"Personhood" amendments and tort law

A few days ago, I discussed pre-natal torts in my class.  Among many other things we talked about whether a jurisdiction should recognize a cause of action for the wrongful death of a fetus.  In some states this question has been decided by statute, while in others it depends on the interpretation of the word "person" in wrongful death statutes that recognize a cause of action for the wrongful death of a person. 

Here is a link to an article in the New York Times about a constitutional amendment facing voters in Mississippi on Nov. 8, and similar initiatives brewing in half a dozen other states including Florida and Ohio, that seek to declare a fertilized human egg to be a legal person.  It has been argued such an amendment would effectively brand abortion and some forms of birth control as murder. For the same reason, it could have an effect on the interpretation of wrongful death statutes and affect the outcome of other pre-natal tort type claims.


Thanks to Christine Livingood for the link.

New Public Citizen Report on tort reform in Texas

Last month I reported on a new study on tort reform in Texas by Texas Watch.  See here.  Now, consumer protection organization Public Citizen has released a report on the failure of a $250,000 medical malpractice cap in Texas to lower health care costs. Here is the abstract of the report:

A common perception among policymakers and pundits is that medical malpractice litigation is significantly, or even chiefly, to blame for skyrocketing health care costs and steadily diminishing access to care. But analysis of data in Texas, which in 2003 imposed some of the strictest liability caps in the country, tells a far different story. While litigation over malpractice in Texas has plummeted dramatically since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure.

You can read the full report here.  For some comments on the report go here and here.

Here are some of the findings:

-- The cap did not prevent increases in health care costs.

-- Since 2003, Medicare costs rose 13% faster than the national average.

-- Health insurance costs have outpaced the national average and the percentage of residents lacking health insurance has risen.

-- Medicare spending specifically for outpatient service has risen 30.7 percent faster than the national average;

-- Medicare diagnostic testing expenditure have risen 25.6 percent faster than the national average;

-- Premiums for private health insurance have risen faster (51.7 percent) than the national average (50 percent);

-- The percentage of Texans who lack health insurance has risen to 24.6 percent, solidifying the state’s dubious distinction of having the highest uninsured rate in the country;

-- The per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the cap; and

-- The prevalence of physicians in non-metropolitan areas has declined.

These last two findings are interesting given that a typical argument for tort reform is that we need tort reform to avoid doctors leaving practice or moving to other states.

The one thing the cap resulted in was fewer lawsuits.  This is an obvious consequence of tort reform.  As I have stated before (see here, for example), if you make it more difficult for injured victims to sue (or recover) there will be fewer lawsuits.  We don't need a special study for that.  All that shows is the real goal of tort law: to make it more difficult for injured victims to get compensation for their injuries and to allow those who cause their injuries to avoid liability.

A lot of people think this is a good idea until they (or someone close to them) suffers an injury. They often change their opinion once they realize the real consequences of tort reform.  See here and  here for example.

Is there a connection between tort reform and the "occupy Wall Street" movement?

The Pop Tort thinks so:  here.

Updated list on cases about corporate liability under the Alien Tort Statute and the Torture Victim Protection Act

Here is an updated list of cases on the issue of corporate liability for international torts:

Deciding that corporations can NOT be sued under the Alien Tort Statute:
 -- Kiobel v Royal Dutch Petroleum (2nd Cir 2010)

Deciding that corporations CAN be sued under the Alien Tort Statute:
-- Doe v. Exxon (DC Cir 2011)
-- Flomo v. Firestone  (7th Cir 2011).  Judge Posner wrote the opinion in this case.  He flatly states that the factual premise of the majority opinion in the Kiobel is simply incorrect.

Deciding that corporations can NOT be sued under the TVPA
-- Bowoto v Chevron (9th Cir 2010)
-- Mohamad v Rajoub (DC Cir 2011)
--Aziz v. Alcolac, Inc. (4th Cir. Sept. 19, 2011)

Deciding that corporations CAN be sued under the TVPA 
-- Aldana v. Del Monte (11th Cir 2005).  The court in Bowoto states this case holds corporations can be sued under the TVPA although it does not state so explicitly.

