Illinois statute eliminates ban on punitive damages in death cases

 Back in May I reported that the Illinois General Assembly was considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute.  In that post I explained why I thought the bill was a good idea (and why the old doctrine it sought to replace was wrong).  See here.

Today, I am here to report that just a few days ago, on August 11, Illinois Governor J.B. Pritzker signed the bill into law.  The new law allows the recovery of punitive damages in wrongful death and survival actions.  

However, as I argued in my previous post, the bill did not go gar enough because punitive damages still are not recoverable in actions against doctors, lawyers, and public entities.

More coverage of Tort reform in Florida

I recently posted a note about Tort Reform in Florida.  See here. The TortsProf blog has more coverage and links here.

Illinois considers eliminating ban on punitive damages in death cases

I have never been able to figure out the public policy reasons behind the principle of Illinois law that holds that the right to seek punitive damages for personal injuries does not survive the death of the injured party.  This means that punitive damages are not recoverable in actions brought pursuant to the Illinois Wrongful Death Act and the Survival Act.  I first wrote about this anomaly back in 2011.  See here.

I call this Illinois rule an anomaly because I don't know of any other jurisdiction that recognizes the right to seek punitive damages in some cases but not in death cases.  

I also call it wrong because the policy results in a perverse incentive to cause more harm rather than to deter wrongful conduct, which is one of the main goals of tort law.   

Thankfully, after all these years, it is possible this wrongheaded policy might be partially abandoned.  

The Illinois General Assembly is currently considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute.  You can read the bill here.

Unfortunately, the bill does not go far enough because it still recognizes an exception for medical and legal malpractice cases.  This means that plaintiffs who seek to recover for the death of a decedent will not have access to punitive damages regardless of the degree of negligence or reprehensibility of the conduct of the defendant.  

This should change too.  But we are moving in the right direction, even if we are doing it one slow step at a time.  (The bill also recognizes an exception for claims against the state, but that is not unusual.  The Federal Torts Claim Act, as well as typical state versions, do not recognize a right to punitive damages in claims against the state.)

Not surprisingly, organizations dedicated to advocating for the interests of those whose conduct puts others at risk and causes injury, and their insurers, are not happy about this development.  Lacking sound policy arguments, as usual, they resort to using insults and exaggerations, calling the proposal a “calamity,” and a “shameless attack on businesses” and referring to the state a “judicial hellhole.”  See this post by the American Tort Reform Foundation, for example.  

I do agree with the ATRF that the exception for medical and legal malpractice cases does not make sense, but the solution to that disparity is not to reject the proposal altogether, thus depriving the plaintiffs of all access to recovery, but rather to eliminate the exception and thus to provide access to justice to those who deserve it.  After all, punitive damages are awarded in a very small minority of cases anyway.

UPDATE August 15, 2023:

Illinois statute eliminates ban on punitive damages in death cases

Florida overhauls litigation rules to adopt "tort reform" to make it more difficult for plaintiffs to recover for injuries

Last week, in a closed-door ceremony shut out to reporters, Florida Governor Ron DeSantis signed into law one of the most sweeping tort reform bills in the state’s history, targeting attorney fees, medical reimbursement and liability in negligence cases.

Supporters of the new law have called it an antidote to frivolous lawsuits and rising insurance rates but what it really does (and what it was intended to do) is make it more difficult for victims of accidents to recover for their injuries, and, for those who do get to recover, to make it so that they recover less.  The idea is not to limit frivolous lawsuits, but to limit valid lawsuits in order to protect the insurance industry.

Courthouse News Service has more on the story.

New York Governor Vetoes Bill to Expand Wrongful Death Lawsuit Benefits

 New York Governor Vetoes Bill to Expand Wrongful Death Lawsuit Benefits. Read the story here.

California Governor Signs Bill Raising Medical Negligence Caps

A few weeks ago, Governor Gavin Newsom signed Assembly Bill No. 35 into law, which received unanimous support for raising the California medical malpractice pain and suffering cap to reflect inflation, and provides better support for those who have been tragically hurt or killed by a medical mistake.

AboutLawsuits.com has the story here; the TortProf blog has a comment here.

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.

Bill to allow parents of adult children to recover in malpractice cases fails in Florida

A couple of weeks ago I wrote that the Florida House has voted to pass a bill to allow parents to pursue pain and suffering damages when their adult children die due to medical malpractice negligence.  See here.

Today I am writing to report that the attempt to pass the bill has failed.  See here. Medical interests and the Florida Chamber of Commerce had opposed the bill, arguing that current state of the law helps keep malpractice insurance premiums affordable, an old claim that has been proven to be wrong many times. 

Thanks to the TortsProf blog for the update. 

Legislators in Florida try to pass bill to recognize wrongful death cause of action for parents of adult children

For the second time in two years, the Florida House has voted to pass a bill to allow parents to pursue pain and suffering damages when their adult children die due to medical malpractice negligence. However, the bill has yet to pass through the Florida Senate, where it is facing opposition from the medical community and insurance carriers.  You can read the story here.

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.

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.

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.

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.

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.

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.

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.

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...

Louisiana approves tort reform bill -- UPDATED

About two weeks ago, the Louisiana legislature passed a tort reform bill that the Governor said he would sign, (after he had vetoed an earlier version).

The bill, which appears to be explicitly designed to favor the auto insurance industry adopts a limitation of the collateral source rule, removes the ban on mentioning whether a plaintiff was wearing a seat belt, limits when an insurance company's name can be mentioned in court, and reduces the threshold for jury trials from $50,000 to $10,000.

The first two measures are common in tort reform bills, but the measure related to the jury is strange because usually juries are thought of being more generous that judges when calculating damages.  It is not clear, why a tort reform bill designed to favor defendants tries to expand the number of cases that will be tried by juries.

Like most, if not all, tort reform bills, this one fails to address the real issue.  The bill is supposed to help lower car insurance rates, but  instead of drafting a bill that regulates those rates, the legislature drafted a bill to help insurance companies make more money while doing nothing to lower the bills.  I suppose it remains to be seen what will happen but more than likely, the consumers will get screwed twice: the insurance rates will remain the same (or continue to rise), and the injured victims will get lower compensation....  unless they miscalculated the gamble on whether juries will be less generous.

The TortsProf blog has more on the story here.

UPDATE 8/2/20: The Governor signed the bill....  Story here.

Podcast: legal implications related to autonomous vehicles

Long time readers of this blog may recall I have posted a few comments and links related to legal and ethical implications related to the use of autonomous vehicles.  See here, here, here, here and here.

Adding to that list, here is a recent podcast on the subject.