Saturday, December 3, 2016

CT Supreme Court to consider appeal in previously dismissed lawsuit against gun maker related to shooting at Sandy Hook Elementary

Almost two years ago, I reported that the families of nine of the 26 people killed two years ago at the Sandy Hook Elementary School in Connecticut filed a lawsuit against the manufacturer, distributor and seller of the Bushmaster AR-15 rifle used in the shooting. See here and here.

Back in October, however, several sources the case was dismissed.  NPR has more details on the story here.  Also, Politico has the story here.

Now comes news that the Connecticut Supreme Court has accepted an appeal. NPR has the story, although there are very few details.

Saturday, November 19, 2016

Friday, November 11, 2016

Utah Supreme Court holds a person can sue herself under wrongful death and survival stautes

I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility.  The case is Bagley v. Bagley and you can read the full opinion here.

Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later.  Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms Bagley sued herself in an attempt to compel her insurance company to indemnify her.  Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time. 

Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.

Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.

The trial court granted a motion to dismiss, but the court of appeals reversed. 

On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”

In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant were represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest.  Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.”  It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her.  Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.

The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.”  (See footnote 37 of the opinion)

You can read the full opinion here.

Friday, November 4, 2016

Hospital System allegedly tries to force possible patients to give up right to sue or they will be charged more for services; and residents may be forced to work longer hours

NPR is reporting today that San Francisco area companies are complaining that Sutter Health is strong-arming them into a contract that would help the hospital system secure its power over prices and potentially raise the cost of medical care for their employees in the future. The report says taht dozens of companies have received a letter asking them to waive their rights to sue Sutter. If they don't, the companies' employees who get care through Sutter's network of hospitals, doctors and medical services will no longer have access to discounted in-network prices.

Meanwhile, in a separate story, the group that sets the rules for medical residents has proposed changing the rule that says that interns, doctors in their first year of on-the-job training after finishing medical school, can work no more than 16 hours without a break.  This rule was adopted many years ago to minimize the chances the rookie doctors would make mistakes while fatigued.  The new proposed rule would let these new doctors work for as many as 28 hours at a stretch.

What do you think would be the cumulative effect of these two events? 

Sunday, October 23, 2016

Judge assigned to wrongful death case against Hilary Clinton steps aside and asks for case to be reassigned after allegations of forum shopping

Back in August I reported that the parents of two Americans killed in Benghazi, Libya, filed a lawsuit Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  I my post (here) I suggested the allegations in the complaint would be very difficult to prove and that there was a chance the case would be considered a frivolous lawsuit, in which case it should be dismissed and the lawyer should be sanctioned.

Now, a new report published in Politico (here) provides an interesting update on the story.  The judge who had been assigned the case decided to set aside and send the case back for reassignment.  It turns out the attorney who filed the case wanted that specific judge (a long time Clinton critic) and apparently tried to manipulate the system in order to get him.  According to the story, Clinton's lawyers filed a motion arguing, among other things that the plaintiffs' lawyer has a history of "judge shopping" and the judge gave up the case.

This new development adds to my concern over the plaintiffs' lawyer.  Did he first file a frivolous lawsuit and then try to manipulate the system in order to shop for the judge he wanted?   Will there be a hearing to discuss these questions?  Will the new judge impose sanctions?  Stay tuned...

Sunday, October 16, 2016

What are "non-economic damages" and why do tort reformers want to limit victims' ability to recover for them?

A few days ago I reported that the Supreme Court of Arkansas eliminated a ballot initiative that would have drastically capped compensation for “non-economic damages” to victims of medical malpractice and nursing home abuse.  (In fact, it has been reported that the initiative was the brainchild of the nursing home industry.)

In response to this news, the PopTort has posted a good short comment on the nature of non-economic damages and the effects of placing "caps" on them.  You should read it here.

Thursday, October 13, 2016

Movement afoot to prevent a vote on Arkansas referendum that would cap attorney fees and damages in medical cases -- UPDATED

September 3, 2016:   The ABA Journal online is reporting that two lawsuits have been filed this week to block an Arkansas ballot referendum that would cap non-economic damages and attorney fees in medical injury cases.  The state’s Bar Association also opposes the proposed measure which would require legislators to create a cap for non-economic damages in medical lawsuits against health-care providers of at least $250,000, and would limit contingency fees to one-third of any recovery after all costs of the litigation are deducted.

UPDATE (Oct. 13, 2016):  The TortsProf blog is reporting today that the Arkansas Supreme Court has just killed the ballot initiative.  TortsProf has a link to more information.