Flawed instruction on 'reasonable alternative design' requires vacatur of tobacco defense judgment

Plaintiff's decedent started smoking in the early 1960s,
at age 13 or 14, with free samples of Kents.
(David Shay CC BY-SA 2.5 via Wikimedia Commons)

An error in jury instruction was small but crucial in a Massachusetts tobacco liability case, resulting in partial vacatur in the Appeals Court.

The plaintiff, decedent's representative, alleged design defect as cause of terminal lung cancer. The jury was instructed that the plaintiff had to prove the availability of a reasonable alternative design by the time the plaintiff was addicted.

That instruction described too tight a time frame, the court held. "[T]he jury should have been told to assess whether a reasonable alternative design existed at the time of distribution or sale."

The court explained:

If a manufacturer continues to make and sell a harmful and addictive product even though a safer alternative is available, the fact that the consumer is addicted to the product makes it more—not less—important for the manufacturer to adopt the available safer alternative. The purpose of anchoring liability to the point in time when the defective product is sold or distributed is to give manufacturers an incentive to create safer products [citing, inter alia, the Third Restatement of Torts].... Were we to adopt the defendants' view that liability should attach only up until the point in time a smoker becomes addicted to cigarettes, that incentive would be severely diminished, or even eliminated. Such a rule would in essence immunize cigarette manufacturers from liability to addicted persons even though they continue to sell or distribute defective products despite the availability of reasonable alternative designs. We see no reason to limit liability in this way, especially given the addictive nature of cigarettes, the speed with which smokers can become addicted to them, and the years—if not decades—thereafter during which a person continues to smoke and thus remains exposed to the dangers of cigarettes. In this regard, we note further that, as the expert testimony bore out, ... the degree or point of addiction to tobacco may be viewed as a continuum rather than a bright line. For this reason, it is all the more important that manufacturers be encouraged to produce safer, less addictive products at all points in time so as to increase the possibility that an addicted smoker be able to quit.

The court vacated the judgment in favor of defendants insofar as it arose from the erroneous instruction.

The case is Main v. R.J. Reynolds Tobacco Co., No. 20-P-459 (Mass. App. Ct. Apr. 8, 2022). Justice Gabrielle R. Wolohojian wrote the opinion for a unanimous panel.

Habeas petition for woolly monkey was valid, Ecuadorian court rules, recognizing right of nature

A silvery woolly monkey at the Louisville Zoo
(Ltshears CC BY-SA 3.0 via Wikimedia Commons)

The Constitutional Court of Ecuador entered a landmark ruling on the rights of nature in January when it recognized the legitimacy of a habeas petition on behalf of a woolly monkey named Estrellita.

Estrellita was removed from the wild illegally almost two decades ago. Fortunately she came to be in the care of a librarian and effectively became part of the family for 18 years. But when Estrellita suffered a respiratory emergency, and the family sought medical treatment, authorities seized her for commitment to a zoo. Fearful of the profound distress that must have afflicted Estrellita, besides her ailment, the family filed a habeas petition. Estrellita died, but the petition persisted in the courts.

I wrote in December about the Ecuadorian court's landmark ruling on indigenous rights. As I wrote then, the decision implicitly recognized the right of nature in tandem with indigenous peoples' conservation of natural resources. The Estrellita case makes explicit the judicial recognition of Ecuador's constitutional right of nature, independent of human rights.

Elizabeth Gamillo wrote about the case for Smithsonian in April. Her story linked to a certified translation of the final judgment in the case, "Estrellita Monkey," No. 253-20-JH/22 (Rights of Nature and animals as subjects of rights) (Ct. Const. Ecuador Jan. 27, 2022).

Gamillo added: "Other countries, like Canada and New Zealand as well as several cities in the United States, have treaties or local laws that give wild animals some protection. In November 2021, the United Kingdom recognized several invertebrates, including lobsters, octopuses and crabs, as sentient beings. However, these rights have not been applied at the constitutional level, Science Alert reports."

