Follow up on the possible criminal liability of a parent

 A few days ago I posted a comment on the ongoing prosecution of the mother of a child who engaged in a mass shooting at a school.  The case is a criminal prosecution but some of the issues are similar and relevant for tort law because they involve the possibility of imposing vicarious liability (which is not what is being charged) and the underlying issue of causation (which is very much at issue in the case).  

I am following up on this today because Joseph Margulies. a Professor of Government at Cornell University, recently published a comment on these issues over at Justicia. In it he points out, correctly, that one important issue in the case (as in a torts case) is the question of proximate cause and, although he does not mention it by name, the question of duty.  And, in the end, he questions whether it would be a good idea to impose a duty on parents that could result in criminal liability under the circumstances of the case.  The comment is short and you can read it here.  

News reports that a case in Michigan will decide if parents can be criminally responsible for a child's actions are wrong

 If you have been paying attention to the news, you may have heard that a criminal case is just underway in Michigan in which the mother of a child who killed a number students in a school shooting spree is on trial for involuntary manslaughter.  And, you may have noticed that an often repeated version of the story is that the case is about whether parents can be held responsible for the conduct of their child.

This formulation of the issue is wrong.  

The parents are not on trial for the conduct of their child.  That would mean that the state is looking to convict them based on vicarious liability.  Instead, the parents are on trial for their own conduct, which led to and resulted in the conduct of the child.  That's very different.  In other words, the parents are being tried for direct (as opposed to vicarious) liability.  They are not facing convictions "for the conduct of their child"; they are facing conviction for their own conduct.

Now, before we go any further, let's remember that this case is a criminal case, not a torts case.  But the implications of the possible liability of a parent for the results of the conduct of a child are obviously important for tort law.

In torts, parents are typically not held vicariously liable for the conduct of their children.  But they can be held liable for their own conduct if their conduct is a cause that leads to the injury of the plaintiff. Thus, the principle at issue is the same.  

However, making the case for tort liability is easier.  There seems to be pretty solid support for the arguments of all the elements of the cause of action, including proximate cause since it is relatively easy to argue that the injury was a foreseeable consequence of the negligent conduct, which included giving the child a gun knowing the child was mentally unstable.  Of course, the defendant will argue that the conduct of the child was a superseding cause, but the argument will come down to whether the child's conduct was unforeseeable, and there is good support to defeat that argument.

BUT back to the actual case in Michigan, what is different is that for criminal liability, the conduct in question must have been defined as a crime by the penal law.  And that is the issue in the criminal case.  The state is trying to extend the definition of manslaughter to include the conduct of the parents which allegedly "facilitated" the manslaughter committed by the child.  This creates the confusion.  Rather than charge the parents for the "facilitation" of the crime, or with a crime like "reckless endangerment" or aiding and abetting or something like that, the state is charging the parents with the actual manslaughter.  

Whether that is the proper charge given the evidence is a matter of criminal law about which I am not an expert.  But the issue was argued before the court.  The court held against the parents, and was affirmed by two higher courts on appeal.  Here is the decision of the Michigan Court of Appeals which holds that the lower court did not abuse its discretion in finding The district court did not abuse its discretion in determining that the child's decision to shoot four classmates was not a superseding cause because it was foreseeable.

Interestingly, take a look at the finding of the trial court on the issue, which if you did not know otherwise you would think was taken from a torts case (other than the reference to "as alleged by the People"):

The Court concludes that sufficient evidence has been presented to allow a reasonable juror to find factual causation and to allow a reasonable juror to conclude that the deaths of the victims were a direct and natural result of the Defendants’ gross negligence.  The Court further concludes that the criminal misconduct of the Defendants’ son was an intervening cause but that a reasonable juror could conclude that his actions were reasonably foreseeable.  Therefore, the causal link between Defendants’ actions and their liability for the deaths of the victims, as alleged by the People, is not severed by the actions of their son.  A reasonable juror could conclude that the action of the Defendants’ son was a related link in the causal chain. 

According to the news, the case is the first instance in which a parent is charged (for her own conduct) with the crime that corresponds to the conduct of the child.  Not too long ago, the mother of a 6-year-old who shot a teacher was tried in relation to the incident, but she was tried (and convicted) of child neglect, not with the crime that would correspond to the conduct of the child -- which is what the prosecutors are trying to do in Michigan.

