As a Yale alum, I was shocked and horrified by the death of Annie Le, a Yale School of Medicine student murdered just a week before her own wedding. Like the Petit family murders, the crime was just a depraved act by a stranger, despite attempts by some to downplay it as a “crime of passion” or “workplace violence,” as if any rape-murder were less evil if the perpetrator had delusions of attachment at the time of the crime or if they happened to be employed by the same company. She was targeted and it was murder; we know that from the guilty plea. It may have been sexual assault, too; Raymond Clark submitted an Alford plea to that.

Last week, just before the statute of limitations for negligence would run, Le’s estate filed a wrongful death lawsuit against Yale:

The estate of former pharmacology student Annie Le GRD ’13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harrassment at the University “emboldened” her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale’s negligence.

The complaint is here. While I can understand why the estate’s lawyers, Joseph Tacopina (Greenfield, who knows him, has a bit more about him here) and Paul Slager, want to tie Le’s death to the Title IX problems at Yale and thereby generally show university indifference to women’s safety, I don’t see that serving as enough of a factual basis for an independent legal claim. There’s no clear causal connection between Yale’s sexual harassment / sexual assault policies and Le’s death; as far as I’ve seen, Le never filed any sort of sexual harassment or sexual assault claim at the school, so it’s hard to claim that, if those policies had been better, she wouldn’t have been murdered.

Although there’s technically an inadequate security claim in there arising from the security of the building and the failure to search for Le, I don’t see the causal connection there: from all accounts, it seems that, if they had searched earlier, they just would have found Le’s body earlier, rather than preventing the attack.

The strongest claim is predicated on the hiring of Clark himself, and that claim has a bit more behind it and a much closer connection to her death:

The complaint alleges that Yale was negligent in its screening of Clark, who had shown “a violent propensity towards women” before he was hired in 2004. As police began to investigate his possible involvement in Le’s death in mid-September 2009, the New Haven Independent reported that Clark forced his high school girlfriend to have sex with him when they were students …

In addition to Clark’s records, the suit alleges Yale had access to information about Clark’s violent past because the University also employed Clark’s sister and brother-in-law as laboratory technicians in the 10 Amistad St. building where Le was killed. Those two employees were both “well aware” of Clark’s past behavior given their relationship to him, the suit claims.

This sort of negligent hiring claim isn’t novel. The primary case in that field is Ponticas v. KMS Investments, 331 N.W.2d 907 (Minn. 1983). It wasn’t the first, but it’s probably the most frequently cited, and it set the path for tort liability where an employer is alleged to have negligently hired a dangerous or incompetent person:

Liability is predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.

Connecticut’s appellate court has already adopted the same theory in Seguro v. Cummiskey, 82 Conn.App. 186 (2004):

A review of case law in other jurisdictions reveals that employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious act, injures a third party. See, e.g., Island City Flying Service v. General Electric Credit Corp., 585 So. 2d 274, 276 (Fla. 1991)(“employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others”); Henley v. Prince George’s County, 305 Md. 320, 336, 503 A.2d 1333 (1986) (employer has duty to use reasonable care to select employees competent and fit for work assigned to them); Ponticas v.K.M.S. Investments, 331 N.W.2d 907, 910 (Minn. 1983) (“person injured by a negligently retained employee may recover damages from the employer”); Di Cosala v. Kay, 91 N.J. 159, 170-71, 450 A.2d 508 (1982) (“employer whose employees are brought into contact with members of the public in the course of their employment is responsible for exercising a duty of reasonable care in the selection or retention of its employees”); Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d 339, 346 (R.I. 1994) (recognizing “`direct liability of an employer to third parties who are injured by acts of unfit, incompetent, or unsuitable employees’”); Welsh Mfg. v. Pinkerton’s, Inc., 474 A.2d 436, 440 (R.I. 1984) (“employer may be directly liable for wrongful acts of its negligently hired employee”); J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 208-209, 372 S.E.2d 391 (1988) (recognizing tort of negligent hiring).

Unfortunately, it looks like a hard sell for the Le estate.
Continue Reading Examining The Annie Le Wrongful Death Lawsuit Against Yale University

In retrospect, it’s obvious: battering your brain and sustaining concussions on a regular basis as part of your job can have severe long-term consequences. I remember back when I played football in school that there was already a long-standing debate over the apparent safety of big, heavy helmets with wire face masks. At first blush, it seemed the answer to the broken noses, broken jaws, and facial and head laceration that had long plagued football was to use modern plastic injection-molding techniques and build bigger helmets with bigger face masks. More padding is safer than less padding, right?

The helmets, though, opened up an entirely new set of tactics in which players would use their own heads — shielded by the hard helmets and face masks — as weapons. If you’re a coach or an owner, why limit players to shoving opponents around when they can use their helmets as a battering ram? The NCAA and NHSFF both quickly picked up on the technique and banned initial contact of the head in blocking and tackling, but the NFL declined.

