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.

Idaho lower court rejects so-called "innovator liability"

Long time readers of this blog will remember the debate over the so called "innovator liability" about which I have posted in the past. You can find some of those posts by going to the "warnings" label and scrolling down.

In an nutshell, the debate is this:  Current FDA regulations require manufacturers of generic prescription drugs to use exactly the same warnings that the name brand manufacturers use.  By "name brand manufacturers" I mean the manufacturers of the original drugs of which the generics are now an option.  The manufacturers of generics are not allowed to deviate from those warnings even if they think that they should provide better warnings that could make the product safer.  And, the language of the warnings are largely determined by the name brand manufacturers themselves, not by the FDA.

Because of this, manufacturers of generics can say that it is not their fault that the warning is inadequate since their hands are tied when it comes to deciding what the warning should say.  For that reason, at some point plaintiffs' lawyers started to file claims against the name brand manufacturers arguing that since the problem was that the warning was inadequate, it is the party that decided what the warning should be who should be liable, even if that defendant was not the person who manufactured the drug used by the plaintiff.  This theory of liability is what is not often referred to as "innovator liability."

To me, it makes perfect sense because the claim is not based on a manufacturing problem, but on the lack of, or adequacy of, a warning.  But, not surprisingly, brand name manufacturers and their lawyers have reacted negatively to the possibility of liability.

Some courts have adopted innovator liability as a possible way to support a claim; others have rejected it, and just a few days ago I heard of a recent decision by a state court in Idaho rejecting it.  The case is called Sterling v. Novartis and you can read the opinion here.

It is interesting that the court starts its discussion of the issue by pointing out what it refers to as the “crucial fact” that “Novartis did not manufacture the drug that caused the injuries.”

Obviously, sated that way it sound like imposing liability on the defendant would be contrary to basic principles of tort law.  After all, as the court also points out the common law generally does not impose  liability on a company for injuries caused by other companies.

But here is the thing.  That "crucial fact" is also irrelevant.

That fact would be crucial if the claim was for an injury related to the manufacturing or design of the product because in a case like that the plaintiff would be trying to impose liability on the defendant for the conduct of the generics manufacturer.

This claim is based on an inadequate warning and the brand name manufacturer is the one whose conduct is related to the warning.  Thus, the possible liability is not for the conduct of another but for the conduct of the defendant.

The question is whether the duty owed by the defendant to its customers should extend to the customers of the generics manufacturers.  Applying the most commonly adopted analysis for this question, we would say the duty should extend to those whose injuries are a foreseeable consequence of the risk created.  If the risk was created by the defendant given its role in determining the content of the warning, then it makes sense to extend the duty and to recognize the possibility of liability for the resulting injuries.

Here is a comment from the perspective of the defendant which argues against my view.

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

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

Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian.  In part, the court concluded:

We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . .  Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.

This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted.  I have not done a state by state survey recently, so I don't know for sure.  However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence.  If someone has information about the actual count of how many states follow each approach, please let me know.