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Oct 2, 2017 | 0 comments

Article 1: “Johnson & Johnson Ordered to Pay $417 Million in Talcum Powder Case”

According to the article, a jury recently awarded a California woman $417 million because she developed ovarian cancer and had used Johnson & Johnson Baby Powder for decades. The award includes $70 million in compensatory damages and $347 million in punitive damages.

Eva Echeverria, a 63-year-old from Los Angeles, said she had been using the powder as a regular part of her feminine hygiene routine since she was 11 years old. She stopped using it in 2016, after she read a news story about another woman who used it and had ovarian cancer.

Echeverria’s is the first of hundreds of similar cases in California to be decided. Juries elsewhere have returned four other verdicts against Johnson & Johnson, and another case in New Jersey was dismissed. There are thousands of similar cases going through state and federal courts right now.

Echeverria testified that had there been a warning label on the product, she would have stopped using it.

The company has no legal obligation to put such a label on its product. Because talcum powder is legally considered a cosmetic, it does not have to undergo a review by the US Food and Drug Administration like a drug would. But it would have to be properly labeled with ingredients and other information, and the product “must be safe for use by consumers under labeled or customary conditions of use,” according to the agency.

Some other talc-based powders on the market carry labels that mention possible risk of ovarian cancer after frequent application in the female genital area.

Scientific studies over the years have produced a mix of results. The International Agency for Research on Cancer, part of the World Health Organization, classifies the genital use of talc-based body powder as “possibly carcinogenic to humans.” The U.S. National Toxicology Program has not fully reviewed talc as a possible carcinogen, according to the American Cancer Society, which says it isn’t clear whether the products increase a person’s cancer risk.
Johnson & Johnson said in a statement that it will begin the appeals process in the California case.

“Ovarian cancer is a devastating diagnosis and we deeply sympathize with the women and families impacted by this disease,” Carol Goodrich, a representative for Johnson & Johnson Consumer Inc., said in a statement. “We will appeal today’s verdict because we are guided by the science, which supports the safety of Johnson’s Baby Powder. In April, the National Cancer Institute’s Physician Data Query Editorial Board wrote, ‘The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.’ We are preparing for additional trials in the US and we will continue to defend the safety of Johnson’s Baby Powder.”

Discussion Questions

1. Define compensatory and punitive damages.

Compensatory damages are designed to compensate the plaintiff for “out-of-pocket” losses resulting from the defendant’s wrongful actions, including economic and/or physical harm, and emotional pain and suffering. Punitive damages are designed to address egregious actions by the defendant that “shock the conscience” of a reasonable person. They include intent to harm, extremely reckless acts, or grossly negligence acts by the defendant that result in harm to the plaintiff.

2. In your estimation, is the compensatory damage award in this case excessive? Is the punitive damage award excessive?

This is an opinion question, so student responses may vary. As the article indicates, the award in this case includes $70 million in compensatory damages and $347 million in punitive damages. In your author’s opinion, more evidence would be necessary to determine whether the compensatory and/or punitive damages awarded in this case were appropriate. Johnson & Johnson will appeal this case, so the appellate court will have an opportunity to determine: a) whether the liability determination was based on the jury’s correct determination of the facts and application of law; and b) whether the jury’s assessment of damages (both compensatory and punitive) were appropriate in the case.

3. Describe three (3) legal theories of recovery available to the plaintiff in a case like the Johnson & Johnson litigation.

Three legal theories of recovery available to a plaintiff in a lawsuit like the subject case include: a) negligence; b) strict product liability; and c) breach of warranty (for example, breach of the implied warranty of merchantability).

Negligence involves the failure to do what a reasonable person would do under the same or similar circumstances. The four (4) elements of negligence include a) a duty of care owed by the defendant to the plaintiff; b) breach of the duty of care by the defendant; c) causation of harm to the plaintiff by the defendant; and d) damages incurred by the plaintiff as a result of the defendant’s wrongful actions.

Strict product liability, recognized by certain states, is liability without fault. In order to prevail in a strict product liability case, the plaintiff is not required to show fault on the defendant’s part (i.e., that the defendant intended to cause harm, was reckless, or was negligent). Instead, the plaintiff must merely prove that: a) the product was defective; and b) as a result of the defect, the plaintiff experienced harm as a result.

