Tuesday, October 17, 2017

Injured Spectator vs The Chicago Cubs; Will This Be the Case That Establishes a New Rule?

Readers of this blog probably saw the news that a baseball fan has sued the Chicago Cubs seeking compensation for the loss of sight in his left eye after he was hit by a foul ball during a Cubs game earlier this year.  This question has been litigated many times in many jurisdictions and, as it stands right now, the law favors baseball stadium owners.

In most cases, the discussion of the courts has focused on either whether the defendants have a duty to the spectator or whether the spectator assumed the risk of injury by choosing to sit close to the field.  Often, whether the issue is defined as the former or the latter, court and commentary refer to the analysis as one involving "the baseball rule," which is really a reference to the result of the application of the analysis. The case against the Cubs is different, however, because in Illinois, there is a specific statute that limits the possible liability of baseball stadium owners. 

I wrote a short comment on this a few days ago in The John Marshall Law School Law Review blog.  You can read it here.

Friday, October 13, 2017

Lawsuit filed against manufacturers of "bump stocks" in response to Las Vegas shooting

The Torts Prof blog is reporting that witnesses to the mass shooting in Las Vegas have filed a would-be class action lawsuit against manufacturers of bump stocks, the device used by shooter Stephen Paddock to accelerate gunfire from his semi-automatic weapon.  Causes of action include negligence, infliction of emotional distress, products liability, and public nuisance.  The ABA Journal has more details.

Unfortunately, given the state of the law, the lawsuit is not likely to be successful.  Again, The ABA Journal has more information here.

Saturday, September 2, 2017

Court dismisses Sarah Palin's defamation claim against the New York Times

Back in June, the New York Times published an editorial that stated, among other things that "In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin's political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs."   At some point later, the newspaper published several corrections related to the op-ed piece, and Palin sued for defamation.

In order to support the claim, Palin would have to show that the statements are false, and, more importantly, because she is a public figure, she would have to prove "actual malice" on the part of the defendant, which means she would have to show the defendant acted with knowledge of falsity or reckless disregard for the truth."  This is a very difficult standard to meet and last week the court decided she would be unable to do so and dismissed the claim.

As one comment on the decision put it, "[a]n examination of the run-up to the publication of the erroneous op-ed showed there was no actual malice in the New York Times' assertions -- just some really bad op-edmanship. The statements were provably false, which is key to defamation claims, but there also has to actual malice." 

You can read the judge's order here.   It provides a relatively short discussion of the basic elements of a defamation claim including the requirement that the statement be "of and concerning" the plaintiff, a mention of the group libel doctrine, a discussion of how to distinguish between fact (actionable) and opinion (not actionable), and the issue of actual malice.

For more on the story go to:  NPR, the ABA Journal online and TechDirt.

Wednesday, August 2, 2017

Two new short articles on the Alien Tort Statute (and the case pending before the US Supreme Court)

As I mentioned a few days ago, the Supreme Court will be addressing the issue it was supposed to decide but didn't in  Kiobel v. Royal Dutch Petroleum : whether corporations can be held liable under the ATS in a case called Jesner v. Arab Bank.  [For background history and the discussion surrounding Kiobel, go here, and scroll down.  There are two or three pages of posts, dating back to 2010.]

In anticipation of the decision in Jesner, which will be argued before the Court on October 11, the SCotUS blog has published two short articles on the issue presented by the case.  Both are written by people who also authored amicus briefs in the case.

