No cause of action under Federal Torts Claims Act for emotional distress based on mistaken information about son's death in Iraq

Back in December of 2009, I reported on a newspaper article on a mother who was considering suing the US Government for the emotional distress she suffered when a mix-up resulted in the delivery of a message to her saying her son had died while in the military in Iraq.  What happened was that she sent her son a letter and the US Postal Service returned it undelivered and stamped "DECEASED."  Not having been informed that her son had died, this caused the mom emotional distress.  The mom asked the USPS for more information but it was not helpful and eventually, using other resources, she found out her son was alive.

Back when I heard this story, I wrote that the viability of the case would depend on whether the argument was based on negligence or intent and whether the alleged conduct was by the military or the postal service.

I never heard what happened after that until today when I saw the blog Day on Torts recently reported the case has been decided. 

The case was dismissed by the trial court and the United States Court of Appeals for the Eighth Circuit affirmed.

I understand the dismissal of the intentional infliction of emotional distress claim, since the FTCA is pretty clear that the US is immune from intentional torts [there are exceptions, but they would not apply to a case like this one].  But I thought the negligence claims might present an interesting issue, particulary if the defendant was the Postal Service because of the FTCA's exception regarding "postal matters."  More on that later.

Perhaps not too surprisingly, the government tried to avoid liability by asking the court to reinterpret the claims to be based on an intentional theory of liability - even if the plaintiff did not argue them that way.  Thus, it argued that the case was really about "misrepresentation" and that "the FTCA's waiver of sovereign immunity does not apply to "[a]ny claim arising out of . . . misrepresentation," 28 U.S.C. § 2680(h). 

This argument is nonsense.  Given the text of the statute, the misrepresentation it refers to must be intentional.  By definition, this misrepresentation requires a showing of intent, which means voluntary conduct with desire to cause harm or with knowledge to a substantial certainty that the conduct would cause harm.  I doubt that is what happened here.  The fact the information is false, or wrong, does not make the conduct misrepresentation, it just makes the information false.
To its credit, however, the court of appeals did not address this issue and decided the case on the basis of the other question presented by the case:  whether the claim should be dismissed because the FTCA does not allow any claims "arising out of the loss, miscarriage, or negligent transmission of letters or postal matter," 28 U.S.C. § 2680(b).

This is more interesting and debatable.  What happened here was that the USPS delivered a letter that had incorrect information.  The letter was not lost, or miscarried, so that part of the statute is out.  The question is whether delivering a letter with incorrect information constitutes "negligent transmission" of the letter.

Personally, I don't find that interpretation convincing but I don't know if there are other cases out there supporting it.  In my mind, negligent tranmission of letters refers to delivering it late, delivering it to the wrong address or something like that. 

But the main problem I see with the case, is that I am not sure the plaintiffs really identified the proper conduct upon which to base their claim.  It seems to me the conduct that caused the injury was not the delievery of the information, but the negligence in figuring out whether the soldier was dead before returning the letter.  The question is whether going through that process is part of what Congress had in mind when it wrote "miscarriage or negligent transmission of" letters. 

I guess the argument for the government is that the process of stamping letters with the "undeliverable" stamp is part of "handling" the mail and thus should fall within the text of the statute.  Here some postal worker mishandled the letter when he or she used the wrong stamp before he or she put it in a pile of undeliverable letters. 

I can see that argument, but before I decide whether I am convinced by it, I'd like to know more about the policy and actual practice of the USPS for determining when to use the stamp that says DECEASED in red ink.

The case is Najbar v. United States, No. 10-3015 (8th Cir. Aug. 12, 2011) and it is available here.


Thanks to Day on Torts for the update and link.

California court upholds damages cap

Yesterday, I reported that the wrongful-death claim filed yesterday for injuries caused by the stage collapse last month in Indianapolis will most likely become a test case of an Indiana damages cap.  Meanwhile, over in California, the Court of Appeal, 5th Appellate District, has upheld the state's $250,000 noneconomic damages cap.  Go here for more details.


Thanks to the TortsProf blog for the link.

Second Circuit's decision holding that corporations are not liable under the Alien Tort Statute is not among those granted review by the Supreme Court... YET

Earlier today I reported that the Supreme Court had denied review in two important cases.  I was wrong.  The Court did not grant review, but it has not yet denied it.  Here is my corrected post:

In a very surprising move (at least to me), the Supreme Court announced today the list of cases it will review out of the first conference of the year and it does not include the decision of the Second Circuit in Kiobel v Royal Dutch Petroleum.  This is the case in which the court held that corporations can't be held liable for damages for violating the law of nations under the Alien Tort Act.  That opinion is available here.  The Supreme Court also decided not to review Bowoto v. Chevron (available here), which raised the same issue under the Torture Victims Protection Act.

