Guest post – tis better to try and fail, then to have never tried at all_ internal corporate policies do not create a heightened legal duty – lexology

What follows is a guest post by Cara DeCataldo, a Reed Smith associate, who gamely stepped up to the plate to research one of a number of blogging topics that have been hanging fire for some time now. Electricity sound effect This topic is a type of “no good deed goes unpunished” liability – whether a defendant whose internal policies aspire to a degree of care that exceeds legal requirements can be sued solely because it allegedly failed to live up to those high aspirations. Gas bloating pain The two most common theories that purportedly support such a result are negligence per se and negligent undertaking. Gas hydrates Thankfully, Cara’s research indicates that such liability is not recognized.

Clearly articulated company policies imposing heightened safety standards on a company and its employees can’t be a bad thing, right? But what happens when a Plaintiff attempts to use a company’s alleged failure to comply with its own corporate aspirations as the basis for a lawsuit? There is an inherent tension between a company’s desire to set high standards for employee conduct and/or its products, and the fear of liability if those standards are not met. R gas constant kj With this in mind, we thought it would be a worthwhile to take an in-depth look at whether internal company policies that exceed what the law requires, can also pose the risk of creating a legal duty.

For those companies seeking to hold employees and/or products to ambitious standards of care, the news is largely good. Electricity clipart Most courts to address the issue support these endeavors and recognize the value of encouraging companies to maintain high voluntary standards. Ortega y gasset la rebelion de las masas They also recognize the potential negative impact if those goals were misused to create legal duties to the public. Gasbuddy map Negligence per se claims consistently fail when citing various official pronouncements that encourage, but do not mandate, conduct, such as company credos, internal agency manuals, protocols, policy statements, and the like, as relevant evidence of the alleged negligence. Electricity facts label Many states take matters a step further and bar the admission of company policies even as evidence of negligence. Gas vs electric heat The most frequently applied rationale barring the admission of internal policies is that to the extent internal rules and regulations exceed the standard of care, then they are not admissible.

In drug and device cases, plaintiffs sometimes try to heighten the standard of care by arguing that corporate policies and procedures mandate the appropriate standard of care. 76 gas credit card login A typical plaintiff tactic is to review internal policies and point to how certain things were done contrary to those policies. Kite electricity generation Plaintiffs’ experts review these policies as well and use them to support their opinion that the violation of such policies is evidence of the company’s negligence.

Recently, this scenario has played out in litigation involving an OTC product. Electricity in water experiment Plaintiff-side experts sought to quote the defendant’s corporate credo – which made certain statements about policies regarding communication of product-related risk information to consumers – to suggest that the defendant company had violated legal standards of care. Gas pain in chest The defendant argued for exclusion of that expert’s testimony on the basis that any opinions about such a credo were an improper attempt to transform a corporate policy into a legal standard for liability and should be rejected. Hp gas online payment In In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prods. Grade 6 electricity unit plan Liab. C gastronomie plateaux repas Litig., 2016 WL 807377, at *8 n. F gas regulations r22 22 (E.D. Electricity and magnetism equations Pa. K electric jobs test Mar. Zyklon b gas canister for sale 2, 2016), the Court excluded the expert testimony:

[The expert’s] use of the [defendant’s] Credo to show “standard of care” would also be inappropriate. Specjalizacja z gastroenterologii The defendants’ own Credo should not be held out as the legal standard by which it should conduct its affairs. Bp gas prices chicago See Johnson v. K electric bill statement Mountainside Hospital, 239 N.J. Electricity laws in pakistan Super. Gas in back and chest 312, 323, (App. Gas stoichiometry worksheet Div. N gas price 1990) (“It was potentially misleading because it attempted to exalt an exhortatory statement in the by-laws of the Hospital into the legal standard for determining whether or not the defendant physicians committed malpractice. Gas explosion in texas The relevant legal standard is defined by law.”). Gas vs electric oven for baking cakes Additionally, any probative value the Credo may serve would be substantially outweighed by the potential jury confusion—of this standard with what was legally required. Gas station near me open See In re Paoli RR Yard PCB Litigation (Paoli II), 35 F.3d 717, 747 (3d Cir. Electricity youtube billy elliot 1994) (explaining how “Rule 403 gives a judge more power over experts than over lay witnesses” but this exclusion of evidence should only happen when they is “something particularly confusing about the scientific evidence at issue—something other than the general complexity of scientific evidence”).

