negligence

Here is a freelance piece published last month by the Connecticut Law Tribune:

Vacant, foreclosed homes have become a bane in many neighborhoods in the United States. There are currently 896,913 properties in some stage of foreclosure in the United States, according to RealtyTrac.

The impact of vacant, foreclosed homes is affecting Connecticut too. Two homeowners in Wyndham County have been living through the experience of having a foreclosed home in their neighborhood.

HSBC Bank owns the property at 231 Ballouville Rd. in Killingly, after foreclosing on the prior owners in April 2014. The property has been listed for sale through real estate agent David Izzo.

Neighbors Clinton Corbin II and Barbara Bouthillier complained to HSBC's realtor in February 2015 that a tree on the property was damaged, decaying and a danger. Izzo came out to take pictures of the tree.

A month to the day that the realtor had been out to inspect the tree, it fell onto Corbin's and Bouthillier's work shed. The shed, which was appraised for $28,000, was destroyed and all of the work tools and other personal items were destroyed, according to the plaintiffs' complaint.

The property owners sued, claiming that HSBC was negligent in not taking reasonable care to remove the damaged tree from the foreclosed property. They also argued that the tree was a nuisance which created an unreasonable interference with their use and enjoyment of their property.

Corbin and Bouthillier, however, ran into the barrier of the common-law rule, which started in England, that landowners are only liable for artificial conditions they create on their land, not for trees and other natural conditions on their land.

Connecticut Superior Court Judge Harry E. Calmar ruled that Connecticut continues to follow the common-law rule, which is reflected in the Restatement (Second) of Torts law treatise. The Second Restatement says that a property owner is not "liable for physical harm caused to others outside of the land by a natural condition of the land," except for trees falling on public highways when properties are in urban areas.

"Natural condition of the land is used to indicate that the condition of the land has not been changed by any act of a human being," Calmar wrote. "There is nothing in the plaintiff's complaint to suggest the tree in question is anything more than a natural condition upon the land, and for such reason the rule of the Restatement applies."

Corbin and Bouthillier were unsuccessful in their effort to change Connecticut law and obtain a ruling that private landowners can be liable for damages when a tree falls on private property.

Matthew-Alan Herman, of the Law Office of Alan Scott Herman in Putnam and counsel for the homeowners, argued that Connecticut should follow a different legal treatise, The American Jurisprudence Second Edition. That treatise says that "a landowner who knows or should know of a dangerous condition of a tree on one's property may be held liable for the injuries caused or damage done when the tree falls on an adjoining landowner's property."

"An extensive search of case law shows that the law has moved away from the traditional approach recited in the Restatement," Herman argued. "Connecticut, while not yet ruling directly on the issue, has also indicated it has adopted the more modern approach establishing liability."

Herman said in an interview he was disappointed that his client's case was dismissed at the motion to strike stage even though the trend in other jurisdictions has been to recognize liability for property owners when they have constructive or actual notice that a tree is in defective condition.

The idea that property owners have no liability for a natural condition "doesn't add up in fairness or equity," Herman said. "They should be held responsible for something they knew … and were aware of was in defective condition."

Herman noted in the homeowners' brief that the Restatement only allowed liability for a fallen tree near a highway, while the American Jurisprudence treatise permits liability when a tree falls onto an adjoining landowner's property.

Some courts have followed a similar line of reasoning as the American Jurisprudence treatise. For example, the New Hampshire Supreme Court ruled in an issue of first impression just five years ago that a landowner who knows a tree is decayed or defective has a duty to eliminate the tree's dangerous condition.

Connecticut courts, however, view the Restatement extremely favorably, Herman said.

Thomas A. Kaelin, of Woodbury and counsel for HSBC, argued in court papers that "the general rule still governs and the rule is that in cases not involving public highways, there is no liability on a landowner for damages caused by a tree falling on a neighbor's property."

Counsel for HSBC declined to comment.

A long-pending and widely anticipated opinion of first impression from the Pennsylvania Supreme Court last week is going to provide more causes of action for plaintiffs lawyers to pursue in the arena of brand-name drug litigation.

The Supreme Court---28 months after it heard oral argument--recognized causes of action for negligent marketing of brand-name drugs, negligent failure to remove prescription drugs from the market and negligence in the design of prescription drugs. Drugmakers now can face liability for “a lack of due care resulting in an untenably dangerous product being put into the marketplace,” the court said in a 4-2 decision. The decedent in Lance v. Wyeth, Catherine Lance, is alleged to have taken diet drug Redux, leading to her death from primary pulmonary hypertension.