The case is clearly an attempt to send a message and put pressure on parents to take better care or control of a child when there are signs that the child needs it.  This may start a trend in prosecutions and it may influence how courts deal with similar issues in torts cases. 

You can read coverage about the case here:

NPR (audio)

The Hill (includes video)

The Hill (includes video of the opening statements)

Idaho joins the modern trend that requires proof of "the case within the case" in legal malpractice cases based on alleged negligence in litigation

 I have to confess that I assumed that, as part of the analysis of cause in fact, all states required a plaintiff in a legal malpractice cased based on alleged negligence in handling the litigation of case to argue that they would have won "the case within the case" (or, in other words, that they would have won the underlying case had it not been for the negligent conduct of the defendant lawyer).  But it turns out that until recently, Idaho apparently did not require this.  Now they do.

Last week, the Legal Profession Blog reported that the Idaho Supreme Court decided a case in which it rejected a standard that the suing plaintiff only had to show "some chance of success" in the underlying medical malpractice case.  In doing so, the Court adopted the much more popular test of requiring the plaintiff to show that they would have won the underlying case (had it not been for the negligent conduct of the defendant lawyer).  This analysis is usually referred to as the "case within the case" analysis because it requires the plaintiff to show that they would have won the underlying (old) case in order to be able to win the new case they are litigating.  (Note that the court apparently says that showing the case within the case is needed to meet the element of proximate cause, although it is more accurate to say it relates to cause in fact.)

Meeting the case within the case standard makes it more difficult for the plaintiff to support their claim but it is the logical analysis that is consistent with the notion of cause in fact.  And, like I said, I always thought it was "universally" accepted, but now I see I was wrong about that.  

So I wonder if there are any other states that still recognize a cause of action without requiring that the plaintiff meet the "case within the case" approach.  Do you know of any?  

The case is called Rich v. Hepworth Holzer and you can read the opinion here.

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.

Louisiana Supreme Court holds that plaintiffs do not need to show that they would have been able to collect the judgment in the "case within the case" to support malpractice claim

As you know, when a plaintiff sues a lawyer for malpractice in a litigation matter alleging that the defendant's representation caused the plaintiff to lose a claim, the plaintiff has to show that they would have won the case had it not been for the negligence of the defendant (the lawyer).  In torts terms, this is what the plaintiff has to argue and prove in order to establish the element of cause in fact.  Typically, however, courts hold that showing that the plaintiff would have won the original case (sometimes referred to as "the case within the case") is not enough because if the plaintiff would not have been able to recover anything in that case then the plaintiff can't establish an actual "loss" (the element of injury, in torts terms).

This means that typically, the plaintiff has to show not only that the plaintiff would have won the original case but for the negligence of the lawyer, but also that the plaintiff would have been able to collect the judgment (or at least part of it) as a result.

I am writing about this today because the Legal Profession blog reported a few days ago that the Louisiana Supreme Court recently decided a case that appears to be the first time a court has held that the plaintiff in a legal malpractice suit need not prove that the underlying lost judgment was collectible.

The case is called Ewing v. Westport Insurance and you can read it here. 

Louisiana Court of Appeal Rejects Collectability Defense In Legal Malpractice Case

To support the element of cause in fact in a legal malpractice case, the plaintiff has to argue (and later prove) that he or she would have been successful in the underlying representation; or, in other words, that had it not been for the negligence of the lawyer, the plaintiff would have won (or obtained a better result) in the underlying case.

In response to such a claim, some jurisdictions, however, allow the defendant to defeat the plaintiff's argument by showing that the plaintiff would not have been able to collect on the underlying claim.  It is not clear whether this argument is a defense or a part of the plaintiff's prima facie case, but, if applicable, it can defeat the cause of action.

I am writing about this today because The Chicago Legal Malpractice Lawyer Blog has a comment on a recent case in Louisiana addressing the issue here.

Connecticut Supreme Court adopts "alternative liability doctrine"

Assume that three men enter an abandoned building without permission.  While there, they drink alcohol and smoke cigarettes.  One of them fails to extinguish a cigarette, which starts a fire that spreads quickly and destroys the building.  As a result, the owners of the building sue the men but then realize they can’t prove which of the three defendants actually caused the fire.  Assuming it is true that only one of the three men caused the fire, none of them should not be liable since the plaintiff has the burden to show that a defendant's conduct caused their injury, right?