More on the cases granted by the Supreme Court

Courtesy of the SCOTUS blog, here is a list of references to coverage of the Supreme Court's decision to grant cert in the cases related to the Alien Tort Statute and the Torture Victim Protection Act:

Greg Stohr of Bloomberg.

Mark Sherman of the Associated Press.

Adam Liptak of the New York Times.

The Wall Street Journal Law Blog.

The Huffington Post.

Finally, you can read a debate among several participants in the SCOTUS "community" site here.

Wisconsoin considers new preemption statute

At the request of Wisconsin Governor Scott Walker, a state Senate committee has proposed a bill that would protect drug and device makers from liability in state lawsuits, so long as their products were approved by the FDA, unless the manufacturer committed fraud against the FDA. The measure seems to be modeled after a statute in Michigan (see here), which has been described as the most restrictive in the country - meaning that it provides the most protection to manufacturers from injured victims' claims. An attempt to enact similar legislation in North Carolina was recently abandoned (see here). Pharmalot has more details here.  You can read the bill here.

Mohamad v. Rajoub - "the other case" granted by the Supreme Court & the corporate liability scorecard so far

As I reported earlier today, the Supreme Court has now officially agreed to review cases on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act. Kiobel v Royal Dutch Petroleum, decided by the Court of Appeals for the Second Circuit, was the first one to hold that corporations can't be sued under the Alien Tort Statute.  Since then at least two other Circuit Courts have rejected its reasoning.

Meanwhile Bowoto v. Chevron reached the same result under the Torture Victim Protection Act.  However, the Court has not yet granted review in Bowoto.  Instead, it granted review in a case called Mohamad v Rajoub, a decision from the DC Circuit which essentially copies the reasoning in Bowoto.  I don't understand why the Court would grant review in Rajoub and not in Bowoto since they hold the same thing, so I would not be surprised if the Court consolidates the cases... but we will have to wait and see.

What I want to point out here is an interesting development that relates to the Rajoub case.

At the time Rajoub was decided by the Court of Appeals for the DC Circuit, the issue of corporate liability under the ATS was pending before that same court in another case called Doe v Exxon. That case has since been decided, in favor of the plaintiffs.

This means that the DC Circuit has decided that corporations can not be sued under the TVPA but can be sued under the ATS.

So what is the scoreboard at the moment?  Here it is:

Deciding that corporations can NOT be sued under the Alien Tort Statute:
 -- Kiobel v Royal Dutch Petroleum (2nd Cir 2010)

Deciding that corporations CAN be sued under the Alien Tort Statute:
-- Doe v. Exxon (DC Cir 2011)
-- Flomo v. Firestone  (7th Cir 2011).  Judge Posner wrote the opinion in this case.  He flatly states that the factual premise of the majority opinion in the Kiobel is simply incorrect.

Deciding that corporations can NOT be sued under the TVPA
-- Bowoto v Chevron (9th Cir 2010)
-- Mohamad v Rajoub (DC Cir 2011)
--Aziz v. Alcolac, Inc. (4th Cir. Sept. 19, 2011)

Deciding that corporations CAN be sued under the TVPA 
-- Aldana v. Del Monte (11th Cir 2005).  The court in Bowoto states this case holds corporations can be sued under the TVPA although it does not state so explicitly.

Supreme Court grants review in cases regarding possible corporate liability for "international torts" -- UPDATED

A few days ago, I posted a note about two cases pending before the US Supreme Court on the issue of whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  Kiobel v Royal Dutch Petroleum decided that corporations can't be held liable for damages for violating the law of nations under the Alien Tort Act while  Bowoto v. Chevron reached the same result under the Torture Victim Protection Act.  As expected, the Court has now officially granted review in Kiobel.  For more go here.

Go here for more information on the issue and for links to the cases and other important documents.

UPDATE:   more information here

UPDATE #2:  the Wall Street Journal law blog has some comments here.

Strange result due to decision in Pliva v Mensing

As you probably remember, back in June the Supreme Court issued a decision PLIVA v. Mensing on the right to sue in state court when a generic drug maker fails to change its label to warn consumers of new harmful side-effects. Go here and here for some background and lots of links.  In a 5 to 4 decision, the Court decided that federal law preempts state lawsuits because their effect could be to force the defendants to offer labeling that is different from what appears on the label of the brand-name drug.

