Max Kennerly on procedural changes that affect access to the courts

It is Friday which means the TortsProf blog's guest blogger series is back.  Today's guest blogger is Max Kennerly, host of Ligitation and Trial, which is one of my favorites.  For his guest post at TortsProf, he has chosen the topic of access to the courts and how civil procedure law often is determinative of the outcome of tort disputes. 

Given changes in procedural rules and practices, he writes, in part, that "the real question in tort law that determines cases today is decreasingly a question of when one party will be liable to another and increasingly a question of when we allow an injured party to access the judicial system at all" and that many court decisions "reflect, at bottom, a policy choice made by our courts, particularly the Supreme Court, to give preferential treatment to defendants in complicated disputes..."

You should read his full comment here.

Texas Supreme Court holds there is no cause of action for emotional distress based on death of pet

As you may remember, I had been following a case before the Texas Supreme Court on whether the owners of a dog accidentally euthanized can sue for the sentimental value of the family pet or merely for the replacement value of their pet.  (See, most recently, here.)  I have argued before that I really don't see why pet owners should not have the right to try to claim emotional distress due to the deaths or injuries to their pets (see here, here and here) and there are a few cases out there that have recognized these types of claims, (See here for example.)

Texas had conflicting decisions within the jurisdiction so the opinion of the Supreme Court was needed to resolve the conflict.  The opinion was issued a few days ago.  I saved it to comment on it later, but then got distracted with other things so I am now trying to catch up.

In any case, the court decided the case against the plaintiffs.  It did not recognize the claim and, instead, adopted the traditional view that animals are property and, as such, are valued based on the market value alone. The case is called Strickland v. Medlen and it is available here.

For news and comments on the case, you can go to Jonathan Turley's blog. the Star-Telegram, and this Op Ed piece in the Star Telegram in which the author mocks part of the reasoning behind the opinion saying,

Heavens, if monetary damages were available when the pet store paralyzed your dog during grooming, a whole cottage industry of lawyers would spring up to file frivolous suits. If veterinarians had to worry about not killing your pet during neutering, they'd start practicing defensive medicine, which would make costs skyrocket, so people would stop bringing in their pets, they'd get sick and die, or ferals and strays would proliferate, or owners would choose euthanasia instead of treatment, or low-income families would just abandon their beloved companions.

. . . .   Could the real problem be, though, that Texas law needs expanding regarding family members and best friends, not narrowing regarding animal friends?

 Similarly, Jonathan Turley summarizes the decision this way:

This issue resulted in a significant decision in Texas Supreme Court last week when it found that damages for the loss of [the family dog] could not include his sentimental value to the owner. In other words, [the dog] was a toaster. More friendly, more loyal, but a toaster when it comes to torts.

Read more here: http://www.star-telegram.com/2013/04/10/4765779/no-monetary-award-for-a-texas.html#storylink=cpy

Parents arrested again for allowing child to die for religious reasons; should they be liable in tort?

Back in 2009 I wrote a series of comments on whether we should recognize a cause of action against parents who allow their children to die due to their refusal to seek medical attention for religious reasons. See here and follow the links. At the time I was following all the publicity surrounding criminal trials in Wisconsin and Pennsylvania against the parents of children who had died under those circumstances.

The parents in the Pennsylvania case were found guilty of involuntary manslaughter and child endangerment but were only placed on probation conditioned on maintaining medical treatment for their children.

Today it is being reported that the parents have been arrested again after they allowed another child to die after refusing basic medical care. See here, here and here.

So let me repeat part of my comment from October 2009: If states have the authority to impose criminal sanctions for conduct that the actors claim is based on religious faith, couldn't states recognize a cause of action in tort against the parents, or the church they belong to, in a case like this?

I have not updated my research on this subject recently, but as far as I remember, the last time I taught the subject, there were very few cases that imposed civil liability in similar cases. Two cases cited often on this issue are Lundman v McKown, 530 NW2d 807 (Minn App 1995) and Quigley v First Church of Christ Scientist (Calif App 1998). In both cases, the courts rejected the cause of action against the church itself, but in Lundman the court recognized a claim against some members of the church who, according to the court, owed a duty to the child.