The first one, available here, is written by the lawyer who represents the Chamber of Commerce.  Not surprisingly argues that the Court should rule for the defendants and hold the ATS bars claims against corporations.  It concludes that
ATS suits against corporations, in short, not only flout clearly enacted congressional policy, but also carry heightened risks of the very foreign-policy and other practical consequences that the Supreme Court has warned federal courts to avoid in fashioning federal common law and that the ATS itself was enacted to prevent. The Supreme Court should hold in Jesner that the federal-common-law cause of action authorized by the ATS does not extend to suits against corporations to enforce modern human-rights norms.
The second article, available here, is written by the lawyer for financial regulation scholars and former government officials who filed a brief in support of the plaintiffs, argues that the Court should hold that the statute does not ban claims against banks.  It concludes that
...Allowing liability for banks would be consistent with the broader policy goal of ensuring a safe and terrorist-financing-free financial system. Considering the importance of anti-terrorist financing and anti-money laundering to the stability and integrity of the U.S. financial system, banks should be held liable under the ATS for knowing and willful activity allowing terrorist groups access to U.S. dollar clearing. Indeed, creating a loophole for dollar clearing of terrorist financing would be exactly contrary to U.S. anti-terrorism policy. Establishing a hostile environment for terrorist financing is a longstanding and fundamental policy goal of the United States, and using private suits to find banks liable for knowing and willful illicit clearing will directly promote that goal.
Both articles have links to the amicus briefs, and all the documents in the case, as well as links to the articles and updates are available here.

Tuesday, July 25, 2017

Summary of the latest case on the Alien Tort Statute before the Supreme Court

Over at SCotUS blog, Amy Howe has published a good summary of the latest case on the Alien Tort Statute before the Supreme Court.  You can read it here.  The case is Jesner v. Arab Bank which addresses the question the Supreme Court was supposed to decide but didn't in  Kiobel v. Royal Dutch Petroleum :  whether corporations can be held liable under the ATS.

For my comments on Kiobel and other issues related to the Alien Tort Statute, go here and scroll down.

Sunday, July 9, 2017

Chemerinsky on Supreme Court cases that affect the rights of injured victims to seek compensation in court

Erwin Chemerinsky has published a short comment on two recent Supreme Court opinions that have the effect of closing the courthouse doors to those who have suffered serious injuries. You can read the comment here.

Wednesday, July 5, 2017

Appeals Court in Wisconsin finds med mal cap unconstitutional

The intermediate appeals court in Wisconsin has ruled that the state's $750,000 cap for non-economic damages in medical malpractice cases is unconstitutional.  The TortsProf blog has a summary of the court's conclusion here.

Thursday, June 29, 2017

While the country is distracted by tweets, investigations, and failed Senate bills, the House votes to federalize medical malpractice

In my most recent post I reported that the ABA opposed a bill currently under consideration by the House of Representatives which would impose a cap on state medial malpractice claims.  Today, I unfortunately have to report that the House voted in favor of the bill.  If enacted into law, it will impose a $250,000 limit on non-economic damages in med mal suits that involve coverage provided through a federal program such as Medicare or Medicaid or to coverage that is partly paid by a government subsidy or tax benefit.  In addition, the bill would curb attorneys' fees and impose a three-year statute of limitations (with some exceptions).  More on the story here.

In response to the vote, the Alliance for Justice President released the following statement: “While Senate Republicans are busy trying to destroy our health care system, their counterparts in the House are hard at work trying to undermine patients’ access to justice if they are harmed by a health care provider. The mean-spirited bill rammed through today would establish a nationwide cap of $250,000 on so-called non-economic damages suffered by patients. That cap would apply even in cases of deliberate harm to patients, including such nightmare scenarios as an assault in a nursing home. This bill is nothing more than a giveaway to the pharmaceutical and health care industry, at the expense of the most vulnerable Americans.”

For a short comment on how hypocritical it was for Republicans to support the bill, because it goes against "conservative principles" that Republicans like to say they support go here.

Sunday, June 18, 2017

ABA opposes federal bill that would impose caps in med-mal cases

The ABA Journal is reporting that the ABA recently sent a letter to House lawmakers urging them to reject a bill that would impose a  cap of $250,000 on non-economic damages in medical malpractice cases.  You can read the letter here.

The bill, ironically known as the Protecting Access to Care Act of 2017, also would eliminate joint and several liability and would authorize courts to reduce contingent fees. The ABA opposes those provisions as well.