Police negligence suit against BLM organizer goes ahead after La. Supreme Court greenlights duty

BLM protest in Baton Rouge in 2015
(Alisdare Hickson CC BY-NC 2.0 via Flickr)

A lawsuit against Black Lives Matter organizer DeRay Mckesson lives on since the Louisiana Supreme Court opined in March that state law allows imposition of a duty in tort law and does not preclude liability to police under the firefighter rule.

I wrote about the Mckesson case in April and November 2020. In the case's winding appellate disposition, the U.S. Supreme Court faulted the Fifth Circuit for jumping the gun on Mckesson's First Amendment defense and entreated the court to certify questions of state tort law to Louisiana.

It is not alleged that Mckesson himself threw any projectile at police, so the defense asserted that the intentional criminal action of a third party supervened in the chain of causation between Mckesson's organizing and police officer injury. But the Louisiana Supreme Court was unsympathetic, characterizing the pleadings as alleging related criminal conduct by Mckesson. The court reasoned:

Under the allegations of fact set forth in the plaintiff’s federal district court petition, it could be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to public safety), directly in front of police headquarters, with full knowledge that the result of similar actions taken by BLM in other parts of the country resulted in violence and injury not only to citizens but to police, would render Mr. Mckesson liable for damages for injuries, resulting from these activities, to a police officer compelled to attempt to clear the highway of the obstruction.

The court also rejected Mckesson's the firefighter-rule defense. The common law rule (in Louisiana, "the professional rescuer's doctrine"), not universally recognized, ordinarily disallows recovery by emergency responders for injury incurred in the course of the job, upon the theory that the job is what the responder is compensated for, and responsible parties should not be deterred from summoning emergency response.

The court took the occasion of the Mckesson case to ponder whether the firefighter rule survived the statutory adoption of comparative fault in Louisiana. The rule embodies a form of implied assumption of risk, the court reasoned. Louisiana is not a pure civil law jurisdiction, but the courts rely heavily on statute in accordance with the civil law tradition. Though the legislature left the details of comparative-fault adoption to the courts to work out, the high court acknowledged, the lack of any explicit recognition of the firefighter rule left it displaced.

The case in Louisiana is Doe v. Mckesson, No. 2021-CQ-00929 (La. Mar. 25, 2022). The case in the Fifth Circuit is No. 17-30864.

In law symposium, Enríquez follows up genetics book

CRISPR-Cas9 editing of the genome
(NIH Image Gallery CC BY-NC 2.0 via Flickr)

My friend and once-upon-a-time law student Paul Enríquez, J.D., LL.M., Ph.D. (LinkedIn, SSRN), in the spring published The Law, Science, and Policy of Genome Editing in the Boston University Law Review Online (2022).

Dr. Enríquez published the remarkable book Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap Between Law and Science with Cambridge University Press last year. The BU Law Review then invited him to discuss his work as the centerpiece of a Zoom symposium, which I was privileged to attend, in the fall.

In the present article, Enríquez engages with and responds to the dialog of the symposium. Other contributors are Dana Carroll, Katherine Drabiak, Henry T. Greely, Jacob S. Sherkow, Sonia M. Suter, Naomi R. Cahn, Allison M. Whelan, and Michele Goodwin.

Here is the introduction.

Genome editing is the most significant breakthrough of our generation. Rewriting Nature explores the intersection of science, law, and policy as it relates to this powerful technology. Since the manuscript went to press, genome-editing developments have continued apace. Researchers have reported encouraging results from the first clinical trials to treat β-thalassemia and Sickle-Cell Disease, the first wheat-crop variety that is resistant to a crippling fungal disease and features no growth or yield deficits, and proof-of-concept data establishing the therapeutic effects of the first clinical trial involving the injection of a therapy directly into the bloodstream of patients suffering from a genetic, neurological disease. Chinese regulators promulgated rules to approve gene-edited crops. These and other developments are testament to the expansive reach and promise of genome editing. Rewriting Nature showcases the technology’s power to transform what we eat, how we provide healthcare, how we confront the challenges of global climate change, who we are as human beings, and more.

