responsible for his death? 
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The NCAA is a magnet for litigation these days; if they’re not being hounded with dubious claims by Pennsylvania Governor Tom Corbett, they’re being challenged for a variety of meritorious antitrust claims, like on their rules limiting athletic scholarships and their licensing agreements for videogames. The cases raise substantial issues about the extent to which an organization can wholly dominate — and profit from — the field of college athletics free from legal accountability.

The Jack Hill, Jr., lawsuit filed last week in Pennsylvania state court, however, raises an issue of far greater importance: whether the NCAA has a duty to protect the health and well-being of student-athletes. Hill was a senior at Slippery Rock University trying to make the basketball team. For years, various medical professionals and health educators have discouraged coaches from using exercise as a form of punishment — in 2009, for example, the National Association of Sport and Physical Education released a position statement arguing that “Administering … physical activity as a form of punishment and/or behavior management is an inappropriate practice” — but Slippery Rock University’s basketball team apparently eschews modern sports medicine for medieval torture methods, and so was, according to the complaint, going through a third practice of the day, a late-night “insanity workout … intended to serve as a punishment for the entire team.”

Problem was, Hill, who was trying to make the team as a walk-on, had undiagnosed sickle-cell trait. He collapsed near the end of practice. According to the complaint, CPR was performed briefly, but stopped before emergency personnel arrived (which is wrong, you should keep doing CPR aggressively until help arrives), and an automated external defibrillator was brought but nobody knew how to use it. He was declared dead shortly after arriving at the hospital. The Pittsburgh Post-Gazette report that his autopsy showed his death was related to sickle cell trait. (I’m curious for more details on that point; I assume the cause of death was acute exertional rhabdomyolysis secondary to sickle cell trait.)

Hill’s death was, shockingly, no surprise at all. As Scientific American reported last month, “Between 2004 and 2008 there were 273 athlete deaths in the NCAA, five of which occurred among players with sickle-cell trait.” In 2007, the National Athletic Trainers’ Association noted that, apart from trauma, the four top killers of high school and college athletes were “cardiovascular conditions, hyperthermia (heatstroke), acute rhabdomyolysis tied to sickle cell trait, and asthma,” and that sickle cell trait deaths were among the easiest to prevent, because “simple precautions seem to suffice.”

It’s a killer, but many coaches, schools, and the NCAA didn’t care at all until the Lloyd lawsuit back in 2008. Per USA Today, “Dale Lloyd II was a freshman cornerback at Rice in September 2006 when he fell unconscious on the practice field after sprinting 100 yards for the 16th consecutive time. … 21% of universities had decided to test for the trait by 2006. Rice University was not among them, and the NCAA didn’t recommend it.” For all the noise made by insurance companies and other billion-dollar industries that profit from recklessness, lawsuits can and do make a difference, and the Lloyd lawsuit both substantially raised the profile of the dangers to athletes with sickle cell trait and, in the settlement, the plaintiffs demanded the NCAA do more to prevent deaths like Lloyd’s by implementing a mandate requiring players be screened for the trait or sign a waiver turning down the screening.

For the 2010 season, the NCAA agreed to do that sort of screening — but only for Division I athletes. Slippery Rock is a Division II school, and one that, as of 2011, still used the very sort of dangerous and pointless torture sessions rejected by every competent sports medicine organization.

Hence, Hill’s parents have sued both Slippery Rock, for its antiquated and reckless training methods, and the NCAA, for not requiring screening of Division II athletes as well.
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On Friday, it was reported that a Nevada woman has sued Match.com for “failing to disclose dangers of online dating.”

Mary Kay Beckman’s experience was certainly traumatic: she alleges she met Wade Ridley through the site and dated him for a mere eight days. After a couple of harassing text messages, he disappeared for four months then surprised her in her garage, stabbing her repeatedly, stomping on her, and leaving her for dead. She has since had three brain surgeries, as well as “extensive psychological counseling, dental care to repair her jaw, treatment with eye and ear specialists to preserve her sight and hearing, and continued physical therapy.” Ridley was subsequently charged with the murder of another woman. He killed himself in prison.