Appellate counsel for the plaintiffs, Howard Bashman, said in an interview the case could provide more clarity on the debate over whether negligence principles can be imported into strict liability through the adoption of the Restatement (Third) of Law.

"The Supreme Court has rejected strict liability claims against drug manufacturers brought by people injured by ingesting dangerous medications,” Bashman said in an interview with me. “The court has … recognized as valid various sorts of negligence claims. The bright line seems to be strict liability no, negligence claims yes. It does bring clarity to that area. What Wyeth was arguing essentially was recognizing this type of design defect claim was absolute liability. What we said was” the claim sounds in negligence.

Robert C. Heim, appellate counsel for Wyeth (which is now wholly owned by Pfizer), said in an e-mail: “This is a very narrow ruling confined to facts not generally found in most pharmaceutical cases and, even then, there is a noticeable split in the court. The cause of action the majority espouses here has no applicability to the overwhelming number of cases where the FDA [federal Food and Drug Administration] has approved a drug and the medicine continues to be available to patients. Also, the ruling turns on large measure on the majority crediting plaintiffs’ allegations that Wyeth should have known that the drug was dangerous. This allegation has never been tested by any finder of fact. As the Court recognized, this is a case of first impression and the majority relies heavily on the Third Restatement which has yet to be adopted by the Pennsylvania Supreme Court.”

More Changes To Come in Products Law?

Lance is likely not to be the last change in Pennsylvania's products law. The court granted allocatur in the case of Tincher v. Omega Flex, Inc. on the question of: “Whether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement.”

In a footnote, Justice Thomas G. Saylor, the majority opinion author, mentioned that there are “difficulties with some of the concepts and conventions which have been employed to buttress the theoretical divide between strict products liability and negligence theory.” The justices took up Tincher with the hopes of providing “needed reconciliation, clarification, or modification,” Saylor said.

There also is interesting dicta in the opinion that plaintiffs' lawyers could use to attack the learned intermediary doctrine in failure-to-warn cases. First, Saylor said the learned intermediary doctrine does not apply in cases in which plaintiffs are advancing theories like the one Lance is advancing.

A learned intermediary is beside the point if the product is so dangerous that “it should not have been ingested by anyone” because no warning would have ever been sufficient, the justice said.

But Saylor notes that “some of the underpinning of the [learned intermediary] principle have come into question in light of changed practices in the prescription drug industry. These include the emergence of direct-to-consumer advertising and the evolution of the health-care delivery system encompassing new forms of managed care.”

Plaintiffs lawyer Shanin Specter has said in interviews with me that the learned intermediary doctrine should be set aside in this era of direct marketing. The doctrine may have less value if prescribers are more like notaries putting the official seal on consumers' drug choices.

The defense-oriented Drug and Device Law Blog also notes another interesting ruling in Lance: that an alternative design may not have to be shown in design-defect cases involving prescription drugs.

Saylor Joins the Democrats

One of the most interesting things about the opinion is who authored it: Saylor. Saylor,“ordinarily the court’s most conservative member on product liability matters (and thus our favorite)” aligned “with justices with whom he frequently disagrees with on tort issues,” Drug and Device Law noted. Saylor was joined by Justice Max Baer, Seamus P. McCaffery and Debra Todd.

Saylor was unsparing to Wyeth at times in his opinion: “To the degree that Wyeth is uncomfortable with our jury-based civil-justice system, its complaint is with the Pennsylvania Constitution,” wrote Saylor, citing the state constitutional provision guaranteeing the right of trial by jury.

“We find that Wyeth is asking, in substance, that we should invoke policy justifications to scale back the existing duty of pharmaceutical companies to independently and vigilantly protect against unreasonable health risks which may be posed by products made for human consumption,” Saylor opined at another point.

Dissenting justice Justice J. Michael Eakin, joined by Chief Justice Ronald D. Castille, said the majority recognized a new cause of action for negligent design defect. “As I see it, Wyeth sought to preclude the creation of new claims, not extinguish ones already in existence,” Eakin wrote.

While Eakin said he expressed no opinion on the wisdom of adopting negligent design defect as a cause of action, the issue was not before the Superior Court and the intermediate appellate court raised it on its own. Eakin also reasoned that the plaintiffs had not preserved their negligent design defect claim, only the negligent marketing claim.

