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I field a good number of calls every year from concerned parents regarding injuries to their children at school.  The injuries usually occur on the playground or from other students (bullies) in the classroom.  The parents are upset as they claim that the injuries could have been prevented by proper supervision by the teachers and/or administrators. Typically, I tell the parent that it is quite difficult to pin liability on the teacher and the school for these harms.  A recent court case on this very issue was published today by the Georgia Supreme Court and is instructive for future student injuries at school.

In Barnett v. Caldwell, S17G0641, a high school student, Antoine Williams, was engaging in horseplay with another student at Benjamin E. Mays High School, a school in Southwest Atlanta.  The attending teacher, Phyllis Caldwell, left her classroom unattended around 2:45 p.m., and asked another teacher to “listen out” for her class.  Ms. Caldwell did not instruct the hall monitor to watch her class.

Antoine and another student were horsing around and Antoine fell to the ground with the other student on top of him.  The incident caused Antoine to lacerate a major blood vessel by a dislocated collarbone.  EMT took Antoine to the hospital where he was pronounced dead.

(photo attributed to Wikipedia)

The Boston Scientific Corporation manufactured a transvaginal mesh prescription medical device that was designed to prevent the pelvic organs from falling through the vagina. The mesh sheet is made from a type of plastic and is implanted surgically into the patient. The plaintiff, Amal Eghnayem, had the sheet implanted in February of 2008 to treat her pelvic organ prolapse, but began to experience severe negative reactions in the following months. Amal experienced bleeding and pain during intercourse, incontinence and pelvic pain and pressure, and during an examination it was revealed that she had exposed mesh that was causing her severe symptoms. After an unsuccessful attempt to alleviate her pain, Amal visited a second doctor who found another mesh exposure and performed a second mesh-removal surgery. Following the second surgery, Amal’s pain subsided but by that time she had lost vaginal sensitivity. Amal subsequently filed suit seeking compensatory and punitive damages based on claims for negligent design defect, negligent failure to warn, strict-liability design defect and strict-liability failure to warn. Additionally, three other plaintiffs filed lawsuits and the United States District Court for the Southern District of West Virginia consolidated the suits.

At trial, the jury found for each of the plaintiffs on all four claims and awarded more than six million dollars to each plaintiff. The Boston Scientific Corporation appealed from the judgment on two separate grounds. First, the Boston Scientific Corporation argued that the district court abused its discretion by consolidating the plaintiff’s four suits and trying them together.  Second, the Corporation argued that the district court abused its discretion by excluding all evidence relating to the Food and Drug administration’s clearance of the mesh for sale through the FDA’s “substantial equivalence” process. The trial court excluded the evidence under two different Federal Rules of Evidence. The first, Rule 402, provides that irrelevant evidence is not admissible, and the second, Rule 403, provides that relevant evidence may be excluded, “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.”

Generally, a court must have proper jurisdiction over a case or controversy before that case may be heard in a given county or state. Proper jurisdiction requires that a court have both personal and subject matter jurisdiction over a case or controversy. As to personal jurisdiction, courts have recognized two categories: general and specific. Proper general jurisdiction depends on the nature of the party to the suit and that party’s geographic location, as general jurisdiction over an individual rests only in a defendant’s domiciled state or county, and general jurisdiction over a corporation rests in a place “in which the corporation is fairly regarded as home.” Conversely, specific jurisdiction requires the suit to “arise out of or relate to the defendant’s contacts with the forum.” The primary concern of an appellate court in assessing a grant of jurisdiction over a nonresident defendant is the burden on the defendant and the accompanying Due Process Clause concerns where a defendant is forced to submit to the “coercive power of a State that may have little legitimate interest in the claims in question.”

This case, which arose from allegations that Plavix had damaged the plaintiffs’ health, was heard by the California Court of Appeals where the Court found that California courts lacked general jurisdiction, but had specific jurisdiction over the claims brought by the nonresident plaintiffs. The California Supreme Court affirmed the Court of Appeals’ ruling based on a “sliding scale approach” to specific jurisdiction. The California Supreme Court’s “sliding scale approach” conclusion was based on Bristol Myers Squibb’s “wide ranging contacts” with the State because the nonresident’s claims were similar enough with California resident’s claims and because Bristol Myers was engaged in other activities in the State. However, the U.S. Supreme Court rejected California’s “sliding scale approach” as it was unable to square the “loose and spurious form of general jurisdiction” with the U.S. Supreme Court’s existing precedents.