Beckman is certainly a sympathetic plaintiff, and her tragic case of domestic violence is another reminder of why the Violence Against Women Act should be reauthorized. Tort law, however, is not about sympathy, but rather responsibility. In this case, we return to a basic question of tort law: when do we hold a person or company responsible for the criminal actions of another?

I’ve written about this issue several times before, exploring whether Jerry Sandusky’s abuse victims can sue Penn State, whether Jaycee Dugard can sue over negligent parole supervision, whether Yale should be liable for Annie Le’s death, and whether Monsignor Lynn had a duty to report child abuse by priests. It’s certainly not a common legal issue, but it resurfaces regularly; two weeks ago, the widow of a man killed in the Aurora theater shooting sued James Holmes’ psychiatrist.

The key legal word here is “duty.” Did Match.com have any legal duties to Beckman, and, if so, what were those duties? Here’s the Match.com complaint. Putting off the other details for a moment, let’s focus on its claims about a legal duty: 
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The human body is both a marvel of engineering capable of jamming decades of memories and the programming to run a 100 trillion cell body into a brain the size of a football, and a slipshod jury rig. Ever since Hippocrates (“the father of spine surgery”) prescribed the first treatments for back problems — various combinations of baths, massages, and hanging upside down, all in all not too different from today — humanity has been dealing with chronic back pain. Even apart from classic deformities like kyphosis and scoliosis or a traumatic injury, the human back is just plain prone to problems, from sciatica to compressed discs.

When you add up all the doctors, physical therapists, spine surgeries, and epidural steroid injections, back pain in America is a $30 billion industry, and, as a part of that, over 9 million epidural steroid injections are given every year to treat back pain. It’s an old and simple treatment, dating back to 1952, although the scientific research on it (full text PDF here) remains sparse. There are some non-randomized studies showing that it works to relieve sciatica and low back pain in more than half of patients temporarily, and then there’s a fair amount of anecdotal evidence suggesting it helps in the long term. Part of this problem is likely due to the age of the product: it’s not under patent, so no one will fund the randomized trials to prove or disprove its efficacy.

Patients often opt for the injections because the alternative would be regular use of opioids (or more opioids), either taken orally or through the shockingly dangerous fentanyl patches. What’s the harm?, they ask, and their doctors reply that, of the over 9 million shots a year, only a handful of problems are reported. (They usually don’t mention that those problems can be devastating — including paraplegia, quadriplegia, and cerebral infarction — patients are, after all, receiving an injection directly into their spine.)

Over the past month, the potential harm of epidural steroid shots for back pain became shockingly disproportionate to the benefit, as more than one-hundred people across 23 states developed fungal meningitis from a contaminated steroid solution prepared by New England Compounding Center, a compounding pharmacy in Framingham, Mass. Seven have died. It’s not a disaster on the scale of Thalidomide, which left tens of thousands with birth defects, but it’s comparable to the “Elixir Sulfanilamide” incident from the 1930s, in which an improperly mixed antibacterial solution killed more 100 people.

There’s a lot that can be said about the outbreak’s causes and repercussions, and about reform for the future. USA Today questions whether the steroid shots are too dangerous for treatment of back pain even apart from the meningitis outbreak, and so should be restricted. John Day in Tennessee discusses how “tort reform” has limited the rights available to victims and has exacerbated the disparity in compensation awards for high income versus low income plaintiffs. Brett Emison in Kansas City, Missouri rounds up a number of articles questioning whether the FDA should be given more oversight over compounding pharmacies. There’s also some really interesting product liability questions in there relating to the liability of parties beyond the compounding pharmacy (and the role of strict liability without fault), but we need some more facts to flesh them out. There’s also the lingering question of collectability: it seems that New England Compounding Center has shut down entirely, and who knows what insurance coverage they had available. Medical supply companies aren’t required to carry business liability insurance.

But I want to talk about the contaminated injections in another context: the power of incentives.