The effect, in terms of brain injury, was to convert football from a grappling sport like rugby or wrestling characterized by limb and torso fractures into a striking sport like boxing characterized by closed head injuries. Like when boxing started putting on bigger and bigger gloves, the sport is a lot less bloody but a lot more dangerous. As ugly as mixed martial arts fights get, truth is, they’re safer on the brain (PDF of “Incidence of Injury in Professional Mixed Martial Arts Competitions” in the Journal of Sports Science and Medicine) because there are only so many times that you can punch someone in the face with an ungloved hand without giving up because of the pain or because of a broken hand. (“I broke his hand with my face” is more than just a schoolyard excuse.) In contrast, there’s no limit on how many times someone wearing large, soft boxing gloves can batter their opponent’s brain, and a large number of fights today end with a knockout — and the concussion that causes a fighter to stay down for ten seconds.

But, no matter how obvious it may have even been at the time, the NFL continued to deny any connection between routine closed head injuries in football and long-term consequences like dementia or early-onset Alzheimer’s disease. Players believed them; the NFL is undoubtedly in the better position to know.

That all started to change two years ago. From the new Easterling et al. v. National Football League putative class action:

On September 30, 2009, as a part of its continuing active role in disputing and covering up the causative role of repeated concussions suffered by NFL players and long-term mental health disabilities and illnesses, the defendant disputed the results of a scientific study that it funded. On the aforementioned date, newspaper accounts were published detailing (an unreleased) a study commissioned by the NFL to assess the health and well-being of retired players, which found that the players had reported being diagnosed with dementia and other memory-related diseases at a rate significantly higher than that of the general population. Despite the findings of this study, showing that 6.1 percent of retired NFL players age 50 and above reported being diagnosed with dementia, Alzheimer’s disease and other memory related illnesses, compared to a 1.2 percent for all comparably aged U.S. men, the defendant’s agents disputed these findings and continued the mantra in the Press that there is no evidence connecting concussions, concussion like symptoms, NFL football and long-term brain illness or injury, including but not limited to Chronic Traumatic Encephalopathy (CTE), dementia, etc.

The issue was then dramatically brought back into headlines by the suicide of Dave Duerson, who, in an ironic mixture of mental illness and rational foresight, donated his brain to Boston University so they could test it for brain damage. They did, and found signs of chronic traumatic encephalopathy.

The Plaintiffs in the new action — seven former NFL players, including Jim McMahon — allege that the NFL knowingly kept the sport violent and dangerous (which, some commentators argue, is what NFL fans want) and want to establish a class action for:

All former NFL players who sustained a concussion(s) or suffered concussion like symptoms while in the NFL league, and who have, since leaving the NFL, developed chronic headaches, chronic dizziness or dementia or Alzheimer’s disease and/or other physical and mental problems as a result of the concussion(s) suffered while a player.

The lawsuit seeks money damages, declaratory relief, and “the establishment of a medical monitoring class.”

And that’s where they’ll have a problem.
Continue Reading NFL Players’ Brain Injury Medical Monitoring Class Action Already In Trouble

Read more about child abuse lawsuits.

The Inquirer has an interesting article about Parx Casino and its “dubious distinction of being the only gambling hall in Pennsylvania where adults have been caught leaving children in vehicles parked outside while they gambled inside”:

In the last 17 months alone, Parx – Pennsylvania’s top-grossing casino – saw 10 individuals arrested on its property and charged with endangering the welfare of children left in vehicles while the adults gambled inside.

In just the last week: Michael Roytman, 29, of Huntingdon Valley was charged with leaving his 6-year-old daughter in his car in sweltering heat and was jailed after failing to post $75,000 bail; Frances Casey, 39, of Abington, was charged in connection with leaving two nephews, ages 1 and 2, and a 9-year-old niece in her automobile July 16. She is to be issued a court summons.

Parx is taking action on the matter, said casino spokeswoman Carrie Nork-Minelli.

“This is the action of irresponsible adults, and we do our best to combat it with the highest level of security and surveillance possible,” she said. “We’ve added additional security teams and patrol units – that are not required by the Gaming Control Board – to help with this type of deplorable activity.”

But the most recent incidents have occurred despite those stepped-up measures.

It’s a serious problem; about fifty children die every year because they were left unattended in a car.

The article is titled “Should Parx Casino be liable in child-neglect cases?” but the article is more about the Gaming Control Board’s review of the situation rather than about Parx’s liability for those incidents, and to my knowledge no lawsuits have been filed alleging as much. Casinos’ primary legal liability tends to involve slip-and-fall cases or liquor liability, but, if the Parx trend continues, we might see lawsuits arising from these issues, so let’s consider the question anyway.

As the casino’s spokeswoman said, it is, of course, “deplorable” and “irresponsible” for parents to knowingly leave their children unattended in cars while they go gamble, and the parents are primarily responsible for the harm, but that doesn’t necessarily mean the casino isn’t also responsible for the problem.

Continue Reading Parx Casino’s Potential Liability For Children Left Unattended In Cars

Through Andy Barovick’s Twitter feed, I saw John Tierney’s recent column in the New York Times about playground equipment:

[S]ome researchers … question the value of safety-first playgrounds. Even if children do suffer fewer physical injuries — and the evidence for that is debatable — the critics say that these playgrounds may stunt emotional development, leaving children with anxieties and fears that are ultimately worse than a broken bone.“Children need to encounter risks and overcome fears on the playground,” said Ellen Sandseter, a professor of psychology at Queen Maud University in Norway. “I think monkey bars and tall slides are great. As playgrounds become more and more boring, these are some of the few features that still can give children thrilling experiences with heights and high speed.”

