Family members of student victim in the Michigan school shooting sue school district

The family of Riley Franz, a student who was shot in the neck at Oxford High School last week, is suing the school district and school officials in Oxford, Mich., for $100 million, saying they failed to prevent the mass shooting that killed four students and injured seven people, despite multiple warnings and signs for concern. More on the story here.

The case will hinge on whether the court recognizes that the school had a duty to each student and whether the duty extends to protecting against intentional and criminal conduct.  

The general common law does not recognize a duty to help or to control the conduct of others.  However, over time, courts and the Restatement of Torts have recognized limited duties in certain circumstances.  Some of the most commonly accepted exceptions to the general rule are based on the existence of a special relationship between the person alleged to have a duty to help and the person in need of help.  Traditionally, a special relationship exists when one party depends on the other for protection and the other party has the ability to provide the needed protection.  For this reason, whether a relationship constitutes a special relationship which creates a duty to help or protect has usually been interpreted narrowly.  In fact, for a long time the concept was limited to the relationship between common carriers and their passengers, and between innkeepers and their guests.  However, for a variety of reasons, the notion of special relationships has been extended to include other types of relationships such as those between landlords and tenants, and commercial establishments and their customers.

Likewise, over the years, jurisdictions have shifted their approach on whether schools have a special relationship with their students.  The Restatement (Third) now includes the relationship between a school and its students as one that gives rise to a duty to help.  However, because there are many different types of schools, whose students also vary in terms of age and maturity, the Restatement recognizes that there must be differences in analysis depending on whether the case involves elementary schools or high schools, as opposed to colleges and universities.  As it explains in a comment to the section that recognizes duties based on special relationships, "because of the wide range of students to which it is applicable, what constitutes reasonable care is contextual–the extent and type of supervision required of young elementary–school pupils is substantially different from reasonable care for college students."

Thus, according to this approach, while a school does not have an automatic, broad duty to protect students, certain duties may be triggered under unique circumstances if there is a special relationship between the institution and an individual based on the foreseeability of harm.  

This apparent shift toward imposing a limited duty toward students is not necessarily new, but it seems to be broadening, and given the rising tide of gun violence in schools, it is an important issue for schools of all levels.

I once wrote an article on the possible duty of a college or university to its students.  You can read it here.

Jury awards millions in damages against white nationalists for injuries caused during "Unite the Right" rally in Charlottesville

After a monthlong trial, a jury in U.S. District Court in Charlottesville found the white nationalists liable on four counts in a lawsuit filed by nine people who suffered physical or emotional injuries during two days of demonstrations.  The jury awarded more than $25 million in damages for the injuries suffered after violence that erupted during the 2017 Unite the Right rally.

Lawyers for the plaintiffs invoked a 150-year-old law passed after the civil war to shield freed slaves from violence and protect their civil rights. Commonly known as the Ku Klux Klan Act, the law contains a rarely used provision that allows private citizens to sue other citizens for civil rights violations.

For more coverage you can check:  Politico. Jurist, NPR, ABA Journal, The Guardian, Above the Law, and Democracy Now.

Oklahoma Supreme Court reverses judgment against opioid manufacturers in public nuisance case; but lower court in Ohio finds against pharmacies

About three weeks ago, (on November 7) I posted a story about a decision in California dismissing a claim for public nuisance against several opioid manufacturers and distributors.  Two days after that, the Supreme Court of Oklahoma announced a decision reversing a trial court's judgment against opioid manufacturers in a similar case.  The case is State ex rel. Hunter v. Johnson and Johnson and you can find it here.

These two decisions resulted in an article in the NY Times with the very descriptive title "The Core Legal Strategy Against Opioid Companies May Be Faltering."  You can read it here.

Yet, a couple of weeks later a jury in Ohio found that three retail pharmacy chains created a public nuisance by recklessly distributing vast amounts of pain pills in two Ohio counties.  See here.  I have no doubt this verdict will be appealed. 

Evidently, the litigation over the opioid crisis is a big deal.  There are thousands of pending cases and how each is decided ultimately will influence how the issue is addressed in other jurisdictions.  

If we go by history, the use of public nuisance as a way to address social problems created by distribution of products has not been successful.  The vast majority of cases that attempted it failed, including cases against tobacco companies, lead paint manufacturers and gun manufacturers and distributors.  For this reason, the cases against opioid manufacturers are going to be difficult to win.  But it is possible courts will change their view on this.  I am very interested in following this story which will not go away any time soon.

Here is a short PBS News report that summarizes many of the issues involved in the current litigation.  (While you are at it, if you are interested, you can find many other videos on the topic of the opioid crisis on YouTube.)

More coverage on the verdict against the pharmacy chains here:  AboutLawsuits.com, ABA Journal, NPR, The Guardian, and Courthouse News.

Judge recently issued a "tentative decision" against the plaintiffs in California case related to opioid crisis

If you have been watching "Dopesick" on Hulu or "Goliath" on Amazon Primes, you might be disappointed to hear that this week a judge in California issued a "tentative decision" holding that a lawsuit seeking to hold drug companies liable for the opioid crisis must fail because the plaintiffs didn’t show that false and misleading marketing caused an increase in medically inappropriate prescriptions.  The defendants included Johnson & Johnson, Teva Pharmaceutical Industries, Endo International and AbbVie Inc.’s Allergan unit.

More than 3,300 lawsuits have been filed by state and local governments over the opioid crisis. In the only other case that went to trial, an Oklahoma judge found Johnson & Johnson liable for $465 million. 