One of my goals in writing the book was to help spur robust dialogue and debate about the future of genome editing and the synergistic roles that law, science and public policy can play in promoting or hindering specific uses of the technology. I am grateful to the Boston University Law Review for organizing this symposium on Rewriting Nature and bringing together an extraordinary group of gifted scholars, academics, entrepreneurs, and thinkers, including several members of the National Academy of Sciences, as well as scientists and lawyers to engage in diverse discussions of my book.... I am encouraged by the consonance on a vast range of ideas among participants but even more so by the disagreement, as it presents opportunities for engagement and progress. My Essay, thus, focuses on the hard questions and challenges that spring from our disagreements, which allowed me to clarify, refine, and expand on ideas presented in Rewriting Nature and to articulate new ones that point towards future work.

Chair collapse provides textbook 'res ipsa' facts

plastic chair by Chris CC BY-NC-SA 2.0 via Flickr

A textbook res ipsa loquitur case is headed back to the trial court since the Massachusetts Appeals Court in March reversed dismissal.

Res ipsa loquitur is a beautiful doctrine for all kinds of reasons. I like that it's a mouthful of high-dollar words, because that keeps lawyers' hourly rates high and justifies the high cost of law school, translating into more money for professors like me. It's also fun to teach, because of its odd position at the intersection of fundamental tort elements—is it a rule of causation? duty? breach?; its location in negligence law while bearing a striking resemblance to strict liability; and its double-life in doctrines of tort and evidence law render it theoretically instructive.

At the same time, res ipsa is a straightforward and commonsense rule, and this case before the Appeals Court demonstrates its utility. "The plaintiff ... was having lunch on the outdoor deck of Sundancers restaurant in Dennis when his plastic chair collapsed beneath him," the court recounted the facts. The trial court dismissed for want of evidence of negligence by the defendant restaurant owners.

Res ipsa says simply, plastic chairs fairly may be depended on not to collapse. So when they do, it might be someone's fault. And of everyone who might be at fault, it's not the plaintiff's fault. So even if the plaintiff can't show by evidence the precise mechanism of the accident, the plaintiff still deserves a chance to persuade a jury to infer the defendant's responsibility. 

You can find my more formal discussion of the rule in the no-longer-updated Straightforward Torts, to be incorporated into Tortz: A Study of American Tort Law in the coming year.

My 2006 torts casebook with Professor Marshall Shapo uses a case with a similar fact pattern to teach res ipsa loquitur. In O'Connor v. Chandris Lines, Inc. (D. Mass. 1983), the plaintiff was injured when the bunk-beds in which she slept on a cruise ship collapsed. Like Step Brothers (2008) if someone else had put the beds together, and not as funny.

The plaintiff from Sundancers sued years later, if within the statutory limitations period, so both he and the restaurant struggled to locate relevant evidence. There might yet be insufficient implication of negligence on the part of the restaurant to persuade the jury to make the res ipsa inference. But plaintiff deserves better than summary dismissal, the court decided.

Because the record presents a number of material, disputed factual issues—including whether Sundancers provided the plaintiff with a defective and unsafe chair, whether the defect could have been detected with reasonable inspection, whether reasonable inspection was made, and whether factors other than the defendants' negligence more likely caused the accident—summary judgment should not have entered. Were this case to go to trial on the record before us, the jury would be permitted, but not required, to infer that Sundancers was negligent under the principles of res ipsa loquitur.

The case is Kennedy v. Abramson, No. 21-P-224 (Mass. App. Ct. Mar. 17, 2022). Justice Gregory I. Massing wrote the opinion of the unanimous panel.

'Civil death,' denial of tort claims, violates prisoners' right of access to courts, R.I. high court holds

N.C. State Archives public domain photo via Wikimedia Commons

The Rhode Island Supreme Court in March struck down the state "civil death" statute, which disallowed civil claims by inmates imprisoned for life.

