Rules to Facts

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You can't conclude that something is a discretionary function just because it involves a significant financial burden.

Duty: Physical Harm > Government > Federal Tort Claims Act || Whisnant v. United States (2005) [notes] p. 256 || Toxic mold was allowed to accumulate at a military commissary. The government pointed out that safety involves a trade-off with cost. Held that there is still a duty. //

Negligence rather than strict liability applies when the defendant is not in control of their body when causing harm, particularly in car accidents.

Introduction > Introduction || Hammontree v. Jenner (California, 1971) p.3 || Defendant was epileptic, but taking steps to control seizures, including medication. Defendant had a seizure while driving and drove through plaintiff's shop. //

Old doctrine: If you use your land for an unnatural purpose and it causes damage, you're strictly liable.

Introduction > Introduction || Rylands v. Fletcher (UK, 1866, 1868) p. 509 || Plaintiff was a tenant mining coal. Defendant was operating a cotton mill on adjacent piece of land. Defendant constructed dam on property and engineers (including some who were negligent) discovered an old coal mine on the property. When the dam filled with water, the old shafts burst, flooding plaintiff's mine. //

A person who chooses to damage another's property to protect his own is liable, even if it was the prudent thing to do.

Introduction > Introduction || Vincent v. Lake Erie (Minnesota, 1910) p. 969 || Defendant owned steamship that was moored at plaintiff's dock during storm. It would have been too dangerous to move the ship. The dock was damaged. //

Mental ability doesn't change the standard of care.

Negligence > Reasonable Person || Vaughan v. Menlove (1837) [notes] p. 58 || Defendant landowner piled hay in a way that created a fire hazard, and there was a fire. Lawyer argued that the defendant's abilities were limited. Court rejected this argument due to concern it would create too vague a standard. //

Children are held to lower standards and are not always able to be held negligent.

Negligence > Reasonable Person || || //

Parents are generally not vicariously liable for negligence of children; they may be liable for their own negligence in permitting children to engage in dangerous activities.

Negligence > Reasonable Person || || //

People who are ill or otherwise physically disabled are held to the standard of conduct of a reasonable man under like disability.

Negligence > Reasonable Person || || //

Split rule: Within New York, courts have split on when people who do not qualify as "covered persons" under the New York Insurance Law may bring tort actions. These are often uninsured drivers or members of the family of an uninsured driver. There is a range of views: tort law is fully applicable; tort law is totally barred; uncovered people may sue if only if they sustain serious injury.

A Survey of Alternatives > Motor Vehicle Injuries > The New York Experience > The New York Statute || Millan v. Yan Yee Lau (1979) [notes] p. 870 || The court held that an uninsured driver should "at very least" be limited by the statute's threshold requirement of serious injury, but "innocent" passengers should retain their common law tort action. // A Survey of Alternatives > Motor Vehicle Injuries > The New York Experience > The New York Statute || Carbone v. Visco (1985) [notes] p. 870 || The court held that an injured motorcyclist not covered by first party benefits was entitled to pursue common law remedies against defendant, who was the owner and operator of the motor vehicle involved in the collision. Under these circumstances, plaintiff is not required to comply with the "serious injury" provision of the insurance law. //

Under the New York Insurance Law, before a tort claim for pain and suffering can be pursued the court must decide whether the plaintiff has established a case for serious injury. This requires considering questions of causality.

A Survey of Alternatives > Motor Vehicle Injuries > The New York Experience > The New York Statute || Pommells v. Perez (2005) [notes] p. 869 || Three cases related to herniated discs were combined. The court considered whether were herniated discs were "serious injuries" for the purposes of the New York Insurance Law. The court upheld dismissals in two cases. In one, there had been a long gap in treatment during which the plaintiff had sustained other adverse events, raising doubts about causation. In another, there was evidence that the problems were degenerative before the accident, also raising doubts about causation. In the third case, the court upheld the case because a gap in treatment was properly explained. //

In the New York Insurance Law, "first party benefit" is defined in terms of "injury arising out of the use or operation of a motor vehicle." This includes the loading or unloading of vehicles but does not include repairing, servicing, or maintaining vehicles. The use must be the proximate cause of the injury for the statute to apply.

A Survey of Alternatives > Motor Vehicle Injuries > The New York Experience > The New York Statute || Walton v. Lumbermens Mutual Casualty Co. (1996) [notes] p. 868 || A truck driver was hurt while unloading his truck at a supermarket when the supermarket's lift collapsed. The court found this was not covered under the New York Insurance Law. Although the driver may have been using the truck at the time of the injury, the injury did not arise "out of the use or operation" of the vehicle. The court also cited an earlier case denying benefits to a victim hurt when the gas stove she was using in her motor home exploded. //

After the New York Insurance Law, workers' compensation was amended to provide that the compensation carrier shall have no lien on the proceeds of any recovery as to benefits it paid which were in lieu of first party benefits which another insurer would have otherwise been obligated to pay under the no-fault law. The sole remedy of compensation carrier is the settlement processes, but only if at least one vehicle weighs more than 6.5k pounds unloaded or is a vehicle used principally for transport of persons or property for hire. Buses and school buses are exceptions to this.

A Survey of Alternatives > Motor Vehicle Injuries > The New York Experience > The New York Statute || || //

An injured motorcyclist is not entitled to recover first party benefits under the New York Insurance Law. First party benefits under the policy are provided only to pedestrians.

A Survey of Alternatives > Motor Vehicle Injuries > The New York Experience > The New York Statute || || //

Property damage is generally excluded from coverage in no-fault states and tort law remains in effect. These cases are easier to settle out of court than personal injury actions, as smaller sums are involved and most disputes are between insurance companies.

A Survey of Alternatives > Motor Vehicle Injuries > The New York Experience > The New York Statute || || //

Split rule: After the Massachusetts and New York statutes, other states began to adopt no-fault statutes. Two paths developed: (1) About half of the states that acted adopted "add-on" statutes, because they do not change tort law. Instead, they provide for low first party benefits to help assist with medical expenses and lost wages. There is reimbursement if the plaintiff decides to pursue an available tort action. (2) The other half adopted "mixed plans" which provide some first party benefits varying in size and also bar some plaintiffs from access to the traditional tort system. The Massachusetts statute is an example, as it provides small benefits with a relatively minor barrier to tort actions.

A Survey of Alternatives > Motor Vehicle Injuries > The New York Experience > The New York Statute || || //

When the covered person is the victim of a hit-and-run driver or an identified but uninsured motorist, the covered person's insurance policy is likely to provide for no-fault benefits and tort damages, if fault can be established, under the uninsured motorist coverage. There is no double recovery in the sense that after the insurer has paid no-fault benefits, the victim cannot seek recovery under uninsured motorist coverage. However, to the extent the victim has suffered serious injury and the tort recovery is for pain and suffering, this is not considered double recovery.

