Many states require an “affidavit of
merit” in order for a plaintiff to bring a malpractice claim (medical or legal). The blog Professional Liability Matters has prepared this 50 state survey-table with the relevant information.
One interesting question to ask is whether a claim against a professional for a different cause of action, such as a breach of fiduciary duty or an intentional tort, would require the use of a certificate of merit. Some courts have held that it would not.
UPDATE (1/27/16): In relation to the last point above, here is the most recent development. Just a few days ago, in Perez v. Zagami, LLC, 2016 BL 7198, N.J. Super. Ct. App. Div., No. A-3268-14T2, 1/12/16, the court held that the New Jersey statute that requires malpractice plaintiffs to file an
affidavit of merit attesting to the viability of the complaint doesn't
apply to a lawsuit accusing an attorney of malicious use of process. For more on the case go here.
Wednesday, January 27, 2016
Sunday, January 24, 2016
Comment on most recent version of a no-fault "patient compensation system" to eliminate medical malpractice lawsuits
Attempts to find ways to eliminate the rights of victims of medical malpractice are nothing new. Over the years, many organizations have tried, sometimes successfully, to either eliminate the right to sue, or to make it more difficult to sue or to limit the amount available for compensation. Most of the most radical proposals, however, have failed. For many stories on this subject click on the "medical malpractice" label on the right side and scroll down.
But if you want the latest on the topic, go here, where you will find a comment of a new (in terms of timing, not in terms of ideas) attempt to eliminate the right to sue for medical malpractice.
This new proposal is based on something called a “Patient Compensation System” which would completely do away with judges and juries in medical malpractice cases and replace them with a new, centralized government agency made up of political appointees and government bureaucrats representing the medical and business establishments who would award compensation to injured patients based on predetermined schedules.
For more information you can read a new study prepared by the Center for Justice & Democracy which concludes that the proposal would “tilt the legal playing field dramatically in favor of the health care industry" and "ignore patients’ rights to adequate compensation."
For a comment and more information go here.
But if you want the latest on the topic, go here, where you will find a comment of a new (in terms of timing, not in terms of ideas) attempt to eliminate the right to sue for medical malpractice.
This new proposal is based on something called a “Patient Compensation System” which would completely do away with judges and juries in medical malpractice cases and replace them with a new, centralized government agency made up of political appointees and government bureaucrats representing the medical and business establishments who would award compensation to injured patients based on predetermined schedules.
For more information you can read a new study prepared by the Center for Justice & Democracy which concludes that the proposal would “tilt the legal playing field dramatically in favor of the health care industry" and "ignore patients’ rights to adequate compensation."
For a comment and more information go here.
Tennessee Court of Appeals rejects argument that some dogs are dangerous by nature, which would eliminate need to show knowledge of dangerous propensity
Long time readers of this blog might remember my discussion and article on the debate on whether courts should recognized a cause of action against the owner (or possessor) of a pit bull even if there is no evidence that the defendant knew or should have known that the dog had dangerous propensities. Although it is not the rule in many jurisdictions any more, this requirement is very common.
Back in 2012, this was a very hotly debated topic because a court in Maryland decided that a plaintiff could support a claim against the owner of a pit bull based on the argument that the defendant knew the dog was a pit bull. (See here.) In other words, the court held that the nature of the breed was such that simply knowing the dog was of that breed meant the defendant knew or should have known the dog was dangerous. Eventually, the Maryland legislature adopted a statute that changed the state of the law. (See here, here and here.) You can find a copy of the article I wrote on the subject here (which I will be updating soon with a copy of the final, published version).
The issue was again in the news recently, this time in Tennessee. As reported in the TortsProf blog, the Tennessee Court of Appeals affirmed dismissal of a civil claim which asked the court to create a “big dog exception” to the notice requirement.
