Big news of the week: Sandy Hook families reach $73M settlement in suit targeting gun marketing

 The big news this week was the announcement of a settlement in the case of the Sandy Hook families against gun manufacturers.  This is the first time a firearms manufacturer has settled a lawsuit brought by gun violence victims since Congress granted the industry sweeping immunity from civil liability in 2005.  The $73 million settlement is covered by The ABA Journal (where you can find more links), NPR (print) and NPR (audio).

The plaintiffs (Sandy Hook families) hope the settlement will lead to changes in the gun industry.  Yet, here is an article arguing why it probably won't.

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.

Should a doctor be subject to liability to non-patients who suffer an injury because of negligence toward a patient?

Suppose a doctor misdiagnoses a contagious condition on a patient, and the patient then causes an injury to a third person.  Should the third person have a cause of action against the doctor?  This is a question that has been addressed by a number of cases, many of them involving sexually transmitted diseases.

Now, in a case called Jane Doe v Charles Cochran, available here, the Connecticut Supreme Court has held that a doctor may be liable to a third party infected with an STD after the doctor had mistakenly informed the patient he was free of infection.

Two judges dissented, here, arguing that it is wrong to extend the duty of the doctor to include non-patients.

New case claims injury based on negligent conduct by fertility clinic

A few years ago I wrote an article criticizing a case in which the plaintiffs claimed to have suffered an injury because, due to the conduct of the defendant, they ended up giving birth to a child of a different race.  (See here.)  I argued that it would be wrong to use someone's race as a measure of injury in a torts claim.

I still believe that to be the case, but a new case has been filed in Connecticut which raises the issue in a slightly different way.  In the case I wrote about, the plaintiffs specifically used race as an element of their injury.  In the new case, the plaintiffs are not doing that.  They are also not using the phrase "wrongful birth" to refer to the basis for their claim.

Should this make a difference? 

The notion of wrongful birth is usually used to refer to a claim that had it not been for the negligent conduct of the defendant the parents would have chosen not to have the child, and that because they did have the child, the defendant should pay for the resulting expenses (and other injuries).  Typically, courts do not recognize recovery for the emotional injury, but might recognize a claim for out of pocket expenses of various types.

In the case I wrote about a few years ago, a white woman provided the eggs and the defendant used sperm from a donor.  The mother had specifically selected the donor to be white.  Instead, the defendant used sperm from a different donor who happened to be African American.  The child born from the procedure is biologically related to the mother but of mixed races.

In the recently filed case in Connecticut, the defendant was supposed to use sperm from the plaintiff/father to fertilize an egg from a donor, so that the child would be biologically related to the father. The defendant used the wrong sperm and thus the couple gave birth to a child who is not biologically related to either one of them and also of mixed races.

Based on those facts, the complaint in the new case simply states that the defendant provided the wrong sperm to the plaintiffs and that the result of the procedure is a child who is not related to the parents at all.  This is the basis for their claimed emotional distress.  The complaint is careful not to use the term "wrongful birth" or to suggest that the race of the child is itself a basis for emotional distress. 

Should the parents in this case be granted a cause of action for the emotional distress if we don't grant one for the parents of a child in the older case?

It seems that the difference comes down to whether the race of the child is the basis of the claim.  Is it?  What do you think?

You can read more about the case in Connecticut here and here.