Were it to become law, this bill would be terrible for victims of medical malpractice which is now the third most common cause of death in the US (also here, here and here).  As all other tort reform efforts its purpose is to make it difficult, if not impossible, for victims to be able to recover for their injuries.  There is no support for the proposition that bills like this one will reduce costs of medical care, or result in better care and their implementation impact those who need protection the most:  the elderly, the poor, children, etc.

Hopefully, legislators will do the right thing and follow the ABA's advice.  Otherwise, give it some time and we will see medical malpractice move up from the third spot in the list of causes of death. 

Saturday, June 10, 2017

Florida Supreme Court strikes down statute imposing caps on medical malpractice cases -- UPDATED

The TortsProf blog is reporting that a sharply divided Florida Supreme Court recently struck down a 2003 statute that imposed a cap on non-economic damages in medical malpractice cases.  The court concluded that "the caps on noneconomic damages … arbitrarily reduce damage awards for plaintiffs who suffer the most drastic injuries” and that "because there is no evidence of a continuing medical malpractice insurance crisis justifying the arbitrary and invidious discrimination between medical malpractice victims, there is no rational relationship between the personal injury noneconomic damage caps … and alleviating this purported crisis. Therefore, we hold that the caps on personal injury noneconomic damages … violate the Equal Protection Clause of the Florida Constitution.”

I agree this is the correct decision which is, of course, good news for victims of medical malpractice in Florida.  Unfortunately, as reported here over the last few weeks, many other jurisdictions are heading in the opposite direction, looking for ways to make it more difficult for victims to be able to recover for their injuries.

UPDATE 6/18/17:  AboutLawsuits has a story here.

Sunday, June 4, 2017

Article on the Trump administration and tort reform

Over at HuffPost, Joanne Doroshow, executive director of the Center for Justice and Democracy at NYU Law School, has posted a short article on the Trump administration's policies as they relate to tort reform and medical malpractice issues.  You can read the article here.

Monday, May 29, 2017

Nearly a third of drugs approved by the FDA between 2001 and 2010 had major safety issues

A prevalent argument used by the pharmaceutical industries in product liability cases is that the courts (and the judicial system) are not the proper venue to determine whether prescription drugs are dangerous. According to the argument, that type of decision should be left to the "experts" - in this case, to the FDA.  Plaintiffs and consumer advocates counter that the FDA is not efficient in its work and that, if anything, the best plan is to have a combination of mechanisms to improve the safety of the products in the market.

A new study by the Yale School of Medicine now provides support for those who argue that the FDA procedures are not particularly adequate when it comes to determining the safety of prescription drugs.  It found that nearly a third of those approved from 2001 through 2010 had major safety issues.  This information is particularly important now that the Trump administration has made it clear it prefers to eliminate regulation rather than strengthen it.

For more information on the recent study go here.

Tuesday, May 16, 2017

Oklahoma legislature enacts bill (possible without realizing it) that may make it the first state to impose a "loser pays" rule in civil litigation

Above the Law is reporting that the Oklahoma legislature recently enacted a bill, now on its way to the Governor's signature, that may make the state the first American jurisdiction to impose a "loser-pays" rule in litigation.

The key provision, hidden in a bill supposedly about the rights of child abuse victims, lists a number of different types of civil claims, including torts, and holds that "[i]n any action brought . . . the court shall award court costs and reasonable attorney fees to the prevailing party."

One reason American jurisdictions have rejected this approach is that it discourages possible claimants from pursuing their claims for fear that they may end up with more debt.  Instead, the use of contingency fees provides a way for claimants to get access to representation and if the claim does not work it is the lawyer, who is more likely in a better position to take the loss, who might be financially affected by it.

Yet, "tort reformers" have always advocated for a 'loser pays' approach arguing it would eliminate frivolous lawsuits, although, anyone who knows anything about tort reform knows that the goal is not to get rid of frivolous lawsuits but to discourage valid ones.