Colorado Supreme Court refuses to decide case on whether to recognize a wrongful death case for the death of a fetus

The Colorado Supreme Court has rejected a petition to review a case on whether to recognize a cause of action for the wrongful death of a fetus.  The case was originally filed by the widower of a pregnant woman who allegedly died because of the defendant's medical negligence.  The woman was pregnant with twins at the time.  The husband sued for the wrongful death of his wife and the two stillborn fetuses.  The lower court, however, dismissed the claims for the fetuses holding that "under Colorado law a fetus is not a 'person.' "  The case was appealed to the Colorado Supreme Court which just denied review.  You can read more about the story here.

I wonder why the Court denied review.  This is not only not an uncommon issue which has been addressed in many other jurisdictions, it is also very interesting and important.  Some jurisdictions have adopted the view that the state of gestation is irrelevant, and thus that there can be a wrongful death claim.  Others say that for there to be a death there has to be life first and that life begins at birth.  Most, however, compromise somewhere in the middle holding that there can be a claim as long as the plaintiff can show the fetus was viable at the time of the incident. 

New comment on Kiobel: The United States Can’t Be the World’s Courthouse by Eric Posner

Eric Posner, a professor at the University of Chicago Law School, has written an essay on the Supreme Court's decision in Kiobel v Royal Dutch Petroleum in which he argues the Court made the right decision.  It starts as follows:

...Last week’s 9-0 Supreme Court ruling in Kiobel v. Royal Dutch Petroleum has finally put an end to [litigation in which foreigners bring suits in U.S. courts against other foreigners, for human rights violations in foreign countries.] Human rights groups complain that the decision means that foreign governments and corporations will be able to violate human rights with impunity. But cases like Kiobel, in which a group of Nigerians sued a Nigerian corporation and its Dutch and British corporate parents over their role in human rights abuses in Nigeria, never led to real human rights enforcement. In more than 30 years of litigation involving hundreds of cases, hardly any money went to victims. The Supreme Court got rid of a popular but unworkable idea that U.S. courts can be used to police behavior around the world.

 You can read the full article here.

Supreme Court decides Milbrook v. US, recognizing cause of action against the federal government

About two months ago I commented on a case now before the US Supreme Court called Milbrook v. US in which the Court was asked to consider whether a plaintiff can recover under the Federal Torts Claims Act for injuries caused by law enforcement officers other than when they are executing a search, seizing evidence or making arrests for violations of federal law. See here, here and here.

The Court decided the case about three weeks ago and you can read the opinion here.  In an opinion by Justice Thomas, the Court held that the Federal Government is not immune from a claim for damages if the assaulting government officer was acting within the scope of his/her employment even if the officer was not making an arrest or seizing evidence at the time. 

For some comments on the opinion you can go to Torts Today and to Litigation and Trial.

Supreme Court decides Kiobel v. Royal Dutch Petroleum, holding Alien Tort Statute can't be applied extraterritorially

Long time readers of this blog probably remember that I have been following the decisions in Kiobel v. Royal Dutch Petroleum closely for almost two years.  (Go here and scroll down for all my posts).  This is the case that challenged the applicability of the Alien Tort Statute to corporate defendants.  After that issue was argued before the Supreme Court last term, the Court asked the parties to brief and prepare for argument on a different issue:  whether the ATS can be applied extraterritorially.  This was surprising since the issue had not been raised by the parties because, before the Supreme Court brought it up, there probably was little disagreement about that question.  For more than thirty years, since the Second Circuit’s 1980 decision in Filartiga v. Pena-Irala and the 2004 Supreme Court decision in Sosa v. Alvarez-Machain, courts have interpreted the ATS as giving rise to a remedy in US courts for international law violations.

When the Supreme Court asked the parties to prepare to argue the issue I suspected that it would decide the statute can't be applied extraterritorially thus essentially ending the ATS as we know it. In its decision, the Supreme Court rejected what was seemingly the entrenched understanding of the ATS.

Needless to say, the opinion has generated a tremendous amount of commentary, some praising it, some criticizing it.  Because I have been away from my office for days I have not had a chance to read the actual opinion, so for now I will only give you links to comments and to the opinion itself so you can reach your own conclusions.

The SCotUS blog has published a series of comments about the opinion here.  Scroll down and you will find links to a summary of the opinion and to at least five separate comments (plus articles published before the opinion was issued). 

