Liability Claims Research Articles

New Tools to Support the Risk Assessment Process of Nanomaterials in the Insurance Sector.

During the last decade, the use of nanomaterials, due to their multiple utilities, has exponentially increased. Nanomaterials have unique properties such as a larger specific surface area and surface activity, which may result in health and environmental hazards different from those demonstrated by the same materials in bulk form. Besides, due to their small size, they can easily penetrate through the environmental and biological barriers. In terms of exposure potential, the vast majority of studies are focused on workplace areas, where inhalation is the most common route of exposure. The main route of entry into the environment is due to indirect emissions of nanomaterials from industrial settings, as well as uncontrollable releases into the environment during the use, recycling and disposal of nano-enabled products. Accidental spills during production or later transport of nanomaterials and release from wear and tear of materials containing nanomaterials may lead to potential exposure. In this sense, a proper understanding of all significant risks due to the exposure to nanomaterials that might result in a liability claim has been proved to be necessary. In this paper, the utility of an application for smartphones developed for the insurance sector has been validated as a solution for the analysis and evaluation of the emerging risk of the application of nanotechnology in the market. Different exposure scenarios for nanomaterials have been simulated with this application. The results obtained have been compared with real scenarios, corroborating that the use of novel tools can be used by companies that offer risk management in the form of insurance contracts.

Medicolegal Sidebar: Telemedicine-New Opportunities and New Risks.

Medicolegal Sidebar: Telemedicine-New Opportunities and New Risks.

The Question of the Applicable Law in Cross-Border Claims on Product Liability: Reflections from India

Abstract The blurring of international barriers has impacted the nature and complexity of tortious claims and, in particular, those concerning product liability. Products manufactured in one country are often sold or used in another State – and there is often a separation in time and space between the occurrence of the harmful behaviour the resultant injury. For this reason, countries across the globe have increasingly considered it inappropriate to subject such claims to the same mechanism to identify the governing law that applies to other tortious claims of different nature such as negligence, nuisance or defamation. The EU, the UK, Australia, Canada, and India’s BRICS partners – Russia and China – are examples of legal systems that have developed a special conflict of law rules on the applicable law in product liability claims. In contrast, the principles of Indian private international law do not contain any special rule. The applicable law is determined on the basis of a uniform principle that extends to all cross-border disputes on tort. The paper provides a critical evaluation of the mechanism to identify the applicable law in international disputes on product liability. It highlights the predicaments in extending the uniform rule to product liability claims and demonstrates how it debilitates access to justice and is not suitable for disputes that arise from accidents caused by products such as autonomous vehicles, which incorporate new technology. Consequently, the paper suggests workable solutions to develop the Indian conflict-of-law rules on the subject.

Management of testicular torsion in the ER: lessons learned from medical professional liability claims

ObjectiveTo evaluate emergency care for testicular torsion (TT) in medical professional liability (MPL) claims. MethodsClaims related to TT from 2000 to 2018 were located. The assistance provided and the association with MPL were analyzed. ResultsEighty complaints were identified, testicular pain was reported in 83.75% of first consultations, with a mean evolution time of 15.5 h. The mean time to diagnosis was 7.98 days. The first consultation was at the hospital in 75.1% of cases, but an ultrasound was performed only in 7.5%. When TT diagnosis was performed, 97.3% had undergone ancillary tests. The MPL was significantly associated with non-criminal proceedings and with less than 6 h of symptoms’ evolution, and, within this subgroup, without undergoing an ultrasound scan. ConclusionsLate consultations, wrong diagnosis and late diagnosis are claimed. When MPL are claimed by means of non-criminal law, the existence of responsibility is frequently considered, even more in those cases when the consultation took place before 6 h of evolution with no ancillary tests having been performed.

Who Is Liable When a Driverless Car Crashes?