In the Maryland case, the plaintiff based the argument on the arguably aggressive nature of the breed of the dog. In this case, the plaintiff based the argument on the size of the breed, arguing that “it is common knowledge that Great Danes are an extraordinarily large breed” and “that its size alone placed the Defendant on notice of any dangerous propensity.” The plaintiff also argued that “Great Danes are a suspect class of dog” because they are “a large and naturally dangerous animal, based on size, weight, and strength.”
The court rejected the argument, holding that "we, like the trial court, decline to craft an exception to the long and well established rules in dog bite cases, based solely on a dog’s size or breed" and affirmed the summary judgment based on the lower court's finding that there was no evidence that plaintiff knew or should have known that the dog had any dangerous propensities.
Back in 2012, this was a very hotly debated topic because a court in Maryland decided that a plaintiff could support a claim against the owner of a pit bull based on the argument that the defendant knew the dog was a pit bull. (See here.) In other words, the court held that the nature of the breed was such that simply knowing the dog was of that breed meant the defendant knew or should have known the dog was dangerous. Eventually, the Maryland legislature adopted a statute that changed the state of the law. (See here, here and here.) You can find a copy of the article I wrote on the subject here (which I will be updating soon with a copy of the final, published version).
The issue was again in the news recently, this time in Tennessee. As reported in the TortsProf blog, the Tennessee Court of Appeals affirmed dismissal of a civil claim which asked the court to create a “big dog exception” to the notice requirement.
In the Maryland case, the plaintiff based the argument on the arguably aggressive nature of the breed of the dog. In this case, the plaintiff based the argument on the size of the breed, arguing that “it is common knowledge that Great Danes are an extraordinarily large breed” and “that its size alone placed the Defendant on notice of any dangerous propensity.” The plaintiff also argued that “Great Danes are a suspect class of dog” because they are “a large and naturally dangerous animal, based on size, weight, and strength.”
The court rejected the argument, holding that "we, like the trial court, decline to craft an exception to the long and well established rules in dog bite cases, based solely on a dog’s size or breed" and affirmed the summary judgment based on the lower court's finding that there was no evidence that plaintiff knew or should have known that the dog had any dangerous propensities.
Sunday, January 17, 2016
New report finds FDA is failing to track side effects of drugs it approves
The Government Accountability Office (GAO) recently issued a report on drug safety which concludes that the FDA is approving too many drugs via the fast-track approval processes and then it is
failing to monitor those drugs’ effects on patients to ensure they are
actually safe. AboutLawsuits has more details and links here.
Reports like this one are important because they provide support against the argument that the pharmaceutical industry and its supporters use all the time: that issues related to regulation of drugs should be left to the agency with expertise (ie, the FDA) and should be taken away from the courts. Given that the FDA is underfunded, understaffed and has a history of doing a poor job of overseeing the industry it is supposed to be regulating, the argument is pretty weak.
Reports like this one are important because they provide support against the argument that the pharmaceutical industry and its supporters use all the time: that issues related to regulation of drugs should be left to the agency with expertise (ie, the FDA) and should be taken away from the courts. Given that the FDA is underfunded, understaffed and has a history of doing a poor job of overseeing the industry it is supposed to be regulating, the argument is pretty weak.
Friday, January 15, 2016
Florida Supreme Court rejects the Third Restatement's approach to design defects in product liability cases
I have to confess that I missed this important development when it happened back at the end of October but I am now finally getting to it, so better late than never, I guess.
In a case called Aubin v. Union Carbide Corp., 177 So.3d 489 (Fl 2015), the Florida Supreme Court rejected the Third Restatement’s formulation of design defects and, specifically, the notion that a product can’t be considered defective unless the plaintiff can show a reasonable alternative design. The Court preferred to retain the approach of Restatement (Second).
In this case, even though the Court had adopted and applied the consumer expectation test in prior cases, the lower court adopted the Third Restatement’s formulation of the risk utility test as the legal standard for a design defect claim. According to this standard, as the Court explained, “the plaintiff must demonstrate that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Alternatively, the plaintiff could try to argue that the product design is “manifestly unreasonable,” which in turn would require the plaintiff to show that “the extremely high degree of danger posed by its use ... so substantially outweighs its negligible social utility that no rational, reasonable person, fully aware of the relevant facts, would choose to use ... the product.”