The ABA Journal has the full story here.  Reuters has more here, and NPR's coverage is here.

Family members of former NHL player sue the NHL for wrongful death

The family of deceased former Chicago Blackhawks player Steve Montador have sued the National Hockey League in Cook County court, claiming it encouraged Montador to get into fist fights on the ice, which resulted in brain damage before his death.  You can read the complaint here.

NFL revises its position regarding "race norming"

Back in March, and later in May, I wrote about ‘race norming’ and the NFL settlement fund to compensate retired players for the effects of their concussions and other injuries.  See here.  

I am writing today because according to a proposed deal filed Wednesday in federal court, the NFL has agreed to end race-based adjustments in dementia testing that critics said made it difficult for Black retirees to qualify for awards in the $1 billion settlement of concussion claims.  NPR has the story here.

The proposal, which must still be approved by a judge, says that no race norms or race demographic estimates will be used in the settlement program going forward, but it is not clear if the players who will be affected by the new proposal will simply have their tests scored anew, or whether they will have to subject themselves to a new rounds of tests.

To date, about 2,000 players have applied for awards based on arguments of dementia, but only 30% have been approved. 

"Worth" -- Netflix's movie on the 9/11 victim's compensation fund, and interviews with Ken Feinberg

To coincide with the 20th anniversary of the attacks on September 11, 2001, Netflix released a new movie called "Worth".  It is a dramatization of the story behind the 9/11 victims compensation fund, which was administered by Ken Feinberg.  

I recently watched the movie and I recommend it.  It is not a thriller, nor a courtroom drama, but it does a good job of showing the every day inner workings of torts lawyers trying to figure out how to manage the type of compromise it takes to evaluate claims fairly.  And in a case like the 9/11 fund everything was amplified and more difficult.  I don't know how much of the movie was accurate or how much was exaggerated from dramatic purposes, but I can say that the scenes where the lawyers meet with grieving and angry clients are true to life, as any plaintiffs' lawyer will tell you.

Victims compensation fund are not perfect, and we can argue whether they are even fair given how the lawyers calculate compensation, but I think the movie is worth watching (excuse the pun).

In addition, if you have 20 minutes, take a look at Ken Feinberg himself talking about compensation funds in this short talk.

Finally, just a few days ago Feinberg was interviewed for a podcast.  You can listen to the interview by clicking on the play button below or by going here.

In both the talk and the recent interview Feinberg explains why he thinks that victims compensation funds are not a good idea as an alternative to litigation and should not be used generally in the future.

Wrongfully Convicted Man who was Imprisoned for 23 Years Sues Prosecutor

 A recently exonerated man who spent 23 years in prison has filed a complaint against a longtime Mississippi district attorney alleging various violations of the U.S. and Mississippi state constitutions.  The plaintiff was tried six times for the 1996 murders of four people.  The defendant prosecuted all six trials, none of which resulted in a legally valid conviction.  Four of those murder trials resulted in convictions and death sentences but all convictions were vacated due to prosecutorial misconduct.  One of the opinions reversing one of those convictions was written by now Supreme Court Justice Brett Kavanaugh who wrote that “The state’s relentless, determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” 

The background story is very compelling but the case will be an uphill battle.  I expect that the prosecutor will argue qualified immunity and will cite Supreme Court precedent which makes it very difficult if not almost impossible for exonerated plaintiffs to win claims against former prosecutors.  For this reason, cases like this often settle out of court, which provides some level of compensation.

For more information on the case go to Law&Crime, NPR, and Courthouse News Service.

Missouri Supreme Court upholds statutory cap on non-economic damages

I am not happy to report that the Missouri Supreme Court appears to have dropped its hostility towards tort reform. This past July, it upheld a statutory cap on noneconomic damages for actions against health care providers, finding that the cap does not violate one’s right to a jury trial under the Missouri Constitution. See Ordinola v. Univ. Physician Assoc., — S.W.3d –, 2021 WL 3119063 (Mo. July 22, 2021). This ruling most likely brings to an end a decades-long, contentious battle between the Missouri General Assembly and the Missouri Supreme Court over the imposition of statutory caps.  

The Washington Legal Foundation has commentary and analysis here.

Louisiana Court of Appeals rejects wrongful life claims

 About two weeks ago the Louisiana Court of Appeals issued an opinion in which it joins the majority of jurisdictions in rejecting the notion of wrongful life. The case involved a claim brought by the parents of a child born with Down syndrome. They argued that they would have terminated the pregnancy had they been informed of a lab test that showed the child was at risk of being born with the condition. The court affirmed the lower court's dismissal of the claim noting that people with Down syndrome are valued members of society and actively participate in educational, social and recreational activities. 

The case is called Robinson v. Mitchell and you can read the opinion here.

Texas Supreme Court holds that Amazon can not be held liable for injuries caused by products sold by others through Amazon

Back in May I reported that a California Appellate Court held that Amazon can be liable in products liability for products sold by other vendors through Amazon.  As this happened, the exact same issue was certified to the Texas Supreme Court, and now we have a ruling.

In direct contrast with the California Appellate Court, the Texas Supreme Court held that Amazon can NOT be liable because it does not act as a seller.  

If you are looking for good topic for a law review article, here you go!  Now you have two totally opposite views on exactly the same issue.  

In both cases Amazon argued that it should not be liable to the consumer because it operates only as a marketplace, not as a seller in the chain of commerce.  The court in California did not agree, but the court in Texas did.  