A Survey of Alternatives > Motor Vehicle Injuries > The New York Experience > The New York Statute || || //

Determining whether injuries are "arising out of" and "in the course of" the employment causes occasional difficulty. In general, it tends to be construed quite liberally.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Capizzi v. Southern District Reporters (1984) [notes] p. 846 || Plaintiff was on a business trip when she slipped and fell in the bathtub of her motel room. The court found that her injuries were compensable under workers' compensation because she was required to travel for her work. // A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Guillory v. Interstate Gas Station (1995) [notes] p. 846 || The claimant was shot by her estranged husband while she was at work. The court held that the harm did not arise out of her employment, and therefore was not covered under workers' compensation. // A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Pierre v. Seaside Farms, Inc. (2010) [notes] p. 846 || The claimant, a migrant farm worker, slipped and fell on the sidewalk outside his employer-provided residence. At trial, he was denied workers' compensation benefits because he was not working at the time of the accident and he was not required to live on the farm. The South Carolina supreme court reversed, finding it was within the scope of employment. This was based on the nature of the work being low-wage farm work, which effectively required him to live on the farm; making reasonable use of employer-provided premises; and being causally related in that the accident was due to conditions under which he lived. //

If an injury falls within the scope of a workers' compensation statute but that particular harm is not covered, the employee normally cannot seek relief through a tort claim.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Fetterhoff v. Western Block Co. (1975) [notes] p. 853 || A worker who alleged that his work-related injury had left him unable to have sexual intercourse was barred from suing in tort even though his loss of sexual function was not compensable under the workers' compensation scheme. // A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Moss v. Southern Excavation (1981) [notes] p. 853 || A worker who lost his senses of taste and spell in an accident was barred from suing in tort, even though these injuries were not covered by the workers' compensation scheme. //

When the plaintiff can prove that the employer committed an intentional tort, they can escape the exclusive remedy bar of workers' compensation and bring a tort action. However, liability in tort for reckless conduct falling sort of intentional conduct on the part of the employer has been denied. Intentional infliction of emotional distress is also not sufficient grounds for liability.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Magliulo v. Superior Court (1975) [notes] p. 851 || A waitress' employer allegedly hit her in anger and threw her down. A tort action is allowed to move forward in spite of workers' compensation. // A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Bardere v. Zafir (1975) [notes] p. 851 || The court held that an employer's conduct in removing safety features from a machine to increase its speed, with knowledge that a worker might come in contract with the dangerous machine, was not sufficient to establish an intentional tort and overcome the exclusive remedy of workers' compensation. // A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Cole v. Fair Oaks Fire Protection District (1987) [notes] p. 851 || The court declined to allow an employee to sue an employer in tort based on a claim of intentional infliction of emotional distress. Plaintiff suffered a stroke as a result of harassment, and unjustified demotion in retaliation for union activities. Intentional emotional injury could not overcome the exclusive remedy bar of workers' compensation. The court was concerned that if it did, this could have the effect of transforming virtually every negative personnel decision into a tort claim. //

When plaintiffs want to sue an employer outside of workers' compensation, courts are instructed to "liberally construe" the provision to extend coverage of workers' compensation. The fact that an employee was performing a personal act does not take them outside of compensation law. However, the action must still be work related in order to fall under workers' compensation.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Mason v. Lake Dolores Group, LLC (2004) [notes] p. 850 || Plaintiff worked at defendant water amusement park. He asked a co-worker to turn on the water for a water slide, and rode it, but the water supply was insufficient. He became a paraplegic. The jury found that the injury did not arise of the course of employment. There was no reason to ride the water slide at that time, and the injuries were not reasonably expected from his employment. Plaintiff won a $4.4 million judgement outside of workers' compensation. //

Injuries that take place while an employee is commuting to or from work are normally not covered by workers' compensation. If an employee is injured while commuting between two jobsites, that is covered. If an employee does two things at the same time, such that one of them serves the employer and one is his own business, that is covered.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Prince v. W.C.A.B. (1984) [notes] p. 847 || A worker arrived early at his place of employment and was hit by a car while waiting for the premises to be unlocked. His commute was completed at this time. Although he was pouring oil into his car at the time of the injury, he was at the premises because of his employment. This was covered under workers' compensation. // A Survey of Alternatives > Occupational Injuries—Workers' Compensation || Santa Rosa Junior College v. W.C.A.B. (1985) [notes] p. 847 || A teacher was taking work home from campus when he was killed in a car accident. This was not covered under workers' compensation. However, if he had been required to work from home, his home would have been a second jobsite and travelling from one jobsite to the other would have been within the scope of workers' compensation. //

In death cases, most states provide lump sum payments to close out accounts when widows or widowers remarry.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || || //

Majority rule: Most states provide a statutory defense to workers' compensation if a worker was intoxicated at the time of injury. This usually serves as a complete bar to compensation, but sometimes only reduces the award. The major difference between the statutes is the extent of causal connection required between the intoxication and the injury.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || || //

Minority rule: Some states increase the employee's compensation when injury results from the employer's violation of safety rules.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || || //

Most states take a scheduling approach for permanent partial disability injuries. Typically, this means the worker is compensated two-thirds of their salary for a certain number of weeks, depending on the nature of the injury. This means, for example, that a law professor and a construction worker receive the same benefits for the loss of an arm, even though it affects earning capacity more for the construction worker.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || || //

Railroad workers are an exception to the usual exclusive remedy bar of workers' compensation. They are covered by the Federal Employers' liability Act (FELA). This provides that railroads are always liable to negligently injured employees. Comparative negligence applies, and there is a relaxed standard of factual causation. The plaintiff is only required to show the defendant's negligence played some part in bringing about their injury.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || || //

Split rule: The approach to when an injured employee can bypass workers compensation and proceed in tort. The most restrictive approach is to require an intent to injure. The middle ground is to require that an intent to injure or to expect harm will occur. The most lenient position required wanton and willful conduct, which means there was knowledge of a dangerous condition and a disregard of the risks.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || || //

Split rule: Whether unreasonable failure to observe safety rules or to use safety devices is a defense to workers' compensation.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || || //

There is a series of statutory defenses to workers' compensation if employees were engaged in misconduct. For example, these are likely to apply if an employee was injured in the course of committing a crime.

