Alabama case in which state Supreme Court held frozen embryos are "children" for purposes of wrongful death settles and is dismissed

 The lawsuit that led to a highly-publicized Alabama Supreme Court ruling that frozen embryos in a lab count as “minor children,” was dismissed Wednesday after plaintiffs settled their wrongful death claims against the in vitro fertilization (IVF) clinic and Mobile hospital.  Go here for the full story. 

This result is important for the parties, of course, but the more important part of the story was the ruling of the Alabama Supreme Court back in February.  You can read my posts on that decision here, here and 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.

NFL revises its position regarding "race norming"

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. 

"Worth" -- Netflix's movie on the 9/11 victim's compensation fund, and interviews with Ken Feinberg

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.

Federal judge orders NFL and players to mediation to address concern over racist methodology when calculating compensation for players - UPDATED

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.

 

Here is the key part of the story:

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

Article and program on settlements in police misconduct cases

  Yesterday I posted a video on data related to how much money is spent on settling cases of police misconduct.  Today, I am posting another conversation on the subject.  In this one, Benjamin Wittes sat down on Lawfare Live with Rashawn Ray, the David M. Rubenstein Fellow in Governance Studies at the Brookings Institution, to talk about civil settlements. Rashawn is the author of a recent Lawfare article about how to reform the civil settlement system to make it more effective in deterring police misconduct, and they discussed the series of reforms that Rashawn recommends.  You may want to read the article first (here) and then listen to the conversation (by clicking on the play button below or by going here.)

Study on how much money cities' pay to settle police misconduct cases

As you probably know, police misconduct trials are rare, often because the defendants are granted qualified immunity.  However, those claims are claims brought against individuals.  The situation in cases brought against cities or other government entities is different.  In those cases, cities often pay high amounts of money to settle misconduct claims.  

Over at the website FiveThirtyEight, their quantitative editor Laura Bronner recently spoke with Galen Druke about FiveThirtyEight and The Marshall Project’s investigation into the amount of money cities have spent on police misconduct settlements — in the range of $3 billion over the last decade. What’s less clear is whether the situation has improved within that time period.

You can watch the conversation by clicking on the play button below or by going here.

Utah nurse who was unjustifiably arrested for refusing to comply with illegal order by police officer agrees to $500,000 settlement

You probably remember the story from a few months ago involving a police officer who arrested a nurse after she refused to draw blood from an unconscious patient because the police officer did not have a warrant.  The police officer arrested the nurse and placed her in a squad car for some time before releasing her.  A video of the incident went viral, and the story gained national attention.  Eventually, the police officer was fired.  Since then, the hospital changed its policies and no longer allows police officers access to patient care areas.

At the time, I remember thinking this seemed like an easy false imprisonment case.  And it now certainly looks like it was.  Just a couple of months removed from the incident, there is news that the nurse has agreed to a half a million dollar settlement.  

The ABA Journal has the story with links to more information.  Here is the original video:

Illinois Supreme Court Agrees to Clarify When Workers’ Comp Settlement Eliminates Contribution Claim from Third-Party Tortfeasor

According to Illinois law, when a party settles a claim in good faith against one tortfeasor, the finding of good faith automatically discharges that tortfeasor from any liability for contribution to another tortfeasor.  Now, the Appellate Strategist is reporting that the Illinois Supreme Court had agreed to clarify whether a workers’ compensation settlement eliminates the right to a contribution claim the same way.  Go here for the full story.

North Charleston SC agrees to pay $6.5 million in settlement for shooting of unarmed black man by Scott by police

North Charleston, S.C., has agreed to pay $6.5 million as a settlement with the family of Walter Scott, an unarmed black man shot in the back and killed by a white police officer in April.  The incident captured national attention because it was captured on a cellphone camera by a passerby. The officer, Michael Slager, was fired and eventually charged with murder.  NPR and Slate have more information.