The California court found that Amazon operated as a seller, or at least a distributor in the chain of commerce, rather than as a neutral "mall".  Amazon handled all product advertising, payment processing, and communication between the buyer and the manufacturer.   Also, Amazon may be the only member of the distribution chain reasonably available for an injured consumer to recover damages.

The Texas court held that Amazon did not qualify as a seller because it was not engaged in the business of distributing products through ordinary sales or placing products in the stream of commerce through non-sale commercial transactions, even though Amazon controlled the process of the transaction and the delivery of the product.

It is difficult for me to understand how someone who "controls the process of the transaction and delivery of the product" is not placing the product in the stream of commerce, so my best guess is that the issue comes down to the phrase "ordinary sales."  

Courthouse Network News has a short analysis of the case here.

Important Reminder: if you currently get this blog's updates by e-mail, you need to change "carrier"; here's how to do it

Hopefully, by now you don't need this last reminder, but just in case...

In case you have missed the previous posts on this, you should know that Google has announced changes that will affect your ability to get updates by e-mail after July 1 (in two days). So if you currently get your blog stories by e-mail, this message is for you.  

I already posted about this a few days ago and what follows is essentially the same message, including information on how to sign up for updates by e-mail from different websites.  If you already signed up with one of the new services, whatever services you picked should be working already and you do not have read any further.  

So, the bad news is that Google will terminate the system they use now to send updates by e-mail.  The good news is that there are other options you can use to re-subscribe so you don't miss the blog's content.  

Please take a minute to select a new e-mail delivery service so you don't risk missing content.  It really takes only a few minutes.  I explain how to do it in detail below.  Feel free to contact me by e-mail if you need more information.

As you know, there are two main ways in which readers can get updates when I post new stories.  One is to add the blog to a “news aggregator” such as “Feedly” which is the one I use myself to collect the stories from all the blogs I follow.  The changes announced by Google will NOT affect the use of an aggregator.

The other way to keep up with the new stories is to subscribe by email and that is the system Google is going to eliminate in two days.

So, if you want to continue receiving your updates by e-mail, you will need to sign up using a different service, and below I will describe two options in detail.  

The first option is Blogtrottr.  This is the easiest to set up BUT when you get the e-mail message with the blog stories, there will be a big ad at the top and another at the bottom.  I don't like ads, so this is not my preferred way to subscribe.  If you don't mind the ads, then feel free to sign up for the updates this way.  If you don't want ads, I recommend a service called Follow it.  It has ads but they appear at the bottom of the message and are not intrusive.

I also prefer Follow-it because you can set it up as a news aggregator just like Feedly.  So it is both an email subscription service and a news aggregator in one.  Here is what you need to do to sign up.  It only takes a few minutes but there are a few steps.  (I will also explain how to set up Blogtrottr below).

To sign up for email update through Follow it, here is what you need to do:

Go to https://follow.it/intro where you will see this page:

Click on "No, I am a reader..."  This will take you to this page:

Here, type in his blog's address (https://bernabetorts.blogspot.com/) in the blank (as shown) and hit Go.  This will bring you to this page:

These are the different options on how to follow the blog.  If you want only one message per day with all the stories published the previous day, choose the first box (maroon) that says "Newspaper" by email.  If you want to use Follow it as a news aggregator, click on the purple box that says "News page."  You can sign up for more than one option.

Once you pick your options click on Follow it, and this will bring you to another page with more options

As you can see, these are optional, so you can decide what to do there.  I did not select any of these.  

Once you are done with all this, you will get a message by email asking you to confirm.  Make sure you do so because otherwise you will not be signed up and won't get the email updates.  If you don't get the message right away, make sure you check your junk or spam folder just in case.

The other option is easier to set up, but, as I said before, the e-mail messages you will get will have ads.  If you don't mind that, here is what you need to do: 

Go to Blogtrottr.com , where you will see this page 

Once there, enter the URL for this blog (https://bernabetorts.blogspot.com/) in the first blank on the left (where you see "http://").

Then enter your email address in the blank in the middle.

Then select how you want the updates to be delivered by clicking on the drop down menu on the left, where it says "realtime".  Realtime means you will get a message by email the moment I post something.  This means you will get multiple messages if I publish more than one story on any given day.  Click on the down arrow to see the other options.  If you want only one message per day (if there is new content) pick the daily digest option.

Once you have filled out these blanks, click on "Feed me".  That will take you to this page:

Pick one of the two options (I picked the one that says Feed Type: RSS) and you will then get a message by email asking you to confirm your subscription.  Check your junk or spam folder if you don't see it right away and make sure you follow the instructions to confirm.  You won't get the updates unless you do so.

I hope this message helps you figure out how to re-subscribe so you continue to get the email updates you are used to.  There may be other options out there that I am not aware of too.  These two are the two I know of.  I tried them both and they work well.  I prefer Follow it for the reasons stated above but they both work.  

Please let me know by email or by leaving a comment here if I can help you make the transition.  

Finally, some changes to the Feres Doctrine!

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury suffered while the plaintiff is in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

There have been many attempts to eliminate or at least to change the effect of the Feres doctrine over the years, and Justice Clarence Thomas recently expressed his support for change.  But all attempts had failed, Until now.  

Thus I am happy to report that the Defense Department has published a new rule governing how uniformed service members or their representatives can file claims against the military for medical malpractice.  This new rule states that (subject to some exceptions)

"A substantiated claim under $100,000 will be paid directly to the member or his/her estate by the [Department of Defense (DoD)]. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues."