Does that sound familiar?  Does it sound like a law school hypo?  Of course it does, because it is essentially the question every law school student talks about when discussing the famous case Summers v. Tice, which you probably don’t remember by name but you do remember the facts:  two hunters shoot in the direction of the plaintiff.  Only one of them hits him, but the plaintiff could not identify which one.  In that case, the court decided to impose liability on both (unless either one could prove they were not the cause of the injury) as if they had both committed the act. 

I am writing today about this because just a few days ago, the Connecticut Supreme Court decided to adopt this same approach and apply it to the case with the fire in the building scenario. 

In doing so, the Court explained how the new rule (sometimes referred to as “alternative liability”) would be applied: 

“...the rule applies only when the plaintiff can demonstrate, first, that all of the defendants acted negligently and harm resulted, second, that all possible tortfeasors have been named as defendants, and, third, that the tortfeasors’ negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm.”

When these three threshold requirements are met, the alternative liability doctrine has been recognized as a limited exception to the general rule that the plaintiff must prove that each of the defendants caused the plaintiff’s harm.

As in Summers, the Court admits that adopting this approach can result in the imposition of liability on a defendant who was actually not at fault.  Yet, it is better to be unfair to a negligent defendant than to leave an innocent plaintiff without a remedy.  As the Court states, “[f]aced with the choice of leaving an injured plaintiff without a remedy, on the one hand, or requiring two wrongdoers, both of whom had acted negligently toward the plaintiff and had created the situation [in which the] plaintiff was injured, [to] bear the burden of absolving themselves on the other, it seems clear that the latter approach represents the fairer, more sensible alternative.”

I should note that the term "alternative liability" is very unfortunate because it suggests that the result of the application of the doctrine is liability, when in fact it isn't.  The result is to allow the plaintiff to support the element of causation without the type of proof that is typically required for it.  If we are going to be technically correct, we could say the doctrine is an "alternative proof of causation" doctrine.

The case is called Connecticut Interlocal Risk Management Agency and Town of Somers v. Jackson and you can read it here.

Shooting victims argue on appeal to revive case against social media platforms

In a recent oral argument before the Court of Appeals for the 6th Circuit, attorneys for some victims and family members of those killed during the 2016 shooting at the Pulse nightclub in Orlando argued that the court should reverse a lower court decision dismissing a complaint against Twitter and other social media platforms.

In the original lawsuit, the plaintiffs argued that but for the postings of a radical group using defendants’ social media platforms, the shooter would not have engaged in his attack on the Pulse nightclub.  They alleged Twitter, Google and Facebook knew their sites and platforms were being used by terrorist organizations to raise money and recruit new members, but did nothing to curb or end the activity.

The lower court judge, however, ruled in favor of the defendants and granted their motion to dismiss in March 2018.

You can read a summary of the argument here. 

I confess I have not been following this story and do not know the details of the allegations or the lower court opinion; but from what I can gather from the summary, it seems to me the plaintiffs will have a hard time winning the argument.  It is not easy to hold the media responsible for the criminal conduct of others who read or react to what is published in the media platforms.

More thoughts on possible liability for the consequences of the conduct of app users: Is Uber dangerous?

Over at the New York Personal Injury Lawyer Blog, Eric Turkewitz has posted a very interesting short comment called Uber Cars are Uber Dangerous.  You should read the full comment but the bottom line is that it is possible to argue that the way Uber works, it encourages its drivers to check and reply to text messages while driving.  If this is the case, it can then be argued that Uber is acting in a way that creates unreasonable risks of harm to others, and therefore, that it should be liable for injuries that result.  This would be particularly important in jurisdictions that have adopted the view that someone who sends a text may be liable if he or she knows that the recipient is driving at the time and is likely to be distracted by the text.  There are reported cases on this in at least two states.

It should also be noted that this theory of liability is not dependent on finding that Uber drivers are employees as it would be if the argument is based on vicarious liability (an issue that is currently being litigated in several cases in different jurisdictions).

Washington State Supreme Court decides "uncollectability" is not an element of a legal malpractice cause of action

As you probably know, if a legal malpractice claim is based on alleged negligent conduct in handling a litigation, the plaintiff has to argue that he/she would have won the original case had it not been for the negligent conduct of the defendant.  But what if the plaintiff does not show that he or she would have been able to actually recover compensation from the original defendant?

Addressing this issue for the first time in the jurisdiction, four days ago, the Washington State Supreme Court issued an opinion in a case called Schmidt v. Coogan, holding that the uncollectibility of the judgment in the underlying action is an affirmative defense that the defendant attorney must plead and prove.