Autonomous vehicles (AVs) will revolutionize mobility in the future. However, accidents will still happen and it will affect the practices of today’s tort laws. This work discusses all those aspects which should be considered in order to find out who is liable, i.e., an operator, owner, manufacturer, government entity, software provider, network provider, original equipment manufacturer (OEM), etc., as traditional tort rules will not help to find out the liability in case of an AV accident. The work comprehensively discusses different liabilities ranging from legal, civil, operator, criminal, moral, product, insurance, etc., to find out who is liable in case of an AV accident, as compared to the existing literature which generally discusses one or two aspects only. The work also presents the current state of legislation and discusses legal challenges to the lawmakers, insurance companies, consumer, and manufacturers, etc. The future mobility models and different scenarios of AV accidents have also been discussed in terms of legal liability and third party insurance claims. The role of regulatory bodies and different challenges has also been discussed along with recommendations. Finally, the work also proposes a new novel liability attribute model with a particular focus on ethical issues. The research proposes that liability should be attributed in such a way that it benefits everyone and everybody feels justified in case of an AV accident. The research also concludes that product liability will be the major issue in terms of insurance issues and the manufacturer should be held liable for product failure unless other evidence favors the manufacturer.

Die Präventionswirkung des Staatshaftungsrechts

This contribution addresses the question of whether and to what extent state liability law has a preventive effect. The question focuses on whether the (mere) existence of claims under state liability law creates an incentive to prevent unlawful actions against citizens. Cases in which an incentive is created for an individual public official (individual preventive effect) are differentiated from those in which an incentive is created for the state as an organisation (organisational preventive effect). Based on an economic analysis of law, the article demonstrates – in abstract terms and detached from concrete bases for claims – that both effects can occur: On the one hand, liability claims can prevent public officials from deliberately making unlawful decisions and as well as increase the diligence and so the probability of a lawful decision. On the other hand, liability claims can influence an organisation in the state sector in such a way that those responsible strive to ensure lawful decisions by means of the improved structuring and scrutiny of the decision-making process. To establish the specific preventive effect of an individual claim under (German) state liability law, it is necessary to consider its specific structure. The allocation of liability and the possibility of an internal recourse determine whether the preventive effect achieved is (more) an individual or an organisational one. The decisive criteria for the intensity of the preventive effect include the type, extent, degree of collectivisation, and limitations of the liability claim as well as its enforceability. Regardless of the necessary differentiation, it may be concluded that the claims of German state liability law emphasise an organisational preventive effect. While they implement the preventive effect to some extent overall, they do not fully do so. There are viable reasons for this restraint, considering the at times contrary objective of an efficiently acting administration. As a result, as this contribution concludes, from a legal policy perspective, a preventive effect also depends on considering additions and alternatives to state liability law.

Self-placement of Complex Financial Instruments by Banks to Retail Clients and Civil Liability Issues – An Overview of Greek Case-Law

Abstract This study focuses on self-placement of complex financial instruments to retail clients which is often associated with mis-selling practices. Recent case law in Greece concerning distribution Of “Coco” bonds by a Cypriot bank to its clients reveals, on the one hand, the stand Of Greek Courts concerning the interpretation of certain ambiguous MiFID I Conduct of Business (COB) rules and, on the other, their interplay with civil law duties and the intricacies that arise in order to substantiate a civil liability claim for breach of the COB rules, such as the difficulty to prove causation in securities litigation. The study further evaluates the new MiFID II/MiFIR provisions that relate to the practice of self-placement and supports the adoption of a civil liability regime at the EU level, as well as other alternatives to further enhance retail investor protection.