On June 19, 2017, Justice Alito, with whom seven other justices joined, delivered the opinion of the Court, requiring a narrow interpretation of specific jurisdiction. According to the holding in Bristol-Myers Squibb Co. v. Superior Court of California, Et al., specific jurisdiction requires the existence of an “affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum state.” So, when no connection exists, specific jurisdiction is lacking regardless of the extent of a defendant’s activities within the State unconnected to the nonresident plaintiffs. The holding further asserted that the mere fact that other plaintiffs were prescribed Plavix in California was insufficient to assert specific jurisdiction over the nonresidents’ claims.  Moreover, even the fact that Bristol Myers conducted research in California unrelated to Plavix was insufficient to support a grant of specific jurisdiction. Thus, a grant of specific jurisdiction must rest on a connection between the forum and the specific claim at issue. Attenuated links or connections, without more, are insufficient to satisfy the jurisdictional requirements.

The California Department of Motor Vehicles indicated this week that an updated set of proposed rules for self-driving cars would only require companies that test self-driving cars to notify local authorities about when the testing would occur, but need not ask for permission. Peter Sweatman, predicted that fully autonomous cars will probably be in use for ride-sharing and parcel delivery within 18 months, and according to the California Department of Motor Vehicles, forty-two companies are already testing 285 autonomous vehicles with backup drivers on California roads. Current California rules require a human driver as backup on public roads; however, the updated set of proposed rules may not include a human driver requirement. This disclosure should concern interested parties from several different viewpoints.

(photo attributed to www.motorauthority.com)

First, safety concerns of pedestrians and other drivers on the road should be the primary focus of inquiry where autonomous vehicles are operated without human oversight. Not only does all technology inevitably malfunction, but the hacking of new technologies has become increasingly prevalent in today’s society. The hacking of consumer data and personal information has been the primary focus recently, but that could change if hackers are given a new target with no human fail-safe in place. For example, the malfunction of a navigation system of an eighteen-wheeler could result in numerous fatalities, particularly in California where the roads are consistently congested. The consequences are largely speculative at this point, but if commercial vehicles full of consumer goods are entirely autonomous, it is plausible to suggest that hackers could enter the vehicles navigation system and alter destinations, or cause the vehicle to crash and destroy the vehicles payload. Such an accident would be widely publicized and would likely have significant impacts on a company’s stock.

One of the leading international manufacturers of motorcycles has been sued by an injured motorcyclist following a crash allegedly resulting from Harley Davidson’s failure to warn Kenneth LaMountain about a defect in the cooling line system. More specifically, Mr. LaMountain, the plaintiff, crashed while operating his Harley Davidson motorcycle after the engine oil cool line line system malfunctioned, causing oil to leak onto the rear tire resulting in the motorcycle crashing and injuring the plaintiff.

There are several different legal doctrines upon which a products liability claim can be based. The first, a manufacturing defect, alleges that the motorcycle part in question was faulty or failed to conform with the specifications of how the part was normally designed and manufactured. Thus, when alleging a manufacturing defect, the plaintiff must prove that the product is more dangerous than a consumer would reasonably expect when using the product in its intended manner, or that the product is in a condition not intended by the manufacturer and the defect existed at the time it left the defendant’s hands. Moreover, the law imposes strict liability upon manufacturers where a product is in an unreasonably dangerous defective condition, meaning that any plaintiff who is a user, consumer or bystander injured while using a defective product may recover damages. Strict liability differs from a negligence action where a plaintiff must prove that the defendant owed plaintiff a duty, the defendant breached that duty, and the plaintiff suffered injuries as a proximate result of the defendant’s breach. Here, the complaint alleges that Harley Davidson should be held strictly liable for a manufacturing defect, as the oil clamps were in a flawed condition when it left the manufacturer’s control.

The second legal doctrine is failure to warn, where the plaintiff must show that the defendant breached its duty to warn about risks of which it knew or should have known. Typically, a plaintiff will show that the injury is attributable to the defendant by showing that the defect that injured the plaintiff was in existence at the time it left the defendant’s control. The general requirement that the plaintiff show that the defect was in existence at the time it left the defendant’s control is likely why the plaintiff brought the duty to warn claim in the suit against Cowboy Motorsports, the distributor, rather than the manufacturer. In this case, absent clear evidence, the plaintiff will likely be unable to prove that the manufacturer, Harley Davidson, knew or should have known about the risk. Thus, the plaintiff’s attorney brought this duty to warn against the party against whom he was more likely to prevail.