This week, the 9th Circuit took this issue on. SmithKline Beecham v. Abbott Laboratories is a case of two giant drug companies fighting each other over what I’m sure is already obscene profits involving the sale of an anti-HIV drug. In the suit, GlaxoSmithKline accuses Abbott Laboratories of antitrust, contract, unfair trade practice (UTPA) claims, and instigating World War I by shooting the archduke. The usual stuff.
In Fertel v. Davidson, a federal court in Maryland was given this interesting question with an interesting set of facts. A 52-year-old artist, who was in a troubled marriage in California, purchased a “Marriage Fitness Tele-Boot Camp” program for a Maryland company called MarriageMax. The opinion suggests that this program costs $400. It comes with a “if you are not satisfied for any reason, you can get your money back” type guarantee. Continue reading
Subway just got hit with a lawsuit alleging that its Footlong subs are not actually a foot long. Plaintiffs who ate what is probably an 11-inch sub, are seeking money damages for their injuries. The case was filed in New Jersey.
I stick close to personal injury related issues here. So why am I writing about a frivolous lawsuit claiming that a Footlong sub is not a foot long? Because I think it is related. Lawsuits like this – and celebrities that sue for every slight – really sends a message to people, who later become jurors, that the judicial system is rarely a place for serious justice.
So when an injured plaintiff begins a trial, she does not begin on the 50-yard line. She starts deep in her own territory. That’s not an impossible mission for a worthy plaintiff by any stretch – people flip quickly when they learn facts. But it makes the hill a tougher climb and it can change the way they value personal injury cases.
Subway says the word “footlong” should not be taken literally, as it is a trademark and “not intended to be a measurement of length.” But they are misleading people. They misled me. I thought it was a foot long till I read this story. But consumers who think like me have two reasonable choices: (1) decide not to buy the Subway subs because they are mad at the false advertising, or (2) remain annoyed but say, “Hey, Subway is not perfect, I don’t think many big companies are, but I think make a good sandwich and I am going to eat it.” (I pick the latter. Subway makes a good low fat sandwich, albeit with a ridiculous amount of sodium.).
I read a few opinions last week that did not rise to to the level of a full post on this blog but are still worth noting:
- Illinois State Bar Association Mutual Insurance Co. v. Greenfield(Illinois):: Lawyer screws up a will and does the right thing, writing a letter to the beneficiaries informing them of the mistake. Legal malpractice insurer says that by failing to inform it of the letter before sending it, Greenfield violated a condition of his malpractice policy and refused to provide him a defense to the legal malpractice claim that ensued. “What a jerk move,” an Illinois appeals court said, finding the malpractice carrier could not bail on their client. (Please note: I might be paraphrasing.) Anyway, if you have insurance through ISBAMI, keep in mind they will pull this kinda garbage on their clients who try to do the right thing.
- Bougere v. Northrop Grumman (Louisiana): wrongful death claim’s statute of limitations runs not from asbestos exposure but from decedent’s death. Maryland would rule similarly.
A Florida judge was disqualified from a wrongful death tobacco case after comparing the defendant’s former CEO to Nazi war criminal Josef Mengele.
No-brainer decision? I’m not so sure. Here is what happened. During the trial, a hearing was held outside of the presence of the jury on whether a 1971 – remember 1971 – a videotape of Philip Morris’s CEO Joseph Cullman should be admissible at trial. In the video, the CEO says that lower birth weights caused by smoking may be better for women who “might prefer having smaller babies.”
All right, so exactly what is the appropriate response. “Gee, that remark is unfortunate,” probably does not quite cut it. So the judge took it a little further, comparing the remark to Dr. Josef Mengele, who conducted some of the evilest experiments on humans in modern times at Auschwitz. Continue reading
In Bailey Lumber & Supply Company v. Robinson, the Mississippi Supreme Court reversed a $1 million award in a slip and fall case, finding that while plaintiff’s medical expert – an internal medicine doctor – could testify about the plaintiff’s hip problem, he did not have the expertise to offer the opinion that the slip and fall aggravated the man’s osteoarthritis, causing hip replacement surgery. This opinion is a good reminder for personal injury lawyers in Maryland that, when in doubt, make sure you have an expert that is qualified to give the opinions you need at trial.
This case is a pretty good slip and fall case on liability for the plaintiff. The defendant operated a building-and-lumber-supply retail store. Plaintiff needed paint. Defendant’s employee says, “Follow me back to a dark, creepy and dangerous room” (I may be paraphrasing) that was for employees only. The room was dimly lit and the plaintiff tripped over a two-inch step in the doorway’s threshold between the two rooms. Plaintiff says the defendant’s employee said we “should have fixed that floor a long time ago.” (To me, this sounds made up.) Plaintiff drove himself home.
