Wednesday, February 29, 2012

Alabama Supreme Court recognizes wrongful death claim for stillborn starts at conception

About two weeks ago, the Alabama Supreme Court decided in a case called Hamilton v. Scott that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb reaffirming an earlier decision in which the court reasoned that it would be an "unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability."

Illinois also takes this approach, but it is probably still the minority view.  Last time I checked, the majority view on this subject was to "draw the line" at viability.  The third option, followed by another minority of states, is to recognize the wrongful death claim only if the child is born alive, survives for an instant on his or her own and then dies.  Those states draw the line at birth.

Press coverage of yesterday's oral arguments in Kiobel and Rajoub

Here are the links to articles on yesterday's oral arguments, as collected by the SCotUS blog:

Writing for this blog, Lyle Denniston reports that “a majority of the Justices looked notably unconvinced” that corporations could be sued in U.S. courts for human rights violations perpetrated abroad; similar observations were made by Mike Sacks at the Huffington Post, Robert Barnes at the Washington Post, Marcia Coyle at the National Law Journal, David G. Savage at the Los Angeles Times, James Vicini at Reuters, Jess Bravin at the Wall Street Journal Law Blog, and Bill Mears of CNN.  Additional coverage comes from Bob Van Voris at Bloomberg, Adam Liptak at the New York Times, Dahlia Lithwick at Slate, Mark Sherman at the Associated Press, Kenneth Anderson at the Volokh Conspiracy, Warren Richey at the Christian Science Monitor, Ariane de Vogue of ABC News, Nico Colombant at the Voice of America, and Lawrence Hurley at Greenwire.  (Thanks to Howard Bashman for the last two links.)  The New York Times’s Room for Debate page also features a discussion of the case, while at Balkinization Marco Simons discusses the arguments advanced by a group of scholars who contend that the Alien Tort Statute should only cover suits “between aliens and citizens.”

Tuesday, February 28, 2012

Comments on the oral argument in Kiobel on whether corporations can be sued under the Alien Torts Statute

Long time readers of this blog know I have been following the cases granted by the Supreme Court on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  For more details, go here and scroll down to see multiple posts on the subject.

The Alien Torts Statute recognizes the right of foreign nationals to sue in US federal courts to recover for injuries caused by conduct that constitutes a violation of the law of nations. Over the years, plaintiffs have used the statute to support claims against Pfizer, Shell Oil, Chiquita Banana, Nestle and other multinational corporations for aiding and abetting in crimes against humanity and many other types of conduct alleged to violate international law.  Some of these cases have been successful, others have not.

The Torture Victim Protection Act, on the other hand, recognizes causes of action for both foreigners and US nationals who suffer injuries due to the use of torture.  Over time, courts have also recognized this would allow claims against corporations who aided and abetted the use of torture.

Then, after years of litigation against corporations under these statutes, something happened. In  Kiobel v Royal Dutch Petroleum the Court of Appeals for the Second Circuit held for the first time that corporations can't be sued under the Alien Tort Statute.  Likewise, in Mohamad v. Rajoub, the DC Circuit Court held that corporations could not be liable under the TVPA (even though in a different case it held they can be sued under the ATS).

Although some courts have agreed with Rajoub, other Circuit Courts have rejected Kiobel's reasoning and it remains the only case to have decided the issue in favor of the corporate defendants (under the ATS).  Here is a list of the relevant cases and how they were decided.

For recent previews of the cases heard today go here, here and here.  For all the documents related to Kiobel, go here. For all the documents related to Rajoub, go here. For a short debate on some of the policy issues go here.  For an article in favor of the plaintiffs' position go here.

If the Supreme Court were to decide the case in favor of the defendants, the ATS would pretty much become completely irrelevant and the important role that American courts have been playing in providing a remedy for international human rights violations will be history.

The long awaited oral arguments in Kiobel and Rajoub took place today and by all accounts it sounds the days of the usefulness of the ATS are now numbered.  This would be a bad decision in my view, but one can hardly be surprised given the composition of the Court.  Given how they had voted in past cases, the voting in this one clearly was 2-0 in favor of the corporate defendants to begin with (something I pointed out when discussing another case here.)

Lyle Denniston begins his summary of the argument (which he called "Downhill from the start") stating that "When Justice Anthony M. Kennedy, in the opening minute of a Supreme Court argument, tells a lawyer that his entire case is in jeopardy, it is extremely difficult for even an experienced counsel to recover.   And, though he tried, Venice, Calif., attorney Paul L. Hoffman did not appear on Tuesday to have resuscitated his argument that foreign corporations should be held to account in U.S. courts for human rights abuses in foreign lands.  At least a majority of the Justices looked notably unconvinced."  Denniston's detailed assessment of the argument is available here.