Maybe, now that someone realized what is really in the bill, the Governor can be convinced not to sign it.  Otherwise, litigation will be very different in Oklahoma than in the rest of the US in the near future.

Monday, May 8, 2017

More bad news for victims of medical malpratice; more tort reform bills, this time in Iowa -- UPDATED

For almost two months now all my posts have been about medical malpractice reform bills.  Today's update comes from Iowa where the state Senate has passed a tort reform bill (Senate File 465) which  includes provisions capping awards for non-economic damages at $250,000, requiring a "certificate of merit" to screen out litigation and establishing standards for expert witnesses.  There is more on the story here.

Apparently, the reforms were based on the discredited argument that they are needed to either keep doctors from leaving the jurisdiction or to attract doctors to the jurisdiction, an argument that is not supported by available empirical evidence.   Also, the provision regarding "certificates of merit," as usual, was supported by the argument that it is a good way to screen out frivolous litigation.  And, again, this argument is misleading because even though it may have that effect, the real goal of the provision is to make it more difficult for plaintiffs to be able to bring non-frivolous litigation.  There are plenty of other mechanisms in place already that prevent frivolous litigation.

UPDATE (4-15-17):  The TortsProf blog is reporting that the Iowa House has now passed the med mal reform bill, but fortunately, it was amended so it is not as bad as originally proposed.  The amendment eliminated the "hard cap" and created an exception that would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”  Because of the this amendment, the House bill and the Senate bill will have to be reconciled.

UPDATE (4/28/17):  The Senate passed a new bill adopting the House's version.  The bill now goes to the governor who is expected to sign it.  More on the story here.

UPDATE (5/8/17):   Last Friday, Iowa Governor Terry Branstad signed into law a bill for med mal cases requiring a certificate of merit and capping non-economic damages at $250,000 except in cases involving permanent impairment, disfigurement, or death.  The Des Moines Register has the story.  (Thanks to the TortsProf blog for this update.)

Wednesday, May 3, 2017

New England Journal of Medicine warns that med mal reform efforts will not likely affect cost of healthcare

Those of you who follow the debate on medical malpractice reform already know this, but it is worth repeating.  The goal of med mal reform efforts is to make it difficult for victims to be able to recover for their injuries, and have very little to do with the cost of healthcare.  This has been the conclusion of multiple studies over the years, and today the New England Journal of Medicine is again adding its voice to the debate.  It is warning that proposed tort reform efforts introduced by Republican lawmakers would cut deeply into consumers’ rights to pursue medical malpractice lawsuits, and are unlikely do much to lower the cost of healthcare.

I have posted lots of links to numerous studies that reach similar conclusions in the med mal section of this blog.  You can go here and scroll down to find the stories.  For some of those stories go here, here, here, here, here, and here.

For more on the NE Journal of Medicine new article go here.

Saturday, April 29, 2017

US Supreme Court denies cert in ignition switch defects case

Last year, the Court of Appeals for the Second Circuit ruled against General Motors' argument that it could not be liable for damages caused by ignition-switch defects because the products were made before it formed a new company following Chapter 11 bankruptcy.  For more information on the case go here and scroll down.  This decision was appealed to the Supreme Court and this week it was reported that the Court has refused to hear the appeal.  Now, the currently pending claims against GM will move forward. The claims have been estimated to be worth between $7 billion and $10 billion.

Is a dog a product?

The Abnormal Use blog is reporting on an interesting story about a lawsuit against a Humane Society pet shelter based on the fact that a dog adopted from the agency bit a 15-month old child. What is interesting is that the cause of action is based on product liability principles.  The case apparently argues that the agency failed to warn the Greene’s of the risks of transitioning a dog from a shelter to a home and of a dog’s potential dangerous propensities. 

Although it might seem odd to think of a dog as a product at first - mostly because it is not "made" or "manufactured" - dogs are "things" when it comes to the law.  Most jurisdictions will not grant more than their market value in a claim against someone who kills a pet, for example.  Also, animals or all sorts are bought and sold in the market, and not all as pets.  For this reason, I would not be surprised if there are other cases that consider animals as products in the context of products liability, although I can't say I remember having seen any lately other than cases involving dead animals, aka food for humans.