Breach of the implied warranty of merchantability is the failure of the defendant to offer a product suitable for ordinary use.

Article 2: “‘Monkey Selfie’ Lawsuit Ends With Settlement between PETA, Photographer”

According to the article, back in 2011, Naruto was just an anonymous macaque in the jungles of Indonesia. On one particular day, however, the photogenic primate happened upon a wildlife photographer’s camera and snapped a “monkey selfie.”

Whether the act was intentional or a quite-too-literal instance of monkeying around, only the grinning primate knows for certain. But it raised a complicated question: Who owns the images Naruto took, the monkey or the man?

It also started a years-long saga in which the U.S. Copyright Office and even Wikipedia weighed in.

Recently, People for the Ethical Treatment of Animals announced a settlement with photographer David Slater, ending a lawsuit it filed on Naruto’s behalf.

Under the deal, Slater agreed to donate 25 percent of future revenue from the photos to groups that protect crested macaques and their habitat in Indonesia. Both sides also asked the 9th U.S. Circuit Court of Appeals “to dismiss the case and throw out a lower court decision that said animals cannot own copyrights,” The Associated Press reports.

“PETA and David Slater agree that this case raises important, cutting-edge issues about expanding legal rights for nonhuman animals, a goal that they both support, and they will continue their respective work to achieve this goal,” read a joint statement on the group’s website.

PETA filed the suit in 2015, and early last year, U.S. District Judge William Orrick wrote in a tentative opinion that there was “no indication” that the U.S. Copyright Act extended to animals.

As The Two-Way has noted, “The U.S. Copyright Office, since the dispute began, has specifically listed ‘a photograph taken by a monkey’ as an example of an item that cannot be copyrighted.” (That also extends to artworks by elephants.) Similarly, Wikipedia’s parent organization refused to remove Naruto’s photo from its commons, citing the same reasons.

It bears repeating here that it was the monkey that pressed the shutter on Slater’s camera, as the photographer was in Sulawesi, Indonesia. Since then, the selfie has become something of a personal brand for Slater, who sells signed copies of the print through his website. A notice on the site states: “As of July 2017, I will be donating 10% of your purchase towards a monkey conservation project in Sulawesi.”

Slater’s attorney did not answer questions about how much revenue the photos have generated or whether Slater or his company, Wildlife Personalities, which holds a British copyright, would keep the remaining proceeds.

Discussion Questions

1. Define copyright.

A copyright is the right of exclusivity given to the creator of a literary or artistic work.

2. In your estimation, was the settlement reached in this case fair? Explain your response.

This is an opinion question, so student responses may vary. Student responses will most likely depend on their view as to whether only humans are entitled to copyright protection.

As indicated in the article, the subject case settled, and pursuant to the terms of the settlement, photographer David Slater agreed to donate 25 percent of future revenue from the subject photography to groups that protect crested macaques and their habitat in Indonesia (Naruto, the monkey who took the “selfie,” is a macaque). This means that Mr. Slater will keep 75 percent of future revenue.

As further indicated in the article, both sides to the dispute asked the 9th U.S. Circuit Court of Appeals “to dismiss the case and throw out a lower court decision that said animals cannot own copyrights.” This means that the essential legal issue involved in this case, whether only humans are entitled to copyright protection, remains unresolved.

3. In your reasoned opinion, should an animal be able to own a copyright? Why or why not?

This is an opinion question, so student responses will likely vary.

Article 3: “Justice Kennedy’s Order Temporarily Leaves in Place Trump Travel Ban on Refugees”

According to the article, Justice Anthony M. Kennedy recently issued a temporary order allowing the Trump administration to exclude most refugees from entering the United States while the Supreme Court considers challenges to its revised travel ban.

The so-called administrative stay will probably be in place for only a short time, and the court is likely to issue a more considered ruling in a matter of days.

Had the Supreme Court not acted, an appeals court ruling lifting the ban on refugees would have gone into effect.

