Saturday, October 25, 2014

Comment on California Proposition 46

In a few weeks, California voters will vote on "Proposition 46" an initiative to, among other things, raise the cap on pain and suffering damages, which has not been increased since it was adopted in 1975.  Go here and here for previous posts on the issue and here for my comment on the information (or misinformation) campaigns for and against the proposal.

Meanwhile, the TortsProf blog contacted both pro- and anti-Prop 46 spokespeople and asked them to write posts supporting their respective positions. Eric Andrist, a leading voice in the pro-Prop 46 movement, posted his comment here. The California Medical Association has not replied to the invitation to prepare a post.

Wednesday, October 22, 2014

Recent developments in three states may challenge the notion that there is "no duty to help"

As you probably know, as a general rule, the Common Law does not recognize a duty to go help someone in need. There are a few exceptions to this rule, and the general rule may be affected by statutes, but it remains the general rule.

Interestingly, this month I saw a few stories that in one way or another raise concerns regarding the duty to help issue.

For example, the "a public defender" blog had a couple of comments (here and here) on a recently adopted statute in Connecticut mandating disclosure of possible child abuse. By creating such a duty, which applies to members of the clergy and appears to apply to some lawyers, I wonder if the legislature has opened the door to possible civil liability in cases where people do not disclose. This is an issue discussed in Perry v. SN and SN, 973 SW2d 301 (Tex 1998), which you may have read in law school.

Given that the statute apparently applies to some lawyers, it also raises the issue of a conflict between the lawyer's duty of confidentiality and the duty imposed by the statute. Assume a client tells the lawyer about the abuse as part of the representation. Does the statute create a duty to disclose (akin to the duty recognized in Tarasoff v. Regents of the Univ of California) regardless of the professional duty to maintain the information confidential? I only know of one case that discusses the issue in the context of the practice of law (Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979)) and it only holds that given the facts of the case the duty did not apply.

Meanwhile, in response to the slayings at the University of California at Santa Barbara in May, California Gov. Jerry Brown signed a new law to allow family members to petition for the temporary seizure of guns from relatives who are a threat to themselves or others. Supporters say the measure could help prevent suicides as well as mass shootings. More on the story here.

The law does not impose a duty on anyone to take action, but I wonder if, again, the law will open the door to more possible arguments that there should be a duty to act. What if a person does not take the chance to ask a court to take someone's guns away and that person then uses the guns to attack a group of students at a school. Will the victims be able to sue everyone to whom the new law applies for not taking action?

Finally, in Illinois voters will have a chance to vote on a proposed amendment to the state constitution that seems to raise similar issues although, in the end, the amendment also makes it irrelevant.

The amendment recognizes a "victims bill of rights" which states, among other things that crime victims have the right "to be reasonably protected from the accused throughout the criminal justice process." Although it does not state who shall do the protecting, it seems obvious the right is one that can be raised against the state, thus making the state responsible. In other words, if approved, the state seems to be adopting a duty to protect crime victims from criminal defendants during the criminal proceedings. That means the state now would have a duty to help.

The problem is that in another section, the amendment states that "nothing in the section or any law enacted under this section creates a cause of action ... for compensation ... or damages against the State, a political subdivision of the State, an officer, employee, or agent of the State or of any political subdivision of the State, or an officer or employee of the court."

In other words, the proposal states that the State has a duty to help and that the victim has a right to demand that help, but the victim has no right to sue for compensation if he or she suffers an injury for the violation of that right.

Wall Street Journal mistakenly reports that Georgia Court held parents can be liable for conduct of their children

Last week, the Wall Street Journal law blog published a story titled "Parents May Be Liable for What Their Kids Post on Facebook, Court Rules" in which it stated "Parents can be held liable for what their kids post on Facebook, a Georgia appellate court ruled in a decision that lawyers said marked a legal precedent on the issue of parental responsibility over their children’s online activity."  The story was then picked up and repeated by Smithsonian, and The Legal Satyricon (which criticizes the decision as incorrect because it failed to consider a certain federal statute).

The case is interesting but the problem is that the headline of the reported story is wrong.  The court did not hold that parents can be held liable for their children's conduct; the court held the parents can only be held liable for their own conduct.  That is a big difference.

As the court explains in its opinion, "liability for the tort of a minor child is not imputed to the child’s parents merely on the basis of the parent-child relationship." In other words, there is no vicarious liability for the tort of a minor. However, as the court continues, "[p]arents may be held directly liable . . . for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others," a duty which extends to those plaintiffs whose harm is foreseeable.

In the case, called Boston v. Athearn which is available here. a boy (Dustin, age 13) and a girl agreed to have some fun at the plaintiff's expense.  Using some information obtained by the girl, Dustin created a fake Facebook page in the plaintiff's name where they posted racist, sexually graphic, offensive and false information including posts that suggested the plaintiff was a homosexual and a racist, that she took illegal drugs and that she was on medication for mental health disorders.

