Mark and Jan:

I want to thank you for your insightful discussion on the potentially devastating impacts of federal preemption and how it is being misapplied to undermine the basic civil and personal injury rights of people harmed by defective products and drugs.

The example of Vioxx is startling.   It is incomprehensible that people injured not only by a defective drug, but one whose studied history of causing harm was apparently kept from the FDA, could be prevented by the same agency from pursuing the drug manufacturer for those injuries.

This is clearly an area of law that merits national attention and focus as I am aware that similar efforts are under way in the motor vehicle industry to protect manufacturers from similar liability from injuries caused by roll overs.  The theory there is that if the controlling regulatory body, I believe the National Highway and Safety Commission, gives its seal of approval to a particular vehicle design, people would be prevented from pursuing recourse if the same vehicle was deemed to be defective by independent means.  Why would anybody want to remove this independent “check” and the scrutiny of independent professionals when the ultimate effect is to evolve more robust design?  There has never been a requirement of perfection, but a duty for manufacturers to constantly evaluate product design to insure what? Good old safety for the intended use of the consumer.   What could be more equitable than that ‘bright line”?  As long as you use the best available technology and concepts and make reasonable efforts to insure the safe design of your product for its intended use, your liability is limited or eliminated…but testable in a check and balance system that allows independent forces to question both the manufacturer’s and governing body’s methodology.   It is, of course, plaintiffs counsel and trial lawyers, who get a sense of something “being wrong in Denmark” that usually take the initiative, spending time, energy, effort and funds to uncover any flies in the ointment.  Preemption would presumably relieve even State’s Attorney General’s from pursuing these claims…a gutting of the civil justice system that no democratic society should be forced to tolerate.

And by the way, if you develop a drug for a particular use, like Vioxx, please make sure to share the scientific studies that showed it caused heart attacks and strokes with the regulatory body governing the decision to allow its entry into the stream of commerce.  I think most end users and physician’s prescribing the product would like to have that information available to make an informed choice….

It is inevitable, as has been the buzz around the water cooler, that someone will eventually bring suit against those persons believed to be responsible for not taking more effective measures to stop the initial and/or second round of shootings on the day of the tragedy or perhaps even prevent them all together. Whether it was by preventing the purchase of the handguns used in the shootings or the removal of the mentally ill student due to his history of behavior there are debatable decisions which may have legal implications.  Recent reports, for example, indicate there was a disconnect between the reporting of the shooter’s mental health history and any type of national registry that wold have prevented someone in his state of mind from owning a handgun.  There are also reports that campus security thought they had identified the likely suspect of the shooting as a jealous boyfriend of the first young woman who was shot in the early morning hours in her dorm. 

This maelstrom of events begs the question(s), Where does the accountability lie for the criminal acts of another? What obligations does society have and, further more, to what extent can and should an academic institution reach out to detect unstable students?  What is an accepted protocol once a student has been deemed to be dangerous?  It is logical that these questions will be answered on a case by case basis, but the dialogue has been galvanized by the recent tragedy for a general strategy to maintain “normalcy” in these situations.

From a legal perspective it all begins with the concept of duty, or what legal (not moral) obligations one has to another citizen.  You then begin to assess if any such duty exists, whether there was a breach of this duty and whether the harm that occured from such a breach was reasonably foreseeable and recognized as an injury from which one can recover. 

In the posts that follow, my goal will be to start the discussion on the scenarios that are an outgrowth from the facts before, during and after the first shooting with the sincere hope that we as a society can learn from this senseless tragedy and perhaps prevent such insanity from occuring in the future.