The statute at issue states:

Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction. However, the bond of matrimony shall not be dissolved, nor shall the rights to property or other rights of the husband or wife of the imprisoned person be terminated or impaired, except on the entry of a lawfully obtained decree for divorce.

Alleging negligent maintenance, one plaintiff-inmate complained "that his arm was severely burned and permanently disfigured when he made contact with an exposed hot water pipe at the [prison]." Another alleged negligence when he slipped and fell after being compelled "to walk across an icy walkway at the [prison]." The trial court rejected both claims as barred by the "civil death" statute.

I was shocked to read of this case in my home state's Providence Journal; I never had heard of a "civil death" statute. The R.I. ACLU provided some background:

Rhode Island was apparently the only state in the country still enforcing a law like this, whose origins date back to ancient English common law. As far back as 1976, a court struck down Missouri's civil death statute, noting that "the concept of civil death has been condemned by virtually every court and commentator to study it over the last thirty years." The court observed that such laws had been characterized even before then as "archaic," "outmoded," "an outdated and inscrutable common law precept," and "a medieval fiction in a modern world." In 1937, when 18 states still had civil death laws, a law review article called the concept "outworn."

Applying the 1843 state constitution (article 1, section 5), a four-justice majority of the Rhode Island Supreme Court had little trouble reaching the conclusion that I thought was obvious, that the law violates the fundamental due process right of access to the courts.

Justice Lynch Prata
(via Ballotpedia)

Employing strict scrutiny, the court acknowledged that "civil death"

functions as an additional sanction imposed upon some of the state's worst criminals and furthers the goals of punishment and deterrence. This Court has recognized that "[t]he loss of civil status as a form of punishment is a principle that dates back to ancient societies." .... However, it is our opinion that this particular additional punishment is not a compelling reason to override the right of access to the courts that is textually guaranteed by the Rhode Island Constitution.

Justice Goldberg
(via Ballotpedia)

Even were the statute supported by a compelling state interest, it is not narrowly drawn, the court further opined, as it fails to distinguish between prisoners based on their eligibility for parole.

Justice Maureen McKenna Goldberg dissented. "Prison inmates, especially life prisoners, are not entitled to the same degree of constitutional rights as are members of society at large," she wrote, "and that includes the right to bring tort claims against the warden for a slip and fall or a burned hand." She would have narrowed the question to the plaintiffs' negligence claims and upheld the statute.

"In my more than two decades of service on this Court, I cannot recall ever having declared a statute to be unconstitutional," Justice Goldberg opined. "[T]his should not be the first case with such a drastic result in light of our longstanding jurisprudence."

The case is Zab v. R.I. Department of Corrections, No. 2019-459-Appeal (R.I. Mar. 2, 2022). Justice Erin Lynch Prata wrote the majority opinion.

A former state senator Judge Prata was nominated to the court by Governor Gina Raimondo in December 2020, just three months before she left office to become the U.S. Secretary of Commerce. Justice Lynch Prata is 2000 graduate of Catholic Law, for which I periodically teach as a visitor. Judge Goldberg is the senior-most justice on the court, having served since her appointment in 1997.

Statute of repose bars medical negligence claim over misdiagnosis of plaintiff's muliple sclerosis

Evidence of MS in an MRI
(James Heilman, MD, CC BY-SA 4.0 via Wikimedia Commons)

A Massachusetts medical malpractice case in March reminds law students and lawyers that a statute of repose can be as threatening to a cause of action as a statute of limitations, and furthermore that the statute of repose burdens patients with diligently investigating persistent suffering.

The Massachusetts statute of repose for medmal actions states (emphasis added):

Actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitoria shall be commenced only within three years after the cause of action accrues, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.

The plaintiff suffered from multiple sclerosis, which was misdiagnosed in 2011. The results of an MRI indicating MS were never communicated to the plaintiff, almost certainly negligence. But it was more than seven years before the diagnosis was corrected.

