Injury & Tort Law News - U.S. Eleventh Circuit
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It's well established that there's no respondeat superior liability levied on ship owners for the negligent medical care of the ship's crew, no matter how negligent they are. But what about an agency theory? That was an issue of first impression for the Eleventh Circuit in Franza v. Royal Caribbean Cruises.

The short, short version: Pasquale Vaglio fell, hitting his head while Royal Caribbean's "Explorer of the Seas" was docked in Bermuda. The ship's nurse failed to correctly diagnose his head trauma, had him wait for four hours, then "released him with no treatment to speak of." Vaglio died a week later.

We were just talking about junk faxes, largely because our office keeps getting them. (And no, fool, I don't want to hire someone who uses a fax machine to design a mobile app for my company.) They're annoying as heck, and they're also prohibited by the Telephone Consumer Protection Act (TCPA).

The case of Palm Beach Golf Center-Boca Inc. v. John G. Sarris, DDS, involves a junk fax, sent by a dentist, that a golf club probably received -- the fax logs say that it was successfully transmitted and that the two fax machines connected for over a minute -- but nobody seems to have seen. Nonetheless, the Eleventh Circuit has revived the putative class-action lawsuit and will allow it to proceed on two grounds: the TCPA and common law conversion.

We've talked before about the ongoing "Engle-progeny" cases in Florida: The state supreme court decertified the Engle class but gave res judicata effect to a jury's determinations on causation, negligence, breach of warranty, concealment, and conspiracy findings. The individual members of the class would then have to file their own claims to determine "individual issues such as legal causation, comparative fault, and damages." The Eleventh Circuit upheld this "novel" approach last year.

Thelma Aycock brought this suit on behalf of her late husband, Richard Aycock, a chain smoker with a bit of a drinking problem. A jury found R.J. Reynolds Tobacco Company 72.5 percent at fault, leading to a net award of $4.28 million. Reynolds appealed, arguing that a denied continuance cost it its choice of counsel and more importantly, that exclusion of evidence of Richard's alcoholism was improper.

The Eleventh Circuit didn't touch the counsel issue, reversing the verdict on the evidentiary issue alone.

The U.S. Supreme Court's decision last term in Kiobel v. Royal Dutch Petroleum has already put the kibosh on one Alien Tort Statute (ATS) claim in the Eleventh Circuit: In that case, the court said that Kiobel foreclosed using the ATS where all the conduct took place outside the United States.

In front of a different three-judge panel of the Eleventh Circuit, plaintiffs in Baloco v. Drummond Company argued that Drummond, an American coal mining company, "aided and abetted or conspired" with Colombian paramilitary forces by paying the paramilitary to murder several Colombian union leaders at Drummond's Colombian mines.

Vicki and Danny Weeks sued five drug companies in federal court over injuries Danny Weeks suffered after years of taking metoclopramide, the generic version of Reglan. The U.S. District Court for the Middle District of Alabama, in turn, certified to the Alabama Supreme Court the question of whether brand-name manufacturers can be held liable for fraudulent misrepresentation due to injuries sustained from generics.

Last week, in an opinion following a rehearing of this case, the court ruled 6-3 that they can.

Since the inception of the United States, the Alien Tort Claims Act has given a forum in U.S. courts to aliens harmed in violation of U.S. treaties or international law. To that end, more than 4,000 Colombians sued Chiquita (the North Carolina-based banana company) in the United States, alleging that Chiquita acted in concert with paramilitary forces in Colombia, resulting in injury and death.

The cases came to the Eleventh Circuit Court of Appeals to decide some concerns over the plaintiffs' pleadings, but the Eleventh Circuit dismissed the lawsuits, finding that U.S. courts were not the place to litigate claims where foreign nationals alleged they were being harmed by other foreign nationals.

In 1994, a class-action lawsuit was brought against Big Tobacco, including R.J. Reynolds, in Florida state court on behalf of all Florida citizens and resident who have suffered or died as a result of medical conditions caused by their addiction to cigarettes. The trial court, realizing the enormity of the task at hand, split the trial into three phases:

  • Phase I "consisted of a year-long trial to consider the issues of liability and entitlement to punitive damages for the class as a whole;"
  • Phase II was a determination of the liability of the tobacco companies to three
    individual class representatives, compensatory damages for those
    individuals, and a determination of class-wide punitive damages;
  • Phase III would evaluate the individual claims of the remaining class members.

Perhaps the oddest thing about the American legal system is the separate state, federal, and administrative courts. The law in federal court can be completely different than the law in the state courthouse next door. And on that same note, an antitrust lawsuit that would be a guaranteed failure in federal court might have a fighting chance in a Florida state court.

Major League Baseball's antitrust exemption is common knowledge by now. In 1922, the Supreme Court declared baseball a game, not a business, and therefore exempt from antitrust provisions. In 1953, SCOTUS compounded the error by upholding their prior ruling, citing Congress' inaction to remedy the problem as justification for continuing preferential treatment. Nearly 20 years later, Justice Blackmun wrote an odd ode to baseball in another upholding of the exemption, this time justified by stare decisis.

Don't Wait to Object to Jury Verdict Inconsistency

Megan Sands was seriously injured in a jet ski accident in 2006 while in the Bahamas.

Sands filed a products liability action against Kawasaki, the jet ski manufacturer, under maritime law. The jury returned a verdict in favor of Sands on her design defect claim, and awarded her $3 million, The Nassau Guardian reports. The district court ultimately entered judgment for $1.5 million because the jury found that she was 50 percent responsible for her injuries. Sands appealed, arguing that the jury’s award of $0 for pain and suffering was legally inadequate and against the “manifest weight” of the evidence.

Reviewing the facts of the case, it seems that she has a point. But the Eleventh Circuit Court of Appeals affirmed the district court’s verdict this week. Let’s discuss where Sands’ case went wrong.

Court opinions can be dry, making reading through a stack of them an arduous task. That’s why we’re thankful for judges like Ed Carnes who constantly spice up their opinions with inspired, sometimes bizarre, quotes and references.

This year, our favorite Eleventh Circuit jurist quoted Bob Dylan, added a new line to a Jim Croce song, and made a particularly apt reference to turducken. To wit: Judge Carnes’ top three quotes of 2012.