El manejo de la torsión testicular en Urgencias: lecciones aprendidas de las reclamaciones por responsabilidad profesional médica

ObjectiveTo evaluate emergency care for testicular torsion in medical professional liability claims. MethodClaims related to testicular torsion from 2000 to 2018 were located. The assistance provided and the association with medical professional liability were analyzed. ResultsEighty complaints were identified, testicular pain was reported in 83.75% of first consultations, with a mean evolution time of 15.5h. The mean time to diagnosis was 7.98 days. The first consultation was at the hospital in 75.1% of cases, but an ultrasound was performed only in 7.5%. When testicular torsion diagnosis was performed, 97.3% had undergone ancillary tests. The medical professional liability was significantly associated with non-criminal proceedings and with less than 6h of symptoms’ evolution, and, within this subgroup, without undergoing an ultrasound scan. ConclusionsLate consultations, wrong diagnosis and late diagnosis are claimed. When medical professional liability are claimed by means of non-criminal law, the existence of responsibility is frequently considered, even more in those cases when the consultation took place before 6h of evolution with no ancillary tests having been performed.

CIVIL LIABILITY OF COMPANIES FOR ANONYMOUS COMMENTS POSTED ON THEIR SITES: A CRITERION OF POTENTIAL CONSEQUENCES OF LIABILITY

Purpose – The purpose of this study is to investigate a criterion of potential consequences of liability of an Internet portal for unlawful comments of its visitors and set certain general waymarks, which would apply to cases of this kind. Research methodology – The European Court of Human Rights has ruled in four cases (Delfi AS v. Estonia, MTE & Index v. Hungary, Pihl v. Sweden and Tamiz v. the United Kingdom) on whether civil liability can be justified to the website operators for anonymous comments made on their portals that violate the right to privacy. One of the criteria of such evaluation was the possible negative consequences of the civil liability of these entities, but its content and meaning have not been thoroughly studied in the doctrine. Therefore the authors analyse the content of this criterion on the basis of a comparative method. Taking into account the legal context of this study, specific methods of legal interpretation are used in this article (such as, systemic, teleologic, histrorical). Findings – Authors conclude that addressing the civil liability of website operators for damages caused by anonymous comments violating the right to privacy must consider not only the financial, and not only ad hoc, short- and long-term adverse effects of the website operators in general, but the impact of the ruling on the concept of free media and other property and non-material consequences for a democratic society as a whole. Research limitations – This article deals with one criteria for the application of civil liability of website operators for the infringement of an individual’s right to privacy by anonymous comments, that is – the possible negative consequences of the civil liability of these entities. That is the continuation of the authors’ research on the topic of website operator’s liability for unlawful anonymous comments. Practical implications – The research reveals that the consequences of applying the civil liability to the website operator are conditions for assessment of extent of the already existing civil liability; therefore, the criteria of the consequences that arose and / or could arise to website operator are not to be considered as factors justifying the application of civil liability, but rather as factors determining, i.e. extending or limiting, the extent of civil liability. Originality/Value – The vacuum of a consistent concept of assessing the behavior of website operators in response to unlawful comments poses a threat not only to the sustainability of website operators as business or public interest entities, but also to the stability of the legal system as a whole. It is therefore important to disclose the content of elements of assessment of the necessity of restricting the freedom of expression of website operators in a democratic society, which are unregulated and formulated only in the case law of the ECtHR, and which have been applied in national courts for horizontal civil liability claims for anonymous comments. There are no previous research that would focus on these issues.

The Extraordinary Force of Nature Defense as a Defense to Coronavirus (COVID-19) Pandemic Liability

This Article makes a contribution to the literature regarding the extraordinary force of nature defense as well as the emerging law review literature relating to the COVID-19 pandemic by analyzing the possible applicability of the extraordinary force of nature defense as a defense to COVID-19 liability claims. Given the extraordinary nature of the COVID-19 pandemic and the recognition of it as an "extraordinary" event by federal courts, I contend that courts should seriously consider its application as a common law defense to COVID-19 related liability claims.

