Massachusetts widow, Nancy Magee, is suing PetSmart in an extremely novel tort case, claiming that the original owner contracted lymphocytic choriomeningitis (LCMV) from the hamster and then passed it along when her organs were transplanted in Thomas J. Magee. It is a proximate cause case that makes Palsgraf look positively simple in comparison. It is, however, only the latest in a series of interesting transplant cases recently.
Here is the basic causal chain.
1. The original woman buys hamster at PetSmart.
2. Hamster allegedly infects new owner with LCMV, a rodent-borne viral infectious disease.
3. The original owner then dies of unrelated stroke.
4. Dead owner’s organs are transplanted into various recipients including Thomas Magee, who has a liver transplant at Massachusetts General Hospital in April 2005. .
5. Magee contracted LCMV and dies.
Magee is now suing PetSmart for selling a third party a diseased rodent. We have come a long way from the time when privity (or a direct contractual relation) is required to sue for a product defect. Now, if you are injured by a Ford Pinto blowing up, you can recover even if you are not the owner and was injured as a pedestrian. Here, Magee is claiming that she (and obviously her husband) were the victims of the defective hamster. Whether this is a product liability or negligence case, it unclear.
The test, however, will come down to proximate causation and whether the chain of causation is too attenuated to hold PetSmart for an illness from a transplant involving a third party.
Factual causation is also likely to be challenged as to whether it is clear that this hamster was the only possible source of LCMV.
Finally, there is the question of the hospital liability. Recently, we have seen other cases involving the transplanting of cancerous organs (though this may be more difficult to spot), click here and here.
For the full story, click here.
JT:
Well, obviously we can (fore)see much better now than we used to, with thanks to Justice Cardozo, of course. I am more in the camp of Justice Andrews who wrote the dissent in Palsgraff. To Andrews, “”everyone owes the world at large a duty of refraining from those acts that may unreasonably threaten the safety of others.” I don’t think this causes a “butterfly effect”, if read to include only those acts which society (in the person of the jury) concludes to be unreasonably dangerous when the particular knowledge and sensibilities of the defendant are considered. In this case, PetSmart presumably knew or should have known as a seller of hamsters, about the dangers inherent in their animals transferring LCMV to humans. Petsmart’s failure to test the animal or warn the buyer can reasonably be seen as negligence. Of course this is mere theory, the nuts and bolts come in proving the causation of the illness. However, you have to admire the creativity of the plaintiff’s attorney.
Maybe one day we could discuss the beginnings of the negligence system on our blog. Most people think it was designed to protect the Plaintiff, just as they erroneously think workers compensation is designed to protect workers. Few realize plaintiff’s were much better served under the old law of the guest, and that the negligence system was put into effect during the Industrial Revolution to protect factory owners whose boilers had the nasty habit of exploding every now and again. Where have all the Charles Dickens’ gone?
Mespo:
Excellent points as always. I have no difficulty with the idea of liability for selling LCMV-laden hamsters — presuming that tests are available. It is the the foreseeability of a transmission through a transplant that makes it more challenging. This may prove one of the most interesting torts cases in years.
Jonathan
JT:
That’s why I like Andrews’ position. Cardozo circumscribes the right of recovery for purely practical reasons. As anyone who has read Hume knows, cause and effect are difficult concepts, and proximate cause as distinguished from “but-for” causation is an artificial distinction fraught with subjective concepts of closeness in time or relation. With Andrews proposal, we have no problem with analyzing this case. Cardozo makes it more difficult since we have the foreseeability issue front and center. I think Andrews allows us to better adapt to new technology and new circumstances and that Cardozo straps us with concepts of foreseeability that force us to limit our analysis to the most obvious and hence most direct. Would anyone really argue with Andrews when he says that a person recklessly driving down Broadway owes only a duty to those he might foreseeably injury and not to us all if we can show harm resulting?
oops, in my haste I got the last sentence backward (sorry in middle of a break in a dep and was distracted). Meant to reverse the clauses. Anyway, back to the dep.
What if the hamster was put in a package of fireworks. Would the zone of danger be the blast radius of the hamster’s diseased body parts?
Now that is an image. For the members of PETA monitoring this site, no actual animals are harmed in the making of this blog.
Bob,Esq:
Now, I have to agree that is a much more vivid example of the zone of danger than I have seen described in any dusty old legal opinion. Who needs some reference to some firecrackers on a a rail platform, when exploding hamsters are available.
Mespo:
I have always been inclined to the Andrews opinion as well. The same can be said about the different approach under Polemis and Wagon Mound, with the latter coming closer to a Cardozo approach of foreseeability.
End result:
END OF HAMSTERS AS PETS BUT ATTORNEYS GET RICHER.
My ears having been blessed with auditing the discussions on Mount Parnassus, were shocked by the cries of the fishmongers of Delos…
No Way Niblet–Hamsters are way too smart for that. They’ve hired a P.R. firm to take out those crappy lawyers, and my money’s on the hamsters.
