Saturday, November 21, 2020

Louisiana Supreme Court holds that plaintiffs do not need to show that they would have been able to collect the judgment in the "case within the case" to support malpractice claim

As you know, when a plaintiff sues a lawyer for malpractice in a litigation matter alleging that the defendant's representation caused the plaintiff to lose a claim, the plaintiff has to show that they would have won the case had it not been for the negligence of the defendant (the lawyer).  In torts terms, this is what the plaintiff has to argue and prove in order to establish the element of cause in fact.  Typically, however, courts hold that showing that the plaintiff would have won the original case (sometimes referred to as "the case within the case") is not enough because if the plaintiff would not have been able to recover anything in that case then the plaintiff can't establish an actual "loss" (the element of injury, in torts terms).

This means that typically, the plaintiff has to show not only that the plaintiff would have won the original case but for the negligence of the lawyer, but also that the plaintiff would have been able to collect the judgment (or at least part of it) as a result.

I am writing about this today because the Legal Profession blog reported a few days ago that the Louisiana Supreme Court recently decided a case that appears to be the first time a court has held that the plaintiff in a legal malpractice suit need not prove that the underlying lost judgment was collectible.

The case is called Ewing v. Westport Insurance and you can read it here

Sunday, November 15, 2020

Article on a way to argue cases to avoid qualified immunity issues

I just read an interesting article on an alternative way to argue cases seeking compensation against the government.  The article begins, 

Recent officer-involved shootings and public allegations of police misconduct have sparked legal discussion around accountability for law enforcement. Much of this discussion has come to focus on reforming qualified immunity, a complicated legal doctrine that can shield officers from liability in police misconduct lawsuits. However, plaintiffs may have another option for recourse that does not require grappling with qualified immunity . . .  

 

Monday, October 26, 2020

Torts and time travel

Ever wonder how the notion of time travel, and the concepts of proximate cause and the (no) duty to help relate to each other?  Here is the answer.

Sunday, October 4, 2020

Cause of action for second hand Covid?

Back in 2016, there were a number of multi-million dollar verdicts in cases involving second hand exposure to asbestos that addressed the issue of whether an employer should be liable to the family members of an employee who brought home asbestos on their clothes.  See here, here, here and here.

The same issue is now back in the news thanks to a a couple of lawsuits filed by the spouses of people who contracted COVID-19 at work and then infected the plaintiffs' at home.

As I explained back then, in the asbestos cases, defendants typically would argue that liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.   

It is not a frivolous argument, but courts in the asbestos cases were able to avoid it by limiting possible liability to the spouses of the workers who had been directly exposed to asbestos.

According to this story in the ABA Journal, two complaints arguing COVID related injuries have been filed already and more are expected. 

Saturday, September 12, 2020

Third Circuit issues opinion on whether prosecutor can be sued for conduct that resulted in wrongful conviction

Prosecutors are usually protected from possible civil liability because they can claim immunity.  However, immunity only applies to their conduct as litigators, not as investigators and defining the line between one and the other is a matter of much debate.  

There are many cases out there that discuss the issue and now the Court of Appeals for the Third Circuit has added a new one.  In a case Weimer v. County of Fayette, Pennsylvania, the court examines the claim of plaintiff Crystal Dawn Weimer who spent more than eleven years in prison, and then, after her convictions were vacated, filed suit under 42 U.S.C. § 1983, alleging that the County of Fayette, Pennsylvania; its former District Attorney, Nancy Vernon; the City of Connellsville; and several city and state police officers violated her rights under the U.S. Constitution and Pennsylvania law. 

The Court found that certain aspects of the prosecutors conduct were protected by immunity, but many others were not and remanded the case for further  proceedings.

You can read more about the case here, where you can also find an embedded copy of the opinion. 

Saturday, August 15, 2020

Recent law review article compares cost-benefit analysis and consumer expectation as the tests for determining design defects

In his article An Essay on the Quieting of Products Liability Law, 105 Cornell Law Review 101 (2020), Aaron D Twerski, one of the reporters of the Restatement (Third) of Torts: Products Liability, compares the difference between the risk-utility test applied in most states (which relies on having the plaintiff prove a "reasonable alternative design (RAD)") and the consumer expectations test followed in 17 jurisdictions to determine if a product has a design defect.   He concludes that, regardless of the approach used, the vast majority of cases include proof of a RAD.

Twerski theorizes that using proof of a RAD: 1) tells “a far more compelling story” than consumer expectations; 2) relates to fault which, in turn, leads to higher damage awards; 3) may be needed as a substitute if a judge denies a “consumer expectations” instruction, and 4) supports the claim that a product disappoints consumer expectations.  

For a summary of the article go here.

California appellate court finds that Amazon can be sued for products liability

In an important new decision, a California state appellate court recently held that Amazon is subject to product liability claims for defective goods sold on its website by third-party vendors. The case is called Bolger v. Amazon and you can read the opinion here.

The key to why this is important is that last phrase: "third party vendors."  Amazon did not manufacture or retail the product.  It merely provided a space for the retailer to "connect" with its buyers.  For that reason, Amazon argued that it was not part of the chain of distribution, as that concept is typically used in products liability cases.  But the court held that “Whatever term we use to describe Amazon’s role, be it ‘retailer,’ ‘distributor,’ or merely ‘facilitator,’ it was pivotal in bringing the product here to the consumer.”

This case follows the first successful product liability case against Amazon (in Pennsylvania) which was then appealed to the Third Circuit Court of Appeals and remanded to Pennsylvania Supreme Court this past June.  That case is now pending.

For more on Bolger v. Amazon, go to Courthouse News Service, LawStreet, and the ABA Journal.

USA Today publishes op-ed on why blanket COVID-19 liability immunity is not a good idea.

USA Today publishes Op-Ed on why blanket COVID-19 liability immunity is not a good idea. You can read the article here.

Wednesday, August 5, 2020

More on the issue of whether businesses and other institutions should be immune for liability related to Covid-19

During the past few weeks there has been a lot of discussion on whether it would be a good idea to grant immunity or to make it more difficult for plaintiffs to recover for injuries suffered when the defendant's negligence causes the plaintiff to catch the Covid-19 virus.  I have posted articles about it here, here, here and here.

NPR has the latest here.

Sunday, July 12, 2020

Louisiana approves tort reform bill -- UPDATED

About two weeks ago, the Louisiana legislature passed a tort reform bill that the Governor said he would sign, (after he had vetoed an earlier version).

The bill, which appears to be explicitly designed to favor the auto insurance industry adopts a limitation of the collateral source rule, removes the ban on mentioning whether a plaintiff was wearing a seat belt, limits when an insurance company's name can be mentioned in court, and reduces the threshold for jury trials from $50,000 to $10,000.

The first two measures are common in tort reform bills, but the measure related to the jury is strange because usually juries are thought of being more generous that judges when calculating damages.  It is not clear, why a tort reform bill designed to favor defendants tries to expand the number of cases that will be tried by juries.

Like most, if not all, tort reform bills, this one fails to address the real issue.  The bill is supposed to help lower car insurance rates, but  instead of drafting a bill that regulates those rates, the legislature drafted a bill to help insurance companies make more money while doing nothing to lower the bills.  I suppose it remains to be seen what will happen but more than likely, the consumers will get screwed twice: the insurance rates will remain the same (or continue to rise), and the injured victims will get lower compensation....  unless they miscalculated the gamble on whether juries will be less generous.

The TortsProf blog has more on the story here.

UPDATE 8/2/20: The Governor signed the bill....  Story here.