The Wall Street Journal law blog likewise concludes that the justices appeared skeptical.

To decide for yourself, take a look at the transcripts here.  My guess the audio will be available on Friday.  I will, of course, post a link then.

UPDATE:  the oral arguments are available here (for Kiobel) and here (for Rajoub).

Monday, February 27, 2012

US Supreme Court to hear arguments re Alien Tort Statute tomorrow

Tomorrow, the US Supreme Court will hear oral arguments in two very important cases: Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority. In Kiobel, the Court will consider whether corporations can be sued for violations of the law of nations under the Alien Tort Statute. In Mohamad, the Court will consider whether an organization can be held liable under the Torture Victim Protection Act.  For my previous posts on these cases/issues go here and scroll down.

Here are some links to previews of the cases:

Lyle Denniston of the SCotUS blog
Mark Sherman of the Associated Press.
David Savage of the Los Angeles Times.
Daniel Fisher of Forbes
The Brennan Center
New York Times (op-ed)
Los Angeles Times (op-ed)
More links from the SCotUS blog

Thanks to the SCotUS blog for the links.

Interesting new lawsuit alleges fraud by pet store

Injured is reporting today that group of dog owners have filed lawsuit against a Chicago-area pet store claiming the store falsely claimed the animals were healthy and came from reputable small-scale breeders.  Instead, they say the disease-prone puppies were purchased from overcrowded "puppy mills" and arrived at the stores visibly sick and covered in feces and urine. The allegations come from pet owners whose dogs suffer from health issues, including genetic diseases, urinary track infections, kennel cough and a variety of other illnesses connected to poor living conditions.  Go here for more information.

Wednesday, February 22, 2012

Ohio Supreme Court Upholds 2005 Tort Reform Statute

On February 15, in a 5-2 decision, the Ohio Supreme Court upheld the mandatory bifurcation provision of the punitive damages statute that was adopted in 2005.  Before 2005, trials could only be bifurcated at the discretion of the trial court judge if the judge believed it would promote convenience, avoid prejudice, or when it would be economically prudent or efficient to do so.  Under the statute adopted in 2005, upon the motion of either party, the trial is divided into two phases.  The first phase is only about compensatory damages; no evidence related to the claim of punitive damages is permitted.  If the plaintiff is successful in the first phase and is awarded compensatory damages, then a second trial is held on the question of punitive damages. The case is called Havel v. Villa St. Joseph and it is available here.

I have no opinion as to whether the statute is constitutional, but I have a different question: is it a good idea?  Why would you want to force the court to order the parties to go through two separate trials to litigate the same matter twice?  I am assuming the second trial would be tried before a different jury which will require the parties to re-litigate at least some part of the original trial a second time.  I am not sure this is a smart use of resources and I am not sure the clients would be all that happy to have to pay for legal fees for more time/work, etc.  It just does not seem to me to be very efficient way to deal with the issue.

Monday, February 20, 2012

Florida bill to reduce med mal liability advances through state legislature

About three weeks ago, the Florida Independent published a story (short in details) about a new bill making its way through the state's legislature that seeks to lower the possible liability of doctors and hospitals.  According to the story, a Florida House judiciary committee passed a bill that would, among other things, grant “sovereign immunity” to providers as “government agents” and adopt stricter standards of proof of medical negligence. The grant of sovereign immunity would mean medical malpractice claimants could seek payment from the state, which would be reimbursed by the health care provider. The immunity puts a limit on the amount repaid by the provider — up to $200,000 for a single person and $300,000 for a single incident. Any amount exceeding the caps would require approval of the Legislature.

Now this does not make any sense to me.  Like I said, the story does not provide much details, but if I am reading this correctly, the bill does not propose a cap on damages.  What it does is shift the liability from the provider who will be protected by a cap to the state who will not.  What state would want to put itself in the position of having to pay for the negligence of private doctors?  If this is what the bill is trying to do, essentially it is shifting part of the liability (and in cases of high damages, most of the liability) from the negligent party to the state, or in other words, to the taxpayers.  Get ready Floridians, you may soon be the ones paying for your doctors' negligence.

A similar bill has been filed in the state Senate.  For Floridians' sake, let's hope it dies there.