In other words, in the malpractice case against the attorney, the plaintiff only has to argue that he or she would have won the original case.  The plaintiff will not have to show he or she would have been able to recover the compensation.  The defendant lawyer can, however, bring up the issue as a defense.

You can read the opinion here.

UPDATE (10/22/14):  As reported in the BNA/ABA Lawyer's Manual on Professional Conduct:

The Schmidt court acknowledged that it was departing from the majority view in holding that the uncollectibility of an underlying judgment is an affirmative defense that a malpractice defendant must prove, rather than holding that collectibility is an element the plaintiff must established as part of her prima facie case The lead opinion identifies Georgia, Iowa, Massachusetts and Nebraska as adhering to the traditional rule. See McDow v. Dixon, 226 S.E.2d 145 (Ga. 1976); Whiteaker v. State, 382 N.W.2d 112 (Iowa 1986); Jernigan v. Giard, 500 N.E.2d 806 (Mass. 1986); Eno v. Watkins, 429 N.W.2d 371 (Neb. 1988). California and Ohio courts also take that view. See Garretson v. Miller, 121 Cal. Rptr.2d 317, 18 Law. Man. Prof. Conduct 421 (Cal. Ct. App. 2002); Paterek v. Petersen & Ibold, 890 N.E.2d 316, 24 Law. Man. Prof. Conduct 315 (Ohio 2008).

States that depart from the traditional view include Alaska, Indiana, Maine, Michigan, New Jersey, New Hampshire, New York and Pennsylvania. See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20 (Alaska 1998); Clary v. Lite Machines Corp., 850 N.E.2d 423 (Ind. Ct. App. 2006); Jourdain v. Dineen, 527 A.2d 1304 (Me. 1987); Teodorescu v. Bushnell, Gage, Reizen & Byington, 506 N.W.2d 275 (Mich. 1993); Hoppe v. Ranzini, 385 A.2d 913 (N.J. 1978); Carbone v. Tierney, 864 A.2d 308, 20 Law. Man. Prof. Conduct 442 (N.H. 2004); Kituskie v. Corbman, 714 A.2d 1027 (Pa. 1998); Lindenman v. Kreitzer, 775 N.Y.S.2d 4, 20 Law. Man. Prof. Conduct 192 (N.Y. App. Div. 2004). See also Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 25 Law. Man. Prof. Conduct 617 (Tex. 2010) (evidence that underlying damages “probably would have been paid” despite debtor's insolvency would be enough); Visvardis v. Eric P. Ferleger P.C., 873 N.E.2d 436, 23 Law. Man. Prof. Conduct 427 (Ill. App. Ct. 2007) (plaintiff must plead facts supporting inference that opponent in underlying case would have been able to pay some part of damages).

Summers v Tice, 2014 edition: anti gun control state representative accidentally shoots another in hunting party

If you took Torts, you probably remember reading Summers v. Tice, the case about the two hunters who simultaneously shot in the direction of the plaintiff.  Only one of them hit the plaintiff, but the plaintiff could not prove which one (although maybe the evidence had been available).

Apparently, this sort of accident happens with certain frequency.  A few years ago, then vice president Cheney was involved in a similar incident and last year a plaintiff was awarded several million dollars in a similar case in Pennsylvania.

This year's edition of the case was reported just a few days ago in Oklahoma.  The case is gathering some press because one of  the shooters is a Republican state representative who does not support gun control laws.  The Oklahoman has more here.  For more go here and for some commentary go here.

Recent Illinois Appellate Court opinion shows Illinois law is out of touch with generally accepted principles of tort law

I just read a recent opinion of the Illinois Appellate Court which, based on an analysis developed by the Illinois Supreme Court, makes me think Illinois is due for a nice makeover when it comes to the notion of causation.  The case is called O'Neill v. General Motors and here is my quick comment.

The facts of the case are relatively simple:  The plaintiffs’ car suddenly and unexpectedly stopped on the road because an electronic control module in the car malfunctioned. Later, while trying to find a solution to their problem, the plaintiffs were injured when an intoxicated driver ran into the rear of their vehicle. The defendants (the manufacturer of the component and the seller of the car) filed motions for summary judgment arguing that their conduct was not the proximate cause of plaintiffs' injuries because the conduct of the intoxicated driver was a superseding cause.  The circuit court agreed and dismissed the claims.  The plaintiffs appealed.

