In one of the first reported decisions of the term, the US Supreme Court has decided that a state law requirement (to file a certificate of merit) in a medical malpractice case should not apply if the claim is filed in Federal Court.
The case is called Berk v. Choy.
You can read a summary and comment on it in SCOTUS blog.
The SCOTUS blog reports on an upcoming case:
Berk v. Choy, to be argued on Oct. 6, surely will be the Supreme Court case of the year for medical professionals. At issue in the case is the extent to which a set of common state statutes designed to stem medical malpractice litigation apply in federal court. If they don’t apply in federal court, victims who have a way to get into federal court will have a much easier time pursuing litigation against doctors than those who cannot.
The case involves Delaware’s “affidavit of merit” statute, something that dozens of states have passed in recent years. Although the details vary, the key concept is that for a medical malpractice action to proceed, the case either has to involve medical negligence that is pretty obvious – the doctor left a foreign object in the patient’s body, the doctor operated on the wrong person, the doctor operated on the wrong organ – or the plaintiff has to file with the complaint an affidavit from a medical professional attesting to the negligence of the doctor who is being sued. Because those affidavits are somewhat hard to come by – how many doctors want to help someone sue another doctor for malpractice? – they pose a serious obstacle to the pursuit of many medical malpractice claims.
.... To continue reading the story go to the SCOTUS blog here.
In an important, and somewhat surprising, decision, a state judge has ruled that a teacher who was shot by a 6-year-old student in Virginia can proceed with a $40 million lawsuit against a school system over claims of negligence by school administrators.
The issue in the case was whether the claim should be considered to be a claim for a work related injury. If so, the claim could only be brought as a workers’ compensation claim which would have provided much lower compensation for the plaintiff.
Given the ruling, the plaintiff can proceed with the torts claim she filed in court, which asked for $40 million in damages.
The judge based its decision on the conclusion that the plaintiff's injuries “did not arise out of her employment” and therefore did not “fall within the exclusive provisions of workers’ compensation coverage.” The judge also concluded that “[t]he danger of being shot by a student is not one that is peculiar or unique to the job of a first-grade teacher.”
You can read more about the story Courthouse Network News, NPR and The Hill.
As the case moves forward now, I expect it will raise issues related to intervening causes, proximate cause, and governmental immunity. Stay tuned!
A few days ago, I posted a story questioning why Rudy Giuliani would concede the main elements of a cause of action for defamation he had been fighting (based on his comments about two election workers). Giuliani -- or perhaps, more accurately, the lawyer representing him -- apparently thought that it was a good tactic in order to avoid complying with a discovery request, but that made no sense. My original comment explaining why the tactic was likely to fail is here.
As I predicted, the tactic not only failed, it backfired spectacularly. See here. First it resulted in an order to explain his argument and eventually in a finding of liability by default.
Maybe Giuliani and his lawyer did not realize that what they did amounted to conceding the main elements of the cause of action and for that reason, and because of the fact that they did not comply with discovery, the court has found Giuliani liable by default.
Now that default judgment has been imposed, the case will move to trial on the question of the value of the injury, ie, on the damages issue alone. And if you have been paying attention to the story in the news and have watched some of the testimony by the plaintiffs, you know it is fair to say that the value will likely be high. Plus, Giuliani will have to pay attorneys' fees to the plaintiff's lawyers and more in sanctions.
Giuliani is in real trouble. He is reportedly in dire financial trouble and a huge verdict against him in this case will cause him a lot of distress. He has been trying to find funding for his legal bills, which include pending disbarment proceedings in New York and Washington DC, the indictment in Georgia, and at least one other defamation case. Reportedly, Trump is not contributing to his defense fund and Giuliani has put up his NY condo up for sale and is hosting events in attempts to raise funds. (Trump apparently agreed to appear in one of them, although I won't be surprised if he makes the appearance all about himself and ends up trying to get contributions for his legal defense fund rather than for Giuliani, but that's another story for another day.)
You can read the court's opinion here. You can find reports and commentary on the default judgment against Giuliani in the following:
Last Friday I posted a story about how Rudy Giuliani attempted to prevent having to comply discovery in a defamation case by conceding all the elements of the cause of action against him and, at the same time, trying to raise defenses in the case. And, after explaining the situation I concluded "Unfortunately for Giuliani, that’s not how anything works." My original story is here.
I fully expected Giuliani's tactic to be rejected and that is just what happened. Reportedly, the judge overseeing the case has given Giuliani the following options. He can:
1. submit a new stipulation conceding liability to the claims “all factual allegations ... as to his liability for plaintiffs’ defamation, intentional infliction of emotional distress, and civil conspiracy claims, and his liability as to plaintiffs’ claim for punitive damages” and that a default judgment as to his liability is appropriate, or
2. explain why he is declining to submit such a stipulation by clarifying “what precisely his original stipulation conceded regarding the plaintiffs’ factual allegations and legal claims.”