A Survey of Alternatives > Occupational Injuries—Workers' Compensation || || //

Split rule: Whether loss of life damages are available after death.

Damages and Insurance > Damages > Compensatory Damages > Damages in the Event of Death || Durham v. Marberry (2004) [notes] p. 743 || Plaintiff's decedent was killed instantly in a collision with a mobile home transport. Initially the trial court found that loss of life damages were not available in this situation. On appeal, the court distinguished between loss of life damages and loss of enjoyment of life damages. The court found that unlike for loss of enjoyment of life damages, loss of life damages are available even if there was no period of time between decedent's injury and their death. //

Minority rule, New York rule: Some states impose a strict requirement that damages awarded in wrongful death actions are strictly pecuniary. Majority rule: In most states, nonpecuniary damages are allowed for the loss of relationship by designated survivors in wrongful death cases. Fewer permit recovery for the grief of family members.

Damages and Insurance > Damages > Compensatory Damages > Damages in the Event of Death || Hubbard v. State [notes] p. 745 || The case concerned the value of the life of an 84-year-old woman. This was in New York, where wrongful death damages are strictly limited to pecuniary damages. The defense expert testified the woman would have consumed more of her income than could have been generated through interest, and argued her relatives were financially better off as a result of her death. The judge concluded that funeral expenses were the only recoverable item for her wrongful death. // Damages and Insurance > Damages > Compensatory Damages > Damages in the Event of Death || Green v. Bittner (1980) [notes] p. 745 || This case involved the wrongful death of a high school senior in a jurisdiction that limited wrongful death awards to pecuniary damages. The trial judge told the jury to consider the services the child performed around the house and what she might have done to help her parents as they grew older. From this, the jury was to subtract the value of food, clothing, and education. The jury returned a verdict of no damages. The judge upheld this, saying the jury had followed literally the language of the statute. This was overturned on appeal, and the appellate court said there could be a pecuniary element found in the loss of companionship and guidance in the relationship with the child. The jury could consider such damages as long as it limited them to pecuniary damages and did not include emotional harm. This reflects an effort to avoid a statutory limitation on pecuniary damages. //

Survival actions consist of suing for damages that plaintiff could have sued for before death. This includes pain and suffering, past lost income, and medical expenses.

Damages and Insurance > Damages > Compensatory Damages > Damages in the Event of Death || Sander v. Geib, Elston, Frost P.A. (1993) [notes] p. 742 || Defendant's failure in reading a pap smear test led to a failure to detect cervical cancer until it was too late to save decedent, a 34-year-old wife and mother of three children. In a suit for her death, the jury made an award including $1 million for her pain and suffering. The court rejected a claim that this was excessive, pointing out that she had suffered significantly between the time she realized she would die and her death. //

In wrongful death actions, the right to recovery is held by the beneficiaries of the decedent rather than the decedent's estate.

Damages and Insurance > Damages > Compensatory Damages > Damages in the Event of Death || || //

Split rule: Whether, in wrongful death actions, pecuniary loss is measured in terms of loss of financial support or the amount by which the decedent's estate was diminished. Either way, decedent's expenditures need to be subtracted from the award.

Damages and Insurance > Damages > Compensatory Damages > Damages in the Event of Death || || //

Damages based on lost earning capacity are based on the amount a plaintiff would have been able to earn. This means adults who are unemployed or underemployed typically recover less in damages. Similarly, undocumented immigrants may recover less in damages.

Damages and Insurance > Damages > Compensatory Damages > Future Pecuniary Losses || Martinez v. Shapland (1992) [notes] p. 725 || Plaintiff was unemployed at the time of trial. In determining damages for future pecuniary losses, the court still held that she was entitled to lost earnings based on her prior employment as a nurse's aid. // Damages and Insurance > Damages > Compensatory Damages > Future Pecuniary Losses || Silva v. Wilcox (2009) [notes] p. 725 || In a case involving an undocumented immigrant plaintiff, the court held that immigration status is relevant and admissible for determining damages for future pecuniary losses, leaving to the jury the decision of whether to avoid anything for lost wages. // Damages and Insurance > Damages > Compensatory Damages > Future Pecuniary Losses || Hoffman Plastic Compounds v. NLBR (2002) [notes] p. 726 || The court held that backpay could not be awarded by the National Labor Relations Board to an undocumented immigrant. This would have gone against government policy, which makes it unlawful for employers to knowingly hire undocumented workers. //

Race-specific actuarial data is not used to determine amounts of damages for future pecuniary losses.

Damages and Insurance > Damages > Compensatory Damages > Future Pecuniary Losses || McMillan v. City of New York (2008) [notes] p. 725 || The court found that race-specific actuarial tables could not be used in a case brought by an African American victim of a ferry crash. The tables showed shorter life expectancies for African Americans than for other groups. //

A plaintiff might be able to recover damages for a lost opportunity for great financial success. This requires showing they had an opportunity available before the harm took place, they would have been successful, and they no longer can be successful.

Damages and Insurance > Damages > Compensatory Damages > Future Pecuniary Losses || Snow v. Villacci (2000) [notes] p. 726 || Plaintiff was enrolled in a 25-month program to become a financial consultant at a brokerage house. Several months before completing the program, he was injured. As a result, he was unable to complete the program and would not have another chance to do so. The court found that, in principle, recovery for lost financial success might be available in this case. //

In the case of a deceased child with no prior work experience, the calculation of future income starts with a rebuttable presumption that their income would have been the equivalent of a national average as set forth by the Department of Labor.

Damages and Insurance > Damages > Compensatory Damages > Future Pecuniary Losses || || //

Split rule: How to discount damages awards for future earnings. Some courts essentially assume that it's a wash between inflation and interest rates. Some courts attempt to discount based on a "real interest rate," which does not include inflation or market rewards for risky investment.

Damages and Insurance > Damages > Compensatory Damages > Future Pecuniary Losses || || //

Majority rule: Lawyers are permitted to give monetary guidelines to juries regarding pain and suffering awards.

Damages and Insurance > Damages > Compensatory Damages > Nonpecuniary Damanges || Carchidi v. Rodenhiser (1989) [notes] p. 729 || The court barred plaintiff's attorney from giving any number for an appropriate pain and suffering award to the jury. This was later overturned by a statute saying that lawyers are in fact allowed to articulate the damage award they consider appropriate. //

Split rule: Whether pain and loss of pleasure are considered as the same or separate items of damages.

