Thursday, January 30, 2014

Court of Appeals for the Seventh Circuit decides question left open by the US Supreme Court in 2010: prosecutor should not be immune to civil claims for misconduct during investigation phase of a case

Back in 2009, the U.S. Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington in which it was asked to decide an important issue related to possible civil liability for prosecutorial misconduct. (For my old posts on that case go here, here and here.) In that case, two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights.  In response to the claim, the prosecutors contended that they had absolute immunity from liability because it has been held that prosecutors have absolute immunity from civil liability for their conduct in the process of prosecuting the case.  The issue in the case, though, was whether the same immunity should apply to the prosecutors' conduct in the process of investigating or "building" a case.

Should their right to immunity (or the level of that immunity) change depending on the role prosecutors play at the time of the alleged violation of civil rights? In Pottawattamie, the prosecutors' misconduct initially took place while they were involved in investigating the crime but it continued during the trial since they presented perjured testimony.  Should the immunity that protects the conduct during trial affect the right to recover for the misconduct that took place before the trial?  If so, couldn't a prosecutor avoid liability for pre-trial misconduct by making sure he introduced the tainted evidence during trial?

These are all important questions that the Supreme Court was ready to address, but it never got to decide the issues because the case settled soon after the oral argument.

Three years later, in an opinion written by the very influential Judge Richard Posner, a split panel of the Court of Appeals for the Seventh Circuit has held that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case which results in a wrongful conviction.  The case is called Fields v. Wharrie and the opinion is available here.

The case is remarkably similar to the one before the Supreme Court back in 2010.  Here a prosecutor fabricated evidence against a defendant during the investigative stage of the case. He then coerced witnesses to give testimony that the prosecutor (as well as the witnesses) knew to be false.  Based on the false evidence, the defendant was convicted of two murders. The defendant eventually was acquitted in a retrial and subsequently received a certificate of innocence from the court in which he had been tried.

In the opinion, Judge Posner addressed the same issues raised back in 2010.  For example, he explains that "[a] prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a ‘license to lawless conduct,’which the Supreme Court has said that qualified immunity is not to do."

For more information and commentary on this important case go to Seeking Justice, Res Ipsa Loquitur and the ABA Journal.

Tuesday, January 28, 2014

Court of Appeals holds that defamation plaintiff must show negligence (at least) in order to recover against blogger

A few days ago, the Court of Appeals for the Ninth Circuit decided an important new case on defamation.  The court held that Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (holding that the First Amendment requires non public figure plaintiffs in defamation cases to meet at least a “negligence standard”), is not limited to cases with institutional media defendants. Thus, the court held that the district court should have instructed the jury that it could not find the defendant blogger liable for defamation unless it found that she acted negligently.  The case is Obsidian Finance Group, LLC v. Crystal Cox, and the opinion is available here.

 As reported by the First Amendment Center: "In a landmark decision on Friday, a federal appellate court held for the first time that blogs enjoy the same First Amendment protection from libel suits as traditional news media. ... While the Supreme Court has previously observed that the lines between traditional news media and native web content have become blurred, this makes the first time that federal appellate court has essentially said that journalists and bloggers are one and the same when it comes to the First Amendment."  For more on the case go here.

Monday, January 20, 2014

Huffington Post article on patient safety and malpractice

According to a recent article in the Huffington Post, the latest statistics show that medical errors, most of which are preventable, are the third leading cause of death in America and that the cost of injuries to families and to the health care system is likely near $1 trillion dollars annually. Read the full article here.

Statistics on injuries caused by dogs in 2013

Go here for a summary of the statistics on injuries caused by dog attacks in 2013 compiled by According to this report, there were 32 fatal dog attacks in 2013. Pit bulls contributed to 78% (25) of these deaths, even though they make up about 6% of the total U.S. dog population. Together, pit bulls (25) and rottweilers (1) accounted for 81% of the total recorded deaths in 2013. This same combination accounted for 74% of all fatal attacks during the 9-year period of 2005 to 2013.

Tuesday, January 14, 2014

Judge rejects proposed settlement in NFL case

The judge presiding over the proposed $765 million settlement between the N.F.L. and more than 4,500 retired players who sued the league and accused it of hiding the dangers of concussions has raised significant questions about whether there will be enough money for all of the payouts, medical tests and treatment.  The New York Times has the details here. (Thanks to Torts Today for the link.)

Over at Litigation and Trial, Max Kennerly has posted "Why The NFL Concussion Settlement Wasn’t Approved – And Why It Might Never Be".  In this short comment he argues that although the main reason for the rejection of the proposed settlement was the inadequacy of the settlement amount, there is another part of proposal that has not been discussed as much.  That's a clause which attempts to prevent players from conducting litigation against the NCAA and other amateur football organizations.  You can read his comment here.

Wednesday, January 8, 2014

England and Wales Reform Libel Laws

As reported in the Silha Center for the Study of Media Ethics and Law:  The Defamation Act 2013, approved by the British Parliament on April 25, 2013, just recently went into effect. The Act incorporates several key reforms into the British libel system which historically has favored plaintiffs.

The 2013 Act maintains the traditional premise of British libel law that the defendant bears the burden of proof, but section 1 of the 2013 Act requires plaintiffs to prove that a statement caused “serious harm” to their reputation for the statement to be considered defamatory. For-profit corporations must now prove “serious financial loss” to meet the serious harm standard. The Act also strengthens the defenses of truth and opinion. Section 2 of the Act creates a defense “for the defendant to show that the imputation conveyed by the statement complained of is substantially true.” Section 3 of the Act protects statements of opinion, provided that “an honest person could have held the opinion on the basis of … any fact which existed at the time the statement complained of was published.” Opinions are further protected as “privileged statements” if they appear in a publication of public interest, in a peer-reviewed scientific or academic journal, or if the defendant reasonably believed that the statement was in the public interest.

The Silha Bulletin has a detailed discussion of the new reforms here.

Update on investigation of effects of "energy drinks": attorneys general claim company that makes "5-Hour Energy" is withholding documents

As you know, there has been a lot of attention during the last few months on whether so called "energy drinks" are dangerous - particularly to children.  (Go here, here, here, here, here, here, here, here, here, here, here, here, here, and here for some of my previous posts on this topic.)

Now, here is the latest: As part of a of a 33-state investigation into the safety and marketing claims of 5-Hour Energy, several attorneys general have claimed that the maker of 5-Hour Energy is withholding vital information that is necessary for the ongoing investigation.  To gain access to those documents, Oregon Attorney General Ellen Rosenblum filed a petition last month in Multnomah County Circuit Court calling for an order that would force Living Essentials, LLC, the marketer of 5-Hour Energy, to hand over complete documents that the attorney general’s office has been requesting since January 2013. The energy drink maker countered by asking another judge to set the demand aside claiming that the only data it has failed to provide is proprietary information regarding the amounts of certain ingredients contained in the products, arguing that release of that information could benefit competitors.  For more information go to AboutLawsuits.

Monday, January 6, 2014

A few headlines

I am still away, but I am taking some time away from my time away between semesters to catch up with some of the headlines from the last few weeks:

NFL players submit proposed settlement for court approval in concussion injury litigation. Details and discussion here (which includes a link to the 350 page proposed settlement itself) and here.

Reassurances that Lawyer Would Fix Mistake Do Not Toll Legal Malpractice Statute of Limitations in Tennessee.

Sixth Circuit Affirms Preemption Defense in Suit against Branded and Generic Drug Companies.