Yet, I agree with Abnormal Use that there does not seem to be a need to use strict liability to support the claim.  A simple negligence claim for lack of proper warnings would be sufficient. 

If the claim were to be argued as a negligence claim for failure to warn, though, there is another interesting issue looming over the case:  whether the defendant should have warned the consumer that the dog was a pit bull mix.  This opens the door to the debate on whether knowledge that the dog was of a particular specific breed creates a duty to warn - something I have written about before many times.  The generally accepted view is against imposing such a duty, but there are cases that have recognized it and there is credible (at least to me) evidence that suggests the argument has some validity to it.

The case was just filed recently, and my guess is that like most cases it will be settled quietly.  But who knows, maybe it will work its way through the courts and bring up the issues to the forefront again.  We'll have to wait and see.

Tuesday, April 4, 2017

US Supreme Court agrees to hear case on the Alien Tort Statute to decide whether Corporations can be liable

It has been more than two years since I have posted anything related to the Alien Tort Statute because, well, with the 2013 US Supreme Court decision in Kiobel v Royal Dutch Petroleum the court pretty much made the statute irrelevant.  That case raised the issue of whether the statute could be used to support claims against corporations. However, in a surprising move, the Court asked the parties to brief a different issue (extraterritoriality), and eventually decided the case based only on that issue.  For all the background stories, go to the Alien Tort Statute section of the blog here.

In 2014, the Court of Appeals for the 9th Circuit decided one case on the ATS holding that  holding that corporations, and not just state actors, can face liability for violations of universal norms under the Alien Tort Statute.  At the time, I thought that case would open the door for a renewed discussion of the issue, but the case did not reach the Supreme Court.

But now the wait is apparently over.  Just a few days ago, the U.S. Supreme Court agreed to hear a case in which the issue is precisely whether corporations can be liable under the Alien Tort Statute.  Stay tuned!

For more information and some links on the case (Jesner v. Arab Bank) go here.  For up to date coverage and access to all the documents related to the case go to the SCotUS blog here.

Thursday, March 23, 2017

Update on Congress' work on med mal tort reform

Earlier this month, I wrote a note about efforts in Congress to pass tort reform bills that could have seriously negative/damaging effects on the ability of victims of medical malpractice to recover for injuries.  Today, the PopTort has an update here. The article is called "Congress Moving to Protect Doctors Who Abuse and Assault Children."  It sounds like an exaggeration, but if you read the article you'll see why it is not. 

Saturday, March 11, 2017

Accreditation Council for Graduate Medical Education will allow interns to work up to 28 hours without a break

At a time when it is being reported that medical errors is now the third leading cause of deaths in the US, the maximum workday for first-year medical residents just got substantially longer. The group that sets rules for training doctors announced Friday it will be scrapping the 16-hour cap on shifts worked by doctors who have just graduated from medical school.  As of July 1, the Accreditation Council for Graduate Medical Education will allow these first-year residents, also known as interns, to work 24 hours without a break — and sometimes as long as 28, if a particular transition between doctors demands it.  NPR has more on the story here.

The Associated Press notes the American Medical Student Association and the Committee of Interns and Residents oppose the change.  Also, Dr. Michael Carome, director of Public Citizen's Health Research Group has stated that "[s]tudy after study shows that sleep-deprived resident physicians are a danger to themselves, their patients and the public," and that "[i]t's disheartening to see the ACGME cave to pressure from organized medicine and let their misguided wishes trump public health."

Sunday, March 5, 2017

Tort reform efforts under way in Congress

Now that Republicans control the Senate, the House and the White House, it is not surprising to hear about new efforts to interfere with the rights of injured plaintiffs in the name of tort reform.  Recently, the House Judiciary Committee approved legislation capping damages in medical malpractice cases.  The vote was 18-17.  The federal legislation would cover individuals who are insured under Medicare, Medicaid, veterans or military health plans, and the Affordable Care Act, and could also impact people covered under COBRA or health savings plans.