Jill,
According to Niblet’s cosmology, we can safely predict that not only hamsters perish but Earth’s very biosphere must soon collapse leaving only parameciums and extremely wealthy Attorneys!
Hamsters can only survive the coming catastrophe by getting JD’s it would seem.
D.W.,
Don’t you mean parameciums WHO ARE are extremely wealthy attorneys? (And I still think the hamster consortium will sucessfully “call out” those “fat boy” attorneys!!!)
J.
When two dogs fight for a bone, and the third runs off with it, there’s a lawyer among the dogs.
Careful, those ‘fat boys’ aren’t parameciums – they’re pole cats.
They eat hamsters for lunch.
Necessity knows no law; I know some attorneys of the same.
Benjamin Franklin
——————————————————————–
We all know here that the law is the most powerful of schools for the imagination. No poet ever interpreted nature as freely as a lawyer interprets the truth.
Jean Giraudoux
——————————————————————–Lawyers are always more ready to get a man into troubles than out of them.
William Goldsmith
——————————————————————–Lawyers are men whom we hire to protect us from lawyers.
Elbert Hubbard
Men are men before they are lawyers, or physicians, or merchants, or manufacturers; and if you make them capable and sensible men, they will make themselves capable and sensible lawyers or physicians.
John Stuart Mill : British economist & philosopher
John Stuart Mill (1806 – 1873)
“Who needs some reference to some firecrackers on a a rail platform, when exploding hamsters are available.”
Mespo,
The hamster brings up some interesting justiciability issues as well.
To wit:
Would you agree that G. W. Bush had as much standing to obtain a Stay on 12/09/2000 as Richard Gere would have to litigate cases on behalf of hamsters everywhere?
Shamelessly yours,
Bob
I have my own home-grown set of quotes to offer on this topic:
“Where there is a sea of trouble, look to the lustrous beacon shone by a good lawyer” –Sudo A. Nonimus
“A lawyer, a cat, a flagon of bitters–why that’s the good living, sirrah!” –Phineas Clagbottom
“There be none so ill-tempered as can slight a red-brick don, or a Chapel Street barrister!” –M Anent Victoriun
“Lawyers, it is widely heralded, stand like Jove, guarding the Hellesponte of civilization, against the encroachment of Darius and his perfidious tribe!” –Twill Guppy
So there you have it. Lavish, if obscure, praises down the centuries!
DW
An intervening CAUSE IN FACT problem?
“In the organ recipients, transplantation of LCMV-infected organs in the setting of immunosuppression likely increased disease severity.”
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm54d526a1.htm
Other habi-trail related info here:
http://www.health.state.ri.us/media/050523b.php
Far as I see….
Defendant’s motion for summary judgment granted.
Case dismissed.
BobEsq:
You are shameless, and both examples appear to me to be instances of the tail wagging the dog!
As for quotations about lawyers:
My favorite:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
–Abraham Lincoln
The most humorous:
“I get paid for seeing that my clients have every break the law allows. I have knowingly defended a number of guilty men. But the guilty never escape unscathed. My fees are sufficient punishment for anyone.”
F. Lee Bailey
JT:
I have never liked the reasoning Wagon Mound 1 as the Privy Council simply avoided Andrews’s logic expressed in the Palsgraff dissent. Without boring our other posters with too much legal analysis, suffice to say that Wagon Mound 1 involved the leakage of furnace (bunkering) oil from a docked tanker (the Wagon Mound)that spread into the harbor and under the wharf. Hot metal from welding operations on the wharf fell onto cotton floating in the harbor igniting a fire that spread to another ship and the wharf. The issue for the Privy Council was whether a claim lay in negligence against the ship owners by the wharf owner for damages clearly caused by the fire. Apparently most experts believed that bunkering oil could not be ignited on water and thus the fire was totally unforeseeable. The owners of the dock lost due to this lack of foreseeability.
Andrews argued against this arbitrary standard of limiting recovery only to those harms proximately caused by the negligence, or put another way, only to foreseeable harms. Andrews said “[w]hat we do mean by the word ‘proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.”
His example of a chauffeur who negligently collides with another vehicle carrying explosives is applicable here. If the blast injures a pedestrian walking along the street, the pedestrian may recover from the chauffeur since his presence is close in time and proximity and thus foreseeable. However, a person sitting at a window a block away and injured by shattering glass may not recover. Similarly, a baby ten blocks away and dropped by her nanny when startled by the blast is also precluded from recovery under the notion that such injuries are not foreseeable.
Andrews argues persuasively, in my mind, that the victims should not have their rights determined by what the negligent defendant or reasonable people might expect to happen, but rather the defendant should be responsible for what DID happen all along the chain of causation without regard to whether the event was predictable. As Andrews points out: “the chauffeur, being negligent in risking the collision, his belief that the scope of the harm he might do would be limited is immaterial. His act unreasonably jeopardized the safety of any one who might be affected by it.”