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Back when news broke of James Holmes’ shooting at a midnight screening of The Dark Knight Rises in Aurora, Colorado on July, I briefly considered writing about it.  As hard as it is to write about a tragedy on a personal level, I genuinely find the law interesting; unpacking the liability after an air show disaster or a sexual predator run amuck at a university is, to me, both challenging and rewarding.  I was quite busy last week, though, and frankly my heart was not in it, because the news quickly got the civil liability story correct, leaving not much to say. Bloomberg news summed it up not long after the shooting:

Law professors and practicing lawyers said liability questions would stem from any doubt about the safety and security procedures at the theater where the shooting left 12 people dead and 58 injured, or the university where the suspect, James Holmes, allegedly received packages of ammunition. Those inquiries are unlikely to lead to successful lawsuits because such cases require proving that a company or organization acted unreasonably, and knew, or should have known, about the danger posed, said Tom Russell, a University of Denver law professor and a practicing attorney.

The big obvious issue would be inadequate security claims against the movie theatre, which look like they could be a tough sell. No Court is going to make a movie theater strictly liable for every injury that occurs on their premises; the plaintiff will need to show some unreasonable conduct by the movie theater, like employees failing to call the police, or the movie theater locking patrons inside. As far as I’ve seen, the core allegation is that they left an emergency exit unlocked without an alarm — but I question if that’s  truly negligent.

Just to round out the other potential defendants, victims can sue Holmes, but it is pointless to do so: he has no assets and will be in jail for the rest of his life. Victims cannot sue the police or other first responders for anything they did, because they (rightfully) enjoy sovereign immunity for good faith rescue efforts.

Victims cannot sue gun manufacturers because gun manufacturers effectively own the political party that controlled Congress and the Presidency in 2005, which passed and signed the “The Protection of Lawful Commerce in Arms Act” (sponsored by Senator Larry “Wide Stance” Craig), a law that (wrongly) prohibited any lawsuit against the manufacturers or sellers for any injury arising from “criminal or unlawful misuse of a firearm.”

Victims also cannot sue Warner Brothers or Christopher Nolan or the like for the same reason the Columbine lawsuits against video game manufacturers were dismissed: free speech, the lack of any legal duty running from entertainers to shooting victims, and the criminal conduct being a superseding cause. Sanders v. Acclaim Entertainment, Inc., 188 F. Supp. 2d 1264 (D. Colorado 2002). 
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Do you think it’s fair to ask riding lawnmower manufacturers to pay for the medical care of children injured in riding lawnmower accidents? How about asking meat blender suppliers to compensate people injured by commercial blenders? Neither of these events happen all that often, and the cost would be passed on to consumers, making the question: would you mind paying a little bit more for your lawnmower to set up a fund for children who lost part of their leg, sometimes much more, after being run over by riding lawnmower? How about a little bit more for your hamburger in case the person blending the meat loses their hand when the blades unexpectedly keep spinning?

Sometimes, a court just plain gets it right, and Justice Nix of the Pennsylvania Supreme Court got it right 34 years ago in adopting strict liability in the Commonwealth of Pennsylvania:

The realities of our economic society as it exists today forces the conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business. In an era of giant corporate structures, utilizing the national media to sell their wares, the original concern for an emerging manufacturing industry has given way to the view that it is now the consumer who must be protected.

Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978). That’s the argument eminent torts professor William Prosser had been making for “strict liability” for decades. See, e.g. Prosser’s Strict Liability to the Consumer, 18 Hastings L.J. 9 (1966). The concept of strict liability was quite simple: whereas an injured person could always sue a manufacturer for negligence and then prevail by proving the manufacturer acted unreasonably by failing to guard against foreseeable harms, strict liability eschewed any question of the manufacturer’s conduct and instead focused on the product itself, making manufacturers liable for injuries caused by products that were so unsafe as to be “defective.”