Given that medical errors is now the third leading cause of deaths in the US, this is very important stuff.

The bill is based on the false premises and allegations that have been proven wrong time and time again, but that continue to be used in support of attempts to make it more difficult for injured victims to be able to recover for their injuries.  Some of these myths include the allegation that litigation costs result in more expensive services and higher insurance costs.  For a lot of information on these types of allegations and the studies that refute them you can go to the medical malpractice and tort reform sections of this blog and scroll down.  For a short critique of the house bill go here.

For more information about this and other attempts to push “tort reform” bills through the Republican-led Congress which seek to limit the rights of victims  while protecting large corporations and insurance companies go to  AboutLawsuits.

Update on tort reform in Arkansas -- UPDATED

Feb. 20, 2017:   About 10 days ago, I reported on the tort reform efforts in Arkansas (see below).  Here is an update, as reported in the TortsProf blog: The Arkansas Senate voted 21-10 to send a proposed constitutional amendment involving damage caps to the House for further consideration.  Given that 53 of the 100 members of the House are co-sponsors, it has a good chance of passing.  If the House approves the proposal, it will be on the ballot in the 2018 general election.  Arkansas Online has the story; more coverage here.

UPDATE (3/5/17):  The TortsProf blog has updates here and here.  The house bill doubled the amount of the proposed cap on non economic damages to $500,000.  That's the good news.  The bad news is that a cap is still a cap.  The new bill must now pass both houses.

Friday, February 10, 2017

Tort Reform efforts in Arkansas; bad news for victims

As reported in the TortsProf blog:

You may recall that last fall the Arkansas Supreme Court struck down a tort reform ballot initiative.  It's back.  The Arkansas Times reports:
A proposed amendment to the Arkansas Constitution filed last week in the Senate seeks to limit the amounts that can be awarded to claimants in civil actions, such as medical malpractice lawsuits. If Senate Joint Resolution 8 is approved by the General Assembly — and with a long list of co-sponsors, it seems likely to pass — it would appear before voters on the 2018 ballot. Sen. Missy Irvin (R-Mountain View) is the lead sponsor.
Like the so-called "tort reform" measure on the 2016 ballot (which was disqualified by the state Supreme Court not long before the election), SJR 8 would place a cap of $250,000 on noneconomic damages, meaning compensation for hard-to-quantify personal losses such as pain and suffering. The proposed amendment also places a cap on punitive damages, though that ceiling is more flexible. But SJR 8 also would give the legislature control over the rules of pleading, practice and procedure in the judicial branch, thus taking power away from Arkansas courts and giving it to the General Assembly.

Thursday, February 9, 2017

Med Mal quiz


True or False:

Medical malpractice cases represent less than 5 percent of all state tort cases.

Medical malpractice insurance claims have dropped by half since 2003, and doctors are paying less for malpractice insurance today than they did in 2001, even without adjusting for inflation.

Medical malpractice insurance industry profits must be suffering!

Medical malpractice lawsuits put physicians at a significant risk of insolvency or personal bankruptcy.

When a state caps damages, health care costs related to physician spending (Medicare Part B) drops.

Doctors in high-risk specialties like neurosurgical spine surgery, who practice in states that have limited patients’ rights to sue, order significantly fewer tests and procedures because they are less likely to be sued (i.e., less “defensive medicine).

For the answers to these and other important and interesting questions go to The PopTort.

Wednesday, February 1, 2017

New article on the effect of artificial intelligence on tort law; should we change the standard of care to what a reasonable computer (programmer) would have done under the circumstances?