Saylor rejected the notion that the majority was creating new claims because there was no “source of authority establishing an already existing, special rule immunizing pharmaceutical companies in the negligence arena.” Drug and Device Law argued that was just not so: the majority in Lance did not “cite a single decision by that or any other court allowing such a claim. Certainly, no prior decision has recognized a cause of action for 'lack of due case resulting in an untenably dangerous product being put into the market place.'”

A Job For Legislators?

Saylor argued that legislators, not the court, are best positioned to consider the drugmaker's policy arguments in favor of a “contraction of existing tort law.” One example of how legislators can balance the benefits of pharmaceutical products against the harms they can sometimes cause, Saylor said, is the no-fault compensation program Congress established for people who suffer side effects from some vaccines.

Bashman told me that Saylor's reasoning echoes an argument his co-counsel and he made in another case on punitive damages that the Supreme Court said it had improvidently granted: “The judiciary and the legislative bodies have different roles and responsibilities and, if certain types of claims are specifically to be ruled out of bounds, that should be a legislative-type of decision because the type of the record that you get through litigation is not aimed at that ordinarily, unless you truly have a test case. This was not brought as a test case where the record established whether negligent design-defect claims should be allowed or not."

The Superior Court panel had recognized negligent design defect as a viable cause of action, but rejected the claim of negligent marketing and negligence in failing to withdraw Redux from the market. Wyeth appealed the ruling that claims of negligent design defect are viable in Pennsylvania, while Lance appealed the rulings that claims of negligent marketing, testing and failure to withdraw drugs from the market are inviable in Pennsylvania.

Saylor also criticized the Superior Court panel of Cheryl Lynn Allen, Correale F. Stevens (who now is sitting as an interim Supreme court justice)and Susan Peikes Gantman. The panel “reconceptualized” the marketing claim as one sounding in strict liability, not negligence, Saylor wrote. In a footnote, Saylor expounded that, “given the material differences between strict liability and negligence theory … the panel's approach of analyzing appellee's main claim—which was expressly stated in negligence–as if it were grounds upon strict liability, is deeply flawed.”

Wyeth argued that Pennsylvania should only recognize negligence causes of action for manufacturing defects and inadequately warning of a drug's risks to prescribers. Saylor rejected Wyeth's exhortation to “adopt a potent, bright-line rule, applicable across the commonwealth, closely restricting claims against pharmaceutical companies.”

Yet all is not lost for drugmakers in Pennsylvania. Yes, the majority approved of the argument that a drugmaker could be liable for design defects if “a prescription drug carr[ies] risks which outweigh its benefits as to all possible classes of patients.” But I think plaintiffs will have a harder time prevailing on design-defect claims for drugs that have more demonstrable benefits. If defendants can show that some classes of patients benefit from their products, then Pennsylvania courts might have grounds to reject a design-defect theory under Saylor's reasoning.

It seems the design defect claim is going to be very context-specific. In fact, Saylor noted that judge-made law depends upon the facts of the case: “In seeking a bright-line, substantive rule of prohibition across a broad class of cases, Wyeth's advocacy is in tension with the nature of common-lawmaking. Initially, it is axiomatic that the holding of a judicial decision is to be read against its facts,” Saylor said.

Trip to U.S. Supreme Court?

Bashman said in my interview with him that he does not think that Wyeth has preserved its arguments that federal law pre-empts the case, and the U.S. Supreme Court would not care about Pennsylvania's decision to recognize certain types of pharmaceutical liability claims unless they are “somehow … contrary to federal law.”

Drug and Device Law argues design-defect claims are preempted by federal law because it would be impossible to both change the design of Redux or remove it from the market and comply with the FDA's requirement that drugmakers not change the formulations of drugs once they have been approved.

The U.S. Supreme Court rejected the First Circuit’s rationale in Mutual Pharmaceutical Co., Inc. v. Bartlett that the drugmaker “could escape the impossibility of complying with both its federal- and state-law duties by choosing to stop selling sulindac.” The majority said that the First Circuit's rationale “is incompatible with this Court’s pre-emption cases, which have presumed that an actor seeking to satisfy both federal- and state-law obligations is not required to cease acting altogether.”

In in Wyeth v. Levine, the U.S. Supreme Court said federal regulation was a floor, not a ceiling, for protecting consumers regarding the risks of brand-name drugs through failure-to-warn claims (generic drugs are another matter). It'll be interesting to see if impossibility preemption and Pennsylvania's decision to recognize design-defect and negligent marketing claims for brand-name drugs gets a ride to Washington, D.C.

