Saturday, April 15, 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.

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.