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. 

Saturday, June 10, 2017

Florida Supreme Court strikes down statute imposing caps on medical malpractice cases -- UPDATED

The TortsProf blog is reporting that a sharply divided Florida Supreme Court recently struck down a 2003 statute that imposed a cap on non-economic damages in medical malpractice cases.  The court concluded that "the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries” and that "because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages … violate the Equal Protection Clause of the Florida Constitution.”

I agree this is the correct decision which is, of course, good news for victims of medical malpractice in Florida.  Unfortunately, as reported here over the last few weeks, many other jurisdictions are heading in the opposite direction, looking for ways to make it more difficult for victims to be able to recover for their injuries.

UPDATE 6/18/17:  AboutLawsuits has a story here.