What this means to me is that PetSmart is responsible not only for the foreseeable harms but for all harms flowing from the negligence of selling infected hamsters. Any other result arbitrarily denies those harmed by the negligence, whether reasonable persons could foresee it or not. In essence the classification of victims, imposed by the test of foreseeability, ignores the fact that both sets of victims are harmed just the same by the exact act of negligence.
Mespo!!!!
“Without boring our other posters with too much legal analysis, suffice to say that…”
Please believe me. I love this type post. Its why I came to this site in the first place, looking for such things…
Analyze away!
And at length!
Thanks Mespo, this is what I suspect JT was shooting for when he started this blog. I am so happy to see it come about.
It has been invaluable and instructive reading your comments of how the law plays out in the courtrooms of our land. Don’t stop.
I enjoy this type of analysis as well, but confess to liking gay burger stories and scripts for horror movies based in Disneyland just as much.
One thing I found fascinating about the legal discussion was it illuminated U.S. jurisprudence for this ignorant layperson. I’m aware that different societies look at law/justice in quite distinct ways. Ours reminds me of the talmud. In some ways the reliance on precedence makes it a closed system which would have difficulty dealing with new circumstances.
DW:
It is awfully nice to know that others find this sort of thing interesting. Obviously, I do and I consider it an odd affliction. The theory of recover for harms done is of great interest to me personally and professionally since it is a very human undertaking. I am aware of no other animal attempting restitution for wrongs committed, and I find the history of injury and consequence fascinating. I am sure you know of ancient practices where perpetrators were responsible to raise offspring of their murder victims, or thieves being indentured to their victims for periods of time. Tort law is just a branch of this longing to make victims whole, and the convolutions necessary to tailor a remedy for the myriad of specific harms is both a scholarly and moral endeavor.
both a scholarly and moral endeavor…
Yes, I can see why you are an Adlai Stevenson man!
Jill:
Just because you like herring roe, doesn’t mean you can’t enjoy rare Beluga caviar once in a while. Your observation about reliance on precedent is accurate but I guess you can see the tension between strict adherence to the past and the necessity of jurisprudence catching up with the culture. Palsgraf was one of those cases where the struggle between old concepts of privity being a condition precedent to recovery clashed with modern notions of negligence and foreseeability of harm being the standard for compensation. Andrews struck out on a much more futuristic tack and advocated consequence- based analysis rather than simply an expectation-based one. What the layperson (I hate that word since we are all citizens in a democracy with an interest here–am I a layperson because I cannot reproduce the recipe for my favorite sausage as well as my butcher can?) will see is the law growing out of its ancient cocoon to emerge as a new creature subject to more molting and adaptation as the social environment changes.
DW:
I was hoping not to date myself so precisely in history and philosophy.
Mespo,
Correct me if I’m wrong, but the analysis of ’cause in fact’ alway precedes the analysis of ‘proximate cause’ so as to shed more light on the latter analysis.
While I make no claims of being a torts guru, a cursory review of the CDC’s conclusions as well as the Rhode Island’s Board of Health’s FAQ compliled specifically to address the issue seems to preclude an in depth analysis of ‘proximate cause’ in this case.
Mespo,
Correct me if I’m wrong, but the analysis of ’cause in fact’ alway precedes the analysis of ‘proximate cause’ so as to shed more light on the latter analysis.
While I make no claims of being a torts guru, a cursory review of the CDC’s conclusions as well as the Rhode Island’s Board of Health’s FAQ compiled specifically to address the issue seems to preclude an in depth analysis of ‘proximate cause’ in this case.
Whoops.
for mespo, for your amusement.
http://www.atra.org/reports/hellholes/report.pdf
from your good friends at the American Tort Reform Assoc.
One last question for our resident torts guy!
Mespo, have you been following HR 3010, the AFA..?
Any suggestions for amendments from your professional point of view?
For everybody, we have written on this topic more than a few times, but a growing danger for Americans is the increasing recourse to arbitration in lieu of the courts. The idea sounds good in principle and was originally viewed as a way of relieving crushing docket loads. But there was a fatal defect in that the arbitration companies were profit centers in themselves and were increasingly retained on the basis of their past track records of pro-business rulings. Generally it is near certainty that if you go to arbitration with a large Fortune 500 company, you will not emerge the victor. The Arbitration Fairness Act which is now in committee will attempt to address some of the mandatory arbitration problem. Here is a link to a discussion of the problem:
http://www.citizen.org/congress/civjus/arbitration/articles.cfm?ID=17346
Bob,Esq:
I think you are correct that a “but-for” analysis is always the initial phase since a gap there destroys any linkage between negligence and the harm itself. I am more concerned about situations like the Wagon Mound 1 case, in which the cause of the harm was certainly the fire caused by the negligent fuel spill, there being no other explanation for the damage. The question becomes how far distant from the immediate harm will we venture in compensating victims along the chain of causation. If the chain is broken at any level, I would have no problem jettisoning the case on a “cause in fact” analysis.