The whole point of strict liability was, as explained by Azzarello, to make suppliers of surprisingly unsafe goods (i.e., goods that turned out to be more dangerous than consumers expected they would be) the insurer for accidents caused by the product. It’s a recognition that, in this day and age, consumer goods can contain a variety of risks that are more easily borne by the manufacturer, which made the decision to market the product, has better access to insurance, and can distribute the costs of these unexpected injuries on other consumers. In practice, strict liability is usually only successful where the product totally failed, resulting in catastrophic injuries. Consider some of the early strict liability cases, the ones characterized more as warranty cases than as the tort of strict liability:


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No lawyer walks in the office in the morning and thinks, today I’m going to cross the line, but it happens. Consider these three recent examples discussed by John Day, Eric Turkewitz, and James Beck.

(1) John Day, a plaintiff’s lawyer in Tennessee, has some insight into the recent $900,000 herpes infection verdict in Oregon:

The defense lawyer said the following in the presence of the jury: “Grow up. Come on. You’re an adult. He’s an adult. They had sex. … The point is she is not some little innocent victim. … Go for a million — that’s plaintiff’s message. … . God bless America. Go for it. Got some coffee to spill on me?”

As John recounts, this case lines up perfectly with an article he read twenty years ago on “How To Get A Million Dollar Verdict,” wherein a trial judge identified three factors that led to million dollar verdicts: a weak liability case, a case with significant but not catastrophic damages, and a defense lawyer who is a jerk.

Read John’s post for more; I think his analysis is spot-on. The defendant was obviously culpable and had plainly not told the plaintiff about his herpes — trying to trivialize her injury by calling her a greedy slut was, shall we say, ill-advised.

(2) Eric Turkewitz, a plaintiff’s lawyer in New York, catches a fellow plaintiff’s lawyer filing what looks like a meritorious dog bite case and then saddling it with a preposterous demand:

I was pissed when I saw the article in the paper: A doctor walked her dog in a school playground where it wasn’t supposed to be and attacked a child, biting off part of his earlobe. The kid (through his parents) sued the doc. For $30,000,000. …

When I go in to pick juries, I am constantly faced with the deep cynicism that is fed by insurance companies and newspapers that thrive on outlier suits for spurious claims or that claim enormous damages. To the jurors, fed by such media attention, every lawsuit represents greed and lottery-like jackpots, while to the litigants, the suit is simply at attempt to measure what is fair and reasonable under the circumstances and receive just compensation.

Rosemarie Arnold, in bleating a $30M claim to the press, just made my job more difficult, as well as the jobs of all the other personal injury attorneys in the state. And she has added one more straw to the camel’s back in damaging the rights of litigants trying to pursue justice in the courts.

As Eric notes, in New York complaints aren’t supposed to even mention particular sums of money, but the problem of alleging the number is dwarfed by the problem of the number itself: $30 million for a dog bite resulting in injury to part of an earlobe?

Losing part of your earlobe as a six year old in a dog attack is pretty terrible, but, for those of you who aren’t trial lawyers, let me give you a little bit of insight into how personal injury law works: whatever you may have heard about juries handing out tens of millions of dollars on a whim, the truth is, if you are burned to death or electrocuted — two of the most painful and horrible ways to die, something you’d never wish on your worst enemy — and your estate’s lawyer can develop an overwhelming case against a highly profitable or well-insured corporation, then your family will probably recover somewhere between $5 million and $15 million. That’s a good result. Typically, though, even in the most tragic of circumstances, like a preventable brain injury at birth, the end result is between $2 million and $5 million, like with this $56 million malpractice jury verdict that turned into, at most, a $4.5 million recovery.  
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Last week the Pennsylvania Supreme Court decided Betz v. Pneumo Abex et al. (opinion here), a ‘friction products’ — i.e., brake pads — asbestos exposure case, ruling against the plaintiff. I had previously discussed the case briefly here. Drug and Device Law has already covered the opinion, as has Nathan A. Schachtman, and I (naturally) disagree with much of what they conclude.