The Court rejected plaintiff’s argument that a corporate credo simply serves as an acknowledgement of the standard of care to which they must adhere. Gas house edwards Instead, the Court found that this type of statement was aspirational: requiring more of its employees than the legal standard of care ( i.e., putting consumers, not shareholders, first). 7 gas laws Allowing the company to be judged on this standard could discourage companies from creating internal policies that go beyond what the law asks.

The Acetaminophen litigation being an MDL, plaintiffs tried again with a second expert, this time purporting to testify about “pharmacovigilence.” Same result – indeed, same language. Electricity jokes In re Tylenol (Acetaminophen) Mktg., Sales Practices, & Prods. Gas dryer vs electric dryer safety Liab. Gas bubble in eye Litig., 2016 WL 4039271, at *10 (E.D. Wholesale electricity prices by state Pa. Electricity bill average July 28, 2016).

These results are certainly not outliers – although there aren’t any other drug/device examples that we were able to find. Gas x extra strength vs ultra strength Most of the attempts to impose heightened liability based on internal policies are brought either under the rubric of “negligence per se” or else under a negligent undertaking theory.

Lugtu v. Electricity transmission and distribution costs California Highway Patrol, 28 P.3d 249 259 (Cal. Electricity in the body causes 2001) (police officer safety manual policies could not be viewed as establishing the applicable standard of care, but they may be considered by the trier of fact in determining whether an officer was negligent in a particular case); Salazar v. U gas station near me S. Gas in oil pan Cal. Electricity meaning Gas Co., 63 Cal. Gas company Rptr. Electricity a level physics 2d 522, 525-32 (Cal. Gas or electricity more expensive App. Gas vs diesel mpg 1997) (internal company policy of warning customers that elevating water heaters to at least eighteen inches would reduce the risk of flammable vapors being ignited did not create any duty).

Rupert v. Electricity outage compensation Clayton Brokerage Co., 737 P.2d 1106, 1111 (Colo. Electricity usage by country 1987) (internal rules of brokerage firm relevant, but did not establish, any standard of care for breach of fiduciary duty).

Joseph v. Electricity symbols ks2 worksheet Monroe, 419 A.2d 927, 931 (Del. Electricity and magnetism purcell 1980) (provision of handbook regarding supervisory responsibility of teachers did not carry force and effect of law, and violation thereof did not constitute negligence per se).

Clark v. Electricity bill cost District of Columbia, 708 A.2d 632, 636 (D.C. Gas city indiana restaurants 1997) (“an … internal agency procedure [that is] not a statute or regulation … cannot embody the standard of care under a negligence per se theory” because “expert testimony [is] still required to establish that the [internal policy] embodied the national standard of care and not a higher, more demanding one”).

Boutilier v. Electricity measurements units Chrysler Ins. Gas monkey Co., 2001 WL 220159, at *1 (M.D. Electricity sources in us Fla. 10 ethanol gas problems Jan. Electricity experiments for high school 31, 2001) (that defendant has internal corporate policy does not create a legal duty of care or cause a breach of that duty).

Gondeck v. Z gas tijuana telefono A Clear Title & Escrow Exch., LLC, 47 F. Grade 9 electricity unit review Supp.3d 729, 745 (N.D. Electricity projects for 4th graders Ill. U gas cedar hill mo 2014) (defendant’s corporate code of conduct did not create a legal duty); see also Rhodes v. Npower gas price per unit Ill. Electricity usage calculator Cent. Wb state electricity board recruitment Gulf R.R., 665 N.E.2d 1260, 1272 (Ill. Save electricity pictures 1996) (“[w]here the law does not impose a duty, one will not generally be created by a defendant’s rules or internal guidelines.”); Asmus v. Gas kush Mac’s Convenience Stores, LLC, 438 F. Gas leak in house App’x 505, 507 (7th Cir. Gas vs electric oven 2011) (“general policies in an employee handbook are not contractual promises” that can impose a legal duty); Shank v. Gas kansas city H.C. Electricity electricity goodness Fields, 869 N.E.2d 261, 268 (Ill. Gas house gang App. Gas knife 2007) (“Violation of self-imposed rules or internal guidelines . . . Electricity billy elliot backing track do not normally impose a legal duty, let alone constitute evidence of negligence.”); Fillpot v. Electricity facts for 4th graders Midway Airlines, Inc., 633 N.E.2d 237, 244 (Ill. Electricity kanji App. Gas density problems 1994) (declining to recognize a legal duty based on the defendant company’s policy manual); Blankenship v. Electricity history pdf Peoria Park Dist., 647 N.E.2d 287, 291 (Ill. Gas national average App. Electricity and circuits test 1994) (no legal duty arose from the defendant’s internal staffing rules); Quinn v. Duke electric orlando Sigma Rho Chapter of Beta Theta Pi Fraternity, 507 N.E.2d 1193, 1198 (Ill. Gas station App. Gas z factor 1987) (“a legal duty is normally not established through rules and regulations . . . Gas zauberberg 1 or internal guidelines”); Dezort v. Electricity usage calculator kwh Vill. Ag gaston birmingham 120 of Hinsdale, 342 N.E.2d 468, 472 (Ill. Gas vs electric water heater App. Electricity quiz and answers 1976) (“The failure to comply with self-imposed regulations does not necessarily impose . . . K electric share price a legal duty . . . Hp gas nor does the failure to comply with such regulations make a case of prima facie liability”).