However, it must be noted that the rule does not allow for judicial review of adjudicated claims, and that, therefore, their settlement will be "final and conclusive."

So, it while it is a good thing that plaintiffs will have the chance to recover for their injuries, the remedy provided is still short of the recognition of a possible judicially resolved tort claim.  

For more information, you can go to Military.com, Stars and Stripes and the NY Personal Injury Law Blog.

Supreme Court rules that Alien Tort Statute can't be used against defendants for conduct that happens overseas

Long time readers of this blog know I have followed the cases on the Alien Tort Statute (ATS) for some time.  For my posts on this topic, go here and scroll down.

The last time I posted something about the ATS was back in November of 2019, when I reported on a case against Nestle and Cargill alleging that the defendants aided and abetted in human rights violations by farmers in the Ivory Coast.  Back then the Court of Appeals for the Ninth Circuit held that a lawsuit filed by citizens of Mali who, as children, worked on Ivory Coast cocoa farms should be permitted to go forward under the Alien Tort Statute (ATS).  You can read that post here.

That case was appealed to the Supreme Court and the Court issued its opinion just a few days ago reversing the Circuit Court, by a vote of 8-1, because the lawsuit was based on conduct that occurred overseas. 

Evidently, the decision was a victory for the defendants, but it was not what the business community and the Washington Legal Foundation really wanted because the opinion left open for another day the question of whether the federal law at the heart of the case allows lawsuits against U.S. corporations to begin with.  (I comment on the WLF position in my post linked above.)  

You can read more about the case and the Court's opinion on the SCOTUS blog, Politico, and Howe on the Court.

Snapchat Ends 'Speed Filter' That Critics Say Encouraged Reckless Driving

 Last month I reported that the 9th U.S. Circuit Court of Appeals had issued an opinion holding that the parents of a teenager killed in a traffic accident could sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

Today I am writing about this because NPR is reporting that Snapchat is eliminating a feature known as the "speed filter" that lets users capture how fast they are moving and share it with friends. 

You can read the story on NPR here.

Trial related to destroyed frozen embryos raises interesting questions -- UPDATED again

This story is updated below, at the end of the original post

I just read a story on Courthouse News on a trial in which the plaintiffs are suing the manufacturer of cryogenic tanks that somehow failed causing the destruction of thousands of frozen eggs and embryos, which according to the plaintiffs dashed some families’ only hope of having biological children.

The plaintiffs' claim is for product liability based on the alleged defective design of the tanks.  The defendant, however, is apparently going to argue that the tank's failure was due to the misuse of the product by the Fertility Center which used it.  This is the first interesting point in the case because that argument is essentially claiming that the conduct of the Fertility Clinic was an unforeseeable intervening (and therefore superseding) cause.  

Yet, the most interesting question raised by this case relates to the injuries claimed by the plaintiffs.  The story states that the claims "for the loss of eggs and embryos" were sent to private arbitration.

So, my first question is what is a claim for the "loss of" the eggs and embryos?   I am assuming "embryos" refers to fertilized eggs, while eggs are not fertilized.  If that is the case, there can be no claim for wrongful death for the loss of the eggs in any jurisdiction I know of.  And for the loss of the embryos, there can be a wrongful death claim only in jurisdictions that recognize that life begins at conception for purposes of the wrongful death act.  So I wonder if the claim is not for wrongful death but for something else?  Is it just a contracts dispute then?  I just don' know.

On the other hand, maybe the claim is for emotional distress, but that claim would depend on the jurisdiction's approach to those claims?  If the jurisdiction requires impact, I don't think there is support for the claim, for example.  Also, the facts don't seem to fit a claim for emotional distress of a bystander.  

Since the case is already at trial, I guess these questions were resolved already through motions to dismiss, etc.  But I wonder what the answers are.  

UPDATE May 30, 2021:  Courthouse News is following the trial closely.  This week they published the following stories:

On May 26:  Lab Workers Were ‘Devastated’ by Tank Failure That Destroyed Human Embryos

On May 27:  Tank Manufacturer Accuses Fertility Clinic of Falsifying Data in Frozen Eggs Trial 

June 6: Fertility Patients Describe Sadness and Anger After Freezer Tank Failure

June 9: Jurors Asked to Award $30 Million for Lost Eggs and Embryos

June 10: Jury Finds Tank Maker Responsible for Lost Eggs and Embryos, Awards $15 Million

June 12: Loss of Embryos and Eggs at Fertility Clinic Leads to Groundbreaking Multi-Million Dollar Verdict in California

June 20: $15 Million Verdict Against IVF Cryopreservation Tank Maker Is Big News

All those attempts to get immunity for coronavirus related injuries are paying off now

About 200 lawsuits in nearly half the states have been filed against nursing homes, and many more are expected.  Patient advocates contend that some nursing homes were negligent in their handling of the virus, pointing to the industry’s documented history of problems with infection control. Unfortunately, the nursing home industry spent at least $4 million lobbying Congress and statehouses to grant expanded protections, arguing that they faced shortages of personal protective equipment and shifting guidance from the federal government on battling the virus.

This is a battle that we all saw coming a mile away.  Back in May of last year, I published a comment in which I argued that granting blanket immunity related to COVID-19 injuries is a bad idea and later, I published links to other articles (here, here, here, here, here and here).

Politico has the latest here.

ALI adopts Restatement Third on Intentional torts to persons

Last week, at the ALI's Annual Meeting, the membership approved the Restatement (Third) of Torts:  Intentional Torts to Persons.  The ALI's press release is here.

