Saturday, September 2, 2017

Court dismisses Sarah Palin's defamation claim against the New York Times

Back in June, the New York Times published an editorial that stated, among other things that "In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs."   At some point later, the newspaper published several corrections related to the op-ed piece, and Palin sued for defamation.

In order to support the claim, Palin would have to show that the statements are false, and, more importantly, because she is a public figure, she would have to prove "actual malice" on the part of the defendant, which means she would have to show the defendant acted with knowledge of falsity or reckless disregard for the truth."  This is a very difficult standard to meet and last week the court decided she would be unable to do so and dismissed the claim.

As one comment on the decision put it, "[a]n examination of the run-up to the publication of the erroneous op-ed showed there was no actual malice in the New York Times' assertions -- just some really bad op-edmanship. The statements were provably false, which is key to defamation claims, but there also has to actual malice." 

You can read the judge's order here.   It provides a relatively short discussion of the basic elements of a defamation claim including the requirement that the statement be "of and concerning" the plaintiff, a mention of the group libel doctrine, a discussion of how to distinguish between fact (actionable) and opinion (not actionable), and the issue of actual malice.

For more on the story go to:  NPR, the ABA Journal online and TechDirt.

Wednesday, August 2, 2017

Two new short articles on the Alien Tort Statute (and the case pending before the US Supreme Court)

As I mentioned a few days ago, the Supreme Court will be addressing the issue it was supposed to decide but didn't in  Kiobel v. Royal Dutch Petroleum : whether corporations can be held liable under the ATS in a case called Jesner v. Arab Bank.  [For background history and the discussion surrounding Kiobel, go here, and scroll down.  There are two or three pages of posts, dating back to 2010.]

In anticipation of the decision in Jesner, which will be argued before the Court on October 11, the SCotUS blog has published two short articles on the issue presented by the case.  Both are written by people who also authored amicus briefs in the case.

The first one, available here, is written by the lawyer who represents the Chamber of Commerce.  Not surprisingly argues that the Court should rule for the defendants and hold the ATS bars claims against corporations.  It concludes that
ATS suits against corporations, in short, not only flout clearly enacted congressional policy, but also carry heightened risks of the very foreign-policy and other practical consequences that the Supreme Court has warned federal courts to avoid in fashioning federal common law and that the ATS itself was enacted to prevent. The Supreme Court should hold in Jesner that the federal-common-law cause of action authorized by the ATS does not extend to suits against corporations to enforce modern human-rights norms.
The second article, available here, is written by the lawyer for financial regulation scholars and former government officials who filed a brief in support of the plaintiffs, argues that the Court should hold that the statute does not ban claims against banks.  It concludes that
...Allowing liability for banks would be consistent with the broader policy goal of ensuring a safe and terrorist-financing-free financial system. Considering the importance of anti-terrorist financing and anti-money laundering to the stability and integrity of the U.S. financial system, banks should be held liable under the ATS for knowing and willful activity allowing terrorist groups access to U.S. dollar clearing. Indeed, creating a loophole for dollar clearing of terrorist financing would be exactly contrary to U.S. anti-terrorism policy. Establishing a hostile environment for terrorist financing is a longstanding and fundamental policy goal of the United States, and using private suits to find banks liable for knowing and willful illicit clearing will directly promote that goal.
Both articles have links to the amicus briefs, and all the documents in the case, as well as links to the articles and updates are available here.

Tuesday, July 25, 2017

Summary of the latest case on the Alien Tort Statute before the Supreme Court

Over at SCotUS blog, Amy Howe has published a good summary of the latest case on the Alien Tort Statute before the Supreme Court.  You can read it here.  The case is Jesner v. Arab Bank which addresses the question the Supreme Court was supposed to decide but didn't in  Kiobel v. Royal Dutch Petroleum :  whether corporations can be held liable under the ATS.

For my comments on Kiobel and other issues related to the Alien Tort Statute, go here and scroll down.

Sunday, July 9, 2017

Chemerinsky on Supreme Court cases that affect the rights of injured victims to seek compensation in court

Erwin Chemerinsky has published a short comment on two recent Supreme Court opinions that have the effect of closing the courthouse doors to those who have suffered serious injuries. You can read the comment here.

Wednesday, July 5, 2017

Appeals Court in Wisconsin finds med mal cap unconstitutional

The intermediate appeals court in Wisconsin has ruled that the state's $750,000 cap for non-economic damages in medical malpractice cases is unconstitutional.  The TortsProf blog has a summary of the court's conclusion here.

Thursday, June 29, 2017

While the country is distracted by tweets, investigations, and failed Senate bills, the House votes to federalize medical malpractice

In my most recent post I reported that the ABA opposed a bill currently under consideration by the House of Representatives which would impose a cap on state medial malpractice claims.  Today, I unfortunately have to report that the House voted in favor of the bill.  If enacted into law, it will impose a $250,000 limit on non-economic damages in med mal suits that involve coverage provided through a federal program such as Medicare or Medicaid or to coverage that is partly paid by a government subsidy or tax benefit.  In addition, the bill would curb attorneys' fees and impose a three-year statute of limitations (with some exceptions).  More on the story here.

In response to the vote, the Alliance for Justice President released the following statement: “While Senate Republicans are busy trying to destroy our health care system, their counterparts in the House are hard at work trying to undermine patients’ access to justice if they are harmed by a health care provider. The mean-spirited bill rammed through today would establish a nationwide cap of $250,000 on so-called non-economic damages suffered by patients. That cap would apply even in cases of deliberate harm to patients, including such nightmare scenarios as an assault in a nursing home. This bill is nothing more than a giveaway to the pharmaceutical and health care industry, at the expense of the most vulnerable Americans.”

For a short comment on how hypocritical it was for Republicans to support the bill, because it goes against "conservative principles" that Republicans like to say they support go here.

Sunday, June 18, 2017

ABA opposes federal bill that would impose caps in med-mal cases

The ABA Journal is reporting that the ABA recently sent a letter to House lawmakers urging them to reject a bill that would impose a  cap of $250,000 on non-economic damages in medical malpractice cases.  You can read the letter here.

The bill, ironically known as the Protecting Access to Care Act of 2017, also would eliminate joint and several liability and would authorize courts to reduce contingent fees. The ABA opposes those provisions as well.

Were it to become law, this bill would be terrible for victims of medical malpractice which is now the third most common cause of death in the US (also here, here and here).  As all other tort reform efforts its purpose is to make it difficult, if not impossible, for victims to be able to recover for their injuries.  There is no support for the proposition that bills like this one will reduce costs of medical care, or result in better care and their implementation impact those who need protection the most:  the elderly, the poor, children, etc.

Hopefully, legislators will do the right thing and follow the ABA's advice.  Otherwise, give it some time and we will see medical malpractice move up from the third spot in the list of causes of death.