On appeal, using convoluted and confusing language inherited from precedent cases, the court affirmed applying an analysis that, at least in part, does not follow generally accepted principles of tort law.

Because the defendants conceded that the defective product was a cause in fact of the injuries, the only issue before the lower court was whether to take away from the jury the question of proximate cause.  To decide that, the court should have asked whether reasonable people would disagree that the plaintiffs' injuries were a foreseeable consequence of the risk created by the conduct of the defendants.  And the answer, in my opinion, clearly should have been yes.

The conduct of the defendant created the risk that the driver and occupants of the car would get stranded in the middle of the road.  For that reason, it is reasonably foreseeable that they would be exposed to the typical risks related to being stranded on the road which include being injured by another driver.  This is why courts typically hold that when a defendant's negligence exposes another to a an automobile accident, the conduct of the person who causes the accident is not a superseding cause.

In O'Neill, however, the court held the opposite.  Its analysis seems to be based, in part, on the now abandoned Second Restatement's approach and on a unique approach to the character of intervening causes.

The defendants main argument in support of the proposition that the conduct of the intoxicated driver should be considered to be, as a matter of law, a superseding cause was that the conduct was criminal in nature.  In other words, the defendants were arguing that the conduct was unforeseeable because it was criminal. 

To agree with this argument requires a finding that all criminal conduct is, by definition, unforeseeable, and the problem is that clearly this is not the case.  And because it is clear that not all criminal conduct is unforeseeable, the generally accepted principle is that foreseeability is not determined by the character of the conduct.  

But Illinois apparently does not follow generally accepted principles of tort law.  As the court explains, in Illinois “[a] criminal act is a superseding cause of a plaintiff's injury and relieves the originally negligent defendant of liability, except where the defendant’s acts or omissions create a condition conducive to a reasonably foreseeable intervening criminal act.”

I don't understand what this "exception" really means.  Is it just saying that a criminal act is not superseding if it is foreseeable?  If that is all this means, then I have no problem with it.  That is the generally accepted principle.  But I don't think that is what the statement says.  It seems to say that the criminal act is not superseding only if the original defendant created the risk that someone else would commit a criminal act, which does not make sense.  If the original defendant created that risk, there would be no issue of superseding cause to talk about.

In addition, the court’s analysis confuses what it is that the plaintiff should be arguing is foreseeable.  While the type of harm suffered must be reasonably foreseeable, the precise manner in which it occurs and the extent of the harm need not be foreseeable.  Given that it can be argued that the conduct of the defendant created the risk of harm associated with being stranded in the middle of a road, whether the injury was caused by a drunk driver or a negligent driver or a driver who falls asleep at the wheel should make no difference.

In the end, I think the court simply wanted to decide in favor of the defendants – maybe because the judge thought it would have been unfair not to –  and used the notion of proximate cause to justify the result.  For this reason, although I think the case was wrongly decided, the decision does illustrate that as a noted commentator has already stated “[w]hile the intervening intentional wrongdoing of a third party may, under the circumstances, be foreseeable and not superseding, the relative culpability of an intervening force will inevitably influence, particularly in a close case, the decision to characterize an intervening force as superseding.”  (Diamond, Understanding Torts, 4th ed. p. 193).


UPDATE: (3/14/14):  One of the blog's readers just wrote to me with an important clarification about this case.  The Illinois Appellate Court’s decision is an unpublished order under Illinois Supreme Court Rule 23 and, as such, the case may not be cited as precedent.  That's a good thing because it would have been really bad precedent!

After all these years, a new claim against the manufacturers of DES

You may remember from your law student days having read two important cases involving claims against manufacturers of a drug usually referred to as "DES."  This was a drug often prescribed to pregnant women up until the 1970s . An estimated 4 million people were exposed in utero to the effects of DES, but because the effects continued to be transmitted to the children of those exposed in utero, the effects could continue to cause problems for many more people over generations.

How long would a manufacturer of the drug be on the hook for those possible injuries?

Well, in terms of "cause in fact", as long as the plaintiff was able to prove the connection between the injury and the exposure to the drug.  This would be a question of fact and, ultimately, depend on the availability and credibility of that evidence.  And, to help plaintiffs support the claim if they did not have all the evidence available, one of those two famous cases, Sindell v. Abbott Laboratories, created the concept of "market share liability", which made it easier for plaintiffs to support the element of cause in fact against drug manufacturers.  Interestingly, however, the concept of market share liability has not had the effect some thought (or feared) it would have for future cases, having been limited to DES cases and rejected in almost every other case it has been argued, most notably in lead paint cases.