As you probably also remember, in March 2009 the Court decided 6-3 in Wyeth v. Levine that federal law did not preempt a failure to warn case.

Now here is the interesting part:  if you take the facts of Wyeth and substitute the drug used with a generic brand one, the case is preempted.  So let's say the plaintiff, suffering from pain and nausea, goes to the hospital and is administered an injection of "Phenergan".  The injection is accidentally put in plaintiff's artery instead of her vein and the resulting vascular injury requires amputation of plaintiff's right arm. Under Wyeth v. Levine, if that drug is a brand name, the claim is not preempted, but because that drug is, in fact, a generic the court in Schork v. Baxter Healthcare Corporation, 2011 U.S. Dist. LEXIS 107687 (S.D. Ind. Sept. 22, 2011) decided the claim is preempted under the ruling in Pliva.


Thanks to the Drug and Device Law Blog for the information.

More critical comments on Congress' attempt to enact tort reform legislation

I have criticized the proposed attempts by Republicans in Congress to enact tort reform legislation (particularly a medical malpractice bill) here, here, here, here, here, here, here, here and here.

Now here is some criticism from the right.  "Tea Party" supporter Rob Natelson of the Independence Institute in Colorado, has been described as the first conservative legal scholar to forcefully argue that federally imposed limits on medical malpractice and other health care-related lawsuits are unconstitutional.  See this letter back in April and this article back in May.


Thanks to Eric Turkewitz of the NY Personal Injury Law Blog for the links.

Short article on the issue of corporate liability under the Alien Tort Statute

As I said a couple of days ago, the cases pending before the US Supreme Court on the issue of whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act (Kiobel v Royal Dutch Petroleum are Bowoto v. Chevron) were scheduled to be discussed during today's Supreme Court's conference.  I will post any announcement on them as soon as I find out.  Meanwhile, here is a link to a short article on the subject from the National Law Journal.

Illinois Supreme Court declines to adopt post-sale duty to warn

About three weeks ago, the Illinois Supreme Court issued an interesting opinion in which it declined to adopt section 10 of the Restatement (Third) of Torts: Products Liability (1998), which recognizes a duty to warn of a product-related risk after the time of sale under certain circumstances. The case is called Jablonski v. Ford Motor Co. and it is available here.

The case involved an accident in which a driver slammed into the back the Jablonskis’ Ford Town Car. As a result of the crash, a large pipe wrench in the trunk of the Town Car penetrated the trunk and punctured the back of the vehicle’s fuel tank causing the car to burst into flames. The plaintiff’s husband’s died and the plaintiff suffered severe burns and permanent disfigurement.

The plaintiffs filed a complaint arguing a number of different claims against Ford which, as the court put it, “continually evolved” during the litigation. Eventually, the plaintiffs abandoned a number of strict liability claims but continued to argue that the Town Car was negligently designed and manufactured and that Ford had a duty to warn customers of the danger of the risk of trunk contents puncturing the fuel tank, which Ford learned about some time after the plaintiffs bought the car.

As to the post-sale duty to warn issue, the court found that the jury was improperly instructed that the jury could find Ford negligent for its failure to warn because that is not the law in this jurisdiction. Even though the law recognizes a “continuing duty to warn,” that duty exists only if the risk is known at the time of the sale. When a design defect is present at the time of sale, the manufacturer has a duty to take reasonable steps to warn at least the purchaser of the risk as soon as the manufacturer learns or should have learned of the risk created by its fault. However, “a manufacturer is under no duty to issue post-sale warnings or to retrofit its products to remedy defects first discoveredafter a product has left its control.”

In sum, the court found that the lower court erred in providing a jury instruction based on a duty not recognized in Illinois at the time of trial.

Because the instruction was based on section 10 ofthe Restatement (Third) of Torts: Products Liability (1998), which recognizes a post-sale duty to warn under certain circumstances, the court then addressed whether it should recognize such a duty. It declined to do so, but left the door open to consider it again in the future:

“Although we do not foreclose the possibility that a post-sale duty to warn could be recognized in the future in Illinois, we decline the invitation to expand the duty in this case under the particular facts and circumstances presented here . . . [because] there was insufficient evidence presented to the jury with regard to the enumerated circumstances under which a reasonable person would provide a warning under section 10.”

