Tort Question of the Month: Corporate Wrongdoing, and Personal Responsibility

CBS This Morning reported on January 24th, 2019 that the Massachusetts Attorney General, Maura Healey, is “targeting Purdue Pharma and eight members of the Sackler family who own the company, alleging in a lawsuit they are ‘personally responsible’ for deceptively selling OxyContin, the narcotic which is central to the opiod crisis.” “Family behind OxyContin maker engineered opioid crisis, Massachusetts AG says,” CBS NEWS January 24, 2019

Almost 400,000 people died from opioid overdoses between 1999 and 2017, according to the CDC. Massachusetts is one of 36 states now suing Purdue Pharma, accusing the company of downplaying the dangers of OxyContin. In a 2007 federal settlement, the company admitted to falsely selling the drug as “less addictive” than rival products. The company paid $630 million in fines.

Healey alleges that “the Sackler family hired “hundreds of workers to carry out their wishes” – pushing doctors to get “more patients on opioids, at higher doses, for longer, than ever before” all while paying “themselves billions of dollars.”

In a statement, Purdue Pharma said the lawsuit “distorts critical facts” and “cherry-picked from among tens of millions of emails and other business documents.”

To that, Healey said, “If Purdue thinks we’re cherry picking, I invite them to produce all of their documents and let the public judge for itself.”

Should Corporate Owners and Officers be held personally liable for intentional wrongdoing by the corporation?

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Do Judicial Nominees Need to be forthright?

The Senate is holding hearing on the confirmation of Brett M. Kavanaugh to the United States Supreme Court. In recent years, hearings on judicial nominations have become elaborate pieces of theater. In this case, it’s Republican Senators lobbing softball questions to the nominee, Democratic Senators protesting the late-night dumping of tens of thousands of documents written to or by Kavanaugh, and the nominee bobbing and weaving and refusing to clarify his thinking about pertinent legal issues.

Meanwhile, various citizen groups have protested that Kavanaugh appears to have a distinctly pro-corporate, anti-individual; anti-environment worldview. Public Citizen notes that “On U.S. Court of Appeals, Kavanaugh Sided With Corporations 87 Percent of the Time in Split Decisions in Key Areas,” and Greenpeace has gone on record as noting that “Kavanaugh Could Do Irreparable Harm to Our Climate and Democracy.” These groups express the well-founded fear that, for the next generation, Kavanaugh could weaken laws which protect individuals (like tort law), and instead, rule as he has in the past, in favor of corporate interests. Given the nominee’s refusal to state his thinking clearly, and his refusal to answer “hypotheticals,” it is difficult to fairly assess his worldview; and determine whether he will an advocate for individuals, or beholden to corporate interests.

Law Question of the Week

Does the American Public have a right to have Judicial Nominees answer questions fully and forthrightly, so that our Senators can assess the Judicial Nominees’ views, before confirming them to lifetime appointments?

Does the American Public have a right to have Judicial Nominees answer questions fully and forthrightly?

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This Week In Torts: A Compendium Of Tort-Related News Ripped From Today’s Headlines!

Who’s Your Daddy?

The New York Times is reporting that Dr. Donald Cline fathered many, many children, while running a fertility clinic in Indianapolis during the 1970’s and 1980’s.

Many couples sought Dr. Cline out at his Indianapolis-area fertility clinic during the 1970s and ’80s. They had children, who grew up and had children of their own.
What the couples did not know was that on an untold number of occasions, Dr. Cline was not using the sperm of anonymous donors.
He was using his own.
Now, Dr. Cline’s former patients and their children are asking enormously consequential questions: How many women did he deceive? How many children did he father? Most perplexingly, why did he do it?

The full, and mystifying, story is here: Zaveri, M., “A Fertility Doctor Used His Sperm on Unwitting Women. Their Children Want Answers,” NY Times, August 30, 2018.

Questions to Ponder:

  • Were these acts – Dr. Cline repeatedly using his own sperm instead of the sperm of anonymous donors – tortious?
  • Who was injured?
  • How?
  • What legal remedy is or should be available?

The Race to the Top

Asian-Americans have sued Harvard, alleging that Harvard discriminates “against Asian-Americans in admissions by imposing a penalty for their high achievement and giving preferences to other racial minorities.”

The Harvard case asserts that the university’s admissions process amounts to an illegal quota system, in which roughly the same percentage of African-Americans, Hispanics, whites and Asian-Americans have been admitted year after year, despite fluctuations in application rates and qualifications.

“It falls afoul of our most basic civil rights principles, and those principles are that your race and your ethnicity should not be something to be used to harm you in life nor help you in life,” said Edward Blum, the president of Students for Fair Admissions, the organization that is suing Harvard.

Hartocollis, A., and Saul, S.  “Affirmative Action Battle Has a New Focus: Asian-Americans“. NY Times, August 2, 2017.

The lawsuit, brought by an anti-affirmative-action group called Students for Fair Admissions, has revived the national debate over race-conscious admissions, which is playing out from colleges down to elementary schools.

The debate goes back to the civil rights movement of the 1950s and ’60s. The assassination of the Rev. Dr. Martin Luther King Jr. in 1968 was a turning point, pushing colleges to redouble their efforts to be more representative of American society.