In the hamster case, I do believe the fight could boil down to the science, but so long as it can be established that the infection is A proximate cause of the death, as opposed to THE proximate cause, I think a jury question is presented. As you know the defendant takes the plaintiff as they find them (thin skull rule) and mere susceptibility due to their status as a transplant patient, or even an increase in severity of reaction as opposed to exposure of a healthy person, would not, in my opinion, completely bar recovery.
If I strike an adult on the head with a given force and it does no harm , and I then strike a new born with the exact same force causing severe injury, will the proven effect of the force on the adult’s head preclude a recovery against me by the new born? I would argue that the cause in fact requirement has been met because without the force of my hand upon the skull, the injury to this particular plaintiff could not have occurred. Now we can discuss foreseeability (Cardozo); or actual consequence (Andrews); or even the Wagon Mound 2 case (where the magnitude of the potential risk compelled liability even if the probability of such a harm occurring was low), to determine legal causation.
DW:
I haven’t followed that legislation but I have worried about mandatory arbitration as an end run around the jury system for quite some time. These are rarely contracts made from positions of equal bargaining power, and are usually slanted in favor of the employer or bank or stock brokerage house. I have served as an arbitrator scores of times (and advocated in many more), but I find if I accept the plaintiff’s claim in toto, I am less likely to be called back by the defendant in the next arbitration. If it were my decision, I would bar them in consumer credit contract and tort settings, but they appear to be the wave of the future.
Hi Mespo,
You have a wonderful sense of humor, as do others. I think layperson is a good term for anyone who might be arrested for practicing without a licence, but I agree that we are all ignorant of many, many things that others do/know quite well.
While we’re peppering you with questions here, I’ve got one. What would you call the actions of the cheney-bush consortium towards the law?
Jill
Jill:
Unlawful!
Mespo,
“The question becomes how far distant from the immediate harm will we venture in compensating victims along the chain of causation.”
As in negligent infliction of emotional stress?
“so long as it can be established that the infection is A proximate cause of the death, as opposed to THE proximate cause, I think a jury question is presented.”
I’m sure you’ve heard the saying “The rules of evidence were created because juries are inherently stupid.”
Query: If the CDC states in its white paper that there’s no routine test for the disease, that you cannot test hamsters and the like for the disease without harming them, that the disease is incredibly rare & asymptomatic (almost always passing through healthy immune systems without notice) and that hamsters and the like normally contract the disease from everyday house mice, as do most humans — unless you’ve got a panel of Quincy M.D.’s, I’m curious as to how you even approach the issue of proximate cause as relating to the pet shop.
BTW, I hesitated as well on the organ transplant falling within the eggshell skull category; but after second thought realized that an organ transplant is not “as is.”
An intervening act is 1) independent of the original cause, 2) a voluntary human action or abnormal event and 3) occurs within the same time frame as the original act.
How anyone can get from Hamster, that may or may not have contracted disease from original seller, to disease in subsequent purchaser of hamster which results in death of ’subsequent purchasers’ of [NOT THE HAMSTER BUT] previous owner’s organs via the “natural??” result of organ donation….
See how far fetched this is?
Bob,Esq:
Of course, if we accept all your facts as true and complete, causation in fact does present a significant problem. However, like a lot of my brethren on the defense side of things, you omit a few salient points. The article states that Magee was one of three people who died after the transplant of organs from the infected buyer, and perhaps more importantly, “[t]he immediate cause of Thomas Magee’s death was determined to have been the dissemination of LCMV in the liver he received.” Add those facts to yours and I believe we have a justiciable point, unless you think the Judge will determine is was mere coincidence that two other people died from the same cause after receiving tainted organs from the same infected donor who owned the infected hamster. I’d take my chances on those facts.
However, and as you say, there is an open question of whether a test exists for PetSmart to determine the presence of this disease,which apparently does has meningitis-like symptoms. If so, I think they are duty bound to test or warn or face the consequences.
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm
The CDC on testing for lcmv.
Jill:
Sorry but I couldn’t get the link to work.
I googled “testing for LCMV in animals” and it was the 2nd entry. Others looked useful as well. Sorry Mespo, I’m not certain why it didn’t work.
Jill
Jill:
Will try again and also do the Google. Sounds a dance doesn’t it?
I’m glad you asked that question.
There is still data missing from these reports.
Perhaps this is the link Jill was trying for which includes a survey of Infectous Disease (ID) physicians
Survey of Lymphocytic Choriomeningitis Virus Diagnosis and Testing — Connecticut, 2005
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5514a4.htm
For those who missed this program on CSPAN, worth the hour, IMHO.
http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=204497-1
Dr. Denis Cortese talked about the problems with the current health care system in America and how it should be overhauled. He talked about the different components that make up a functioning health care system, what the goals of that system should be, and how they can be achieved. Following his prepared remarks he answered questions from members of the audience
It is the practice in liability cases to bring in all possible defendants at the time of filing suit.