I’m not feeling a million verdict at this point. Are you? Oh, yeah, and he has osteoarthritis, eventually causing hip surgery. Continue reading
As the Maryland appellate courts continue their summer of personal injury enuni, we turn our attention to a uninsured motorist case issued by the Supreme Court of Rhode Island, in New London County Mutual Insurance Company v. Karoline Fontaine. This opinion works through some issues about uninsured policy provisions, something we do quite frequently at Miller & Zois in our sometimes mad quest to find insurance coverage to get our clients compensated for their injuries.
The facts on this one are both simple and tragic. A husband and wife were on their motorcycle and got into a collision. As is too often the case in motorcycle accidents, the husband was killed. The accident was not the couple’s fault, which is also often the case in fatal motorcycle accidents. But that is little consolation to the man’s family.
Neither the other vehicle nor its driver was insured. The motorcycle was insured by a policy with Foremost Insurance Company, and Foremost paid the full $100,000.00 under the uninsured motorist provision. Continue reading
A few months ago, the Maryland high court ruled in Tracey v. Solesky, that in dog bite cases involving a pit bull or cross-bred pit bull mix, a plaintiff no longer needs to show that the dog in particular, or pit bulls are dangerous to bring a claim against both the dog’s owner and the landlord – the deep pocket in many dog bite claims. (You can find my posts on this case (here and here). This opinion was one of the most controversial tort opinions issue by a Maryland court in recent years. (NOTE: THIS LAW DID NOT PASS BUT THE MARYLAND HIGH COURT ACTED ON ITS OWN TO REVERSE PART OF THIS RULING.)
The new law may not last long. The Maryland Senate took a quick break from its efforts to bring table gambling within 100 yards of every man, woman, and child in Maryland and passed a new law that would create a strict liability standard for owners – but specifically not landlords – in all dog bite cases. The vote was a whopping 41-1, with Carroll County Republican Joe Getty casting the only dissenting vote. Senator Getty apparently claims that dogs are people too, just like corporations. (I may have made that up.) Continue reading
We have our own issues here in Maryland with dog attacks and dog bites, particularly now that no one really knows what the law is and whether it will change regarding pit bulls (see our post on Tracey v. Solesky). Right now, the legislature seems poised to come up with some solution to the high court’s problematic ruling that pit bulls are inherently dangerous.
The question is one of what the solution will be—a return to the status quo and the “one free bite” rule; or a rule that all dog owners are responsible for any injuries caused by their dogs. One thing is for sure—the legislators should read up on Minnesota’s rule for guidance on how to best craft their rule.
Minnesota’s rule is problematic, as showed by this month’s Minnesota Supreme Court ruling, Anderson v. Christopherson. Minnesota’s rule (Minnesota Statutes § 347.22) is deceptively simple:
If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term “owner” includes any person harboring or keeping a dog but the owner shall be primarily liable. The term “dog” includes both male and female of the canine species.
Reading just the rule, it appears to make sense. To me, it sounds like “the owner of any unprovoked dog who attacks or injures a person is responsible for those injuries.” That is a good, common-sense rule. If you own a dog, and that dog causes harm, you are responsible. It doesn’t matter if the dog is a pit bull or a poodle. It doesn’t matter if the dog never harmed a fly, or has bitten ten people. That rule seems to place responsibility squarely on the shoulders of people who should accept that responsibility—the dog owners.
Let’s be clear: this would not be an anti-dog rule. No one Reasonable people do not blame the dog when they bite. It does not mean that the dog should be put down. It means the dog’s owner must take responsibility because the owner should bear the loss instead of the person who got bit. Many of the comments to my prior posts on Maryland’s new dog bite law for pit bulls (here and here) were from dog rights activists who also believe this should be the law.
Anyway, back to Minnesota which has a hodgepodge of judicial opinions interpreting the decision, some contradictory, and they mutate what seems like a simple rule into something that is anything but simple. A prior court opinion interpreted the phrase “attacks or injures any person” to mean one of two things: (1) attacks means that the dog moves with violent intent; and (2) injures means nonhostile behavior (like playfully jumping up on a person in greeting) that injures a person. Never mind that “injures” actually means “to cause injury.”
So now we have a law that a dog owner is responsible for injuries caused when the dog attacks a person or causes injury to a person when not acting violently. Here, the Minnesota Supreme Court was then asked to decide in Anderson whether a dog owner was responsible in this scenario: Dog A (50 lbs) attacks Dog B (20 lbs). Dog B’s owner was lawfully walking Dog B. Dog B’s owner tried to save his dog, and falls, breaking his hip. Continue reading