Damages and Insurance > Damages > Compensatory Damages > Nonpecuniary Damanges || Fantozzi v. Sandusky Cement Products Co. (1992) [notes] p. 738 || The court allowed a separate charge to the jury related to plaintiff's inability to perform the usual activities of life, making the distinction between the loss of a positive experience and the infliction of a negative experience. //

Some degree of cognitive awareness of loss by the plaintiff is a prerequisite to recovery for loss of enjoyment of life. The same is true for pain and suffering.

Damages and Insurance > Damages > Compensatory Damages > Nonpecuniary Damanges || McDougald v. Garber (1989) p. 732 || Plaintiff underwent a C-section and tubal ligation in 1978. The procedures were performed by defendant. During the surgery, plaintiff was deprived of oxygen and suffered brain damage, leaving her in a permanent coma. The jury awarded money in damages for economic losses, conscious pain and suffering, and loss of the pleasures and pursuits of life. Now the court holds that a new trial is needed to determine whether plaintiff had no cognitive awareness of her loss of enjoyment of life due to her injuries, and thus may not recover damages for this component of the harm. //

Damages for physical impairment include lost earnings capacity, pain and suffering, and loss of enjoyment of life stemming from the physical impairment.

Damages and Insurance > Damages > Compensatory Damages > Nonpecuniary Damanges || || //

Majority rule: Most courts do not discount awards for emotional damages for the future. These awards are intangible anyway, so discounting them would add an aura of rationality that is not warranted.

Damages and Insurance > Damages > Compensatory Damages > Nonpecuniary Damanges || || //

An appellate court may only interfere with the amount of a damages award when it shocks the conscience and indicates passion, prejudice, or corruption on the part of jurors.

Damages and Insurance > Damages > Compensatory Damages || Seffert v. Los Angeles Transit Lines (1961) p. 716 || Plaintiff was caught in the door of a bus run by defendant and dragged some distance before being thrown to the ground. Plaintiff suffered severe, disabling, and permanent injuries, and was expected to suffer pain for the rest of her life, which was estimated to be 34.9 years from the time of the trial. Plaintiff claimed pecuniary losses and nonpecuniary damages. The jury awarded plaintiff all of her claimed damages, totaling $187,903.75 ($1.4 million in 2010). Of this, $50,000 was for pecuniary losses, including $25,000 for medical costs. So her pain and suffering damages were close to three times the pecuniary losses. The pain and suffering damages were awarded essentially based on a per diem based on how long she was expected to live. The court affirmed the damages, including nonpecuniary damages. //

Compensatory damage awards for physical harm are not taxable. Compensatory damage awards for emotional harm are taxable.

Damages and Insurance > Damages > Compensatory Damages || || //

Courts employ a different standard of proof in the damages phase. A plaintiff is required to establish the amount of damages with as much certainty as the nature of the tort and the circumstances permit. This is intended to allow recovery when proving damages by the standard of more likely than not would be too high a bar.

Damages and Insurance > Damages > Compensatory Damages || || //

Single judgement rule: A plaintiff can only sue once for harm suffered, even if it is later revealed that there was more harm than was known about in the original suit.

Damages and Insurance > Damages > Compensatory Damages || || //

Split rule: Whether damages for lost earnings reflect after-tax income or pre-tax income. In some jurisdictions the jury is given no instruction on which of the two approaches to take.

Damages and Insurance > Damages > Compensatory Damages || || //

Courts have sometimes found that significant reprehensibility can justify punitive awards that are ten times or more the size of compensatory awards.

Damages and Insurance > Damages > Punitive Damages > Constitutional Limitations || Boeken v. Philip Morris (2005) [notes] p. 767 || The court found that all reprehensibility factors mentioned in Campbell established that defendant tobacco manufacturer's fraudulent misconduct was highly reprehensible, justifying a damages award nine times greater than compensatory damages. In a subsequent case involving the same defendant and the same fact pattern, the court upheld a ratio of 33. //

Punitive damages are limited to a 1:1 ratio in the context of maritime law.

Damages and Insurance > Damages > Punitive Damages > Constitutional Limitations || Exxon Shipping Co v. Baker (2008) [notes] p. 770 || The Supreme Court issued a ruling limiting punitive damages under maritime law. The Supreme Court held that this is not binding outside of federal maritime cases in Line v. Ventura and Myers v. Central Fla. Investments. //

Split rule: Whether the defendant's wealth is relevant to punitive damage awards, either in that they need to be wealthy in order for punitive damages to be awarded or in that their degree of wealth can impact the amount awarded.

Damages and Insurance > Damages > Punitive Damages > Constitutional Limitations || Hall v. Wal-Mart (1998) [notes] p. 767 || Defendant challenged a punitive damage award of $25,000 for lack of proof of wealth. The court found wealth was not necessary. It relied on Kemezy v. Peters, where Posner pointed out that wealth does not go to reprehensibility. The court noted, however, that it might to some degree be relevant to present evidence on wealth so that a very large award might be seen as out of proportion. //

Harm to others should not be considered in awarding punitive damages awards, but it may go to the question of reprehensibility.

Damages and Insurance > Damages > Punitive Damages > Constitutional Limitations || Philip Morris USA v. Williams (2007) [notes] p. 768 || Plaintiff died from smoking. He smoked in part because defendant cigarette company led him to believe it was safe. The jury awarded $821,000 compensatory damages and $79,500,000 punitive damages. Defendant argues the jury should be given instructions that punitive damages are only for harm to plaintiff, judge does not provide them. They also argue the 100-1 ratio is out of proportion. The Supreme Court provided guidance, but did not decide whether the punitive damages were excessive. //

145 million dollars of punitive damages when compensatory damages are 1 million is excessive and a violation of the Due Process Clause of the Fourteenth Amendment. The following factors can be used to determine whether a punitive damages award is grossly excessive: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Damages and Insurance > Damages > Punitive Damages > Constitutional Limitations || State Farm Mutual Automobile Insurance Co. v. Campbell (2003) p. 757 || A guy passes 6 trucks on 2-lane highway, which is insane. He kills one person and injures another. In original litigation (Slusher and Ospital v. Campbell) they are willing to settle for 50k. The insurance company advises him not to take it, and there is a provision in the contract that he cannot settle without their agreement. The insurance company advises Campbell to litigate and not worry if the damages are greater than the policy limit of 50k. After litigation, the jury awards $185,849. Campbell says - "Wait, you told me to go to trial! If I had settled, I would be free!" State Farm says - "Put a for-sale sign on your house." Campbell gets a lawyer and goes to the original plaintiffs. The original plaintiffs buy from Campbell the deal against the insurance company. Slusher and Ospital's lawyers take over Campbell's lawsuit. The agreement is that 90% of any damages goes to S and O's estate. They go for punitive damages. They present evidence of a pattern of behavior of State Farm where they cap damages and screw their clients. They won a $145 million punitive verdict. //

Split rule: Whether states bifurcate their proceedings so evidence on the amount of punitive damages, including any prior awards, is considered as a separate step of the litigation. This is intended to mitigate concerns around the fact that multiple awards of punitive damages are possible.