Should Giuliani fail to choose one or two, the judge will convene a hearing (on August 15) to determine how, if at all, he has complied with her prior order to search and produce all materials responsive to the plaintiffs' discovery requests.
Stay tuned!
Last Tuesday Rudy Giuliani filed a two-page stipulation in a long-running defamation lawsuit by two Georgia election workers stating that he “does not contest” that his statements about the plaintiffs were “false” and “carry meaning that is defamatory.” According to the reporting, Giuliani’s attorney added that Giuliani was not in fact “admitting” to the plaintiffs’ allegations against him but making a decision to stop contesting them, which he says should end the plaintiffs’ effort to seek further factual evidence – emails, text messages and other communications – from Giuliani.
Unfortunately, for Giuliani, that’s not how anything works.
First of all, trying to make a distinction between conceding the allegations and not contesting them is nonsense. You can’t have it both ways. In the document, Giuliani conceded that he made the statements alleged in the complaint, that the statements were false and that they were defamatory per se. That means he conceded all the elements of the cause of action. Period, end of story. All Giuliani has left after that is arguing affirmative defenses. And which ones are there? I don’t see any.
He apparently claims that either the statements were statements of opinion or that they were constitutionally protected. Both arguments are wrong.
Once he admits that the statements he made were “false” he has admitted they were not opinions. By definition opinions can’t be true or false – that’s what distinguishes them from statements of fact. But Giuliani has conceded they were statements of fact. So that argument is out - he defeated it himself!
The other possible argument – that the statements were constitutionally protected, is also flawed. First, the notion of defamation is based on the doctrine that not all speech is protected and that if it is not protected, it can result in possible liability. That’s what defamation law is all about. So the question becomes whether the plaintiff can meet the standard needed to show that the speech is not protected and, therefore, should subject the defendant to liability.
On that, the doctrine has created different standards for different categories of plaintiffs. If the plaintiff is a public official or a public figure, the plaintiff has to meet a higher standard because speech about them is more protected. But the plaintiffs in this case were neither. They were private persons performing a volunteer job as election officials. I could be wrong about this, but I don’t think they were elected officials for that job, and they were not known celebrities before the elections and before Giuliani and others started accusing them of misconduct. If I am correct in those assumptions, the plaintiffs in this case do not have to show actual malice on the part of the defendant and will have an easier time defeating the argument that the statements were constitutionally protected.
Second, Giuliani can’t just say that he wants to end discovery because he does not want to disclose more information. Discovery exists to allow the parties access to information and, as everyone knows, discovery is not limited to evidence that can be used at trial. You can use discovery to get access to evidence that will likely lead to evidence that can be used at trial.
The fact Giuliani says he is conceding the element of the claim to end the plaintiffs’ effort to seek further factual evidence just makes me wonder what he has that wants to hide so badly.
And, further, defamation was not the only claim in this case. The plaintiffs’ also sued for emotional distress which is a separate cause of action and they should have the right to continue discovery in order to get evidence related to that claim, which should include the evidence that Giuliani apparently does not want them to get access to.
For these reasons, it seems to me the decision to concede the elements of the cause of action was not a very smart one. It defeats one of his defenses, makes it easier for the plaintiffs to support their claim and should not stop discovery.
Finally, as an aside, I also can't imagine that publicly admitting that he lied in a way that caused so much injury to private individuals is going to help Giuliani's chances to avoid discipline in the various disciplinary proceedings he is facing.
For coverage of Giuliani's confession see Politico, NPR, MSNBC, The Guardian, The Hill, The Conversation and Above the Law.
UPDATE: 8/9/23: As expected, the judge did not buy it. See here.
UPDATE: 9/3/23: The story continues here.
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.
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.
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.
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.
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
The National Law Review has published a short comment on "the dangers of driverless cars." You can read it here.
The prospect of lawsuits against businesses that fail to take proper precautions to prevent the spread of COVID-19 is likely to focus business owners’ attention on exercising reasonable care to avoid liability for negligence. The various considerations that define the legal standard of reasonable care—cost-benefit analysis, emerging industry customs, public safety regulations, and common sense—applied in specific contexts by the people who know them best may make the reopening process more reflective and rational than if businesses rely solely on the changing or conflicting policy statements released by public officials.In addition, as has been proven time and time again before the days of the pandemic in the debate related to tort reform, the fear that liability exposure will lead to a flood of litigation is unwarranted. The civil liability system places considerable obstacles on the prospect of frivolous litigation.