Correct me mespo, but as to the thin-skull standard, one takes one’s plaintiffs (victim) as you find them – in these cases having been in need of organ transplantation and concomitant immunosuppression.
Patty C:
That’s my understanding of it. Organ recipients with suppressed immune systems need protection too.
Mespo,
While I do enjoy a good hypothetical I’m having an extremely difficult time assenting to your argument without several informal fallacies relating to causation sounding alarms in my head.
http://www.philosophypages.com/lg/e06b.htm#falcau
Post hoc ergo propter hoc? (After this therefore because of this?)
Once again the causal chain (as presented by J.T.)
1. The original woman buys hamster at PetSmart.
2. Hamster allegedly infects new owner with LCMV, a rodent-borne viral infectious disease.
3. The original owner then dies of unrelated stroke.
4. Dead owner’s organs are transplanted into various recipients including Thomas Magee, who has a liver transplant at Massachusetts General Hospital in April 2005.
5. Magee contracted LCMV and dies.
For argument’s sake, let’s forget everything the CDC has to say about the disease and simply focus on step #4.
Assuming original owner in fact purchased a diseased Hamster from PetSmart, PetSmart would be liable for illness to original owner and even death resulting from medical malpractice or any other action causually connected to owner’s purchase of the hamster.
But consider that the organ transplant is:
1) Independent of the original cause; at the very least, the owner’s LCMV DID NOT precipitate or necessitate an organ transplant;
2) A voluntary human action — with absolutely no nexus to the sale of the allegedly diseased Hamster. People choose to be organ donors and or recipients.
3) Fails to occur within the same time frame as the original sale of the Hamster; since the sale of the Hamster failed to create a zone of danger for so much as the original owner.
Like I said, I’m no torts guru, but the simple logic of causation on this one is quite troubling.
Regards,
Bob
Bob,Esq:
As we all know, there are no gurus when it comes to issues of cause and effect, or legal causation for that matter. The owner’s choice to donate and the recipient’s choice to accept the organ are clearly independent of the sale. However if we assume arguendo Petsmart’s negligence in the sale, we should probably start by analyzing this as a products liability case. That is, did Petsmart put an inherently defective product into the stream of commerce such that it should be held liable to foreseeable users (Let’s use Cardozo’s framework) for harms sustained by them?
I think the answer is clearly “yes” since the risk of harm of LCMV passes through the chain of transactions until a susceptible person is infected. Would it matter to you, if instead of transplanting organs of the diseased owner into the plaintiff, that the owner survived and merely re-sold the diseased creature to another unsuspecting buyer some weeks later? That buyer due to a particular susceptibility contracted the illness through association with the hamster and died from the virus. His administrator then sued Petsmart. Would you deny recovery to the second purchaser’s estate because of the remoteness in time from the original sale and the fact that no zone of danger was created?
Under my analysis, the LCMV need not precipitate anything. The precipitating cause of harm was the negligence in selling the diseased animal. Certainly infecting the original purchaser was foreseeable, and the issue raised is whether organ donations are likewise foreseeable such that the seller should realize that his defective product could be used to infect purchasers who might in turn donate diseased body parts to recipients who would likewise be infected. I think we are right back to Palsgraf and Cardozo’s foreseeability based analysis versus Andrews’ consequence based one. If you adopt Cardozo, the argument for liability is weaker; Andrews’ logic provides an easy answer since the consequences of the negligence are easier to connect to the sale if foreseeability is not an issue. I think we are on opposite sides of this causation argument, because you adopt Cardozo’s logic and I prefer Andrews. If not tell me where I went wrong.
Also, I understand your post hoc ergo propter hoc criticism which, of course, holds that just because one event precedes another does not imply that the first caused the latter. It is also true that every precipitating cause must precede the resulting event in time so mere positioning of events will not imply they are unrelated either. I am not sure then that this logical fallacy approach helps us much in determining either cause in fact or proximate cause in this context.
You can forget the rest if you like…
If you were the patient and your only chance at a life you could bear to live depended on a transplant, you might not consider it as #2 ‘voluntary’ – IF the only other choice was continued decline and suffering culminating in your certain death.
You’d likely be ‘praying’ your match took the time to fill out a Donor card.
http://www.cdc.gov/eid/content/13/5/719.htm?s_cid=eid719_e
Discussion
… This report documents the animal traceback investigation that linked a major pet rodent distribution operation to the recent outbreak of lymphocytic choriomeningitis in 4 organ transplant recipients in Rhode Island and Massachusetts. This investigation demonstrates the ways in which classic epidemiology, laboratory diagnostics, and molecular biology can complement one another in the investigation of disease clusters. LCMV was not found in the organ donor’s tissues; however, the viral isolate from the pet store hamster was sequenced and matched to the sequences of the isolates from the recipients (10).
The near-complete sequence match between the virus found in the index hamster and the virus sequenced from the Ohio hamster indicates that the genotypes share a common lineage that is distinct from previously identified strains.