But Asians were an overlooked minority despite a long history of discrimination. As late as 1976, Harvard did not recognize them as a minority group and barred them from a freshman minority orientation banquet. They had a kind of neither-nor identity, denied both the solidarity of other students of color and the social standing of white people.

Hartocollis, A., Harmon, A.  and Smith, M. “‘Lopping,’ ‘Tips’ and the ‘Z-List’: Bias Lawsuit Explores Harvard’s Admissions Secrets,” NY Times, August 30, 2018.

Following Up

In April, we noted that several families had sued popular radio host, and “right-wing conspiracy theorist” Alex Jones, for his repeated claims that  shooting of schoolchildren in Sandy Hook Connecticut was ‘completely fake’ and a ‘giant hoax’ perpetrated by opponents of the Second Amendment.”  The families of the murdered children sued Alex Jones for defamation.  The tort of defamation is “the offense of injuring a person’s character, fame or reputation by false and malicious statements.”  Black’s Law Dictionary, De Luxe Fourth Ed. (1951).

At the time, we noted that

We will have to see how this lawsuit plays out in court.  There is, after all, a right of free speech in the country, guaranteed in the Bill of rights.  But it is well-established that there are limits to that speech – You can’t falsely yell “Fire!” in a crowded theater, for example.  Did Jones act maliciously? Will he and the staff at Infowars fight this lawsuit, or settle?

Newman, R.  “When Madness Walked the Earth,” April, 2018, Director’s Cut, American Museum of Tort Law.

Well, so far, Jones is fighting. And losing.

On Thursday, a Texas Judge denied Jones’s motion to dismiss the lawsuit.  “’After considering the arguments of counsel and the record, including plaintiffs’ declarations filed on August 2, the court ORDERS that defendants’ motion is in all respects DENIED,’ the court filing said.”  Murdock, S., “Alex Jones Fails To Stop Sandy Hook Parents’ Defamation Case,” Huffington Post, August 30, 2018.  As a result, Jones will have to continue to defend himself against these claims. We will continue to continue to follow up.

Legal Question of the Week

Should Universities continue to consider the race or ethnicity of applicants in determining who to admit to school?

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How would you like to reduce gun violence in the USA?

Everyone knows that there has been terrible carnage in America, caused by heavily armed shooters massacring unarmed citizens, including, tragically, school children.  America leads the world in gun violence (among nations not engaged in civil war), and the number of deaths is terrifying, and terribly, heartbreakingly sad.

We have the Second Amendment to the Constitution, contained in the Bill of Rights.  The Second Amendment reads as follows:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

It is not a model of clarity, since the first part (“a well-regulated militia…”) doesn’t seem to directly tie in with the second part (“the right to keep and bear arms shall not be infringed.”) There has been litigation about how to interpret the Second Amendment   (See District of Columbia v. Heller, 554 U.S. 570 (2008), for example); and legislation passed to protect gun makers from being sued.  See Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§ 7901-7903.

The issue of the right to keep and bear arms is divisive and polarizing the nation. 

Recently, in a letter to the editor, the Washington Post put forward a bold suggestion:  Amend the Constitution.  Peter M. Storm, “Amend The Constitution To Restrict The Flow Of Guns,” Washington Post,  February 22, 2018. 

As he wrote,

Perhaps it’s time to recognize the Constitution for what it is: a user’s manual for organizing a government. It has served us well, but we have made many needed changes over the years. Many were bitterly opposed, and some may have been a mistake that had to be righted, but they were made and the nation survived. Now is the time to make a needed change in the types of weaponry one may legally possess.

The letter did not specify what language to the amendment the author had in mind.  Maybe to link the right to bear arms to some form of well-regulated militia; maybe simply language that would remove high capacity semi-automatic rifles such as the AR-15 from the hands of civilians.

Other options are available.  Congress could repeal its immunity for gun makers who negligently let their guns fall into the hands of unsafe, untrained users.

The law could require that guns be treated like cars:  Owners must be trained, tested, licensed and insured.

Anyway, here is the question of the day (Hint: It’s a one-question survey):

[polldaddy poll=9954962]


Should ex-cons serve on juries?

Recently, Virginia Governor Terry McAuliffe signed an executive order, restoring the voting rights of roughly 200,000 convicts who have completed their sentences.  Approximately 5,000 of those people have since registered to vote.

In signing the order, Governor McAuliffe also made those former criminals eligible to serve on juries. In response, some Virginia prosecutors have asked the governor for a list of the names of those former criminals eligible to be restored to the jury rolls.  According to an article in the Washington Post, one such prosecutor has stated,  “It’s insulting to victims, especially in very sensitive cases, to have someone who has committed that crime sit in judgment of the person who has wronged you. I don’t think it’s fair for a child victim if I’ve got a sex offender sitting on the jury.”

The Governor’s office has refused to provide that list, and a spokesman for the Governor has stated that “[The Prosecutor’s] request was a political ploy by Republican prosecutors to embarrass McAuliffe — and prosecutors have the means to vet potential jurors.”  The Governor has also noted that “convicted felons have always been able to get their rights restored in Virginia. . .  A felon’s rights are automatically restored after they complete their parole or supervised probation, and once they register to vote, they become eligible for jury duty.”

So one view is that they did the crime; they did the time; and their debt to society has been paid.  

The other is that convicted felons should not be permitted to serve on juries, even after they have finished serving their sentences.

What do you think – Should the law allow ex-cons to serve on juries?