Citing a number of cases from other jurisdictions that also rejected the Restatement (Third), the Court then went on to reject the Restatement (Third), among other reasons because
(1) By introducing foreseeability of the risk to the manufacturer as part of the calculus for design defect and requiring proof of a “reasonable alternative design,” the Third Restatement reintroduces principles of negligence into strict liability. For this reason, according to the Court, the Third Restatement is inconsistent with the rationale behind the adoption of strict products liability.
(2) Besides shifting the emphasis away from strict liability principles, the Third Restatement's risk utility test imposes a higher burden on consumers to prove a design defect than exists in negligence cases – the antithesis of adopting strict products liability in the first place – because the Third Restatement places upon the plaintiff an additional burdensome element of proof, requiring the injured consumer to step into the shoes of a manufacturer and prove that a reasonable alternative design was available to the manufacturer.
(3) The Third Restatement, in some instances, could insulate a manufacturer from all liability for unreasonably dangerous products solely because a reasonable alternative design for that type of product may be unavailable even though “in some instances, a product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available.”
(4) Many states have expressed concerns about, or disapproved of, the Third Restatement, as it pertains to strict products liability.
(5) The requirement of a reasonable alternative design in the Third Restatement has been harshly criticized and has not become the rule in the majority of jurisdictions. A majority of jurisdictions do not require a reasonable alternative design in product liability actions.
(6) The Restatement is not a codification of law or necessarily the consensus on the best policy for courts regarding the proper legal standard for strict liability in products liability cases. In fact, while the Third Restatement was intended to restate the law as decided by state courts and state legislatures, various courts have criticized its discussion of strict products liability, emphasizing that it “goes beyond the law” because “[r]ather than simply taking a photograph of the law of the field,” the Third Restatement attempts to create a framework for strict products liability by urging the adoption of the reasonable alternative design standard and an exclusive risk/utility analysis, notwithstanding that the majority of jurisdictions in this country do not require a reasonable alternative design in strict products liability actions.
(7) The Third Restatement is contrary to Florida’s prior precedent. As explained by the Court, “[t]he important aspect of strict products liability that led to our adoption [of the Restatement (Second) in a precedent case] remains true today: the burden of compensating victims of unreasonably dangerous products [should be] placed on the manufacturers, who are most able to protect against the risk of harm, and not on the consumer injured by the product. Increasing the burden for injured consumers to prove their strict liability claims for unreasonably dangerous products that were placed into the stream of commerce is contrary to the policy reasons behind the adoption of strict liability. . .”
In a case called Aubin v. Union Carbide Corp., 177 So.3d 489 (Fl 2015), the Florida Supreme Court rejected the Third Restatement’s formulation of design defects and, specifically, the notion that a product can’t be considered defective unless the plaintiff can show a reasonable alternative design. The Court preferred to retain the approach of Restatement (Second).
In this case, even though the Court had adopted and applied the consumer expectation test in prior cases, the lower court adopted the Third Restatement’s formulation of the risk utility test as the legal standard for a design defect claim. According to this standard, as the Court explained, “the plaintiff must demonstrate that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Alternatively, the plaintiff could try to argue that the product design is “manifestly unreasonable,” which in turn would require the plaintiff to show that “the extremely high degree of danger posed by its use ... so substantially outweighs its negligible social utility that no rational, reasonable person, fully aware of the relevant facts, would choose to use ... the product.”
Citing a number of cases from other jurisdictions that also rejected the Restatement (Third), the Court then went on to reject the Restatement (Third), among other reasons because
(1) By introducing foreseeability of the risk to the manufacturer as part of the calculus for design defect and requiring proof of a “reasonable alternative design,” the Third Restatement reintroduces principles of negligence into strict liability. For this reason, according to the Court, the Third Restatement is inconsistent with the rationale behind the adoption of strict products liability.