I thought the Supreme Court would grant review on both cases not only because they involve extremely interesting and important issues but because there is a clear split among circuit courts on the question.  The Court of Appeals for the 11th Circuit and the District of Columbia Circuit have rejected the reasoning of the court in Kiobel. The more recent of these cases are Doe v Exxon Corporation (from the DC Circuit) (available here) and Flomo v. Firestone (7th Circuit) (available here).

It is still possible that the Court will eventually agree to review these cases, though.  The Court announced the cases it will review; it did not announce the petitions it has (or will) deny.  The list of cases that have been denied will not be released until next Monday.

For more information on this topic take a look at my previous posts on the subject, here, which has links to even more information including all the relevant documents filed in the Kiobel case before the Supreme Court.  Also check out my section on the Alien Torts Statute here.

For more information on these and other cases under review by the Supreme Court go to the Supreme Court blog here and here.

UPDATE (Oct 12, 2011):  Both Bowoto and Kiobel have been redistributed for the Justices' conference this coming Friday Oct 14.  It is possible we will know by the end of the day if they grant review.

Report on the effects of tort reform in Texas

Texas governor and presidential hopeful Rick Perry has argued repeatedly how we need tort reform to improve the economy.  As you think about this, take a look at the recent on the effects of tort reform in Texas by Texas Watch, a consumer advocacy group.  It starts like this: "Over the last decade, Governor Rick Perry has presided over a series of radical legislative proposals that, under the guise of so-called tort “reform,” reward those who needlessly endanger our communities at the expense of families and small business owners. This report details the impact this corporate immunity agenda has had on Texans of all walks of life."  Go here (or here) to read the full report.

New lawsuit challenges damages cap in Indiana

The wrongful-death claim filed yesterday for injuries caused by the stage collapse last month in Indianapolis will most likely become a test case of an Indiana damages cap.  The suit claims the damage cap violates the Constitution’s due process and equal protection clauses as well as the Indiana Constitution.  For more, go here and here.

Supreme Court grants review of case on attorney immunity

The Supreme Court announced this morning that it will review a case on "whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a “private” lawyer rather than a government employee." The case is called Filarsky v. Delia.

In this case, the District Court found the attorney was protected by qualified immunity, but the Court of Appeals for the Ninth Circuit reversed.  The opinion of the Court of Appeals is available here.  For all the documents filed before the Supreme Court go here.

For more on some surprising announcements by the Supreme Court today - on a different subject, go here.

Oregon finds that convicted defendant can bring malpractice claim against lawyers for mishandling post conviction appeal

As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.

In a slightly different type of case, the Oregon Supreme Court recently ruled, however, that a convicted criminal need not obtain exoneration of the underlying offense before suing his or her lawyers. The case is called Drollinger v. Mallon, and it is available here. The case is slightly different because the plaintiff's allegation was that the lawyer was negligent in handling a post-conviction appeal. The court found that exoneration is not required in the post-conviction malpractice setting because the policies underlying the exoneration requirement in an action involving alleged trial malpractice do not apply to an action in which a client's failure to obtain post-conviction relief is the heart of the case.

New graphic warning labels for cigarettes -- UPDATED

Back in June I reported that the FDA has mandated a significant change in the way cigarette manufacturers warn consumers about the risks of smoking.  The goal is clear, as expressed by the WSJ law blog... "to scare the bejeezus out of people."

The new labels must occupy the top half of the front and back of a cigarette pack, and the various images will be accompanied by messages such as “Smoking can kill you.”

One question left yet to be addressed is whether cigarette manufacturers will sue FDA arguing that its graphic-labeling rule violate their constitutional rights to free speech, as it has done in the past.

Go here for the full story.

UPDATE (8/17/11):  The blog of the Legal Times is reporting today that five of the nation's largest cigarette manufacturers filed suit against the U.S. Food and Drug Administration challenging the new regulations that require them to print graphic images depicting the health risks of smoking on cigarette packaging and advertisements.  First Amendment veteran Floyd Abrams, who is representing the tobacco companies, has stated that "It violates the First Amendment to require the manufacturer of a lawful product to be required to use half of its package essentially to urge people not to buy the product."

This will be a very interesting case, so stay tuned.  The Wall Street Journal law blog and Prof. Jonathan Turley have more on the story here and here (make sure you check out the comments).  The First Amendment Center has more here.  For a copy of the complaint, go here.

UPDATE #2:  The FDA law blog has more on the story here.

UPDATE #3:  Here's part of the complaint's introduction, which summarizes the industry's First Amendment challenge:  "These requirements force [the tobacco industry], not to convey purely factual and uncontroversial statements about the risks of tobacco use, but rather to become a mouthpiece for the Government's emotionally-charged anti-smoking campaign. ... This is precisely the type of compelled speech the First Amendment prohibits."  Public Citizen has more here.