Parents of teen who committed suicide sue Snapchat and other "apps" developers

A few days ago I posted a news story about a decision against Snapchat.  Yesterday, I posted a story about a new decision involving a suicide.  Tragically, today's story combines both themes.

Law & Crime is reporting that the mother of a teenager who took his own life after months of online harassment is suing Snapchat and the makers of third-party anonymous messaging apps YOLO and LMK, alleging that the products violated consumer protection laws by failing to comply with their own terms of service that promise safeguards against cyberbullying.

You can read more on the story and the complaint itself here.

Court in Alabama holds suicide is not a superseding cause

In many other jurisdictions, a decedent's conduct in committing suicide is considered a superseding cause, presumably based on the notion that it is always unforeseeable that someone would commit suicide. 

But we all know that this statement is simply not true.  Depending on the circumstances, whether someone might commit suicide is as foreseeable as any other intervening event.  And, for that reason, it is not convincing to hold as a matter of law that suicide is always unforeseeable.  Yet, that is what many courts do.

I am writing about this today because I just read in Courthouse News that an appeals court in Alabama recently ruled that a man accused of sexually assaulting a college student who later killed herself can be sued for wrongful death, finding that suicide arising from an alleged sexual assault does not “absolve the alleged assailant of liability.”

The case is Rondini v. Bunn and you can read the decision here.

Federal judge orders NFL and players to mediation to address concern over racist methodology when calculating compensation for players - UPDATED

March 13, 2021

There are some good news and some bad news related to the lawsuit against the NFL seeking compensation for players related to concussions and other injuries.  

The good news is that the judge overseeing the litigation has ordered the parties to revise the compensation methodology to address serious concerns over "race norming" which results in lower compensation for black athletes.  The judge stated that “the Court . . . remains concerned” about the race-based formula used to measure cognitive impairment to determine eligibility for compensation.

The bad news is that the judge took the issue out of the courtroom and sent it to mediation.  As stated by the lawyer who represents some of the retired players, this means that the court's proposed solution is to order the very parties who created the discriminatory system to negotiate a fix while apparently excluding  some of the players affected by it.  

As you may know, the NFL had agreed to a settlement with retired players, but at some point later several players filed a lawsuit attacking the terms of the settlement, at least in part based on allegations of "race norming" in the process used to determine the proper compensation for players.  It is this lawsuit that the federal judge dismissed as “an improper attack on the Settlement Agreement.” 

You can read more about the story here and here.

The Nation has a good short op-ed piece on the topic here, which explains how the notion of "race norming" has changed over time.

In this story from ABC news you can also access a 11 minute video from the TV show Nightline.

 

Here is the key part of the story:

At the crux of the controversy is the fact that the NFL's concussion settlement program manual recommends the use of a "full demographic correction," in which a player's cognitive test scores are compared to average scores, or "norms," for similar demographic groups, and then adjusted to account for expected differences in age, gender, education -- and race. 

The practice of adjusting test scores for race, widely known as "race-norming," is in use across several different medical fields as a supposed safeguard against misdiagnosis. But because these "norms," as used in a neuropsychology context, assume that the average Black player starts at a lower level of cognitive functioning than the average white player at the outset of their careers, Black players need to show larger cognitive declines than white players to qualify for compensation. 

. . . . 

In response to questions from ABC News, an NFL spokesperson issued a statement in February saying that . . . "[t]he settlement seeks to provide accurate examinations to retired players," . . ."and thus permits, but does not require, independent clinicians to consider race in adjusting retired players' test scores as they would in their typical practice." 

But in email correspondence obtained by ABC News, those same clinicians appear to disagree. One bemoaned their possible complicity in a system that perpetuated "racial inequity" in payouts. 

 . . . . 

"Bottom line is that the norms do discriminate against Black players," [one] clinician wrote. "So now what? In this time of reckoning, like many professions, I think we need to look closely at the expected and unexpected ramifications of our practices." 

 And a dataset shared exclusively with ABC News suggests that race-based adjustments could have a significant impact on payouts. 

 At the request of an attorney who represents several former NFL players, a neuropsychologist who has evaluated former NFL players under the concussion settlement program recently rescored the results of cognitive tests from a group of 94 Black former players. . . . When the clinician interpreted the test scores as if those former players had been white, 34 of them met the criteria to receive payouts through the program. When the clinician applied the recommended demographic correction to those same scores, however, only 10 of those same players qualified.

 

UPDATE May 17, 2021:  Courthouse News has a new story on this topic here.

UPDATE October 21, 2021:  NFL changes its position on race norming

Justice Clarence Thomas again affirms the Court should get rid of the Feres doctrine

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury suffered while the plaintiff is in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel, for example. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

Recently, Justice Thomas has repeatedly argued that Feres should be overruled.  He did so in 2019 in a dissent from a cert petition (see here); and he did so again earlier this month.  

In yet another dissent from a cert petition Justice Thomas argued should have agreed to hear the appeal of a West Point cadet who sued claiming she was raped by another cadet.  

Justice Thomas opined that Feres v. United States was wrongly decided because the decision was not based on the wording of the Federal Tort Claims Act.  The exception in the Act was meant to protect the government from suits “arising out of … combatant activities … during time of war” but Feres extended that notion by recognizing immunity from suits in any way incident to military service.

The case is called Doe v. United States and you can read Justice Thomas' opinion here.