It is unlikely that this genotype would be as similar to a genotype found in wild house mice in Rhode Island. Thus, the animal traceback, coupled with the molecular phylogenetic evidence, supports the hypothesis that the index hamster’s infection came from the rodent distribution center in Ohio, rather than from wild M. musculus populations around the home of the donor or pet store…
Patty C;
Wow, Patty that should about resolve the causation in fact issue.
Mespo,
Take a step back and listen to what you’re arguing:
“Certainly infecting the original purchaser was foreseeable, and the issue raised is whether organ donations are likewise foreseeable such that the seller should realize that his defective product could be used to infect purchasers who might in turn donate diseased body parts to recipients who would likewise be infected.”
Once again
“the seller [of a hamster] should realize that his defective product could be used to infect purchasers who might in turn donate diseased body parts to recipients who would likewise be infected.”
Now compare what you said above with what you said below:
“It is also true that every precipitating cause must precede the resulting event in time so mere positioning of events will not imply they are unrelated either.”
Note how we both use the word “precipitate”
“the organ transplant is:
1) Independent of the original cause; at the very least, the owner’s LCMV DID NOT PRECIPITATE OR NECESSITATE an organ transplant;
2) A voluntary human action — with absolutely no nexus to the sale of the allegedly diseased Hamster. People choose to be organ donors and or recipients.
3) Fails to occur within the same time frame as the original sale of the Hamster; since the sale of the Hamster failed to create a zone of danger for so much as the original owner.”
Ignoring the issue of foreseeability, as you would prefer, unless you show me more, it appears Plaintiff is still left to rely on nothing more than Deus Ex Machina as an explanation for the nexus between the sale of a diseased Hamster and death by diseased organ transplant.
Regards,
Bob
Patty C,
That’s exactly the type of information I was looking for.
Now the issue is narrowed down to whether or not an organ transplant is an intervening cause; breaking the chain of causation leading back to PetSmart.
Regards,
Bob
P.S.
http://www.unos.org/
Every time someone sells a hamster, they’re now selling it to 9,000,000 potential plaintiffs across the entire United States??
Bob,Esq:
I guess we can agree to disagree on this threshold determination. I believe that the consequences flow directly from the negligence involving the sale and you believe that the organ donation interrupts the causal flow. Yours is a perfectly reasonable position and is more in line with the more restrictive view. I prefer the more expansive approach making defendants liable for all harms caused and not just direct harms. I believe my view more consistent with the general proposition that for every harm there should be a remedy, but I understand the view of many that this would inevitably lead to a butterfly effect.
Mespo, If as you say, and I agree, that for every harm there should be a remedy then how does federal pre-emption of state tort law fit into that….?
I am thinking Riegel v Medtronics and the consolidated drug cases in the 3rd Circuit:
http://www.ca3.uscourts.gov/opinarch/063107p.pdf
It would seem there is no remedy for the injured families. Federal pre-emption exempts the drug manufacturers from liability, and the government itself cannot be practically sued.
So isn’t the whole burgeoning field of pre-emption defenses cutting off remedies for a large class of citizens? Whats to be done?
That is an excellent observation and it shows precisely what happens when the feds start poking around tort law and pre-empting centuries of developed state law in this area.
What’s the real question, Thingum?
I get the feeling you are trying to compare Apple Computers and Orangutans!?
Suffice it to say the original buyer, and subsequent decedent of a stroke and NOT a compromised immune system, did not choose to become infected with LCMV at the point of sale – just weeks before she became an organ donor.
Undoubtedly, had SHE, her family members, and/or her physicians known of her recent infection, or been notified of possible infection, would have acted upon such information appropriately, and in the first scenario, certainly, would have withheld her donation.
Pet breeding facilities, distributors, and stores are regulated and these two in OH and AK had health and handling violations as noted in the Abstract I provided under Results (RI, OH, AK Traceback):
http://www.cdc.gov/eid/content/13/5/719.htm?s_cid=eid719_e
Bob,Esq:
“Every time someone sells a hamster, they’re now selling it to 9,000,000 potential plaintiffs across the entire United States??”
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This is an interesting point. I think more properly said every time you sell a hamster you are warranting it to be free from defects such that anyone adversely affected may sue you if harmed and that could potentially be anyone coming into contact with the hamster. Why should all those harmed by the defective hamster be denied compensation because they were remote from the sale? Should Ford only be liable to the purchaser of the defective vehicle and not to the those buying the car used? Are we back to privity as a precondition for recovery?
Mespo,
Don’t get me wrong. I too agree that
i summum jus summa injuria –
the strictest right is the greatest wrong. Thus the reason we initially separated courts of equity from courts of law.
But why sue PetSmart? Did the plaintiff allow the statute of limitations to run on a Med Mal suit? Not sure what it is in RI, but in NY it’s 2.5 years (plus normal tolling exceptions).