Damages and Insurance > Damages > Punitive Damages > Constitutional Limitations || WR Grace & Co v. Waters (1994) [notes] p. 770 || This was a mass tort action involving asbestos products. The court refused to bar multiple awards of punitive damages. The court mitigated concern that defendant may be subjected to repeated punitive damage awards arising out of same conduct by bifurcating the proceeding into two steps: (1) liability, compensatory damages, liability for punitive damages; (2) evidence on the amount of punitive damages, including prior awards. A dozen states use this bifurcated approach. // Damages and Insurance > Damages > Punitive Damages > Constitutional Limitations || Dunn v. HOVIC (1993) [notes] p.774 || The court held that repeated awards of punitive damages are not per se unconstitutional, but repeated awards may be relevant in assessing constitutional attacks on the awards - either on the grounds that the total sum is too high or on the ground that the particular defendant cannot afford to pay them. //

Punitive damages do not cease to be available with the passage of time.

Damages and Insurance > Damages > Punitive Damages > The Common Law || Fischer v. Johns-Manville Corp. (1986) [notes] p. 755 || Plaintiff recovered punitive damages in an asbestos case based on the defendants' knowledge of the dangers of asbestos and their suppression of that information some 40 years previously. //

Punitive damages are to be determined by standards or rules rather than in an ad hoc manner. Punitive damages are available in the event of outrageous behavior, oppression, fraud, or malice. The amount must be proportional to the defendant's conduct.

Damages and Insurance > Damages > Punitive Damages > The Common Law || Mathias v. Accor Economy Lodging (2003) p. 747 || Plaintiff hotel guests sued defendant motel chain owner, claiming willful and wanton conduct under Illinois law in allowing hotel guests to be attacked by bedbugs. A jury in found in favor of the guests, each compensatory and punitive damages. The owner appealed, complaining primarily about the punitive damages award. The owner argued that at worst they were guilty of simple negligence and as a result, the guests were not entitled to an award of punitive damages. The evidence was sufficient to show willful and wanton conduct given that bedbugs had been discovered in the hotel two years prior to the incident that gave rise to the guests' complaint. Moreover, the hotel's failure to either warn guests or take effective measures to eliminate the bedbugs amounted to fraud and perhaps battery. The award was affirmed. //

Split rule: While all courts agree that punitive damages require something more than ordinary negligence, they vary in what the standard is and what the standard of proof is. For example, California requires oppression, fraud, or malice, and it must be proved by clear and convincing evidence.

Damages and Insurance > Damages > Punitive Damages > The Common Law || Owens-Illinois v. Zenobia (1992) [notes] p. 753 || The court adopted the majority rule that punitive damages for defective products cannot be based on implied malice, but require actual proof of malice based on defendant's knowledge of a defect and conscious or deliberate disregard of the foreseeable harm. // Damages and Insurance > Damages > Punitive Damages > The Common Law || Hillrichs v. Avco Corp. (1994) [notes] p. 754 || The court said that an award for punitive damages is inappropriate when there is room for reasonable disagreement over whether it is justified. // Damages and Insurance > Damages > Punitive Damages > The Common Law || Ross v. Louise Wise Serv. (2007) [notes] p. 754 || The court said that punitive damages may be sought when the wrongdoing was deliberate and had the character of outrage frequently associated with crime. The implication here is that punitive damages are not a foregone conclusion based solely on proof that defendant knowingly violated the law. //

Majority rule: Most states deny recovery of punitive damages from the estate of a deceased tortfeasor.

Damages and Insurance > Damages > Punitive Damages > The Common Law || || //

Majority rule: Most states have placed statutory limitations on punitive damage awards, including a more demanding burden of proof and limiting dollar amounts that can be awarded.

Damages and Insurance > Damages > Punitive Damages > The Common Law || || //

Split rule: Whether punitive damages are available from employers based on vicarious liability. Some states take the position that damages flow with vicarious liability. Other states follow the Restatement, which provides that punitive damages are available in this case only if one of a few special conditions is met: the employer authorized the act, the employer recklessly employed an unfit agent, the agent was in a managerial capacity, or the employer approved the act.

Damages and Insurance > Damages > Punitive Damages > The Common Law || || //

Under comparative fault, a plaintiff's compensatory award is reduced to reflect their degree of fault but punitive awards are not reduced.

Damages and Insurance > Damages > Punitive Damages > The Common Law || || //

Majority rule: The plaintiff must be made whole before the insurer can assert any subrogation right. Any remaining sums provide the finds from which the insurer can seek subrogation.

Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > Subrogation || Assoc. Hosp. Serv. Of Phil. v. Pustilnik (1979) [notes] p. 788 || The court held that when a tort plaintiff settles and has a subrogation agreement, the plaintiff waives his right to a judicial determination of his losses and establishes the settlement amount as full compensation for his damages. However, this is a minority approach. The casebook notes that such an approach significantly changes the incentives of plaintiff, as they have no reason to settle for less than the amount that would provide full compensation. //

Under subrogation, it is possible to end up in a situation where one insurer is suing another insurer.

Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > Subrogation || DiLullo v. Joseph (2002) [notes] p. 789 || A tenant's negligence caused harm to the landlord's property. After the landlord's insurer paid for the loss, it sought subrogation from the tenant. The casebook points out that if the tenant had been insured, the landlord's insurer would be suing the tenant's insurer to determine which insurance company would bear the loss. // Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > Subrogation || Wasko v. Manella (2004) [notes] p. 789 || A guest negligently set fire to the host's house and caused substantial fire damage. After paying the host, the host's fire insurer sought subrogation against the guest. The court allowed the claim, reasoning that house guests are normally covered against such claims by their own liability insurance as part of their homeowner's policy. //

In the absence of a subrogation agreement between the insurer and the insured, an insurer that paid medical or hospital expense benefits has no right to share in the proceeds of the insured's recovery against a tortfeasor. However, today almost all first-party health and automobile insurance policies contain subrogation clauses permitting the insurer to recover payments made to the insured from a third-party tortfeasor.

Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > Subrogation || Frost v. Porter Leasing Corp. (1982) p. 783 || Plaintiff was injured in a motor vehicle accident. He was a beneficiary of a group insurance policy issued to a union health plan and paid for by his employer. Plaintiff brought a tort action against the owner and driver of the other vehicle in the accident. The insurer intervened, asserting subrogation rights for medical expenses plaintiff recovered from defendants to the extent of the benefits it paid plaintiff. The court found that the insurer was not entitled to tap into plaintiff's damages award to recover for the medical expenses paid to plaintiff. //

When subrogation is allowed, the insurer is entitled to a reduced award in the event of a settlement.

Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > Subrogation || Smith v. Marzolf (1978) [notes] p. 788 || Plaintiff was injured by defendant's negligence. Plaintiff was entitled to up to $50,000 of first-party benefits from Aetna for medical bills and lost income. Plaintiff sued defendant and plaintiff's wife sued for loss of consortium. They came up with a lopsided settlement agreement that awarded more money for the wife's claim. Aetna objected. The trial judge refused to uphold the settlement, calling it ridiculous and a fraud on Aetna's subrogation rights. //

Majority rule, turning into more of a split rule: Collateral source rule: Any compensation that an injured person has received from a source other than the person who is legally responsible for the injuries (the defendant) will not reduce the amount of damages recoverable from the defendant. This means a tortfeasor is not allowed to benefit from any discount or write-off agreed to by the victim's health care provider. Some courts follow this rule in some cases, but for write-offs applied by medical providers, which are standard practice.

Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > The Collateral Source Rule || Kenney v. Liston (2014) p. 774 || Plaintiff suffered permanent spine damage in a car wreck caused by a drunk driver. Plaintiff sought to recover his entire bill. Defendant contended that he should only answer for amounts actually paid by plaintiff or his health insurance, thus, any amount written-off should be excluded. The circuit court disagreed with defendant, stating that any discount or write-offs were a collateral source to the plaintiff. Thus, pursuant to the collateral source rule, plaintiff was entitled to recover damages for the value of any reasonable and necessary medical services he received, "whether such services are rendered gratuitously or paid for by another." The jury awarded compensatory damages to the plaintiff, which included the amount almost equal to plaintiff's medical bills. // Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > The Collateral Source Rule || Howell v. Hamilton Meats & Provisions (2011) [notes] p. 780 || The court did not apply the collateral source rule. It distinguished between reasonable value of medical services and actual amount paid by plaintiff, and said plaintiff is not entitled to recover the reasonable value if the actual amount they paid was less. // Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > The Collateral Source Rule || Acuar v. Letourneau (2000) [notes] p. 781 || The court concluded that defendant could not deduct from its liability any part of the benefits plaintiff received from his health insurance carrier and health care providers. //

Split rule: Whether the collateral source rule is applied when the plaintiff receives benefits from a public program like Medicare or Medicaid. In the context of these programs, the rationale that the plaintiff is entitled to the benefit of the bargain obtained by their insurance provider is less convincing.

Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > The Collateral Source Rule || Wills v. Foster (2008) [notes] p. 781 || The court applied the collateral source rule, finding that the rule should not treat Medicare and Medicaid discounts differently from private insurance. // Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > The Collateral Source Rule || Stayton v. Delaware Health Corp. (2015) [notes] p. 781 || The court concluded that the collateral source rule applies to provider write-offs for private insurance but not for Medicare payments. The court noted that the written off portion of a medical bill was thirteen times larger than the amount paid, which gave them pause. This reflects the purchasing power of Medicare. // Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > The Collateral Source Rule || Washington v. Barnes Hospital (1995) [notes] p. 782 || As a result of defendant's malpractice, plaintiffs' child was brain damaged and would need special education for life. Plaintiffs proved what such a private education would cost. The court held that defendant was entitled to argue that public education was available to fulfill the same needs. On the other hand, plaintiff was entitled to argue that such public education was inadequate. //

A defendant is entitled to challenge the amount charged and paid by the plaintiff for goods or services resulting from injury, thereby shifting the burden to the plaintiff to prove their reasonableness.

Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > The Collateral Source Rule || || //

New York rule: Money received from collateral insurance sources is to be deducted from the plaintiff's judgement. However, the plaintiff is entitled to receive credit for having paid premiums for up to two years. This is a particularly strange example of how some states have been moving away from the collateral source rule in recent years.

Damages and Insurance > Tort Law and Insurance > Tort Law and First-Party Insurance > The Collateral Source Rule || || //

Using res ipsa to establish the defendant's negligence does not foreclose the possibility that an accident was also caused by the plaintiff's contributory negligence. Evidence of the plaintiff's negligence may be compared to determine percentage of negligence attributable to each party.

Defenses > The Plaintiff's Fault > Comparative Negligence > Changes Caused by Comparative Negligence || || //

Unilateral disclaimers are not enforceable unless there is evidence they were brought to the plaintiff's attention. For example, when a car is stolen, courts reject the claim that the bailment contract included the disclaimer in the absence of a showing that the limitation, in the form of a sign or on a claim check, was drawn to the plaintiff's attention.

Defenses > Assumption of Risk > Express Agreements || Berrios v. United Parcel Service (1992) [notes] p. 474 || Involved bailment at a parking lot with a large sign which states that cars are left at their own risk. Car was stolen. Held for the plaintiff. //

Split rule: Whether an exculpatory agreement signed by a parent on behalf of their child is enforceable.

Defenses > Assumption of Risk > Express Agreements || Galloway v. State (2010) [notes] p. 474 || Held that parental waivers of liability to their children are per se invalid because of the limited authority of parents over their children's legal affairs. This reflects the independent legal protection for children from parental decisions and distinguishes from adult releases. // Defenses > Assumption of Risk > Express Agreements || BJ's Wholesale Club, Inc. v. Rosen [notes] p. 474 || A waiver signed by a parent was held to be a valid exculpatory agreement for the child. The court said the parent is responsible for their child's care. // Defenses > Assumption of Risk > Express Agreements || Zivich v. Mentor Soccer Club (1998) [notes] p. 474 || A parent's signature on a release to permit a child's participation in a soccer league bound the child to an exculpatory agreement and also barred the parents' derivative action. //

Express exculpatory agreements that violate public policy are unenforceable. The Trunkl factors may be used to determine whether an agreement violates public policy: (1) the type of business is suitable for regulation; (2) the service is of importance to the public; (3) the party performs the service for any member of the public who seeks it, or at least any member meeting certain established standards; (4) the party holds an advantage in bargaining power; (5) the party exercises bargaining power though a standard contract of exculpation, without a way to opt out; (6) the transaction places the person of property under the party's control, subject to the risk of their carelessness.