UPDATE #4: (8/19/11): Tobacco Companies Seek Injunction to Delay Production of Graphic Labels

UPDATE #5 (9/12/11):   The FDA has filed its opposition brief in the lawsuit filed by five of the nation's largest cigarette manufacturers to block any delay to new regulations requiring graphic warning labels on cigarette packages.  Go to the Wall Street Journal law blog for more.

UPDATE #6 (9/26/11):  U.S. District Judge Richard Leon heard oral arguments last Wednesday, focusing much of his time on pressing the government to define where the line is drawn between fact-based warnings and advocacy. Leon also noted that regardless of how he ruled, he expected that the losing side would appeal.  The Blog of the Legal Times has more details here.

UPDATE #7 (11/7/11):  Judge grants injunction stopping the implementation of the new FDA rules regarding cigarette warning labels

Claim against hospital for lead paint exposure

A class action lawsuit has been filed against a Baltimore children’s disabilities hospital for allegedly allowing poor minority children to be exposed to high levels of lead as part of a study. According to allegations raised in the complaint, the hosptial found poor and minority children who were living in homes with high levels of toxic lead paint to observe the health effects.  Then, some families were moved into homes with less lead contamination, while others were allowed to remain in lead paint-contaminated homes without being told about the health effects or the lead levels. The plaintiffs claim that the hospital selected poor and minority test subjects to stay in contaminated homes, while generally selecting white and more affluent children as those to be moved into safer homes.  Go here for more information.

On the possible liability of a lawyer for negligence in handling a settlement... in Australia

I have commented on the issue of whether a lawyer can be found liable for negligence in a case if the client decides to settle here, here and here.  Interestingly, this is now under debate in Australia.  Here is a link to a short comment by the Australian Professional Liability Blog on the issue.  It provides a survey of the relevant cases and the state of the law down under.

Comment on possible liability for exposure to lead paint

Here is a link to a short comment by the Center for Justice and Democracy on the possible liability of paint manufacturers for exposure to lead paint.  It starts by stating that "I don’t think it is a stretch to say that paint companies intentionally poisoned children" and goes on from there... 

Nevada Court rules no preemption in generic drug case despite Supreme Court's decision in Pliva v Mensing

As I reported here earlier this year, in PLIVA, Inc. v. Mensing, the US Supreme Court found that federal drug regulations applicable to generic drug manufacturers directly conflict with, and thus preempt, state tort-law claims based on drug manufacturers’ alleged failure to provide adequate warning labels for their products. As part of that decision, the Court said that a “[a] Dear Doctor letter that contained substantial new warning information would not be consistent with the drug’s approved labeling,” and concluded that “federal law did not permit the Manufacturers to issue additional warnings through Dear Doctor letters.”

Notwithstanding this ruling, the FDA law blog is reporting that Nevada State Court Judge Jerry Wiese II recently granted Plaintiff’s Motion for Partial Summary Judgment on Preemption Defense for Dear Doctor Liability in three propofol hepatitis infection cases – Carol Keck v. Endoscopy Center of Southern Nevada, L.L.C., Megan T. Gasper, et al. v. Endoscopy Center of Southern Nevada, L.L.C., and Betty Hymas v. Endoscopy Center of Southern Nevada, L.L.C.

According to the report, the court opined that the the Supreme Court did not indicate that “Dear Doctor” letters that were “consistent and not contrary” to the labeling, were preempted. 

In other words, since a claim based on a manufacturer's failure to send a letter warning doctors of new risks would be preempted, the decision seems to say that there could be a claim based on one of two possible types of cases:  when the manufacturer never sent a letter to begin with and, perhaps, when a manufacturer fails to send a letter reminding doctors of the information already available in past letters or other literature.

For more on this story go here.  For more on PLIVA v Mensing, go here, here and here.

For a survey of cases on the subject since PLIVA go here.

New York Port Authority has immunity

In a 4-3 decision that reversed lower courts rulings, the New York Court of Appeals (New York’s highest court) ruled today that the Port Authority of New York and New Jersey, which runs area airports and trains and owns the World Trade Center site, is immune from claims that it failed to deter the 1993 parking garage bombing at the trade center complex that killed six people and injured about 1,000. Go here for more on the story from the Wall Street Journal law blog and here for the story in AP.  Go here for the text of the opinion.

The Hazards of Hospitals

"The Hazards of Hospitals" -- a quick graphic list of scary statistics.

Article on implications of PLIVA v. Mensing

In PLIVA v. Mensing, 131 S. Ct. 2567 (2011), the Supreme Court held that FDA regulations governing the labeling of prescription drugs preempt state-law failure-to-warn claims against generic drug manufacturers. Here is a link to a recent article on Mensing and its implications.


Thanks to Public Citizen for the link.

Debate on the constitutionality of med mal bill before Congress

I have commented on the med mal reform bill before Congress here, here, here, here, here, here, here and here. 

