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Justices rule in favor of cup manufacturers

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The manufacturer defendants in a suit claiming defects in their measuring cup caused the death of a 9-year-old boy are entitled to summary judgment, the Indiana Supreme Court affirmed today. The undisputed evidence in the case showed if there was an overdose of codeine in the boy's bloodstream, it wasn't caused by any alleged defects in the cup itself.

In Jim and Jill Kovach, individually and on behalf of deceased minor child Matthew Kovach v. Caligor Midwest, et al., No. 49S04-0902-CV-88, the high court found the causation issue in the case dispositive as to all causes of action. The Kovaches asserted four claims against Caligor Midwest and other manufactures of the medicine cup under the Indiana Product Liability Act and the Uniform Commercial Code. The Indiana Court of Appeals reversed summary judgment in favor of the defendants, holding genuine issues of fact precluded summary judgment on the claims. Justice Theodore Boehm noted that the Supreme Court has yet to address whether the PLA preempts warranty-based theories of recovery for physical harm, but decided not to resolve that issue because it was only raised by amici. The high court also declined to address several collateral issues the parties raised on appeal.

The parents claimed if the medicine cup had been better suited as a precision measuring device or had contained a warning that it wasn't suitable for precision measurement, their son wouldn't have received an overdose. The nurse that gave him the codeine testified she gave him the 15mL prescribed by filling the cup up halfway; Jim Kovach argued he saw the cup filled all the way up to the 30 mL level.

An autopsy showed Matthew had more than twice the recommended therapeutic level of the drug in his system, and the undisputed evidence in the case shows if there was an overdose, it wasn't caused by an imprecise measurement of the drug attributable to less than readily discernable marks, wrote the justice.

"Rather, if the codeine was the cause of Matthew's death, it was due to an erroneous double dosage of 30 mL of codeine when Matthew was supposed to receive 15 mL. The accident therefore cannot be attributed to any alleged defects in the cup itself," he wrote.

The justices also declined to address whether a failure to warn against the cup's use for precision measurement was required because even if it had been given, it wouldn't have prevented the overdose, Justice Boehm wrote.

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  1. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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