Court of Appeals for the 9th Circuit recognizes cause of action against Snapchat

A three-judge panel of the 9th U.S. Circuit Court of Appeals recently decided that the parents of a teenager killed in a traffic accident can sue Snapchat based on the argument that Snapchat's speed filter entices young people to drive at astounding speeds.

The decedent and two other teenagers were driving at over 120 miles an hour and wanted to capture the experience using an app feature called "speed filter" which documents real-life speed.  After one of them opened and started using the app, the driver lost control of the car and hit a tree.  All three died in the crash.

This type of allegation is not new.  It was the same type of allegation used in cases involving people playing "Pokemon Go" (remember that craze?). I posted a podcast on those claims back in 2016 here.

Other cases have found against the sender of a text which distracts a driver.  For example, see here, and here.

So, the plaintiffs' argument that the app "entices" young people to do stupid or dangerous things is not new; but it is not an easy one.  First of all, there is the issue of whether the conduct of one of the kids should be considered a superseding intervening cause.  Was the goal of the joy ride to use the app?  Or did they decide to use it after they were already driving fast?

Also, and even more problematic for the plaintiffs is the issue of comparative negligence, or assumption of the risk (if the jurisdiction still recognizes it as a defense).  If the jurisdiction is a modified comparative negligence jurisdiction, the defendants will argue that the plaintiffs' negligence should defeat the cause of action. 

What is most interesting about this case is that the plaintiffs argued the case as a products liability case while the defendant tried to defend the case by arguing it is protected from liability by the Communications Decency Act.

According to Courthouse News, the Ninth Circuit’s rejection of the defendant's attempt to hide behind the Communications Decency Act is the second opinion by an appellate court.  The other one was the Georgia Court of Appeals which rejected virtually identical arguments made by Snap in another Speed Filter case.  NPR has more on the case here.

The case is called Lemmon v. Snap, Inc, and you can read the opinion here.

California Appellate Court finds that Amazon can be liable in products liability for products sold by other vendors through Amazon

Last year I reported on a recently decided case in California finding that Amazon.com could be liable for products liability.  See here.  Earlier this year, I reported that the Texas Supreme Court heard oral arguments on a similar case.  See here.

Today, I am reporting that an appellate court in California recently decided that Amazon can be held liable for injuries caused by product bought from independent third party sellers through Amazon.  The case is called Loomis v. Amazon.com, and you can read the opinion here.

In Loomis, the plaintiff bought a product from a manufacturer who paid Amazon a "subscription" to sell products in Amazon and a small fee (15% of the sale price).  Amazon argued that it should not be liable to the consumer because it operates only as a marketplace, not as a seller in the chain of commerce.  The court didn't buy it (excuse the pun!).

The court found that Amazon operated as a seller, or at least a distributor in the chain of commerce, rather than as a neutral "mall".  Amazon handled all product advertising, payment processing, and communication between Loomis and the manufacturer, which was not allowed to speak with her directly.  Also, Amazon may be the only member of the distribution chain reasonably available for an injured consumer to recover damages.

Short article on the dangers of driverless cars

 The National Law Review has published a short comment on "the dangers of driverless cars."  You can read it here.

Man Falsely Arrested Because of Facial Recognition Software Error Sues Detroit -- UPDATED

Monday, April 19, 2021

A man who was wrongly arrested has filed a federal lawsuit against the city of Detroit over his wrongful arrest, which he says was caused by faulty facial recognition technology.  Courthouse News Service has the story here.

According to the lawsuit, people of color are up to 100 times more likely to be misidentified using the technology than white men because the algorithms were created using primarily Caucasian faces which creates an unfair database.

Other cities, including Boston and San Francisco, have banned the use of facial-recognition technology.

UPDATE 4/26/21:  TechDirt has more on the story here.

Iowa Senate approves bill to recognize qualified immunity

 At a time when some courts and states are eliminating qualified immunity (see here, here, here and here, for example), Iowa has decided this is a good time to do the opposite.  

TechDirt has the story here.

New Mexico abolishes qualified immunity in state claims

Last week, Governor Michelle Lujan Grisham of New Mexico signed a law which eliminates the defense of qualified immunity for public officials in state claims.  New Mexico is now the third state to have eliminated the defense.

The new law provides: "In any claim for damages or relief under the New Mexico Civil Rights Act, no public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall enjoy the defense of qualified immunity for causing the deprivation of any rights, privileges or immunities secured by the bill of rights of the constitution of New Mexico."

It is important to note that the new state does not relate to claims brought under federal law, which still recognizes qualified immunity as a defense.

Reason.com has more on the story here; Jurist has more information here.

Article and program on settlements in police misconduct cases

  Yesterday I posted a video on data related to how much money is spent on settling cases of police misconduct.  Today, I am posting another conversation on the subject.  In this one, Benjamin Wittes sat down on Lawfare Live with Rashawn Ray, the David M. Rubenstein Fellow in Governance Studies at the Brookings Institution, to talk about civil settlements. Rashawn is the author of a recent Lawfare article about how to reform the civil settlement system to make it more effective in deterring police misconduct, and they discussed the series of reforms that Rashawn recommends.  You may want to read the article first (here) and then listen to the conversation (by clicking on the play button below or by going here.)

Study on how much money cities' pay to settle police misconduct cases

As you probably know, police misconduct trials are rare, often because the defendants are granted qualified immunity.  However, those claims are claims brought against individuals.  The situation in cases brought against cities or other government entities is different.  In those cases, cities often pay high amounts of money to settle misconduct claims.  