Defenses > Assumption of Risk > Express Agreements || Hanks v. Power Ridge Restaurant Corp. (2005) p. 464 || Defendant operates a winter sports facility. Plaintiff was injured while snowtubing there. Before snowtubing, plaintiff and all other patrons were required to sign an agreement which purportedly released defendant from liability, including for any negligence. Held for plaintiff. //

Liability for gross negligence and recklessness may never be disclaimed by an exculpatory agreement, no matter what words are used.

Defenses > Assumption of Risk > Express Agreements || Sommer v. Federal Signal Corp (1992) [notes] p. 474 || There was liability for an alarm company's failure to relay an alarm to the police despite an exculpatory agreement. //

Split rule and theoretical debate: Whether physician negligence should be a tort matter or should be left to the market and involve exculpatory agreements releasing from liability. Adherents of the latter approach believe the market can effectively regulate risk in this area.

Defenses > Assumption of Risk > Express Agreements || || //

A plaintiff is not barred from recovery by knowingly assuming a risk, unless his degree of fault is greater than the other party's negligence. There are four requirements for plaintiff's assumption of risk: (1) knowledge of the facts constituting a dangerous condition; (2) knowing the condition is dangerous; (3) appreciating the nature and extent of the danger; (4) voluntarily exposing themselves to danger.

Defenses > Assumption of Risk > Implied Assumption of Risk || Davenport v. Cotton Hope Plantation Horizontal Property Regime (1998) p. 480 || Plaintiff rented a condominium on the top floor of a building owned by defendant. There were three stairways leading to the top floor. Plaintiff notified defendant that the lighting in the stairway closest to his unit was not working, but he continued to use that stairway. Plaintiff tripped and was injured on the darkened stairway, and brought suit against defendant. Held for the plaintiff. // Defenses > Assumption of Risk > Implied Assumption of Risk || McGrath v. American Cyanamid Co. (1963) [notes] p. 485 || In New Jersey, the court rejects the term "assumption of risk." There are only two issues: whether defendant was negligent and whether plaintiff was also negligent. //

Majority rule: Baseball rule: Baseball stadiums have a limited duty of care, which involves screening the area of the field behind home plate where the danger of being struck by a foul ball is greatest, and providing enough seats so that spectators who want to avoid risk have the opportunity to sit in the screened area.

Defenses > Assumption of Risk > Implied Assumption of Risk || Davidoff v. Metropolitan Baseball Club (1984) [notes] p. 478 || 14-year-old plaintiff was sitting in the first row behind first base during a Mets game when she was badly injured by a foul ball. They sued the baseball organization. Held for defendant on summary justice. The court found that because comparative negligence was introduced in 1975, the absolute defense of assumed risk is no longer applicable and the duty of care must be defined. Where a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law and therefore cannot be liable for negligence. // Defenses > Assumption of Risk > Implied Assumption of Risk || Turner v. Mandalay Sports Entertainment (2008) [notes] p. 479 || The court clarifies that the limited duty of a baseball stadium proprietors defines what the duty is with greater specificity than the usual standard. It imposes a duty only to screen a portion of the seats. So it does not eliminate the stadium owner's duty to exercise reasonable care to protect patrons against injury, but instead defines that duty in detail. // Defenses > Assumption of Risk > Implied Assumption of Risk || Rountree v. Boise Baseball (2013) [notes] p. 479 || The court found no compelling reason to adopt the baseball rule. There had been only one injury over the past seven years and the defendant presented no statistics to suggest liability for spectator injury was a significant problem. This appears to be the first time a state supreme court rejected the baseball rule. // Defenses > Assumption of Risk > Implied Assumption of Risk || Illinois Legislation p. 480 || After adverse rulings against the Cubs and White Sox, Illinois adopted legislation stating that owners and operators of stadiums are not liable to those hit by a ball or bat unless they were sitting behind negligently defective screen or were hurt as the result of willful or wanton conduct. Limiting civil liability of team owners and stadiums was intended to help contain costs, keeping ticket prices more affordable. //

Split rule: Whether it is assumed that recreational sports participants assume risk by participating in a sports competition, or the standard of reasonable care should be applied with adaptation for the circumstances.

Defenses > Assumption of Risk > Implied Assumption of Risk || Knight v. Jewett (1992) [notes] p. 486 || Plaintiff played an informal game of touch football on an adjoining dirt lot, using a "peewee" football. Each side included both men and women. No rules were explicitly discussed before the game. Plaintiff alleges that defendant, one of her opponents, played aggressively and that on the play before she was hurt she told him to "be careful" or she would stop playing. Defendant then knocked plaintiff over from behind while defending on a pass play and stepped on her hand. Summary judgement granted to defendant. // Defenses > Assumption of Risk > Implied Assumption of Risk || Feld v. Borkowski (2010) [notes] p. 486 || In a concurring and dissenting opinion, a justice made several arguments in favor of retaining a reasonable care standard in the context of sports competitions. It is sufficiently flexible to take into account the circumstances of a sports competition; there is no evidence that the negligence standard was chilling sports competition; if anything, participants need to be restrained; there is no evidence that there will be an avalanche of litigation; impinging on robust competition is worth the cost of deterring unreasonable conduct. //

Split rule: "Firefighter rule": Whether it is assumed that firefighters and police officers have assumed risk in the course of their employment so that, for example, a firefighter injured in fighting a fire that was negligently started by a homeowner would be barred from recovery. (At varying times, this is justified based on assumption of risk, higher compensation, licensee status, and workers' compensation.)

Defenses > Assumption of Risk > Implied Assumption of Risk || Levandoski v. Cone (2004) [notes] p. 487 || The court finds that because rescuers on private land are licensees, those hurt on the defendant's property as a result of conditions of the land are not barred from suing. // Defenses > Assumption of Risk > Implied Assumption of Risk || Roberts v. Vaughn (1998) [notes] p. 487 || The court held that the firefighter rule bars firefighters' and police officers' recovery for injuries sustained as a result of the negligence that gave rise to their emergency duties. // Defenses > Assumption of Risk > Implied Assumption of Risk || Zanghi v. Niagra Frontier Transportation Commission (1995) [notes] p. 487 || Held that firefighters and police officers are barred from recovery when they were injured by hazards whose risks existed because of the position for which they were hired. //

One who voluntarily participates in an activity accepts the inherent dangers in it so far as they are obvious and necessary to participation.