About six days after the Facebook page was created, the principal of the school had determined who had done it and imposed discipline.  As a result, the culprit's parents were informed in detail of the children's conduct.  Dustin's parents claimed they disciplined him, but made no effort to access the Facebook page or to delete it.  The page remained available for almost a year.

In response to a motion for summary judgment filed by Dustin's parents, the plaintiffs argued that there were questions of material fact regarding whether the defendants were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence and the court agreed.

Again, let's reiterate that the issue here is not whether a parent should be held liable for the conduct of a child.  The issue is whether the court should impose liability for the parent's own conduct.  More to the point, whether the court should impose a duty on the parents to do something more than what they did.

Because this is not a case where the court is trying to impose a particular parenting style nor passing value judgment on parental decisions on how to raise a child, the case is simple.  The parents have a duty to act like a reasonable prudent person under the circumstances and, given the facts, reasonable people can disagree as to whether they did.  I am not even sure we need more facts to decide the question.   Let it go to the jury and let them decide.

Monday, October 20, 2014

BP's cert petition to undo settlement agreement has been denied

BP's petition for cert was denied today. You can find the order here You can find the cert filings at SCOTUSBLOG The Mass Tort litigation blog has more details here.

Saturday, October 18, 2014

Update on the BP Deep Water Horizon litigation

About a month and a half ago I reported that BP asked a federal judge to remove Patrick Juneau as administrator of damage claims from its 2010 oil spill, saying he failed to disclose a major conflict of interest.  Juneau has now responded, accusing BP, among other things, of not being candid and of trying to mislead the court.  Here is the story and a video.  In addition, here is a comment on BP's appeal challenging the settlement it originally agreed to.

Thanks to Torts Today for the links and information.

Wednesday, October 15, 2014

Video quiz: Battery on the football field?

Players in a contact sport consent to, or assume the risks of, the inherent risks of the game and its customs.  Intentional conduct outside the rules and customs of the game, on the other hand, may give rise to a valid claim.  Here is a clip from a recent NFL game.  The play has ended; the whistles have blown it "dead."  Watch what the St. Louis defender (Ogletree) does with the ball.  Battery?  (If you can't see the video below go here.)

Study published in the New England Journal of Medicine shows tort reform had no effect on "defensive medicine"

As I am sure you have heard, "defensive medicine" is a term used to describe unnecessary or wasteful medical procedures that according to legend are performed because of fear of possible liability.  Eliminating this type of wasteful practices, which, as the argument goes, increases the cost of health care, is often used as a reason to support med-mal/tort reform.

A new study published in the New England Journal of Medicine, however, concludes introducing med-mal reform had little effect on the practice of medicine or the cost of the services in emergency rooms.

UPDATE 10/17/14:  More on the story at Forbes and The Washington Post.

FDA: Chantix warnings about suicide thoughts and other side effects should stay

Earlier this month, I reported that Pfizer was seeking to have the warnings on possible suicidal thoughts removed from its drug Chantix even though the drug has been reported to be linked to more suicidal thoughts cases than any other drug.

Now, as the debate over the need for psychiatric warnings for Chantix continues, FDA staff reviewers  have indicated that the drug should continue to carry a black box warning to alert users about the risk of suicidal thoughts, violent behavior and other unusual actions while taking the medications.  Go to AboutLawsuits for the full story.

UPDATE 10/17/14:  AboutLawsuits has a follow up here.