(2) Besides shifting the emphasis away from strict liability principles, the Third Restatement's risk utility test imposes a higher burden on consumers to prove a design defect than exists in negligence cases – the antithesis of adopting strict products liability in the first place – because the Third Restatement places upon the plaintiff an additional burdensome element of proof, requiring the injured consumer to step into the shoes of a manufacturer and prove that a reasonable alternative design was available to the manufacturer.
(3) The Third Restatement, in some instances, could insulate a manufacturer from all liability for unreasonably dangerous products solely because a reasonable alternative design for that type of product may be unavailable even though “in some instances, a product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available.”
(4) Many states have expressed concerns about, or disapproved of, the Third Restatement, as it pertains to strict products liability.
(5) The requirement of a reasonable alternative design in the Third Restatement has been harshly criticized and has not become the rule in the majority of jurisdictions. A majority of jurisdictions do not require a reasonable alternative design in product liability actions.
(6) The Restatement is not a codification of law or necessarily the consensus on the best policy for courts regarding the proper legal standard for strict liability in products liability cases. In fact, while the Third Restatement was intended to restate the law as decided by state courts and state legislatures, various courts have criticized its discussion of strict products liability, emphasizing that it “goes beyond the law” because “[r]ather than simply taking a photograph of the law of the field,” the Third Restatement attempts to create a framework for strict products liability by urging the adoption of the reasonable alternative design standard and an exclusive risk/utility analysis, notwithstanding that the majority of jurisdictions in this country do not require a reasonable alternative design in strict products liability actions.
(7) The Third Restatement is contrary to Florida’s prior precedent. As explained by the Court, “[t]he important aspect of strict products liability that led to our adoption [of the Restatement (Second) in a precedent case] remains true today: the burden of compensating victims of unreasonably dangerous products [should be] placed on the manufacturers, who are most able to protect against the risk of harm, and not on the consumer injured by the product. Increasing the burden for injured consumers to prove their strict liability claims for unreasonably dangerous products that were placed into the stream of commerce is contrary to the policy reasons behind the adoption of strict liability. . .”
Monday, January 11, 2016
Tort litigation quiz
Over at the PopTort, the blog of the consumer advocates at the Center for Justice & Democracy, you can find the latest Torts litigation quiz. You can read the questions below. To review the answers and read the commentary you will have to go to their blog, here. The answers are based on a study conducted by the National Center for State Courts (NCSC). The findings of this study are not surprising to anyone who has followed this kind of information, but they are based on a small sample of courts. But, for whatever it is worth, the information is there.
Also, for whatever it is worth, I answered all the questions correctly, although for one of them I would have thought the answer would have been different. I won't tell you which question, so I don't spoil it for you but it was a question for which I knew the answer would be a low number, so I picked the lowest number available in the options - which was the correct option. But I would have thought the number would have been even lower.
1. What percentage of civil cases are “tort” lawsuits?
a. Less than 10%
b. 25%
c. 50%
d. More than 75%
2. What types of lawsuits constitute most of these “contract” cases that are flooding the courts? Are they:
a. Consumers suing banks?
b. Consumers suing credit card companies?
c. Consumers suing health insurance companies?
d. None of the above
3. What percentage of tort cases are decided by judges or juries?
a. 80%
b. 50%
c. 25%
d. 15%
4. What percentage of the civil caseload is made up of those high-profile medical malpractice or products liability cases?
a. Less than 1%
b. 10%
c. 40%
d. 75%
5. For the ones that do reach a jury, seventy-five percent of tort judgments are:
a. Less than $5 million
b. Less than $1 million
c. Less than $100,000
d. Less than $20,000
e. None of the above
f. All of the above
Also, for whatever it is worth, I answered all the questions correctly, although for one of them I would have thought the answer would have been different. I won't tell you which question, so I don't spoil it for you but it was a question for which I knew the answer would be a low number, so I picked the lowest number available in the options - which was the correct option. But I would have thought the number would have been even lower.
