We recently posted a general overview of failure to warn cases, https://www.videntpartners.com/blog/2024/product-liability-%E2%80%93-failure-warn. That post concluded as follows: “These cases often involve complex medical and scientific concepts, so working with experienced experts is essential. Vident Partners has safety experts (which includes failure to warn) in a wide variety of fields.”
In Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928), which we all remember from our first-year torts class, Judge Benjamin Cardozo restated, in his uniquely pithy manner, the common law rule that whether a duty of care exists depends on the foreseeability of harm: “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. . . .
Human factors experts can play a valuable role in personal injury lawsuits by explaining how a wide variety of factors may have contributed to an injury-causing incident. Here are some ways a human factors expert can assist trial attorneys:
1. Incident Reconstruction: Human factors experts can analyze the circumstances surrounding the incident and reconstruct how the injury occurred. They may consider factors such as environmental conditions, user or driver behavior, and product or road design to determine if any design flaws or human errors played a role.
Many, if not most, states have different statutes (or different common law doctrines) that toll the applicable statute of limitations (SOL) in different circumstances. These circumstances include the discovery rule in medical malpractice cases and the tolling of the SOL if the plaintiff was a minor when the cause of action accrued, was deemed mentally incompetent when the cause of action accrued or while the SOL was running, was imprisoned while the SOL was running, or when the defendant is not physically within the jurisdiction and cannot be served with process. In Louisiana, by contrast
I was under the impression that the tobacco industry had settled all the claims against it. I was mistaken. The major tobacco companies settled with 46 states in 1998. Claims by individual smokers were not covered. A recent case that brought this fact to my attention and required me to do some research to alleviate my ignorance is Greene v. Philip Morris USA Inc. (Massachusetts, No. SJC-13330, 5/9/2023), https://www.mass.gov/files/documents/2023/05/09/w13330.pdf.
I would have thought the answer was Yes – and not just because I’m in the expert referral business. But I’ve just learned that, in point of fact, the answer is a resounding No. In Laccetti v. Ellis, (No. 22-P-466, Mass. App. 3/20/23), the court cited cases from seven states and the U.S. Virgin Islands to that effect and probably could have cited more. Only Delaware is (possibly) an exception.
Reading today’s case took me back to Boston University Law School and my first-year civil procedure course, which was taught by one of those professors who yell angrily at students who are unprepared to answer Socratic questions but are really nice guys outside the classroom. (I say “guys” because there were maybe half a dozen female professors, yet women comprised at least a third of my class. And when I argued cases in the Rhode Island and Massachusetts supreme courts and the First Circuit, there were no female judges on any of them.
The defendants had a 5-foot rubber raft in their swimming pool. One of their guests at a holiday party dove off a diving board onto the raft, bounced off the raft and was propelled into the water, where he struck his head near the shallow end of the pool and broke his neck. The plaintiff is confined to a wheelchair, has limited use of his arms, and is unable to perform most daily tasks without assistance.
The raft had several warnings clearly printed on it, including the following:
The title of this blog post is the holding of a recent Tenth Circuit case, Tanner v. McMurray, https://www.ca10.uscourts.gov/opinions/19/19-2166.pdf (10th Cir. 3/2/2021). All quotations below (except the statute itself) are from Senior Circuit Judge Lucero’s outstanding opinion for a unanimous panel. Footnotes, citations and internal brackets are omitted (i.e., bracketed language is mine); most internal quotation marks are omitted.
Revisiting an old blog is often a useful exercise. For us at Vident, this particular post is always relevant, because our business is providing experts, and we’re always focused on the “why” as well as the “how” when we promote our services. So if you haven’t seen this one, or even if you have, it’s a useful reminder of why we do what we do and how completely you can rely on us to do it right.