Here is  a new short article (here) arguing that the bill is unconstitutional.

Stage now set for US Supreme Court to review important case on the Alien Tort Statute -- UPDATED

Last February I reported (here) that after a divided panel denied a rehearing and the en banc Court refused to rehear the case (on a 5-5 split), the stage was set for the decision by the Court of Appeals for the Second Circuit holding that plaintiffs could not bring claims against corporations under the Alien Tort Statute to go to he Supreme Court. That day is now here.  A cert petition has been filed and is now pending before the Court.  I hope it is accepted since an opinion in this case will be tremendously important. Go here for a full report by the Supreme Court Blog. The cert petition itself is available here. The Second Circuit's opinion is available here. 

For my previous posts on this case go here and here.

UPDATE (9/14/11):  the Petition for Certiorari has been distributed for the US Supreme Court's conference on September 26.  Check here for the USSCt docket. Stay tuned!

UPDATE (9/25/11): for all the relevant documents filed before the Supreme Court go here.

Fla court dismisses claims for emotional distress suffered from witnessing trainer's death at SeaWorld

The TortsProf blog is reporting today on an interesting case that illustrates some of the issues related to the reach of possible liability for emotional distress claims.

The case involves an accident at SeaWorld in Florida in 2010, where a SeaWorld trainer drowned during a public session. Two parents and their son were among the audience members and witnessed the drowning. Understandably, they were traumatized by the experience and later filed suit against SeaWorld for both intentional and negligence infliction of emotional distress.

According to this report from the Orlando Sentinel (which includes videos about the accident), the court dismissed the claims with prejudice, finding that they had failed to allege outrageous conduct (for the intentional claim) and that they had failed to show any precedent supporting a negligence claim for purely emotional distress when the plaintiff was "a complete stranger to the injured party."

Given generally accepted principles of the law related to emotional distress, this was the correct result.  Courts are very reluctant to recognize claims by "bystanders" because the reach of possible liability would be too broad.  Were this not the case, every single person in the audience could have a claim and if the show had been televised, maybe even anyone who watched it on TV anywhere could recover also - as long, of course, as they could prove the other elements of the cause of action.

The interesting question is whether we should recognize the cause of action.  After all it is perfectly foreseeable that the witnesses would suffer emotional distress.  As long as they can show negligence on the part of the defendant and can prove the value of their injury, why not allow them to sue?  I know of one jurisdiction that allows for such broad liability and it has not brought about chaos or has resulted in "dogs and cats to live together/the end of the world as we know it."

I have mixed feelings about this question.  I don't think that expanding the scope of possible liability that much is necessarily a good idea, but I do feel that if the defendant's negligence causes foreseeable injury you should be able to argue in favor of recognizing the right to recover.

But, as I said before, the generally accepted view is that this type of liability should be "limited."  I wonder if, maybe, there is a way to expand liability a little bit, while still keeping it limited.

Bad mothering does not support a claim for infliction of emotional distress

Tort reformers love to claim that there are too many frivolous lawsuits filed in this country. Even though the evidence does not necessarily back up the argument, every now and then a new case comes along that helps them advance the allegation.  Here is the latest one; one that includes some laughable claims for which the lawyers representing the plaintiffs were lucky not to get disciplined.

In this case, two adult children sued their mother - whom the father had divorced - arguing that she was a bad mother. One of the lawyers for the plaintiffs was the plaintiff's own father and ex-husband of the defendant.  Among other things, one of the plaintiffs alleged that his mother told him - when he was 7 years old - that she would call the police if he didn’t buckle his seat belt, that when he went to college she did not send him a "care package" until his third year there, that she either did not send birthday cards or that, when she did, she did not send gifts and that she changed her last name when she remarried.

Based on these and other similar allegations (you really should read the opinion to get an accurate impression of the allegations), the children argued the mother's conduct constituted either intentional or negligent infliction of emotional distress.  In response, the court found for the defendant and dismissed the claims finding - correctly - that the allegations simply did not support a prima facie case.  Many of the allegations, the court concluded, "consist or snide and insulting remarks" and relate to parental discipline, which are not actionable.

As the court suggests, maybe the mother was not generous or fully sensitive to the needs of her children, but that is not conduct for which the law recognizes a remedy in tort law.  A ruling in favor of the children, the court said, “could potentially open the floodgates to subject family child rearing to nonconstructive excessive judicial scrutiny and interference."

The case is called Miner v Garrity and you can read the order of the court dismissing the complaint here.

For more on the story, go to the Chicago Tribune or take a look at the coverage in Lowering the Bar - a blog dedicated to legal humor,  and to the comments by readers of the Wall Street Journal law blog - all of which either make fun of the lawyer and plaintiffs or wonder why the plaintiffs' lawyers were not sanctioned.