Monday, February 13, 2012

Arizona considers ban on wrongful life lawsuits is reporting today (here) that lawmakers in Arizona have proposed a ban on “wrongful birth” lawsuits to prevent parents of children born with birth defects from seeking compensation from doctors or medical providers through a malpractice lawsuit over failing to recognize or diagnose the problems before the child is born.  From this language it appears the bill would not affect the right to recover in cases where the negligence of the doctor actually causes the injury to the child.  We are talking about cases where, the injury to the child is actually caused by something else - a genetic issue, a condition of the mother, etc.

This is an interesting bit of news, but without more information it is difficult to assess how important it really is.  Here's why:  the term "wrongful birth" is often used to mean different things depending on the type of injury claimed in the case.  Often, courts use the term to refer to a claim by parents to recover for the emotional distress that results from having a child the parents would rather have avoided.  The issue is often explained through a cause in fact analysis like this: had it not been for the negligence of the doctor, the parents would have terminated the pregnancy and the child would not have been born.  Thus, the negligence caused a birth that was not wanted. To my knowledge, no court has recognized such a claim because courts do not like the idea of saying that not having been born is better than having been born, or because life, no matter how bad, is better than non-life or because there is no way to assign a monetary value to the notion of not having been born.

On the other hand, courts have recognized a cause of action for parents in these cases for actual damages and out of pocket expenses related to the pregnancy and child birth that would have been avoided had the defendant not been negligent.

In addition, some courts have also allowed recovery for the expenses needed to take care for the child, at least until the age of majority.

If the bill in Arizona seeks to ban or prevent the first type of claim, it is a not a big issue because those claims are generally rejected anyway.

If the bill seeks to ban the second type, it is a big issue because the bill would be attempting to eliminate the right of a plaintiff to recover for damages that were clearly caused by the negligence of the defendant.

It is the third type of claim, however, that is the most interesting.  You can make a convincing argument that since the negligence of the defendant does not cause the condition of the child, the plaintiff can't establish cause in fact in support of the claim for the medical expenses related to the condition of the child.    If this is the basis for the bill in Arizona, it does raise an interesting issue that many courts have ignored when allowing parents to recover.

Friday, February 10, 2012

Comment on the Pennsylvania bill capping punitive damages in cases against nursing homes

A few minutes ago I posted that last month the Pennsylvania house of representatives approved a bill to cap punitive damages in lawsuits against nursing homes.  Litigation and Trial has a critical comment on the bill here.

Tort Reform Bills Advance in Arizona, Minnesota and Pennsylvania

The TortsProf blog is reporting that a bill that would exempt manufacturers from claims for punitive damages if they followed all federal, state, or agency standard for creating a product was recently approved by a committee and will now move to the full Senate.  The Arizona Republic has the story.

Meanwhile, in Minnesota, the House passed a measure to reduce the statute of limitations from six years after the incident to four years.  That's one tort reform measure I don't have a problem with.  The Minneapolis Star Tribune has the story.

Finally, the Pennsylvania house of representatives approved a bill last month to amend the Medical Care Availability and Reduction of Error (MCARE) Act to cap punitive damages in lawsuits against personal care homes, assisted living communities, long-term care nursing facilities, home care agencies, home health care agencies and hospices at 200 percent of the compensatory damages awarded in such lawsuits. The bill is still pending in the state Senate.  Go here for more on that story.

Friday, February 3, 2012

Claims vs Pfizer for birth control products?

A nationwide Pfizer birth-control pills recall, announced Feb. 1, could lead to lawsuits for unwanted pregnancies, Injured (a FindLaw blog), says.  Pfizer recalled about 1 million packets of birth-control pills because the recalled products did not contain enough contraceptive to be effective which could result in unwanted pregnancies.  And the injuries suffered because of those unwanted pregnancies could lead to lawsuits and millions of dollars in damages.  Go here for the full story.

Thursday, February 2, 2012

Arkansas Supreme Court rejects Legislature's effort to limit who can testify as an expert in a medical malpractice cases

The Arkansas Supreme Court has rejected an effort by the Arkansas Legislature to define who is permitted to testify as an expert witness in a medical malpractice case.  Go here for more on the story.

Government faces uphill batte in the case about the new cigarette warning labels

In the most recent news regarding the ongoing battle over the government's attempt to impose the use of new labels for tobacco products, the Blog of the Legal Times is reporting that the Justice Department seems to be facing "an uphill fight" to convince the judge to uphold the rules that would require tobacco companies to include graphic warning labels on cigarette packages and in advertisements.  Among other things, apparently the judge has expressed dismay that Congress did not assess how the labeling rules could impinge on First Amendment rights.  For more on the story go here.