The plaintiff tried to predicate her claim on subsequent instances of treatment by the defendant doctors. The court was not receptive. "Even if we generously read the complaint to have alleged separate acts of negligence, that reading would nonetheless be eclipsed by the fact that the 'definitely established event' of the MRI occurred nearly eight years before the complaint was filed," the court opined. A "continuing treatment exception" "would vitiate the statute of repose."

The case is Moran v. Benson, No. 21-P-352 (Mass. App. Ct. Mar. 1, 2022). Justice William J. Meade wrote the opinion of the unanimous panel.

Horn-blowing law survives First Amendment challenge

Image by allispossible.org.uk CC BY-NC-SA 2.0 via Flickr

A citation for unreasonable horn-blowing is not defective under the First Amendment, the Massachusetts Appeals Court held in February.

The appellant sought relief from a civil motor vehicle infraction carrying a $55 fine. The court set out the facts:

On October 16, 2017, police officers were working as part of a detail as a construction site was being set up at an intersection at the Middlesex Turnpike, "a busy public way in Burlington." This was "causing major traffic delays." [Appellant] pulled into the intersection, "grew impatient," honked his vehicle's horn, and yelled at the officers. "This startled construction workers." [Appellant] drove closer to one of the police officers, honked his vehicle's horn, and insulted the officer. The officer stopped [appellant] and issued him a citation for fifty-five dollars for unnecessarily honking his horn.

The pertinent Massachusetts statute declares: "No person operating a motor vehicle shall sound a bell, horn or other device, nor in any manner operate such motor vehicle so as to make a harsh, objectionable or unreasonable noise." The appellant challenged the statute as unconstitutionally vague and unconstitutionally overbroad facially and as applied.

In First Amendment vagueness analysis, the court explained, a statutory text may be informed by "reasonable construction." And this statute is informed, the court reasoned, by the administrative guidance of the Massachusetts Driver's Manual, a document publication of the Registry of Motor Vehicles. The manual specifies:

Use your horn to:

• Warn pedestrians or other drivers of possible trouble
• Avoid crashes

Do not use your horn to:

• Show anger or complain about other drivers’ mistakes
• Try to get a slower driver to move faster
• Try to get other vehicles moving in a traffic jam

That guidance "comports with the common understanding of what uses of motor vehicle horns are objectionable," the court wrote, so "is not unconstitutionally vague."

The statute also was not substantially overbroad, facially or as applied, the court concluded.

The appellant looked to court decisions in Washington and Oregon striking laws against horn blowing as facially overbroad. But those laws were broader and swept into their prohibitions the use of horns for purposes unrelated to traffic, namely, expressive use in protests. The Massachusetts law pertains only in traffic scenarios.

The court rejected what it characterized as the appellant's after-the-fact effort to characterize his horn-blowing as a protest against police to articulate an as-applied overbreadth challenge. "Horn honking may be expressive when used as a form of protected protest," the court acknowledged. But that's not the same as appellant "honk[ing] his vehicle's horn out of impatience to show his anger at the police officer for creating a traffic jam."

Fine line, but I know it because I see it.

The case is Burlington Police Department v. Hagopian, No. 20-P-1371 (Mass. App. Ct. Feb. 22, 2022). Justice Joseph M. Ditkoff wrote the unanimous opinion of the panel.

Inter-American Court heralds community radio as human right for indigenous Guatemalan broadcasters

Community radio in Colombia
(USAID CC BY-NC 2.0 via Flickr)

The Inter-American Court of Human Rights (IACtHR) ruled in October 2021 that the state of Guatemala violated the right of indigenous radio broadcasters by shutting them down for want of licenses.

In multiple raids, Guatemala confiscated broadcasting equipment from four "pirate," that is, unlicensed, community radio stations and, in some cases, criminally prosecuted the broadcasters.