A month ago I wrote about the difference between scientific evidence and the scientific method, and the Betz case is a great example of many of the issues — some legal, some political — that arise when science is brought into a civil case. Here are the facts:

In February 2005, Charles Simikian commenced a product liability action against Allied Signal, Inc., Ford Motor Company (“collectively Appellants”), and others, asserting causes of action grounded on multiple theories including strict liability. Mr. Simikian alleged that, throughout a forty-four year career as an automotive mechanic, his exposure to asbestos-containing friction products, such as brake linings, caused his mesothelioma.

Stepping out of the legal world and into the medical world: after a doctor tells someone they have mesothelioma, the next thing the doctor does is ask when the patient worked around asbestos. In the medical community, although the specific mechanism still isn’t understood, there’s no disagreement that mesothelioma only really has one cause in practice: asbestos exposure. Thus, mesothelioma after 44 years working around brakes, which we know incorporate chrysotile asbestos, and no other significant exposure to any other source of asbestos, provides more than enough for many doctors (I would say “most,” but I don’t know of any surveys to back that up) to infer that the mesothelioma was caused by the exposure to the brake pads. Such doctors would include the plaintiff’s expert, a pathologist. There’s similarly no doubt at the EPA or at OSHA that brake pads expose workers to asbestos, which is why there are specific guidelines for their handling.

But there’s a question that’s half-practical, half-political: how much proof does an injured person need to show that a particular company hurt them before that person will be legally entitled to compensation?

Here, there are two main issues to consider. First, there’s the medical or scientific — I write “or,” because the medical and scientific communities will give you different answers — question of whether low-dose exposure to asbestos (particularly chrysotile asbestos, which isn’t as carcinogenic as most other types of hydrous magnesium silicate asbestos, like crocidolite asbestos) causes mesothelioma or asbestosis. Second, there’s the difficulty of proving the relationship between each defendant and the plaintiff’s mesothelioma: think of how many different manufacturers of brake products a person encounters when working for 44 years as an automotive mechanic. The plaintiff’s complaint unsurprisingly had to name nearly two dozen defendants, from General Motors, to Daimler Chrysler, to Ford, to Napa Auto Parts, to Pneumo Abex, successor of American Brake Shoe and Foundry, founded 1902.

A plaintiff doesn’t have to prove how much exposure was due to which brake manufacturer, but they do have to prove that each defendant they intend to hold liable was a substantial factor in causing their injuries. See, e.g., Summers v. Certainteed Corp., 997 A.2d 1152, 1164-1165 (Pa. 2010)(“While asbestos litigation implicates concepts of strict liability rather than negligence, the requirements of proving substantial-factor causation remain the same.”) Whether or not a particular defendant’s conduct was a “substantial factor” in injuring a plaintiff is ordinarily a jury question, though courts can dismiss cases if they find that no reasonable jury would find the defendant’s conduct was a “substantial factor.”

So how do you prove that each defendant’s asbestos use was a “substantial factor” in causing the disease?
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Every day, billions of dollars changes hands based on the myth that people actually read, and agree to, every word in every contract they’ve ever signed. Ever read your cell phone contract? Your cable contract? Judge Posner famously admitted that he didn’t read the contract that came with his home equity loan.

Truth is, who has the time or energy to scrutinize every line? And what power do you have to negotiate it? Try negotiating your cell phone contract some time. See if you can even find a person at the company with the authority to negotiate.

Decades ago, thoughtful jurists like federal Judge J. Skelly Wright and California Justice Mathew Tobriner analyzed the issue carefully in cases like Williams v. Walker-Thomas Furniture Co., 350 F. 2d 445, 449-450 (1965) and Steven v. Fidelity & Casualty Co. of New York, 58 Cal. 2d 862, 883, 377 P. 2d 284, 298 (1962) and came to sensible conclusions like Skelly Wright’s statement of the law of contracts of adhesion in Williams:

Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all of the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.

That was then, this is now. Now, when the United States Supreme Court thinks that might makes right, so much so that it routinely ignores constitutional limits on special interest legislation for copyright holders while vigorously enforcing the “free speech” rights of pharmaceutical companies to go fishing through your prescription medication records, it’s all just a question of how consumers, patients, employees, and family members will lose in front of the Supreme Court, not if they will. 
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