Tuesday, October 14, 2014

Final thoughts on the sperm bank case

About two weeks ago, Jennifer Cramblett filed a complaint against a sperm bank alleging that the defendant mistakenly gave her vials of sperm from an African-American donor even though she had specifically requested the sperm of a white donor with blond hair and blue eyes. Ms. Cramblett was four or five months pregnant when she was informed about the mistake and decided to take the pregnancy to term. Eventually, she gave birth to a healthy child of mixed races. Now, two years after the birth of the child, Ms. Cramblett has sued the sperm bank arguing she should be compensated for the wrongful birth of the child. Since the child in question does not suffer from any medical condition, disability or birth defect, the plaintiff is, in essence, asking the court to recognize a claim to compensate for her emotional distress at having to care for a child she would have rather avoided because she is not the child she wanted. And she is not the child she wanted solely because of her mixed race.
If you haven't read my previous comments on the case you should go here for the first one and here for the second one.
In my first post, I argued that the court should not extend the concept of wrongful birth to apply to a claim where the injury is not based on a medical condition of the baby. Otherwise, the court would be forced to pass value judgment on the relative value of a person's race. In my second comment, I discussed the possibility of arguing the case using a different cause of action, but concluded the claim should fail for essentially the same reason. Race is not a disability for which the law should recognize a remedy in tort law.
In other words, in those posts I argued that the cause of action should not be recognized under the currently applicable state of the law. Having discussed that, though, now I will turn to a different and broader question: to what extent should modern reproductive technologies change the way we think about "injuries" for purposes of tort law?
The history of the notion of wrongful birth itself is a good illustration of how societal attitudes toward reproductive rights and practices affects the way we think about torts remedies. The first wave of wrongful birth claims were universally rejected because the defendant physicians did not cause the birth defects or disabilities suffered by the children born to the plaintiffs. However, after it was recognized that women had a legally protected right to terminate a pregnancy, the courts changed the approach. Given the change in attitudes toward women's rights, the approach to the claim changed to whether the conduct of the defendant deprived the mother of the right to terminate the pregnancy. Based on that new approach, courts began to recognize the availability of a remedy in tort for the wrongful birth of a child with medical conditions that could have been avoided by preventing the birth in the first place.
The technology available to facilitate reproduction has also changed over the years. Intrauterine insemination is now commonly used by people seeking to have children but who, for any number of reasons, would prefer not to, or can't, achieve a pregnancy "the old fashioned way."Thus, just like after the recognition of the right to terminate a pregnancy, through the use of modern technology, women or parents can exercise a degree of control over the process of reproduction that was not possible a few decades ago. They can search for and select specific donors to avoid certain genetic mutations or possible health risks, for example. But this also means they can select specific donors to increase the chances their children meet other specifications.
How comfortable are we as a society with the idea that parents who choose sperm donors have the right to select specific traits or components to increase the chances that the child would turn out to look a certain way?
The question is important in the context of the Cramblett complaint because what makes the Cramblett case different, again, is that the reason for the complaint was not the child's hair color but her race. Some find it offensive that the basis of the mother's complaint is the child's race. I, myself, am the father of two ethnically mixed children and find it difficult to hear someone say that my children's ethnicity should be considered to be the equivalent of a disability or birth defect or that their existence should somehow be considered to be an injury to me.
However, there is an important difference between my children and Ms. Cramblett's daughter. My wife and I knew our children would be mixed. There was no way around it: my wife's ancestry is Irish-Norwegian-American, mine is Latin American. We wanted children and knew what to expect.
Jennifer Cramblett and her partner, on the other hand, had the opportunity to plan a child through a very different process. They had the chance to choose from an array of possible donors, each with different characteristics in order to pick the ones they wanted. They, in fact, had the chance to shop around for the specific genetic material they wanted. They wanted a specific type of child, of a specific race, with specific hair and eye colors. And they had a right to expect that the defendant sperm bank would deliver the right components. There is no guarantee that the child born to the process would be exactly what they wanted, but by using the desired components they could certainly improve the chances of getting the desired result.
It is the possibility of managing the process of reproduction that way that allows the plaintiff to have the chance to blame someone for the fact that the child did not turn out to be what she wanted. If we as a society are ready to accept that the reproductive process can be controlled by the parents in a way that allows them to essentially manufacture children to meet certain specifications, shouldn’t parents have the right to recover compensation when the result is not what they expected? Does that difference in the reproductive process justify recognizing a cause of action in tort for what they claim is an injury because of the child's race?
I don't think so because I just can't get around the fact that the claim is asking the court to pass value judgment over the value of living life as a member of a certain race, which is, in turn based on the notion that the child should not have been born. Maybe the plaintiff can support a claim for breach of contract, but that is a different matter.
As usual, however, I am open minded and willing to listen to the arguments. I am willing to be convinced. But right now, I have not heard any argument that would change my mind. If you have one, please send it my way.

Monday, October 13, 2014

Judge decides state's cap on damages does not apply to case before him because apparently he just does not like it

The Journal Times is reporting that "[a] Milwaukee County circuit judge struck a blow for compassion and common sense last week when he . . .  affirmed a $25.3 million jury award in the case of a Milwaukee woman who lost all four of her limbs."  The story goes on to say that the judge said he was not striking down the 2006 state law that created a $750,000 cap on noneconomic awards for pain and suffering in malpractice cases, but held it shouldn’t apply in the case:
Although the cap may be constitutional as applied to medical malpractice victims as a whole, there is no rational justification for depriving Mrs. Mayo, who is in her mid-fifties, limbless and largely immobile, and Mr. Mayo” of the entire award, according to news reports. . . .   “This is not a runaway verdict. It is certainly not outrageous, and no one could seriously argue that it is not in proportion to Mrs. Mayo’s injuries,” 
If you follow this blog, you know I do not support caps on damages.  However, what the judge did here sounds wrong to me.  Judges can't pick and choose which laws apply to which cases before them.  If the law provides for exceptions, the judge can apply them.  If the law should be invalidated or declared unconstitutional, the judge should do that.  But a judge can't simply say a law does not apply to a plaintiff because the judge does not like the result.