The stations provided information, entertainment, and cultural programming in the Mayan communities they served. At least one station programmed in the Mayan language.

The stations were unable to afford state licensing fees, which awarded frequencies to high bidders. Of Guatemala's 424 licensed FM and 90 licensed AM radio stations, the IACtHR press release about the case said, only one served an indigenous community.

Historical, structural discrimination, besides plain economics, was keeping indigenous broadcasters off the air, the court opined. Though only four stations were at issue in the case, lawyers for the four said as many as 70 indigenous broadcasters in Guatemala stand to benefit.

The case is likely to have farther geographical impact, too, I suggest. In my experience in Central and South America, community radio is a vital force for cultural cohesion and preservation of indigenous culture and language, not only among Guatemalan Mayans. Indeed, the court's opinion is a valuable precedent elsewhere in the world, as community radio is an important cultural force in indigenous and minority communities on every populated continent.

The court ruled that the Guatemalan policy on access to the airwaves violated the freedom of expression, equal protection, and the right to participate in cultural life. The court ordered the government to refine the regulatory process to account specially for indigenous community access, to reserve part of the radio spectrum for indigenous community radio, to make licenses simple to obtain, and strike the relevant criminal convictions.

The IACtHR decision reversed the final disposition in the Guatemalan high court, WBUR reported.

Lawyers in the Human Rights and Indigenous Peoples Clinic at Suffolk Law School in Boston, Mass., participated in the case on behalf of the broadcasters.

The case is Pueblos Indígenas Maya Kaqchikel de Sumpango v. Guatemala (IACtHR Oct. 6, 2021) (summary).

Underwear for firefighters means to prevent cancer

The Defender Brief by 9 Alarm Apparel

A Massachusetts textile maker has teamed with firefighters to make cancer-preventive underwear.

In October 2021, I shared John Oliver's Last Week treatment of PFAS, the highly carcinogenic chemical that is used to make non-stick cookware, as depicted in the movie-based-on-a-true-story Dark Waters, and which can now be detected in the blood of most Americans.

At that time, Oliver lamented that PFAS is not even on the list of toxins that water quality tests look for. Indeed, as I stated in an update to that post the same month, I sought my water quality report at home in Providence, Rhode Island, and there was no mention of PFAS.

There has been progress since. Both the U.S. EPA and the European Union are moving forward with plans announced in 2021 to regulate PFAS. (But see Tom Perkins, US Water Likely Contains More "Forever Chemicals" Than EPA Tests Show, Guardian, July 6, 2022.)

In my house, we replaced our Teflon-coated cookware with a Rachel Ray set we hope is PFAS-free. I took the Teflon stuff to metal recycling, but probably, I acknowledge, it will contribute to the problem in the short term, as landfill waste is leeching PFAS into the earth.

There's a long way to go. In late June, NPR reported, "the EPA put out a new advisory warning that even tiny amounts of some of PFAS chemicals found in drinking water may pose risks." And "[s]cientists are finding PFAS everywhere." A so-called "forever chemical," PFAS persists in the environment, practically never breaking down.

Firefighters are especially vulnerable to PFAS exposure, and testicular cancer is an especial risk. Reminiscent of once seemingly miraculous asbestos, PFAS is used in fire-suppressive gear as well as the firefighting foam in which firefighters can find themselves literally swamped. Firefighters filed a wave of lawsuits in February, CBS News reported, claiming cancer resulting from PFAS exposure.

In a welcome sliver-of-hope development, Massachusetts textile makers announced in tandem with the February lawsuits the sale of PFAS-protective underwear for firefighters.

Precision Sportwear is making "Defender Briefs," a product created by Northampton, Mass., firefighter Levi Bousquet and his company, 9 Alarm Apparel. They told WBZ that Defender Briefs "block 99% of cancer-causing agents from reaching the skin." Precision is located in Fall River, Mass., and 9 Alarm Apparel in Belchertown, Mass.

9 Alarm is marketing the underwear with the slogan, "Protect the Boys."