After observing children on playgrounds in Norway, England and Australia, Dr. Sandseter identified six categories of risky play: exploring heights, experiencing high speed, handling dangerous tools, being near dangerous elements (like water or fire), rough-and-tumble play (like wrestling), and wandering alone away from adult supervision. The most common is climbing heights.

Various tort reformers have long used playground safety to attack personal injury lawyers. Playgrounds are boring these days, the story goes, because evil trial lawyers have forced cities and schools to prioritize safety over fun. The new line these days is that these excessively safe playgrounds aren’t actually safer, because they secretly cause long-term damage so subtle it can barely be perceived.

We’ve seen that line before with the “defensive medicine” meme. Never mind the favorable link between patient-friendly malpractice laws and the availability of treatment; tort reformers claim that doctors exposed to accountability will ignore the basic dictates of economics and, instead of working to reduce their liability by reducing the damage they cause, will inexplicably spend their time and money treating diseases that don’t exist.

Same goes for playgrounds. Tort reforms now say playgrounds are too safe because school administrators, for some unexplained reason, don’t worry about serious injuries — the only thing that can prompt any significant monetary liability — but rather phantom dangers manufactured by trial lawyers.

I think my favorite line from Tierney’s article is this one:

While some psychologists — and many parents — have worried that a child who suffered a bad fall would develop a fear of heights, studies have shown the opposite pattern: A child who’s hurt in a fall before the age of 9 is less likely as a teenager to have a fear of heights.

It logically follows, then, that we could rid society of acrophobia if we passed a law requiring all children be thrown from a height of no less than six feet at least once during adolescence. Perhaps we should  require that, if the child didn’t break a bone the first time around, they be shoved off again and again until they “learned” to be fearless in the face of an unnecessary danger.
Continue Reading Playground Safety And The Cheapskate Society

One thing you learn as a personal injury lawyer is that many everyday products are far more dangerous than you thought. Until I became a lawyer and began screening cases and receiving calls, I hadn’t a clue that Children’s Motrin could cause Stevens-Johnson Syndrome.

Tylenol is another example. I’ve used acetaminophen safely for years without a problem, and I thanked my lucky stars for it when 1,000mg of the stuff brought me back from the delirium caused by a 104+ fever. Every week, though, approximately ten people die and one-thousand are sent to the emergency department by acetaminophen overdosing.

Which brings us to In re McNeil Consumer Healthcare, Marketing & Sales Practices Litigation, 10-md-02190 (E.D. Pa.). The Amended Complaint is available on RECAP. The claims arise from a string of recalls of various children’s and infant’s Tylenol, Motrin, Zyrtec, and Benadryl prompted by FDA investigations that uncovered some ugly problems, like:

155. In May and June of 2009, the FDA discovered that from April through June 2008, McNeil had used microcrystalline cellulose, an ingredient used in liquid adult and children’s Tylenol products, that had been potentially contaminated with a gram negative bacteria, Burkholder cepacia.

***

160. Beginning in approximately the Fall of 2008, McNeil began receiving reports regarding musty, moldy odors emanating from McNeil Tylenol pills manufactured at its Las Piedrad, Puerto Rico facility.
161. McNeil did not fully investigate these reports for approximately one year notwithstanding McNeal’s obligation to notify the FDA of such reports within three days.
162. Only after the FDA insisted that McNeil conduct a thorough investigation was it discovered that the odor was the result of contamination by a product called 2,4,6-Tribromoanisole (“TBA”), a pesticide used on the wooden pallets that stored and
transported packaging materials for the medications.

***

169. In April of 2010, McNeil recalled approximately 40 types of children’s and infants’ products manufactured at its Fort Washington, Pennsylvania plant because of filth and contamination, including acetaminophen, cellulose, nickel and
chromium particulate contamination, involving McNeil’s liquid infant and children’s products including Tylenol, Motrin, Benadryl, Zyrtec and Tylenol Infants’ Drops.

You can read the first “Form 483” reports generated by the FDA here. Obviously something went very wrong with the McNeil compliance process, prompting recalls, an unknown amount of physical injury, and economic loss to the many consumers who bought those products (including myself).

The Amended Complaint was just dismissed, with leave to amend against Johnson & Johnson and McNeil.

Continue Reading Recalled Product Lawsuits Getting Harder, Children’s Tylenol Edition

It’s that time of year again. The United States Supreme Court, the least productive court in the nation, is back on summer recess until October. Let’s review what they imposed upon us over the past nine months.

I’ve written before about the problems with the Supreme Court. They change the rules of their own

A Brief History of Nursing Home Litigation

Civil tort litigation tends to follow larger social trends. The post-World War II through 1970s construction boom involved more than a fair amount of asbestos and was followed a generation later by the mesothelioma lawsuit industry. The rapid growth in available health care treatments (and union-negotiated health insurance