Wal-Mart Stores, Inc. Gas refrigerator not cooling v. Gas 87 Wright, 774 N.E.2d 891, 894-95 (Ind. Gas x ultra strength directions 2002) (“the law has long recognized that failure to follow a party’s precautionary steps or procedures is not necessarily failure to exercise ordinary care” and finding this rule sound because it encourages a company to follow best practices without establishing them as a legal norm).

Flechsig v. M gasbuddy app U.S., 991 F.2d 300, 304 (6th Cir. Wb state electricity board recruitment 2015 1993) (applying Kentucky law) (allegation of violation of defendant’s internal regulations does not establish negligence per se).

Zdrojewski v. R gasquet tennis Murphy, 657 N.W.2d 721, 730 (Mich. Gasco abu dhabi email address App. Origin electricity account 2002) (internal company policies may not be used to establish a legal duty in a negligence claim); Burnside Indus., LLC v. Electricity allergy CB Richard Ellis, Inc., No. D cypha electricity 268343, 2006 WL 2418937, *2 (Mich. Gas explosion App. Electricity electricity song Aug. Gas water heater reviews 2013 22, 2006) (if duties to protect their employees or customers were imposed based on work rules or policies, companies would abandon such efforts that could benefit such employees or customers, in order to avoid future liability).

Shoemake v. E gasoline Rental Service Corp., 2008 WL 345498, at *1 (S.D. Electricity balloon experiment Miss. Electricity calculator Jan. Gas 91 30,, 2008) (internal company guidelines are not conclusive and do not establish a standard of care, but are relevant evidence).

Johnson v. Electricity magnetism and electromagnetic theory pdf Mountainside Hospital, 571 A.2d 318, 323 (N.J. Grade 9 electricity test and answers App. E 87 gasoline Div. Power outage houston report 1990) (hospital by-laws stating that all patients should receive “the best possible care” was not admissible because the standard of liability is a legal one set by the law and not by internal policies); Cast Art Indus., LLC v. 3 gas laws KPMG LLP, 3 A.3d 562, 580-81 (N.J. 76 gas station hours App. K gas oroville Div. Gas efficient suv 2010 2010) (applying a company’s internal procedures to impose a higher standard of care than common-law standard could discourage companies from creating procedures that exceed common law duties), rev’d on other grounds, Cast Art Indus., LLC v. Gas city indiana post office KPMG LLP, 36 A.3d 1049, (N.J. E gaskell north and south 2012).

Branham v. Electricity video ks1 Loews Orpheum Cinemas, Inc., 819 N.Y.S.2d 250, 323 (N.Y. Wireless electricity how it works App. Zyklon b gas effects Div. Electricity history united states 2006) (“While a defendant’s internal rules may be admissible as evidence of whether reasonable care was exercised, such rules must be excluded, as a matter of law, if they require a standard of care which transcends the traditional common-law standard of reasonable care under the circumstances.”).

Mynhardt v. Electricity 1 7 pdf Elon Univ., 725 S.E.2d 632, 636 (N.C. Electricity generation definition App. Gas in back relief 2012) (no legal duty imposed by adoption of policies by universities to deal with student drinking and other incidents); Hall v. Z gas ensenada Toreros II, Inc., 626 S.E.2d 861, 867 (N.C. Grade 6 electricity test App. Gas dryer vs electric dryer operating cost 2006) (imposing a legal duty from the adoption of internal policies “would serve only to discourage, indeed penalize, voluntary assumption or self-imposition of safety standards”); McCants v. Electricity electricity lyrics Nat’l Collegiate Athletic Ass’n, 2016 WL 4272362, *8 (M.D.N.C. Electricity generation in india Aug. 5 gases found in the environment 12, 2016) (“the adoption of rules, policies, and procedures is insufficient as a matter of law to impose a legal duty based on the voluntary undertaking doctrine”); Phillips v. Sgas belfast Sheetz, Inc., 2013 WL 5567423, *1 (W.D.N.C. Static electricity images Oct. Electricity and magnetism worksheets middle school 9, 2013) (company policy that provides for a harassment-free workplace for its employees is insufficient to create a duty owed from employer to employee).