Over at the website FiveThirtyEight, their quantitative editor Laura Bronner recently spoke with Galen Druke about FiveThirtyEight and The Marshall Project’s investigation into the amount of money cities have spent on police misconduct settlements — in the range of $3 billion over the last decade. What’s less clear is whether the situation has improved within that time period.

You can watch the conversation by clicking on the play button below or by going here.

Good article on the defamation claims against Sydney Powell

 Over at Verdict, Michael Dorf (Cornell Law) has published a good comment on the defamation case against Sidney Powell.

In case you don't remember, Sidney Powell is the former lawyer for the Trump campaign who at one time promised to "release the Kraken," argued that the Dominion vote counting machines had somehow been rigged by Venezuela and that Dominion had bribed public officials in Georgia, among many other things. 

Some time later, Dominion sued her for defamation and recently Powell, through her attorneys, argued that her statements could not constitute defamation because they were so crazy that noone would believe them to be true.  

This defense is somewhat logical given defamation law, but also problematic because if the statements were so unbelievable, then she herself must have known they were not true when she affirmed them.  And, since she affirmed them is support of litigation, by making the defense in the defamation case she is admitting to either being incompetent or to having instituted litigation improperly, both of which can subject her to professional discipline (which I believe she is facing in at least one state).

But the article linked above is about the defamation claim and on the validity of the defense.  Go take a look at it.

Florida enacts immunity for Covid-19 related claims

Last week, Florida enacted legislation shielding businesses and health care providers from COVID-19 injury and death lawsuits, which is good news for business but bad news for consumers.

The new law gives civil immunity to corporations, hospitals, nursing homes, government entities, schools and churches, among others, for injuries related to Covid-19 caused by negligent conduct.  It does allow plaintiffs to bring causes of action based on alleged gross negligence or intentional misconduct, but in those cases, it raises the burden of proof and places other procedural requirements to make it more difficult for plaintiffs to bring their claims.  For example, according to the statute, plaintiffs will have to prove that a defendant did not make a good faith effort to comply with public health standards and that a defendant committed gross negligence under a "clear and convincing" evidentiary standard.  The law also establishes a one-year limitation period from the later of the date of death, hospitalization or COVID-19 diagnosis that forms the basis of the claim. 

Not surprisingly, tort reform advocacy groups, the Florida Chamber of Commerce, and defendants' lawyers have expressed their approval of the new law, claiming, among other things that "[w]ith the governor's signing of Senate Bill 72, [businesses] no longer have to be worried about fighting frivolous lawsuits from plaintiffs alleging they contracted COVID-19 at their place of business."

This statement is, of course, nonsense.  The law was not enacted (and does nothing new) to eliminate frivolous lawsuits.  The law, like most other tort reform measures, was enacted to prevent valid litigation.  

What the law does is eliminate incentives for businesses, hospitals, and nursing homes to act reasonably in order to protect the public from whom they derive all their profits.  One of the main goals of tort law is to deter conduct that creates unreasonable risks of harm to others.  The statute adopted in Florida does the opposite.  It does nothing to protect employees, customers and front line workers who have sacrificed to keep communities safe and the economy open by eliminating the possibility of accountability for negligent businesses and health care facilities.

Now businesses, including hospitals and nursing homes, do not have to worry about acting with due care and will not be liable for any injuries they cause as a result.  How is that a good thing?

Law360 has more on the story here.

Texas to decide whether Amazon can be held liable in products liability claim caused by product sold by a third party on its website

Back in August of last year, I reported that an appellate court in California found that Amazon.com could be sued for products liability for the value of injuries caused by defective goods sold on its website by third-party vendors.  See here.

Today I am writing to let you know that the same issue is now before the Texas Supreme Court.  Courthouse News Service is reporting that the issue is before the court in a case centered around a remote control battery swallowed by a 19-month-old child.  Go here for more information.

Podcast on qualified immunity

 A few minutes ago, I reported that New York City has abolished qualified immunity.  Meanwhile, below you will find a podcast in which Prof. Alexander Reinert (Cardozo School of Law) discusses an empirical assessment and comprehensive study on the actual way that courts of appeals have handled qualified immunity cases.  You can listen to the podcast by clicking on the play button below or by going to the podcast website here.

New York City Council abolishes qualified immunity

Yesterday, the New York City Council passed legislation that will effectively end qualified immunity for police officers; thus removing one of the largest impediments to holding officers personally liable for violating citizens’ civil rights, several local news outlets reported.  In doing so, New York became the first city in the country to abolish the defense.  Law & Crime has more information here.

Courts find that police officers do not have immunity in two recent cases

As you probably know, police officers often escape possible tort liability because they claim to have qualified immunity.  According to the doctrine of qualified immunity, officials performing discretionary functions have immunity as long as their conduct does not violate clearly established statutory or constitutional rights or which a reasonable person would have known.

The use of qualified immunity in cases involving alleged police misconduct has been increasingly criticized of late, and two courts recently decided that the officers involved did not have immunity for their actions.

In one case, the Court of Appeals for the 11th Circuit unanimously ruled that an Alabama police officer is not entitled to immunity for an incident in which he repeatedly deployed a Taser on an innocent teenager who was having seizures at a concert.  You can read about that case here.

In the other case, the Court of Appeals for the Tenth Circuit held that the defendant did not have immunity in a case in which the plaintiff alleged that the officer punched a suspect in the face, whipped him with a chain, and released a police dog on him.  Evidently, the Court felt that a reasonable officer should know that that type of conduct violates someone's rights.  You can read about that case here.