If I seem to take a more conservative approach to plaintiff’s attorneys in tort actions, it may be due in no small part to having to deal with a law firm that has no less than three occasions defrauded the court forcing me to take an appeal to the state’s second highest court, winning, and then having plaintiff’s attorney go back to the lower court and commit the same exact fraud and achieve the same exact victory that was overturned in the appellate division.
Care to make the argument that ‘opposing counsel defrauding the court’ is a reasonable foreseeable cost in litigation to a client?
Who foots the bill?
Can the attorney for the defendant sue opposing counsel in fraud?
I say yes with the rarely available punitive damages in fraud as well.
Regards,
Bob
P.S.
I agree with your agreement to disagree on the rodent.
Patty C,
“Suffice it to say the original buyer, and subsequent decedent of a stroke and NOT a compromised immune system, did not choose to become infected with LCMV at the point of sale – just weeks before she became an organ donor.”
When people CHOOSE to be organ recipients, they take drugs that suppress their immune system to avoid organ rejection.
The organ recipients place their trust in the doctors & other health care professionals responsible for the transplant; not some pet shop that sold a hamster to the organ donor.
While we’re at it, why don’t we sue the manufacturers of “donor cycles” — a/k/a motor cycles?
Why not hold motor cycle manufacturers responsible for defective cycles resulting in the deaths of organ recipients because the bike didn’t ‘fall the right way’ and damaged said organs???
Where does it stop?
Regards,
Bob
Bob,Esq:
You know you are clearly correct that the better case was probably against the supplier of the donor organ. If that’s what you meant by the superseding, intervening cause, I have to agree that would be a significant hurdle to overcome since your ascribed negligence for failure to test or warn would be exactly the same as against Petsmart, assuming test were available.
I am even more intrigued by your case though. How could the lower court allow the fraud a second time at the re-trial? Do you not have a statute in your state that requires counsel to certify good faith in the filing of his pleadings as we do in Va? Hopefully, your case wasn’t tried here.
Lastly, I have often wondered if motorcycles were so inherently dangerous that no warning could get their manufacturers off the hook. They remind me of the the three wheel ATV’s that were driven from the market by lawsuits and the better designed 4-wheelers.
Why isn’t anybody blaming the hamster.
For the ‘S/P TX’ Requisitioned’ ie ‘Status Post-Transplant’ patient and family, that moniker rules their days ‘In-House’ AND ‘Out’
- until they realize it doesn’t have to feel like that as long as they have some tangible support.
At times like this, the gathering together means a lot.
Mespo,
“How could the lower court allow the fraud a second time at the re-trial?”
The third fraud consisted of opposing counsel seeking the same exact relief that was denied by the appellate court; i.e. acting and representing to the court as if he had no knowledge the most basic rules of procedure as well as the Appellate Division 2d Department said he could not.
You should be asking “How the hell did a trial court overturn an Appellate Court decision?”
The second fraud (in aggregate) and the first fraud are a bit more complicated and set the background for the original appeal.
If you’re interested I could email you the details, but for now, let’s just say that CPLR 306-b is a motion, if granted, allows plaintiff time to “re-serve” the papers and commence a new action if the previous one has been dismissed and the statute of limitations has ran out.
Quickly, the judge denied plaintiff’s motion for relief under 306-b and “sent the remainder of the motions down for traverse.”
I’m not sure how they run things in Virginia, but in New York one judge is not permitted to overturn another judge of coordinate jurisdiction. Ya sort of pick up on it during the first week of law school.
Anyway, Defendant’s counsel uses the Traverse Hearing as an invitation to re-argue his 306-b motion; even in the face of a signed order handed to the J.H.O. Bastard even argued new case law.
J.H.O. (wrongly) claims he’s familiar with the case, says that service on the day in question was improper (i.e. I won) but… “DEEMED SERVICE PROPER IN THE INTERESTS OF JUSTICE” under 306-b.
Plaintiff’s Counsel knew the rule never empowered a judge to “deem service effective” and he also knew he wasn’t allowed to re-argue the issue–having been already smacked down by the judge’s previous ruling.
Appellate Division rules as follows:
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_03525.htm
In my appeal I argued for sanctions; and since appellate courts do not bother themselves with issues of fact, my best guess was that they left the motion open and pending for an inquest for costs–SINCE IT WAS A METAPHYSICAL IMPOSSIBILITY FOR PLAINTIFF TO RESURRECT THE CAUSE OF ACTION.
Nonetheless, Plaintff’s attorney did the same thing back in Brooklyn Supreme he did before the J.H.O. during Traverse; re-argued the 306-b. I submitted the appellate decision, all the patently obvious arguments disallowing Plaintiff’s request, and two f’n days before the judge was to run out of time to issue a ruling, he “deemed service of process effective” nunc pro tunc. It’s an amusing ruling, since the Appellate Division specifically said it was impossible.
Yet the case goes on …. first seeking a $10,000,000 default judgment; now going again for a &49,000,000 initial claim.