Access to clients to film documentary while case is ongoing

Friend of the blog Alan Crede, of the Boston Personal Injury Lawyer Blog, has posted a very interesting comment on the very nature of our civil justice system, particularly on the fact that the system depends on the evaluation of evidence that is available to the jury while there may be other evidence that the jury never gets to see.  You can read his comment here.

As every lawyer and law student knows, our judicial system is not based on the search for the objective truth of the facts at issue but on the concern over protecting the due process of the process itself.  That is the nature of the adversary system.  The rules of evidence allow for the exclusion of evidence that might be relevant because the policies upon which those rules are based are more important to us than the possible benefit we'd get from the admissibility of that evidence.  This is obviously true in criminal cases, but it is not less true in civil cases.

In his comment, Alan wonders about a number of things including the fact that sometimes the most important evidence appears to be the evidence that is not available to the jury.  Most of the time, we don't realize this because in most cases that evidence is, simply, never disclosed.  But sometimes the general public gets to see evidence (through the media, for example) that the jury does not get to see.  And in many of those cases, the impression the public gets is different from that reflected by the jury's decision.

Some see this as a bad thing; others as a good thing.  It depends on what you think of the jury system and the policy behind the rules of evidence to begin with.  In fact, it depends on whether you believe the adversary system of judicial decision-making (at the trial level, at least) is a good idea.

Alan concludes that it is a mistake to overrate the capacities of our judiciary.  He warns that lawyers sometimes are blind to the system's faults and limitations because of a belief that the adversary system is "the greatest engine for the search for truth."  And when that happens "we fall prey to the idea that we can reach from the well of a courtroom to the pure reality of events that transpired outside of that courtroom."

All that aside, Alan asked me to comment on a slightly different aspect of the issue.

His comment was prompted by the documentary "Paradise Lost" about the "West Memphis Three" case during the filming of which the attorneys for the defendants allowed the filmmakers to have access to some of their conversations with their clients, and to interview the clients while the case was still ongoing.  Alan wants to know my take on the ethics of the defense team's allowing such unrestricted behind-the-scenes access.

There are several issues that come to mind. First, there is the issue of whether the lawyers were trying to "try the case in the media" rather than in the courtroom.  I don't think so, simply becasue the the documentary was not going to be ready before the end of the case.  The footage would only become available until after the case was over.  However, it can be argued that the lawyers were trying to build a record that could later be used to support an appeal.  That is possible, but it is not different from many other cases which generated documentaries - often to support the defense.

I think the more interesting question is whether it is improper to allow the filmmakers to follow the lawyers and clients as they prepared for trial not knowing in advance what was going to be shown in the final version of the documentary.  As long as the clients gave informed consent, I see that as a tactical decision that may or may not turn out to be a good decision down the line.  It is pretty risky, but I guess the lawyers felt strong enough something positive would come out of it.  The one thing the lawyers had to be careful about was disclosing confidential information "on the air" that they would not want broadcast later.

Lastly, of course, I can only assume the lawyers in this case did not have an agreement with the filmmakers to get a media deal since Rule 1.8(d) (some version of which has been adopted in most, if not all, states) says that "prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation."

Alien Tort Statute cases set for Supreme Court conference in two days

A few days ago, I posted a note about two cases pending before the US Supreme Court on the issue of whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  Kiobel v Royal Dutch Petroleum decided that corporations can't be held liable for damages for violating the law of nations under the Alien Tort Act while  Bowoto v. Chevron reached the same result under the Torture Victim Protection Act.

The Court did not take action on the cases during the first conference of the year but 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 (Friday) if the Court will grant review.

Go here for more information on the issue and for links to the cases and other important documents.

Tennessee approves tort reform bill - UPDATED

Tennessee has approved a new tort reform bill which, among other things, regulates some aspects of medical malpractice cases, institutes caps on non economic and punitive damages and makes it more difficult to get punitive damages.  You can read a summary of the bill here. 

In a news release, Gov. Bill Haslam, a supporter of the bill, claims that the bill will revise the state’s civil justice system "to make Tennessee more competitive for new jobs with surrounding states by bringing predictability and certainty to businesses calculating potential litigation risk and cost.”