A Philadelphia judge was wrong to enter a compulsory nonsuit in the first of over 30 cases involving allegations that brain cancers were caused by a carcinogen leaking from a chemical plant, the Pennsylvania Superior Court ruled this week.

A two-judge panel of the Superior Court reversed Philadelphia Court of Common Pleas Judge Allan L. Tereshko in a non-precedential decision. Judge Kate Ford Elliott authored the opinion in which Judge Cheryl Lynn Allen joined.

The trial court did not have the authority to enter a compulsory nonsuit in the midst of plaintiff Joanne Branham’s case-in-chief, Ford Elliott said. Branham’s spouse, Franklin Delano Branham, died from brain cancer, and Branham and other plaintiffs allege that the release of vinyl chloride into the air and groundwater in and around McCullom Lake, Ill., caused a brain cancer and tumor cluster in the village of 1,100 residents. Rohm and Haas, which is now owned itself by Dow Chemical, has owned the plant since 2009.

“We find no authority to support Rohm and Haas’ claims that a trial court can grant a nonsuit in the middle of a trial before a plaintiff is finished presenting her evidence based on its own evaluation of the remaining evidence,” Ford Elliott said. “To properly grant a compulsory nonsuit in this case, the trial court should have allowed [plaintiff] to present her remaining witnesses and ruled on the motion for nonsuit after [plaintiff] had concluded her case-in-chief.”

The trial judge entered a compulsory nonsuit after the plaintiffs’ expert epidemiologist ran into trouble on cross-examination. Dr. Richard Neugebauer “became unsure if one of the individuals he had used in his analysis was properly included in the study and admitted to making last minute changes to his report that Rohm and Haas’s attorneys may not have received,” according to the opinion. Then Tereshko directed Neugebauer to review his notes to clarify the issue, and the epidemiologist made several additional changes to his report overnight. After the defense moved to strike Neugebauer as an expert witness, Tereshko granted the motion and said the changes in the report may have been “’tantamount to fraud on the court,’” according to the opinion. The judge dismissed the jury before the rest of the plaintiff’s’ experts, including toxicologist Gary Ginsberg, testified.

The trial judge did not rule on plaintiff’s motion to grant a mistrial or the defense motion to grant a compulsory nonsuit until six months later.

Plaintiff’s counsel, Aaron J. Freiwald of Layser & Freiwald, said the case “underscores the idea that there really are certain issues that need to be decided by a jury.” Defendants are often trying to get cases decided as a matter of law, but once the case gets past the summary judgment stage, the motion in limine stage and the evidentiary-motion stage, the case has to go to the jury unless a nonsuit is appropriate after the close of the entire plaintiff’s case-in-chief, Freiwald said.

The panel reversed Tereshko on striking the testimony of the neuropathologist who testified prior to Neugebauer, but the panel upheld Neugebauer’s testimony being stricken. The issue was waived without an objection at the time, Ford Elliott said.

Neugebauer’s testimony could be used in the cases of other plaintiffs, and “epidemiology is just one lens” through which to see the evidence in the case, Freiwald said.

The panel also upheld the trial judge’s ruling striking the plaintiff’s strict liability claim. “Appellant’s claim really sounds in negligence, not strict liability,” the Superior Court said. “Appellant alleges that the unlined and unsealed pit allowed vinyl chloride to escape into the air and the groundwater. It was the alleged failure to line the settling basin, or lagoon, properly that allowed the toxic chemicals to leech into the groundwater.”

The panel also upheld Tereshko’s decision to deny recusal. “Although the trial judge’s decision was incorrect, his attempt to distance himself from the emotion he felt showed a conscientious awareness of his need to make an impartial ruing,” Ford Elliott said.

In a statement, Rohm and Haas expressed disappointment about a new trial being ordered on the negligence claim, while noting the strict liability claim’s dismissal was upheld. “The Superior Court also upheld the decision to strike plaintiff’s expert epidemiology witness whose reports the trial court found ‘troubling’ and ‘tantamount to fraud on the court.’ [Rohm and Haas] continues to believe that the plaintiff’s injury claims cannot be supported by scientific evidence and will continue to defend itself in this matter,” the company’s statement said.

Rohm & Haas also might seek an appeal to the Pennsylvania Supreme Court.

Defense counsel was Kevin Van Wart of Kirkland & Ellis in Chicago.

Correale F. Stevens, who between the time of oral argument in the case and the decision this week joined the Supreme Court as an interim justice, did not participate in the decision.