The other case, Enright v. Eli Lilly, is used in a number of Torts textbooks to illustrate the difference between cause in fact and proximate cause because it holds that, in terms of policy (whether you call it duty or proximate cause) the court would not recognize a cause of action for plaintiffs who were not exposed to the drug in utero, even if they could make the factual connection between their injuries and the effects of the drug.

Given that the use of the drug was discontinued in the 1970s and that courts have shown to be uncomfortable with the idea of extending possible liability over generations, I thought the days of claims for injuries caused by DES were over (and with them, the notion of market share liability).

I guess I didn't realize that there could still be some people out there who could claim they had been exposed to DES in utero.  For this reason, I was surprised to read a story a few days ago about a new claim against all of the former manufacturers of DES filed by a woman in North Carolina arguing that her breast cancer was caused by the effects of the DES her mother took while she was pregnant in 1965.   You can read the full story here.

NY Review of Books publishes article on lead poisoning

The New York Review of Books has published an article on the issues related to lead poisoning cases called "Lead Poisoning: The Ignored Scandal."  You can read it here.

Arizona senate approves law barring wrongful birth/wrongful life and wrongful conceptions claims

About two months ago I reported that that lawmakers in Arizona were considering a ban on “wrongful birth” lawsuits.  Now comes news that the state senate has approved the law.  Jonathan Turley has a comment here.

The issue raised by this topic is complicated because there are different types of claims, some of which are justified and some of which are not.

First, the terms wrongful birth and wrongful life are most often used to refer to claims based on the allegation that the defendant (usually a doctor) was negligent and did not alert the parents of a child of the possibility of genetic defects, birth defects or abnormalities in the development of a fetus, thus depriving the parents of the chance to decide to terminate the pregnancy.  Thus, the conduct of the doctor resulted in a "life" that could have been avoided.  The "injury" caused by the doctor is "life itself."

There are differences of opinion as to whether these claims should be rejected, but there was no need to adopt a law to do so.  To my knowledge, courts have consistently rejected general wrongful birth/life claims as against public policy, among other reasons, because life, no matter how difficult, should not be considered to be an "injury" and because even if it could, it is too difficult to assess the value of the alleged injury because it is impossible to assess the value of the alternative (non-life).

The problem with the Arizona bill is that in trying to eliminate those claims, it also eliminates other claims which are justified.  

For example, some courts have recognized a cause of action for out of pocket expenses related to the pregnancy and child birth that would have been avoided had the defendant not been negligent.  These cases are justified and should be allowed to proceed.  The negligent conduct of the defendants does cause the need for these expenses and there is no valid reason to immunize the defendants from liability for them.

Somewhat more controversial are the cases that have recognized claims for the expenses needed to take care of a child born with birth defects at least until the age of majority.   You can make the argument that these claims are not justified, and should be banned, because they allow a plaintiff to recover for an injury that was not actually caused by the defendant.  The defendant's conduct resulted in the birth of the child, not in the birth defect.  But you can also argue the causing the birth of a child with defects means causing the expenses that could have been avoided. 

Finally, the Arizona bill is so vaguely worded that it would also bar claims for wrongful conception even though these claims do not seem to be the types of claims originally considered by the drafters of the bill.  These are cases where the defendant is negligent in performing a procedure to prevent future pregnancies.  When parents decide not to terminate undesired pregnancies they should have the right to recover for the added expenses caused by the negligence of the doctors which should certainly include the costs of the pregnancy and child birth and, you could argue should also include the costs of raising the child to the age of majority.  These claims are purely financial and their value can be calculated relatively easily. More importantly, the injury is clearly caused by the negligence of the doctor.

There is no valid reason to provide negligent doctors with immunity from these claims, which is exactly what the Arizona bill does.  The bill eliminates the right of a plaintiff to recover for damages when they are clearly caused by the negligence of the defendant.

Arizona considers ban on wrongful life lawsuits

AboutLawsuits.com is reporting today (here) that lawmakers in Arizona have proposed a ban on “wrongful birth” lawsuits to prevent parents of children born with birth defects from seeking compensation from doctors or medical providers through a malpractice lawsuit over failing to recognize or diagnose the problems before the child is born.  From this language it appears the bill would not affect the right to recover in cases where the negligence of the doctor actually causes the injury to the child.  We are talking about cases where, the injury to the child is actually caused by something else - a genetic issue, a condition of the mother, etc.