Commercial Premises Liability in Nigeria: the Need for Business Owners to Observe Due Diligence

What do you know about commercial premises liability? Do you know that Business owners generally have an obligation to keep property in a reasonably safe condition, so as to avoid injuries to customers or other individuals? What are the types of commercial premises liability? Is it everyone that enters a premises can sustain an action for commercial premises liability claim? What determines who can make a claim for commercial premises liability? What does a claimant need to prove to succeed in an action for commercial premises liability? Is there any available defence for the defendant in commercial premises liability claim? Safeguards against commercial premises liability claim The writer has done an exhaustive perusal on commercial premises liability in Nigeria and the need for business owners to observe due diligence. To know more, you can start reading this article.

Legal Analysis in Maritime Laws Based on <i>Grounding Case of M/V “EVER GIVEN” in Suez Canal</i>

On March 24, 2021, M/V EVER GIVEN from Evergreen Marine Corp stranded in the southern part of the Suez Canal shortly after it entered the canal, resulting in the closure of the two-way channel of the Suez Canal and the blockage of hundreds of ships on the route between Asia and Europe. There exist quite tedious and complicated legal issues behind the stranding of M/V EVER GIVEN, including the contractual liability of M/V EVER GIVEN to the owners of cargo, the legal liability of M/V EVER GIVEN to the Suez Canal Authority and to the rescue force, and the establishment and contribution of general average. As to the specific claims for compensation, the legal relationship between the parties should be made clear firstly, and the establishment of the right to claim should then be confirmed. We should also distinguish claims which have been covered by the insurer or the P&I club from those which should be the responsibility of the ship owner. Combined with the gross tonnage data of M/V EVER GIVEN, the limitation of liability for maritime claims can be calculated according to the 2012 Amendment of CONVENTION ON LIMITATION OF LIABILITY FOR MARITIME CLAIMS 1976. To have a conclusion that the paper will predict whether the owner of M/V EVER GIVEN will be bankrupt, the value of the vessel should be compared with the amount of limitation of liability for maritime claims.

Legal Interventions to Counter COVID-19 Denialism

A series of denialist state laws thwart efficacious public health emergency response efforts despite escalating impacts of the spread of the Delta variant during the COVID-19 pandemic. However, public and private actors are fighting back to obstruct or reverse anti-public health maneuvers through legal challenges focused on (1) constitutional structural- and rights-based challenges; (2) use of conditional spending requirements; (3) federal preemption; (4) disability and other anti-discrimination laws; (5) waivers or routine uses of public health powers; and (6) civil liability claims.

From Automation to Autonomy: Legal and Ethical Responsibility Gaps in Artificial Intelligence Innovation

The increasing prominence of artificial intelligence (AI) systems in daily life and the evolving capacity of these systems to process data and act without human input raise important legal and ethical concerns. This article identifies three primary AI actors in the value chain (innovators, providers, and users) and three primary types of AI (automation, augmentation, and autonomy). It then considers responsibility in AI innovation from two perspectives: (i) strict liability claims arising out of the development, commercialization, and use of products with built-in AI capabilities (designated herein as “AI artifacts”); and (ii) an original research study on the ethical practices of developers and managers creating AI systems and AI artifacts. The ethical perspective is important because, at the moment, the law is poised to fall behind technological reality—if it hasn’t already. Consideration of the liability issues in tandem with ethical perspectives yields a more nuanced assessment of the likely consequences and adverse impacts of AI innovation. Companies should consider both legal and ethical strategies thinking about their own liability and ways to limit it, as well as policymakers considering AI regulation ex ante.

A Trans-Atlantic Doctrinal Orientation Made Concrete: Ohio’s First 'Modern' Business Corporation Act (1927)

A Trans-Atlantic Doctrinal Orientation Made Concrete: Ohio’s First 'Modern' Business Corporation Act (1927)