Ryan Abbott, professor of law and medicine, has written an article in which he discusses changes in technology and how they might affect tort law. Abbott appears to be the first to suggest that tort law should treat artificial intelligence (AI) machines like people when it comes to liability issues. Also, he suggests that the standard of care used to evaluate human conduct should be based on the competency of a computer (AI) (assuming, of course, that the AI proves to be consistently safer than a human being). This means that defendants' conduct would no longer be compared to what a hypothetical, reasonable person would have done under the circumstances, but to what a computer would have done, which, according to the author, "would benefit the general welfare.” The full article is here.

The proposition raises some very interesting issues, starting with whether it is valid to assume that a computer can always make better choices than a human, and whether a human has the capacity to make the choices a computer would make.  And by the way, let's not forget that computers don't think.  They are programmed to think; by a human programmer.  How should that factor into the equation?

Spoiler alert:  If you have not watched the movie Sully, stop reading right now.  Watch the movie, then come back. Otherwise, go on...
.
.
.
.
.
.
.
.
.
This was an issue in the movie Sully.  If you recall, the movie tells the story of the investigation regarding the decision by Captain Sully to "land" an airplane in the Hudson river rather than to do what a computer plan would have suggested - to turn around and try to get back to one of two nearby airports.  Sully, as he put it, "eye-balled" it and decided he would not have enough time.  He used his human intuition and experience to determine what was "reasonable" under the circumstances.  The computer, with the benefit of no real time pressure, fear and human emotion concluded that was the wrong course of action and that it would have been not only possible but safer to fly to an airport.  In the movie, and I assume that's what happened in real life, Sully convinced the FAA to alter the test to include some of the human aspects of the decision making process.  Once that was done, the result of the test was different.

Watch the movie.  Think about it.  Get back to me.    


Thanks to the TortsProf blog for the link to the article.

Tuesday, January 31, 2017

Do you remember Katko v Briney (the spring gun case)? Here is the lawyer who represented the defendant!

Way back when you took Torts, your probably read a case discussing whether a property owner can "defend" property from trespassers by using a spring gun.  The case is in every Torts casebook I have reviewed, and Prosser's even has a photo of the defendant.

In any case, the defendant's lawyer was interviewed recently and you can read the interview  here.  The 93-year-old just retired after 66 years of practice.  His reaction when Katko came to him with the case:  "Damn, this will be fun."

Thanks to the TortsProf blog for the link.

Sunday, January 29, 2017

Idaho Supreme Court holds criminal defendant does not have to show actual innocence in malpractice claim against former defense attorney

Just about a year ago I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  A few months later, however, the Washington State Supreme Court reversed the trend by adhering to the majority view and holding that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.

Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian.  In part, the court concluded:
We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . .  Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.
This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted.  I have not done a state by state survey recently, so I don't know for sure.  However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence.  If someone has information about the actual count of how many states follow each approach, please let me know. 

Saturday, January 28, 2017

IL Supreme Court to decide whether fraternity should be liable for injuries to student sufferes injuries after becoming intoxicated at fraternity event

Should the officers, pledge board members of a fraternity or the fraternity itself be liable for the death of a student who becomes intoxicated, loses consciousness, and ultimately dies while participating in a social event at a college fraternity? 

The Illinois Supreme Court has agreed to decide the question as presented in a case called Bogenberger v. Pi Kappa Alpha Corporation.

Like most states, Illinois does not recognize "social host liability" in most cases, but it does recognize possible liability under a statute called the Anti-Hazing Act which recognizes possible liability when the victim is required to drink to intoxication to become a member of a club or organization.

For more details on the case and the issues presented, go to The Appellate Strategist.

Monday, January 23, 2017

New study concludes what we knew already: "stronger" med mal laws do not result in better care

A new study from Northwestern's Feinberg School of Medicine has concluded that stronger medical malpractice laws do not translate to better care.  The TortsProf blog has a link here. This, of course, is not news to anyone who has followed the issues related to med mal law and the attempts to "reform" it.  There are multiple articles and books that discuss the evidence that debunks the myth of a med mal crisis and the need to eliminate the rights of injured victims to recover for their injuries.  For more on the subject you can go the section on medical malpractice on this blog and scroll down.  You will find many stories, links and information on the subject.