Defenses > Assumption of Risk > Implied Assumption of Risk || Murphy v. Steeplechase Amusement Co. (Cardozo, 1929) p. 475 || Defendant owns and operates an amusement park at Coney Island. One attraction is "the Flopper." It consists of a moving belt that causes passengers to be thrown backward or aside based on its jarring movements. Plaintiff fractured his kneecap while riding it. He brought suit against defendant on the ground that "The Flopper" was dangerous to life and limb because of its violent jerking, stops, and starts. Held for defendant. //

When health maintenance organizations and insurers are sued for wrongly denying treatment to insureds, "mixed eligibility and treatment" decisions are not preempted by ERISA, while decisions made by administrators based only on whether the plan covered the proposed medical treatment are preempted by ERISA.

Defenses > Preemption > ERISA Preemption || Aetna Health Inc. v. Davila (SCOTUS 2004) [notes] p. 504 || Plaintiffs who were covered under employee benefit plans governed by ERISA, sued under state law after plan administrators refused to cover them for treatment decisions recommended by their physicians. The court ruled in favor of defendants. //

If the defendant could have prevented a harm by adding a warning label, and doing so was consistent with federal law, the defense of implied preemption is still available if there is evidence that the regulatory agency would have objected to the proposed change.

Defenses > Preemption > Implied Preemption || Mason v. SmithKline Beecham Corp (2010) [notes] p. 502 || Plaintiff's decedent took defendant's antidepressant and committed suicide two days later. Plaintiff alleges inadequate warnings of the risk of suicide. There had been citizen petitions to change the label and the FDA had investigated the issue, but the FDA had not required a change. This was not dismissed on preemption grounds. // Defenses > Preemption > Implied Preemption || In re Fosamax Products Liability Litigation (2013) [notes] p. 503 || Plaintiff alleged that she suffered a fracture of her femur due to taking Fosamax, a drug used to treat osteoporosis in post-menopausal women. Eight months prior, the manufacturer sought to add a warning but the FDA did not allow them to do so. The court found that this constituted clear evidence that the FDA would not have approved a label change, and therefore held in favor of the defendant based on implied preemption. //

The FDA's regulations governing the labeling of generic drugs impliedly preempt tort claims alleging that the manufacturer has a duty to provide a warning that differs from the one contained on the branded drugs.

Defenses > Preemption > Implied Preemption || Pliva, Inc. v. Mensing (2011) [notes] p. 503 || Plaintiffs alleged that defendants, generic drug manufacturers, should have provided stronger warnings on their labels. Defendants argued that they were required to use the same label as the branded drug manufacturer. Court held in favor of the defendants. Under Wyeth v. Levine, plaintiff's claims would not have been preempted if they were suing the brand name manufacturer for the same defect. While this is inconsistent, the court found that it was required to follow express statutory and regulatory language governing the label requirements for the two types of drug manufacturers. //

State law is impliedly preempted if it is impossible to comply with the state law and applicable federal law at the same time, or if the state law is in some way an obstacle to achieving Congress' intent evident in a federal law.

Defenses > Preemption > Implied Preemption || Wyeth v. Levine (SCOTUS 2009) [notes] p. 500 || Plaintiff was treated for a migraine headache with an injection of Phenergan, a drug manufactured by defendant. When the physician's assistant injected the drug it somehow got into the plaintiff's artery, necessitating amputation of her forearm. Plaintiff brought common law negligence and strict liability claims against defendant, asserting that the warning label on the drug was inadequate. The FDA had deemed the Phenergan label sufficient prior to the drug's approval; however, the FDA had also implemented a regulation stating that a manufacturer is entitled to add to or strengthen a warning on a label without prior FDA approval. Therefore, the suit was not inconsistent with congress' intent. Held for plaintiff. //

Majority rule: Discovery rule: A statute of limitations does not begin to run for toxic exposure disease claims until the injury manifests itself by observable symptoms or is medically identifiable.

Defenses > Preemption > Statutes of Limitations || Griffin v. Unocal Corp (2008) [notes] p. 506 || Plaintiff was exposed to chemicals at work. Ten years later, after retiring, he developed leukemia. Five months after that, he died. At trial, the wrongful death suit was dismissed because it had been more than two years after decedent's last exposure, the time when the claim accrued. The Alabama Supreme Court overturned and held for plaintiff. // Defenses > Preemption > Statutes of Limitations || Grisham v. Philip Morris USA (2007) [notes] p.506 || The court held that a statute of limitations begins to run for smokers in a suit against tobacco companies when they are diagnosed with an illness. //

Discovery of one disease does not cause the statute of limitations to begin to run for other diseases caused by the same exposure to the same substance.

Defenses > Preemption > Statutes of Limitations || Pooshs v. Philip Morris USA, Inc. (2011) p. 506 || When plaintiff smoker sued for lung cancer, the court held that the earlier discovery of COPD, for which the plaintiff had not sued, did not affect the statute of limitations for lung cancer. //

A federal statute can impliedly preempt a state tort claim, even without express preemption language. Grounds for this include a conflict between federal and state law, state law that frustrates the purpose of federal regulation, and Congress enacting legislation that fully occupies a field.

Defenses > Preemption || Buckman Co. v. Plaintiff's Legal Committee (SCOTUS 2001) [notes] p. 499 || The court addressed preemption for state-law claims asserting that a medical device manufacturer committed fraud in the process of obtaining approval from the FDA. It was held that such claims are impliedly preempted based on their conflict with the FDA statutory and regulatory scheme, as the FDA exercises sole control over policing and enforcing compliance with its regulation. //

State tort law can be preempted by federal regulation that prohibits a state from establishing safety requirements different from federal requirements.

Defenses > Preemption || Riegel v. Medtronic, Inc. (SCOTUS 2008) p. 488 || A balloon catheter ruptured in plaintiff's artery while he was in surgery. He and his wife brought a products liability suit against defendant, the manufacturer of the catheter, asserting a variety of state common law claims. The trial court awarded summary judgment to the defendant on the grounds that the state claims were preempted by the federal Food, Drug, and Cosmetic Act. The FDCA provided that a state may not establish or use any premarket safety approval requirement for medical devices that were "different from, or in addition to, any requirement applicable... to the device" under federal law. Summary judgement for the defendant is affirmed by the Supreme Court. It is interpreted that awarding damages for a common law claim is a form of quasi-regulation that can undermine the federal regulation. // Defenses > Preemption || Bates v. Dow Agrosciences LLC (SCOTUS 2005) [notes] p. 498 || The Supreme Court found the requirement in a federal preemption statute precluded common law decisions. However, plaintiff's design defect claim was not preempted: even if there was a finding of design defect, the manufacturer would not be required to change his label. On the other hand, a requirement such as adding a warning claim would constitute a state law "requirement" and would therefore be preempted by the statute. //

Covered by preemption: A federal employee's state tort claims against their former employer for sex discrimination were preempted by the federal Civil Service Reform Act.