The Evolving Delaware Books and Records Jurisprudence and the Caremark Conundrum

Corporate litigation increasingly operates through stockholders’ books and records inspection these days. The rise and expansion of stockholders’ rights to information from corporations have been among the most significant developments, albeit underappreciated, of late under Delaware corporate law jurisprudence. In the aftermath of a few mid-2010’s Delaware Supreme Court corporate law seminal decisions that heightened the pleading standards for stockholder plaintiffs to challenge a wide range of intra-corporate business transactions, the Delaware courts have consistently relaxed the interpretation of a statutory rule (Section 220 of the Delaware General Corporation Law) that grants stockholders a qualified right to inspect corporations’ books and records. This judicial re-balancing of the pendulum, has provided pre-complaint discovery to stockholders seeking to prepare for potential fiduciary-breach litigation. Equipped with strengthened pre-filing discovery tools, stockholders use such access to broad range of intra-corporate materials to substantiate their allegations in order to overcome Delaware’s laxed standard of reviews of corporate transactions, as well as monitor the corporate decision-making process. In this edition of Equity Chambers, Lee Rudy and Eric Zagar, two of the most seasoned stockholder plaintiffs’ litigation counsel, provide an insider’s perspective of Delaware books and records rapid changing doctrinal landscape. In addition, they discuss the clash between corporate litigation actors in the lead plaintiffs process context, as well as the current state of director oversight liability claims.

Responses to Liability Immunization: Evidence from Medical Devices

The Supreme Court's decision in Riegel v. Medtronic immunized medical device manufacturers from certain types of state product liability claims. However, this immunization applies only when the devices underlying those claims have been approved through the Food and Drug Administration's most rigorous—and costly—review process, premarket approval (PMA). Exploiting this decision, we examine whether manufacturers strategically respond to this new immunity. We find evidence that, following Riegel, approvals for high‐risk product categories increase relative to the comparable change for low‐risk categories, suggesting that firms are sensitive to the newly immunized risk. We additionally find evidence that physician treatment patterns with respect to medical devices also change, consistent with Riegel shifting liability away from device manufacturers and toward physicians. The analysis provides evidence that sophisticated actors respond to changes in their expected legal liability and that technical legal decisions have important ramifications for the provision of healthcare.

The impact of the fipronil crisis on the financial performance of Dutch laying hen farms

BackgroundIllegal use of fipronil as an insecticide in 2017 has caused substantial damage to Dutch laying hen farms. We assessed how the fipronil crisis has affected the financial performance of affected farms as well as unaffected farms. While affected farms faced culling their flocks and lost revenue, unaffected farms benefitted from temporary high egg prices.MethodsA three-step normative modelling approach is taken using financial statements and a partial budget. The estimations are for a 50,000 laying hen farm facing the fipronil crisis for 5 months. First, a baseline is created by generating an income statement of this laying hen farm representing a ‘normal year’. Second, incremental costs and revenue as a result of the fipronil crisis are estimated. Third, the baseline income statement is updated with the outcomes of the partial budget. This results in two additional income statements that report the net operating result of this farm being unaffected and affected by the fipronil crisis.ResultsWhile in a normal year this average-sized farm has a net operating result of around 18,000 euros, profitability was estimated to be − 369,000 euros and + 169,000 euros for the affected and unaffected farm due to the crisis respectively. For affected farms, impacts were especially high as there was no government compensation or insurance.ConclusionsAs Dutch farms typically operate as independent family farms, there was also no compensation from other chain actors. The affected farms therefore likely have faced financial distress and have had to increase debt or use their financial reserves for household consumption and restarting the business. Outcomes contribute to discussions around liability claims and cost-benefit assessments of measures to improve the chain food safety and rapid alert systems.Graphical