You would think that Tennessee is having a hard time attracting businesses because of an out of control civil justice system.  Yet, in 2010 Tennessee was rated as the best state in the US by one publication and as the second best by another for providing a good climate for business, according to former Senator Bill Thompson who testified against the approval of the bill.  His full testimony, which makes a pretty convincing argument for why the bill is unnecessary, is available here:


Sen. Fred Thompson Testifies for Civil Justice - March 23, 2011 from TN Association for Justice on Vimeo.

Even though I don't agree with it, I can understand the argument to cap non-economic damages; and a cap of $750,000 is pretty high when compared to many other states that impose caps.

On the other hand, I have a hard time with arguments related to punitive damages.  First of all, every report I have seen on the subject shows that punitive damages are rarely awarded and that the average award is not out of the ordinary.  Every now and then you hear about a case with excessive punitive damages which grab a lot of headlines but these cases are rare and the damages are usually reduced by the courts anyway. 

Also, the fact is that punitive damages exist to punish truly outrageous, unacceptable behavior that causes injury to create a disincentive for the defendant and others to continue to engage in the type of irresponsible conduct that created the risks and caused the injury.  By placing limits on punitive damages (which are rarely awarded anyway) and, even more, by creating obstacles for people to have the right to recover punitives, tort reformers are explicitly looking to eliminate the deterrent effect of tort law.

UPDATE: (Oct 9, 2011) -- The new law went into effect on October 1.  You can find a copy of the bill here. (Thanks to the TortsProf blog for the update and link.)

DES still causing problems after all these years

Last week in class we discussed two famous cases involving claims for injuries caused by DES, a drug commonly used decades ago to prevent miscarriages and birth defects.  Coincidentally, a day or two later AboutLawsuits.com is reporting that the daughters of women given DES are showing high rates of breast cancer and infertility problems, according to recent research.  Go here for the details.

Today in baseball - and music - history

This post has nothing to do with torts or professional responsibility, but it's my blog, so there!

Did you know today is the anniversary of the very first time a singer sang a personalized version of the national anthem before a sporting event?

On October 7, 1968 Puerto Rican singer/guitarist Jose Feliciano stunned the crowd at Tiger Stadium in Detroit when he sang a non traditional rendition of the national anthem before Game 5 of the World Series between Detroit and St. Louis.  The reaction was not good.  He was booed, criticized, and many radio stations stopped playing his music.  Interestingly, the Tigers won the game and the final two to win the series in seven games.

I am not a big fan of the way many - indeed, most - singers try to change the national anthem these days, but there are a few renditions that I like.  Feliciano's is one of them.  Another one is Marvin Gaye's version before the NBA All-Star game in 1983.

Ironically, Marvin Gaye sang the national anthem in Detroit the day before Feliciano did.  Supposedly, Ernie Harwell specifically asked him to do a traditional rendition of the anthem.  I guess he expected Gaye to try something different.  I don't know if he told Feliciano the same thing...

Also ironically, after Harwell passed away last year, the Tigers had Feliciano sing the exact same version of the anthem before a game to honor his memory.

You can listen to Jose Feliciano's 1968 national anthem here.

You can listen to Marvin Gaye's version in 1968 here and his 1983 version here.

Thoughts on the social benefits of the torts system

The Pop Tort blog has a comment here on the deterrence function of the torts system and on recent developement in Tennessee (new law that will "cap" damages and limit the legal accountability of nursing homes for abuse and neglect)  and New York (a proposal for “caps” on compensation for people killed or injured due to negligence in city hospitals and for other city misconduct in order to save the city money).

Florida Supreme Court to Evaluate Constitutionality of Damage Cap in Medical Negligence Cases; Louisiana case is on its way.

The Florida Supreme Court has agreed to determine whether a limit on noneconomic damages in medical malpractice cases violates the state's constitution. Go here for more details.

Meanwhile a lower court in Louisiana has declared Louisiana’s $500,000 cap on all damages in medical malpractice cases unconstitutional as a violation of the state constitution’s equal protection and adequate remedy guarantees.  The court also found that there was no correlation between medical malpractice lawsuits and any crisis in insurance for doctors or the availability and affordability of health care.  The case now moves directly to the Louisiana Supreme Court.  For more information go here.  To read the court's order go here.


Thanks to Day on Torts for the information.