1. What percentage of civil cases are “tort” lawsuits?
a. Less than 10%
b. 25%
c. 50%
d. More than 75%
2. What types of lawsuits constitute most of these “contract” cases that are flooding the courts? Are they:
a. Consumers suing banks?
b. Consumers suing credit card companies?
c. Consumers suing health insurance companies?
d. None of the above
3. What percentage of tort cases are decided by judges or juries?
a. 80%
b. 50%
c. 25%
d. 15%
4. What percentage of the civil caseload is made up of those high-profile medical malpractice or products liability cases?
a. Less than 1%
b. 10%
c. 40%
d. 75%
5. For the ones that do reach a jury, seventy-five percent of tort judgments are:
a. Less than $5 million
b. Less than $1 million
c. Less than $100,000
d. Less than $20,000
e. None of the above
f. All of the above
Sunday, January 10, 2016
Kansas Supreme Court reaffirms its position that criminal defendant does not have to show actual innocence to support a malpractice claim, but does have to get post conviction relief
The majority of jurisdictions that have addressed the question, have
held that, in order to support a legal malpractice claim against a
lawyer whose negligence arguably causes the defendant to be wrongfully
convicted, a criminal defendant has to show the he or she was actually
innocent. A few jurisdictions do not impose any requirements on such
plaintiffs other than those imposed by the law of torts in any
malpractice claim. But there is a compromise position in between these
two, and the Supreme Court of Kansas recently reaffirmed its adherence
to it.
In a case called Garcia v. Ball, available here, the court reaffirmed its position in an older case stating that the "rule does not require a criminal defendant to prove actual innocence in order to bring a legal malpractice claim against his or her criminal defense attorney.... But the rule does require "the lifting of criminal liability by vacation or reversal of a conviction, regardless of whether the vacation or reversal is compelled by a successful assertion of actual innocence.""
In Garcia, the lower court accepted Garcia's stipulation to violating probation, revoked his probation, and remanded Garcia to the custody of the Kansas Department of Corrections to serve his originally imposed prison term. But the journal entry of sentencing erroneously directed that Garcia was subject to postrelease supervision following his probation revocation, which ultimately led to Garcia serving more time in prison than his original sentence. Garcia sued his former lawyer (Ball) and the case was eventually dismissed. On appeal, the court held that Garcia has met the requirement of showing post conviction relief and reversed:
In a case called Garcia v. Ball, available here, the court reaffirmed its position in an older case stating that the "rule does not require a criminal defendant to prove actual innocence in order to bring a legal malpractice claim against his or her criminal defense attorney.... But the rule does require "the lifting of criminal liability by vacation or reversal of a conviction, regardless of whether the vacation or reversal is compelled by a successful assertion of actual innocence.""
In Garcia, the lower court accepted Garcia's stipulation to violating probation, revoked his probation, and remanded Garcia to the custody of the Kansas Department of Corrections to serve his originally imposed prison term. But the journal entry of sentencing erroneously directed that Garcia was subject to postrelease supervision following his probation revocation, which ultimately led to Garcia serving more time in prison than his original sentence. Garcia sued his former lawyer (Ball) and the case was eventually dismissed. On appeal, the court held that Garcia has met the requirement of showing post conviction relief and reversed:
Accordingly, Garcia was not required to prove that he was actually innocent of either the crime for which he was illegally sentenced to a postrelease supervision term or the new crime that triggered his imprisonment for violating the unlawfully imposed postrelease supervision. Instead, Garcia was required to obtain post-sentencing relief from the unlawful sentence. That "exoneration" occurred when the district court acknowledged that it had imposed an illegal sentence by entering a nunc pro tunc order, setting aside the illegal postrelease supervision term.
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