Tuesday, January 17, 2017

Alabama Supreme Court reaffirms ruling that recognized a cause of action for the wrongful death of a fetus before viability, adopting view that fetus is a "person" from moment of conception

The Alabama Supreme Court recently unanimously reaffirmed its 2011 ruling that recognized a cause of action for the wrongful death of an embryo even before it was a viable fetus.  In this case, the mother lost her pregnancy during the first trimester, which means the embryo would not classify as "viable," the most common classification used by jurisdiction to determine whether a cause of action for pre natal wrongful death should be recognized.  The case is called Stinnett v Kennedy and you can find a copy here.

The issue of whether to recognize a wrongful death cause of action is not new and many jurisdiction have addressed it.  Yet there are three different approaches to it.  Some recognize a cause of action for wrongful death regardless of the level of development of the fetus at the time of the accident. Typically, it is said these jurisdictions recognize the cause of action from the moment of conception.  Illinois, for example, follows this approach in its wrongful death statute.  Other jurisdictions do not recognize a wrongful death claim for pre natal death at all, finding that for there to be death there has to be life and life begins when the fetus actually survives (however briefly) independently of the mother.  But, the most common approach is to hold that a cause of action should be recognized from the moment when it can be argued the fetus is "viable," meaning from the moment the fetus could survive independently of the mother.

Back in 2011, the Alabama Supreme Court recognized the cause of action in in part by making reference to a state criminal statute law that recognizes homicide of a person to apply to a fetus, regardless of viability.  (This reminds of a scene in an old episode of the popular TV show Law & Order, which addressed whether the law could be interpreted to say that very thing in a state that did not have such a statute.)  The reference seems relevant since wrongful death statutes usually refer to the death of a "person" so courts have to define at what point someone "becomes" a person.  In Alabama, the statute states it applies to the death of a "minor child" but does not define "minor child."

But back to the new case...  So, since 2011, Alabama recognizes wrongful death claims for the death of a fetus since conception.  The issue in the new case, however, challenged the Court's reliance on the criminal statute which is a different question.

The criminal statute recognizes an exception for unintentional "mistakes" by doctors.  This means that doctors can not be prosecuted criminally for unintentional conduct that results in the death of a fetus.  In other words, the legislature decided not to recognize the criminal prosecution of negligent conduct.

Based on this exception to the criminal statute, the defendant in the case argued that since the statute upon which the civil case seems to be based does not recognize criminal liability for negligence, it would be inconsistent to recognize a civil cause of action for the same conduct.

The Court, however, rejected the argument.  The argument would make sense if the Court had recognized the cause of action based on the criminal statute using a "negligence per se" type analysis.  In such a case, it would be inconsistent to impose what could be "ruinous liability" for conduct that legislature did not consider bad enough to impose criminal liability for it.  But that is not the type of analysis upon which the court based its conclusion.  The Court looked to the statute, not as an expression of a duty in tort law, but merely for guidance to define the word "person."

Monday, January 16, 2017

Connecticut rejects Restatement 3d- Products Liability

In what some are calling the most important Connecticut tort-law decision in decades, last month the Connecticut Supreme Court declined to adopt the Restatement (Third)'s approach to product liability design-defect claims and “reaffirm[ed] its allegiance” to a “true strict liability” standard under §402A of the Restatement (Second).  The case is called Bifolck v. Philip Morris, Inc. (Deb 29, 2016).  The TortsProf Blog has more on the story here. Connecticut is thus the most recent of a number of states to have rejected the Restatement 3d's approach. 

Article on the proposed repeal of the ACA and the rights of injured patients to recover for injuries

Joanne Doroshow. Executive Director or the Center for Justice & Democracy at New York Law School, has published a short article on the connection between the proposed repeal of the Affordable Care Act and tort reform efforts to deprived injured patients of their rights to recover for their injuries.

Ralph Nader on Tort Reform

Here is a recent 10 minute interview with Ralph Nader on "tort reform."