Today in Supreme Court History: Benjamin Cardozo is sworn in as Associate Justice of the Supreme Court

You probably remember Benjamin Cardozo as the New York Court of Appeals judge who wrote Palsgraf v. Long Island Railroad, which developed what has become the standard analysis for proximate cause in Tort law.  But in 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes.  Interestingly, Hoover, a Republican, appointed Cardozo even though he was a Democrat. I would be curious to know how many times that has happened since.

According to an article in The New York Times about Cardozo's appointment, "seldom, if ever, in the history of the Court has an appointment been so universally commended."

Cardozo was confirmed by a unanimous voice vote in the Senate on February 24 and was sworn in on March 14, 1932.

To celebrate, why not do some reading?  Here is a link to my article Ahead of his time: Cardozo and the Current Debates on Professional Responsibility, 34 Touro Law Review 101 (2018).

New York expands category of people who can recover for emotional distress from witnessing someone else's accident

As you probably know, in most jurisdictions a plaintiff has a cause of action for emotional distress based on having witnessed someone else suffer an injury even if the plaintiff is outside the zone of danger (within which the plaintiff would be in danger of physical injury) if certain conditions are met. 

New York, however, is not one of those jurisdictions.  Instead, New York still follows the minority approach.  Thus, in NY, plaintiffs seeking to recover for emotional distress from witnessing someone else’s accident must show that they (the plaintiffs) were within the zone of danger and in danger of physical injury at the time of the accident and that the person who suffered the injury must have been an “immediate family member.”

I am writing about this today because about two weeks ago, the New York Court of Appeals (the highest court in the state) expanded the category of people who can recover by recognizing that grandparents are “immediate family members.”  

It should be clear that the opinion did NOT extend the reach of possible liability to people outside the zone of danger, but it did expand the category of people who can recover if they are within the zone of danger.

The case is called Greene v. Esplanade Venture Partnership.  You can read the opinion here.  Courthouse News and the ABA Journal have more information about the case here and here respectively.

Short article on the state of defamation law

Last month, the Texas Supreme Court rejected Alex Jones’ petition to review a lower court's decision to allow a defamation lawsuit to proceed against him.  The plaintiffs in the lawsuit are some of the parents of children who died in the Sandy Hook school shooting.  

In a short interview published in Above the Law, law professor Derek Bambauer, who coauthored an amicus brief to the Texas Supreme Court arguing that the defamation claim against Jones should proceed, talks about the case and the current state of defamation law in general.  You can read the interview here.

New study on lawsuits that have resulted in benefits to society as a whole

The Center for Justice & Democracy has a new study, called Lifesavers 2021: CJ&D’s Guide to Lawsuits that Protect Us All. The study describes over 125 lawsuits that have led to major health and safety improvements benefiting large numbers of people, spanning over 50 years. These cases have not only saved lives but also show us how to mitigate some of today’s most dire crises. 

Here is a press release that explains the study.   The PopTort has a comment here. You can download the full study here.

Eighth Circuit Strips Qualified Immunity From Cop Who Pulled Over A Driver For Flipping Her Off

As reported in TechDirt, the Eighth Circuit Court of Appeals is the latest to add to a body of case law that holds that "engaging in any law enforcement response to a flipped bird is unwise, at best."  This decision reminds police officers that being rude towards them isn't a crime.  

In this case a police officer conducted a traffic stop after the driver extended his middle finger at her as he drove past her.  Other officers arrived later to assist the first officer and the driver was handcuffed and detained for a short period of time. The driver later sued the officers and the City under 42 U.S.C. § 1983, claiming violations of his First and Fourth Amendment rights. 

The district court granted summary judgment to the officers and the City, finding that the officers were entitled to qualified immunity because the original officer had probable cause to conduct the traffic stop.  In support of the argument regarding probable cause, the officer claimed she had probable cause because of the plaintiff’s “disorderly conduct.”  However, the court declined to grant qualified immunity to the officer on the disorderly conduct violation, and she did not challenge the district court’s conclusion on appeal.  On the other claims, the Court of Appeals affirmed in part and reversed in part.  The case is called Garcia v. City of New Hope, and you can read it here.

Go here for the full story and some commentary.

Illinois approves sweeping criminal justice reforms that will have torts consquences

Last week, the Illinois General Assembly adopted sweeping criminal justice reforms that include the elimination of cash bail and a requirement that police officers in the state wear body cameras. Some of the adopted provisions are very good; others will have unintended negative consequences; but the one provision that caught my eye is one that few people have been talking about.

According to the bill, Illinois police officers will have a “duty to intervene” if they see another officer using excessive force, even if the officer outranks them.

This is not unique as other jurisdictions have adopted similar provisions in the past year.  See here, for example.  But it is interesting to me because it opens the door to a whole new possibility of civil liability by creating a duty in tort law.  What is going to happen if an officer does not intervene and then gets sued in civil court?  Will courts recognize the right to sue or will they give immunity to the police departments?  Will the court say that the duty is not one that can be enforced through tort law because it is contrary to the generally accepted view that there is no duty to help?

I have not seen the actual bill so I do not know if it addresses these questions in any way; but I will update this post when I find out...

Man misidentified by facial recognition software sues for false imprisonment and violation of civil rights

Man who was misidentified by facial recognition software and subjected to police interrogation sues a city in New Jersey, its police department, and a prosecutor for false arrest, false imprisonment and violation of his civil rights.  Go here for the story.