I haven’t filed any papers since the last ruling; since not an attorney or clerk has any idea how I should proceed at this point. You may think me stupid for not opposing, but this is a pure LACK OF SUBJECT MATTER JURISDICTION problem — and that objection my friend is NEVER WAIVED. So why destroy myself further by throwing paper at this??
“Do you not have a statute in your state that requires counsel to certify good faith in the filing of his pleadings as we do in Va?”
Sure; and it also says that judges will sanction attorneys who continue with frivolous litigation. At this point, I believe more in the Easter Bunny.
Regards,
Bob
Bob,Esq,:
You need to move that case here. I can assure you sanctions would be had, and this re-argument of the re-argument would have been nipped in the bud long ago. The most stupefying thing you’ve said is the action of the trial court overruling the appellate court. Here a petition for mandamus would have been filed with our Supreme Court (our highest appellate court) and an order would have issued post-haste handling the second judge’s actions. He would have also gotten a call from the Judicial Inquiry and Review Board as well.
Mespo,
“You need to move that case here.”
Virginia?
That’s His Lordship (Scalia)’s home state. Besides, the only time I ever spent in Virginia was in Dumfries; when a friend of mine who was driving with me down to Ft. Lauderdale began vomiting up yellow gel–producing a nice pinstripe design on my car. Some people think “Old Dominion” when they think of Virginia, I think “Yellow Gel.”
“I can assure you sanctions would be had, and this re-argument of the re-argument would have been nipped in the bud long ago.”
In responding to this, and the rest of your post, I used the opportunity to sketch out a draft letter to the presiding judge of the Appellate Division 2nd Department explaining my problem and requesting advice as an officer of the court. This condensed form of the story is nearly four pages long.
Since your posts seem to indicate you’re far better versed in tort law than yours truly, I was wondering whether you’d take a look at it let me know if I’d have a viable claim in fraud against Plaintiff’s attorney – since the NY code of ethics and my own conscience constrained me to suffer the damages caused by Plaintiff’s attorney’s frivolous litigation, in lieu of passing them on to my client.
You can email me at SOLIPSIST@MYSELF.COM with your answer; but be sure to put “mespo727272″ in the subject line.
Regards,
Bob
P.S.
Try not to think too hard about the email address; I just got lucky being the first one to pick it.
Or…
Maybe….
I’m am the solipsist?
lol
Carefuul here, mespo, that Thingum is not just chumming
- for sharks…
I agree with the lawsuit. Hamster’s are vicious rodents. In fact one bit me on my finger when I was a youngen and left a scar. My parents purchased the long hair hamster at Pet Smart and because of the stress this Hamster caused me I am now suffering from PDSD. I should sue Pet Smart too.
Come on give me a break! Is our society really coming to this. And you wonder why everything is so expensive because of sue happy people like this. Maybe if her husband was healthy he wouldn’t of needed a transplant. Ever think of that????
Fluffy:
Come on Fluffy, have a little fun and lighten up. How does it affect you if this lady brings suit to test the law. There are few suits against the oil companies, comparatively speaking, for tortious conduct (and if there are the Supreme Court flushes them any way) and my gas tank costs three times as much to fill as when Clinton was in office (Ah, remember the good old $19.00 a barrel oil). The cost of goods has little relationship to the costs of litigation despite the propaganda. If it were true wouldn’t goods in Europe be significantly cheaper (on a currency adjusted basis) than goods here since they have significant restrictions on lawsuits. Check out the BMW dealership here or there if you need proof. They get sued all the time.
I think the Hamster was at fault. Criminally negligent in fact! It had good reason to know it carried a disease and should have jumped out of its little box when it was taken to the new owner’s home, and headed for the tall timber. That would have been the responsible course of action for any ethical hamster.
But no, it hung around and caused a chain of tragedy.
Bad hamster!
Hang on – Fluffy has point !!
The man needs to be punished for being ill. After all, that’s the current American way isn’t it. Isn’t that what all the health-care talk is all about – Americans going out and getting themselves sick and expecting other folks to pay for it. Now what, suing Pet Smart ??
No no , Fluffy has a point – this guy got sick … its his fault.
Where have you been Mespo? That’s been almost the verbatim line from the White House since Hillary passed on a health-care starter deal in 1994 because it was bi-partisan, even though Pat Moynihan begged her. George Bush has perfected it and now we all enjoy …. ah … Wait – I don’t know what I’m talking about just like Fluffy. Maybe I’m sick.
I was watching ABC last night and saw a parody of a Democratic debate. Those actors looked just like Obama and Clinton. I think though, the Skipper and Little Buddy played themselves – but I could have sworn the were dead.
Any way … oh … never mind. I better call the Bank – I’m not feeling well.
binx101:
Right you are. I recall Hillary also telling us that if businesses failed because of her health care plan it wasn’t her fault if they were “under-capitalized.” Wonder how she’d look in a white beehive wig pulled up three feet or so with pads spouting the memorable line “Qu’ils mangent de la brioche”. Feels your pain,indeed!
how much do hamsters cost.