Baltimore Fraternal Order of Police calls suggestion of a settlement with family of Freddie Gray "ridiculous" and "obscene"

According to a report by CNN, available here, Gene Ryan, president of the Baltimore Fraternal Order of Police, reacted to the announcement of the settlement by the city of Baltimore with the family of Freddie Gray (see here), stating that the settlement was a "ridiculous reaction" and that "[t]o suggest that there is any reason to settle prior to the adjudication of the pending criminal cases is obscene..."

Baltimore agrees to settle claim Freddie Gray's family for $6.4 million

The city of Baltimore has agreed to pay a $6.4 million settlement to the family of Freddie Gray, who died at age 25 in police custody last April after suffering a serious spinal injury in the back of a police van.  (Six city police officers are facing criminal charges in the matter also.)   Slate, NPR and Gawker have more information.

Trial set to begin against DuPont for injuries caused by water pollution in a huge case you probably have never heard of

Back in 2008, the PopTort reported on a case brought by 80,000 people against DuPont USA alleging that it had knowingly “polluted water supplies of two West Virginia and four Ohio water districts with a chemical used to manufacture Teflon, called C-8,” and tried to cover it up. That case was settled but it did not include a settlement for individual personal injuries caused by the chemical in the water.  Since then, thanks to an epidemiological study that showed that a “probable link exists” between the chemical and at least 6 diseases suffered at unusually high rates by the residents in the affected areas, a claim for personal injuries was filed by 3,500 individual plaintiffs. The trial on the first of these, starts later this week. Go here for more information and links on the story.

GM Settlement Fund Offers $1 Million Each in 124 Ingition Switch Death Claims

Details here.

G.M.’s Ignition Switch Death Toll Hits 100, but many claims may be dismissed because of the effect of the company's 2009 bankruptcy

The consequences of General Motors’ long-delayed recall of defective small cars hit a grim milestone recently, when the company’s compensation fund said it had approved the 100th death claim tied to faulty ignition switches. The toll far exceeds the 13 victims that G.M. had said last year were the only known fatalities linked to ignitions that could suddenly cut off engine power and disable airbags.  The New York Times has the full story here. However, a large number of lawsuits filed against GM may be dismissed following a recent bankruptcy court ruling blocking lawsuits filed against General Motors over actions that predate its 2009 bankruptcy, declaring that “New GM” and “Old GM” are two different companies and that the new company is not liable for the actions of the old one. AboutLawsuits has that story here.

Podcast on the Takata airbag cases that have settled confidentially

Go here to listen to a Bloomberg law four minute interview on the Takata airbag cases that have settled confidentially

Comment on the NFL concussion claims settlement

Over at Mass Tort Profs, Prof. Howie Erichson (Fordham) analyzes the NFL concussion settlement. He's not in favor.

Thanks to the TortsProf blog for the link.

Criticism of GM's compensation fund

Here is a comment criticizing GM's compensation fund (administered by Kenneth Feinberg), which claims the Fund has approved only 79 of 2180 claims in five months.

Kenneth Feinberg discusses compensating for tragedy and loss

Kenneth Feinberg, the current administrator of the compensation fund for those injured by defective GM cars and former administrator of the fund created to compensate the victims of the BP Deep Water Horizon oil spill, comments on the issues related to compensation in mass tort cases here.  Feinberg has proven to be a controversial figure.  While working in the BP litigation, he found himself in the middle of a controversy over whether he had a conflict (favoring BP).  See here, here, here and here.  However, he has also been praised for his approach to compensation. If nothing else, his work will be influential on how courts handle mass disaster cases in the future.  For more on the issues related to both the BP and GM settlement funds go here and scroll down.


Thanks to the TortsProf blog for the link.

BP's cert petition to undo settlement agreement has been denied

BP's petition for cert was denied today. You can find the order here You can find the cert filings at SCOTUSBLOG The Mass Tort litigation blog has more details here.