Offline: Managing the COVID-19 vaccine infodemic

If you read News Punch (aka “Where mainstream fears to tread”), you will be familiar with a series of articles about the prospects for a COVID-19 vaccine. With headlines such as “Big Pharma Exec: We Are Exempt From COVID-19 Vaccine Liability Claims”, the website has published report after report casting doubt on the integrity of vaccine science and even the likelihood of a vaccine becoming available. You will find similar pieces on other websites, such as Infowars and AlterNet. The arguments these articles peddle seem deliberately designed to sow uncertainty. Elon Musk is alleged to have said that he won't allow his children to receive a COVID-19 vaccine. Executives from one vaccine manufacturer are alleged to have sold “millions in stock as Covid vaccine trials enter phase 3”. Doctors are accused of demanding the US Government punish Americans who refuse a COVID-19 vaccine. These stories may be having an effect. Last month, Nature Medicine published the results of a survey describing the views of over 13 000 people across 19 countries. 14·2% of the respondents completely or somewhat disagreed with the statement that they would accept a COVID-19 vaccine if generally available. 17·9% completely or somewhat disagreed with the statement that they would accept a COVID-19 vaccine if their employer recommended it. In many countries, vaccine hesitancy is sufficiently high to render community immunity a challenging goal. The survey suggests that far too little has been done to prepare the public for the arrival of a COVID-19 vaccine. Misinformation about COVID-19 vaccines is a serious threat not only to public health but also to national economic security—a fact made all the more urgent as a second wave of coronavirus sweeps across Europe. In their 2019 book, The Misinformation Age, Cailin O'Connor and James Owen Weatherall explain how false beliefs persist and spread. They emphasise the social character of fake news. The connections between us in groups or networks enable the propagation of misleading evidence as well as true beliefs. Models of communication show the importance of trust in shaping the spread of beliefs. The greater the distrust among those with different views, the greater the risk of permanent polarisation. We are also prey to conformity bias—a desire to agree with others and to trust the judgments of others. Our predilection to conformity makes it harder to stand against the crowd. If your network holds strong anti-vaccine views, you may find it more difficult to arrive at your own independent judgment, even if you are inclined to have confidence in a vaccine. And misinformation is made worse when there are active propagandists spreading fake news. The field of COVID-19 vaccines is full of propagandists seeking to manipulate and mislead. What can be done? Although not writing about COVID-19 specifically, O'Connor and Weatherall draw conclusions that can be applied to our present predicament. A warning: they stress that anyone who thinks the “marketplace of ideas” will sort fact from fiction is dangerously mistaken. First, then, social media companies, especially Facebook and Twitter, must do more to police their networks and eliminate false information about a potential COVID-19 vaccine. Second, trusted politicians from all political parties (and other public figures) need to speak out in support of COVID-19 vaccine science. Third, vaccine scientists (and editors of scientific journals that publish vaccine science) must raise their standards for the work they do (and publish). O'Connor and Weatherall argue that scientists need to build trust by abandoning industry funding. That isn't going to happen for COVID-19 vaccine trials. But it is important that scientists retain maximum independence from manufacturers who sponsor their studies. It doesn't help the cause for a COVID-19 vaccine when pharmaceutical company executives talk encouragingly about a vaccine. Propagandists use their words to fuel distrust about vaccine science. Fourth, journalists should avoid the unwitting spread of misinformation. They should never give any kind of platform to vaccine sceptics. Fifth, lawmakers can do more to regulate sources of misinformation, just as they have done for other threats to health, such as tobacco. O'Connor and Weatherall's central claim is that “We need to recognise fake news as a profound problem that requires accountability and investment to solve.” COVID-19 vaccine misinformation is not taken as seriously as it should be. That complacency needs to end.

Court of Justice of the European Union (Ninth Chamber), WT v Subdelegación del Gobierno en Guadalajara

Abstract This case report provides an account of the issues in the preliminary ruling of the Court of Justice of the European Union (CJEU) in the WT case. The case centres on the elements that need to be considered under Directive 2003/109 before expelling a third-country national, holding a long-term residence permit, who has committed a criminal offence. This case report discusses the interpretation of Article 12 of Directive 2003/109, in particular the concept of threat to public policy, describes the incorrect previous reading by the Spanish Supreme Court of that provision, the possible case for a state liability claim against Spain as a result of that, and the importance of the dialogue between lower-level domestic courts and the Court of Justice on migration matters.