Titchnell v. K electric jobs 2015 United States, 681 F.2d 165, 173 (3d Cir. Electricity units calculator in pakistan 1982) (defendant’s internal policies do not, taken alone, establish the applicable standard of care); Ruder v. R gasquet Pequea Valley School Dist., 790 F. Gas utility cost Supp.2d 377, 402 (E.D. Q gastrobar leblon Pa. Gas stoichiometry practice sheet 2011) (negligence per se cannot be found based on a plaintiff’s allegation that a defendant has breached its own policy); Hower v. U save gas station grants pass Wal-Mart Stores, Inc., 2009 WL 1688474, *6 (E.D. Gas x ultra strength during pregnancy Pa. Gas x directions June 16, 2009) (defendant’s internal policies not the equivalent of its duty of care . . . Electricity videos for 4th grade “A store owner like Defendant should not be faced with a lawsuit for negligence by failing to live up to a heightened, self-imposed duty of care.”)

Morrison v. Electricity prices by country Mineral Palace Ltd. Gas after eating eggs Partnership, 603 N.W.2d 193, 196 n.4 (S.D 1999) (failure to comply with a company rule does not constitute negligence per se; while admissible evidence, such a policy does not set forth a standard of conduct that establishes what the law requires of a reasonable person under the circumstances).

Haney v. Gas station in spanish Bradley County Bd. Electricity font of Educ., 160 S.W.3d 886, 892-93 (Tenn. K electric bill App 2004) (violation of internal policy could not form basis of negligence per se claim because the applicable standard of care owed was established by law, not by policy).

FFE Transportation Services, Inc. F gas certification logo v. Electricity and magnetism study guide Fulgham; 154 S.W.3d 84 (Tex. Gas 85 vs 87 2006) (defendant’s self-imposed inspection policy, taken alone, did not establish the standard of care that a reasonably prudent operator would follow); Boudreaux v. Electricity inside human body Swift Transp. Electricity invented or discovered Co., 402 F.3d 536, 543 (5th Cir. Gas pressure definition chemistry 2005) (“a company’s self-imposed policy with regard to inspection, taken alone, does not establish the standard of care that a reasonably prudent operator would follow”); Texas Southwestern Med. Gas 2016 Supply, Inc. V gashi v. Gas 6 weeks pregnant Texas Commerce Bank – Dallas, N.A., 1994 WL 246169, at *4-7 (Tex. Emitra electricity bill payment App. Electricity flow chart – Dallas June 2, 1994, n.w.h.) (internal procedures cannot superimpose a legal requirement over and above the UCC) (not designated for publication).

Pullen v. Grade 9 static electricity test Nickens, 310 S.E.2d 452, 456–57 (Va. Grade 9 electricity test questions 1983) (reversible error for internal employee guidelines to be admitted to establish standard of care where plaintiff neither knew about nor relied upon the internal guidelines); McDonald v. Gas definition chemistry Wal–Mart Stores East, LP, 2008 WL 153782, at *5-6 (E.D. Gas city indiana weather Va. Gas oil Jan. Gas x user reviews 14, 2008) (internal store policies could not be used to establish the common law standard of care); Hudson v. Electricity in india Wal-Mart Stores E., L.P., 2007 WL 2107466 , at *3 (W.D. Electricity and magnetism study guide 8th grade Va. Gas tax deduction July 20, 2007) (applying Virginia law) (“Violation of company policy does not show a breach in the standard of care.”).

Joyce v. Locate a gas station near me Dept. Electricity history of Correction, 119 P.3d 825, 834 (Wash. Gas tax nj 2005) (internal directives and department policies may provide evidence of the standard of care but the jury must be instructed that a violation of such a policy is not negligence per se).

Cavcon Inc. A gas is a form of matter that v. Gastroenterology Endress & Hauser, Inc., 557 F. Static electricity human body causes Supp.2d 706, 724 (S.D. 10 gases W. Npower electricity supplier number Va. Electricity cost per month 2008) (without a special relationship such as that created by contract, violation of company credo regarding communications did not create any duty in tort).

Given what research reveals about the state of the law in this area, to the extent that other drug or medical device plaintiffs who make arguments similar to those in the Acetaminophen litigation are no more likely to be successful. Electricity and magnetism Remember, however, that because we don’t do the other side’s research for them as a matter of policy, it is possible that a bit of adverse precedent exists.