I would understand the decision if the law in question stated that judges have discretion to apply the cap, or if it says that it should only apply to cases where the judgment is not in proportion to the value of the injuries, etc.  That would allow the judge to support his conclusion; but I don't know if the law says that.  If it doesn't it seems to me the judge acted outside his authority and the ruling could be reversed.

h/t The TortsProf blog

Washington State Supreme Court decides "uncollectability" is not an element of a legal malpractice cause of action

As you probably know, if a legal malpractice claim is based on alleged negligent conduct in handling a litigation, the plaintiff has to argue that he/she would have won the original case had it not been for the negligent conduct of the defendant.  But what if the plaintiff does not show that he or she would have been able to actually recover compensation from the original defendant?

Addressing this issue for the first time in the jurisdiction, four days ago, the Washington State Supreme Court issued an opinion in a case called Schmidt v. Coogan, holding that the uncollectibility of the judgment in the underlying action is an affirmative defense that the defendant attorney must plead and prove.

In other words, in the malpractice case against the attorney, the plaintiff only has to argue that he or she would have won the original case.  The plaintiff will not have to show he or she would have been able to recover the compensation.  The defendant lawyer can, however, bring up the issue as a defense.

You can read the opinion here.

UPDATE (10/22/14):  As reported in the BNA/ABA Lawyer's Manual on Professional Conduct:

The Schmidt court acknowledged that it was departing from the majority view in holding that the uncollectibility of an underlying judgment is an affirmative defense that a malpractice defendant must prove, rather than holding that collectibility is an element the plaintiff must established as part of her prima facie case The lead opinion identifies Georgia, Iowa, Massachusetts and Nebraska as adhering to the traditional rule. See McDow v. Dixon, 226 S.E.2d 145 (Ga. 1976); Whiteaker v. State, 382 N.W.2d 112 (Iowa 1986); Jernigan v. Giard, 500 N.E.2d 806 (Mass. 1986); Eno v. Watkins, 429 N.W.2d 371 (Neb. 1988). California and Ohio courts also take that view. See Garretson v. Miller, 121 Cal. Rptr.2d 317, 18 Law. Man. Prof. Conduct 421 (Cal. Ct. App. 2002); Paterek v. Petersen & Ibold, 890 N.E.2d 316, 24 Law. Man. Prof. Conduct 315 (Ohio 2008).

States that depart from the traditional view include Alaska, Indiana, Maine, Michigan, New Jersey, New Hampshire, New York and Pennsylvania. See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20 (Alaska 1998); Clary v. Lite Machines Corp., 850 N.E.2d 423 (Ind. Ct. App. 2006); Jourdain v. Dineen, 527 A.2d 1304 (Me. 1987); Teodorescu v. Bushnell, Gage, Reizen & Byington, 506 N.W.2d 275 (Mich. 1993); Hoppe v. Ranzini, 385 A.2d 913 (N.J. 1978); Carbone v. Tierney, 864 A.2d 308, 20 Law. Man. Prof. Conduct 442 (N.H. 2004); Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998); Lindenman v. Kreitzer, 775 N.Y.S.2d 4, 20 Law. Man. Prof. Conduct 192 (N.Y. App. Div. 2004). See also Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 25 Law. Man. Prof. Conduct 617 (Tex. 2010) (evidence that underlying damages “probably would have been paid” despite debtor's insolvency would be enough); Visvardis v. Eric P. Ferleger P.C., 873 N.E.2d 436, 23 Law. Man. Prof. Conduct 427 (Ill. App. Ct. 2007) (plaintiff must plead facts supporting inference that opponent in underlying case would have been able to pay some part of damages).

Auto accident victim sues the person who called driver on a cellphone

Last year I wrote about a case in New Jersey that involved a plaintiff who had been injured by a driver who was distracted by a text message. (See here and here.) In that case, the Appellate Division of New Jersey Superior Court decided that a person who sends a text to a driver can be liable but only if the texter knew that the recipient was driving and likely to read the text message while driving. The case is called Kubert v. Best.

After discussing the case, I wrote that "one important question that needs to be asked is whether the reasoning of the case can, will or should be extended to cover phone calls (as opposed to "texts.")"

The opportunity to answer that question has arrived.  The Chicago Daily Law Bulletin is reporting today that the estate of a woman who died in a car accident has filed a wrongful-death lawsuit against a man who called the cellphone of the driver involved in the accident. The case is named Hope Farney v. Matthew Geerdes, et al.

Not surprisingly, the plaintiff has alleged that the caller knew the call’s recipient was driving and that it would provide a distraction from the road.

Also not surprisingly, the defendant has moved to dismiss the case, arguing the complaint failed to allege a recognizable duty against him and failed to allege the negligent conduct was a proximate cause of the accident.