The Supreme Court has now interceded three times to fine-tune the scope of Mr. Trump’s revised ban while it considers broader issues about its lawfulness. Issued in January and revised in March, the ban caused chaos at airports nationwide and gave rise to a global outcry, prompting a cascade of litigation as well.

Two federal appeals courts blocked central parts of the ban. One said it violated the Constitution because it discriminated based on religion, the other said that it exceeded the president’s statutory authority to control immigration.

In June, the Supreme Court agreed to hear appeals from those rulings and temporarily reinstated part of the ban — but only for people without “a credible claim of a bona fide relationship with a person or entity in the United States.” The court did not specify who qualified as a close relative, though it did say spouses and mothers-in-law “clearly” counted.

The Trump administration interpreted the Supreme Court’s decision to mean excluding most refugees. It also said that only some relatives of American residents — parents, children, spouses, siblings, parents-in-law, sons- and daughters-in-law and people engaged to be married — could enter. The administration barred other relatives, including grandparents, grandchildren, aunts, uncles, nephews, nieces and cousins.

In July, Judge Derrick K. Watson of the Federal District Court in Honolulu disagreed with the administration’s interpretation of the Supreme Court’s ruling as to both refugees and relatives.

The administration had said it was entitled to exclude refugees whom resettlement agencies had planned to help move to the United States. Judge Watson disagreed, writing that the Supreme Court had meant to allow such people to enter the country.

“An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones,” he wrote. “It is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security.”

Judge Watson also said the administration’s approach to relatives was too narrow.

“Common sense, for instance, dictates that close family members be defined to include grandparents,” Judge Watson wrote. “Indeed, grandparents are the epitome of close family members. The government’s definition excludes them. That simply cannot be.”

Bypassing the Ninth Circuit, the administration asked the Supreme Court to intervene. On July 19, the justices declined, sending the case back to the appeals court.

In its brief, unsigned order, the Supreme Court provisionally let stand Judge Watson’s ruling as to relatives. But it blocked his decision “with respect to refugees covered by a formal assurance” until the “resolution of the government’s appeal to the Court of Appeals for the Ninth Circuit.”

Recently, a three-judge panel of the Ninth Circuit ruled against the administration on both points. On Monday, in its latest emergency application to the Supreme Court, the administration challenged only the part of the ruling concerning refugees.

The Department of Justice argued that agreements between the government and resettlement agencies do not give rise to the “bona fide relationship” the Supreme Court said were required to allow entry while the travel ban litigation moved forward.

Note: The above-referenced article refers to President Trump’s original travel ban, issued in January 2017. In September 2017, the president issued a modified travel ban. For the following questions, “original” travel ban refers to the order issued in January, while “revised” travel ban refers to the modified order issued in September.

Discussion Questions

1. What countries were involved in President Trump’s original travel ban? What countries are included in his revised travel ban?

The six (6) countries affected by President Trump’s original travel ban included Iran, Libya, Somalia, Sudan, Syria, and Yemen.

The eight (8) countries affected by President Trump’s revised travel ban include Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

The effect of the revision was to drop Sudan from the list, while adding Chad, North Korea, and Venezuela.

2. Conduct some research regarding the countries included in President Trump’s original and revised travel bans and the percentage of citizens in those countries who subscribe to the Muslim religion. Describe the results of your research.

According to your author’s research, Chad, Iran, Libya, Somalia, Syria, and Yemen are majority-Muslim countries. Sudan is a majority-Muslim country, but as indicated in response to Article 3, Discussion Question 1 above, Sudan is not included in President Trump’s revised travel ban. North Korea and Venezuela, countries included in Trump’s revised travel ban, are not majority-Muslim.

3. In your reasoned opinion, is President Trump’s travel ban a “Muslim” ban? If so, does the ban illegally discriminate on the basis of religion? Explain your response.

These are opinion questions, so student responses may vary.

For an article arguing that the revised travel ban is a Muslim ban, please see the following article:

“Trump’s Latest Travel Order Still Looks A Lot Like A Muslim Ban”

For an article including the argument that the revised travel ban is not a Muslim ban, please see the following article:

“Trump’s Updated Travel Order Could Block 21 Percent of Muslim Immigration”