In addition you can find articles about the opinion in Jurist (here and here), PrawfBlog (here and here), The Washington Legal Foundation (here) and the New York Times (here), which laments the opinion constitutes "a giant setback for human rights."

I agree.  Under the previous interpretation of the statute, it allowed the US federal courts to operate as an international civil tribunal where victims of international rights violations could bring their claims for damages.  No so anymore.  One of the comments published in SCotUS blog suggests the door is still open - very slightly open - for such a claim, though.  The NYT editorial suggests the opening comes from Justice Breyer' concurring opinion which said suits under the law should be allowed when “the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”  Reportedly, however, the majority opinion essentially eviscerated the statute and made it much more difficult to vindicate that interest, and, according to one author, the opinion "is wildly out of step with the rest of the federal judiciary, the direction of American law, and the concerns of the American people."

But you (and I) will have to read the opinion itself to decide for ourselves.  You can find it here.

Florida senate approves tort reform package

Bad news for victims of medical malpractice in Florida.  The state senate just approved a tort reform package (SB 1792) that would make med mal cases more difficult to pursue. For links to more information on the story go here and here.

New York Times on whether the court should dismiss the claims against the NFL

As you probably know, more than 4,000 retired players are suing the National Football League for failing to protect players from chronic risks of head injuries routinely inflicted in professional football games — and then willfully concealing those risks from players.  This week, attorneys for both sides appeared before Judge Anita Brody of Federal District Court in Philadelphia, who is considering whether the cases can proceed. The N.F.L. argued that the cases amounted to a labor dispute that the judge should dismiss. I a short editorial (available here), the New York Times makes the argument that the judge should allow the cases to proceed. For my previous posts on this case go here and here.

Possible ban on energy drink sales to minors?

As you probably remember there has been a lot of discussion on the dangers of caffeinated drinks like Monster, Red Bull and others recently. See here for some links to my previous posts. The controversy has now reached the point where the state of Illinois and a New York county are considering new legislation that would restrict the sale of energy drinks to minors. AboutLawsuits has the full story here.

 

Why Aren’t More NY and NJ Lawyers Looking For Hurricane Sandy Insurance Claims?

Why Aren’t More NY and NJ Lawyers Looking For Hurricane Sandy Insurance Claims?   Basically because, as Max Kennerly explains over at Litigation and Trial, insurance bad faith claims in New York and New Jersey are risky and difficult cases that usually pay poorly, and often don’t pay at all.  Go here for the full story.

Post oral argument comments on Mutual Pharma v. Bartlett

The big news in torts last month was the oral argument before the US Supreme Court in Mutual Pharmaceutical v. Bartlett which asks the Court to decide whether a generic drug maker can be held liable for a design defect.  I wrote about it here, here, here, here and here.  For even more on the issues related to generic manufacturers, products liability and warnings cases, click on the "labels" below this post.

Just a few days ago, the SCotUS blog published a detailed look at the argument here.

New study on side effects of robotic surgery; case moves on

A couple of weeks ago I reported that the FDA has launched an investigation into the safety of the da Vinci surgical robot following a number of reports involving severe complications, internal injuries and patient deaths associated with the machine.  See here and here.  Some days later, the nation’s largest organization representing obstetricians and gynecologists recommended avoiding the use of robotic surgery system for hysterectomies.  See here. Now AboutLawsuits is reporting that a new study indicates that many individuals who elect to undergo robotic surgery for the prostate, kidney or bladder may face a risk of suffering a nerve injury. Go here for the full story.

In addition, a judge in Washington state court has denied an attempt by Intuitive Surgical to dismiss a wrongful death lawsuit filed over problems with the da Vinci surgical robot, allowing the product liability case to proceed over the manufacturer’s failure to provide adequate training for doctors using the device. Go here for that story.

More on the controversy over "high energy" (ie, caffeinated) drinks

As you probably remember there has been a lot of discussion on the dangers of caffeinated drinks like Monster, Red Bull and others recently.  See here and here for some links to my previous posts. Now AboutLawsuits blog is reporting on a new study that suggests that side effects of energy drinks could interfere with the electrical operation of the heart for some people, potentially increasing the risk of death.  Go here for the full story.