This is an interesting bit of news, but without more information it is difficult to assess how important it really is.  Here's why:  the term "wrongful birth" is often used to mean different things depending on the type of injury claimed in the case.  Often, courts use the term to refer to a claim by parents to recover for the emotional distress that results from having a child the parents would rather have avoided.  The issue is often explained through a cause in fact analysis like this: had it not been for the negligence of the doctor, the parents would have terminated the pregnancy and the child would not have been born.  Thus, the negligence caused a birth that was not wanted. To my knowledge, no court has recognized such a claim because courts do not like the idea of saying that not having been born is better than having been born, or because life, no matter how bad, is better than non-life or because there is no way to assign a monetary value to the notion of not having been born.

On the other hand, courts have recognized a cause of action for parents in these cases for actual damages and out of pocket expenses related to the pregnancy and child birth that would have been avoided had the defendant not been negligent.

In addition, some courts have also allowed recovery for the expenses needed to take care for the child, at least until the age of majority.

If the bill in Arizona seeks to ban or prevent the first type of claim, it is a not a big issue because those claims are generally rejected anyway.

If the bill seeks to ban the second type, it is a big issue because the bill would be attempting to eliminate the right of a plaintiff to recover for damages that were clearly caused by the negligence of the defendant.

It is the third type of claim, however, that is the most interesting.  You can make a convincing argument that since the negligence of the defendant does not cause the condition of the child, the plaintiff can't establish cause in fact in support of the claim for the medical expenses related to the condition of the child.    If this is the basis for the bill in Arizona, it does raise an interesting issue that many courts have ignored when allowing parents to recover.

New information on Summers v. Tice

The blog Concurring Opinions has a short comment on the classic old case Summer v Tice - the case most law students remember as the case of the hunters who shot the plaintiff in the eye.  The post, by Kyle Graham, states he visited the California State Archive and reviewed the old case file where he found some interesting new information.

The case, as you may remember, is used to discuss the issues that arise when the plaintiff can't identify who from among two negligent actors actually caused the injury.  In the case, there were two negligent actors but  only one could have actually caused the injury. Given these circumstances, the court decided to switch the burden of proof to the defendants to show that they did not cause the injury.

The old case file, apparently, tells a slightly different story.

Apparently, Tice argued that the plaintiff could have identified the person whose conduct caused the injury but lost that chance due to his own negligence.  Tice testified that he had been using No. 6 shot, whereas Simonson (the other shooter) had been using No. 7½ shot. He argued that the two pellets are of slightly different size, and capable of distinction and that the reason that the distinction was not made was that the plaintiff lost the pellet after it was removed.  In fact, the plaintiff himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home.

Thanks to TortsProf for the link to the new information.

DES still causing problems after all these years

Last week in class we discussed two famous cases involving claims for injuries caused by DES, a drug commonly used decades ago to prevent miscarriages and birth defects.  Coincidentally, a day or two later AboutLawsuits.com is reporting that the daughters of women given DES are showing high rates of breast cancer and infertility problems, according to recent research.  Go here for the details.

Oregon finds that convicted defendant can bring malpractice claim against lawyers for mishandling post conviction appeal

As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.

In a slightly different type of case, the Oregon Supreme Court recently ruled, however, that a convicted criminal need not obtain exoneration of the underlying offense before suing his or her lawyers. The case is called Drollinger v. Mallon, and it is available here. The case is slightly different because the plaintiff's allegation was that the lawyer was negligent in handling a post-conviction appeal. The court found that exoneration is not required in the post-conviction malpractice setting because the policies underlying the exoneration requirement in an action involving alleged trial malpractice do not apply to an action in which a client's failure to obtain post-conviction relief is the heart of the case.

Defendant who pleads nolo contendere is precluded from suing for legal malpractice

Here is the most recent case in a long line of bad cases that hold that a criminal defendant does not have a right to sue his or her attorney for legal malpractice.  In this instance, the West Virginia Supreme Court held that a criminal defendant who, having obtained habeas relief, pled nolo contendere to the criminal charges.  In a dissenting opinion, Justice Ketchum argued that the court's decision is contrary to 148 years of precedent as well as rules of procedure and evidence.  He also argues that the decision "obliterates a criminal plea that served a very useful purpose." You can read the opinion here and the dissent here.