"Personhood" amendments and tort law

A few days ago, I discussed pre-natal torts in my class.  Among many other things we talked about whether a jurisdiction should recognize a cause of action for the wrongful death of a fetus.  In some states this question has been decided by statute, while in others it depends on the interpretation of the word "person" in wrongful death statutes that recognize a cause of action for the wrongful death of a person. 

Here is a link to an article in the New York Times about a constitutional amendment facing voters in Mississippi on Nov. 8, and similar initiatives brewing in half a dozen other states including Florida and Ohio, that seek to declare a fertilized human egg to be a legal person.  It has been argued such an amendment would effectively brand abortion and some forms of birth control as murder. For the same reason, it could have an effect on the interpretation of wrongful death statutes and affect the outcome of other pre-natal tort type claims.


Thanks to Christine Livingood for the link.

New Public Citizen Report on tort reform in Texas

Last month I reported on a new study on tort reform in Texas by Texas Watch.  See here.  Now, consumer protection organization Public Citizen has released a report on the failure of a $250,000 medical malpractice cap in Texas to lower health care costs. Here is the abstract of the report:

A common perception among policymakers and pundits is that medical malpractice litigation is significantly, or even chiefly, to blame for skyrocketing health care costs and steadily diminishing access to care. But analysis of data in Texas, which in 2003 imposed some of the strictest liability caps in the country, tells a far different story. While litigation over malpractice in Texas has plummeted dramatically since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure.

You can read the full report here.  For some comments on the report go here and here.

Here are some of the findings:

-- The cap did not prevent increases in health care costs.

-- Since 2003, Medicare costs rose 13% faster than the national average.

-- Health insurance costs have outpaced the national average and the percentage of residents lacking health insurance has risen.

-- Medicare spending specifically for outpatient service has risen 30.7 percent faster than the national average;

-- Medicare diagnostic testing expenditure have risen 25.6 percent faster than the national average;

-- Premiums for private health insurance have risen faster (51.7 percent) than the national average (50 percent);

-- The percentage of Texans who lack health insurance has risen to 24.6 percent, solidifying the state’s dubious distinction of having the highest uninsured rate in the country;

-- The per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the cap; and

-- The prevalence of physicians in non-metropolitan areas has declined.

These last two findings are interesting given that a typical argument for tort reform is that we need tort reform to avoid doctors leaving practice or moving to other states.

The one thing the cap resulted in was fewer lawsuits.  This is an obvious consequence of tort reform.  As I have stated before (see here, for example), if you make it more difficult for injured victims to sue (or recover) there will be fewer lawsuits.  We don't need a special study for that.  All that shows is the real goal of tort law: to make it more difficult for injured victims to get compensation for their injuries and to allow those who cause their injuries to avoid liability.

A lot of people think this is a good idea until they (or someone close to them) suffers an injury. They often change their opinion once they realize the real consequences of tort reform.  See here and  here for example.

Is there a connection between tort reform and the "occupy Wall Street" movement?

The Pop Tort thinks so:  here.

Updated list on cases about corporate liability under the Alien Tort Statute and the Torture Victim Protection Act

Here is an updated list of cases on the issue of corporate liability for international torts:

Deciding that corporations can NOT be sued under the Alien Tort Statute:
 -- Kiobel v Royal Dutch Petroleum (2nd Cir 2010)

Deciding that corporations CAN be sued under the Alien Tort Statute:
-- Doe v. Exxon (DC Cir 2011)
-- Flomo v. Firestone  (7th Cir 2011).  Judge Posner wrote the opinion in this case.  He flatly states that the factual premise of the majority opinion in the Kiobel is simply incorrect.

Deciding that corporations can NOT be sued under the TVPA
-- Bowoto v Chevron (9th Cir 2010)
-- Mohamad v Rajoub (DC Cir 2011)
--Aziz v. Alcolac, Inc. (4th Cir. Sept. 19, 2011)

Deciding that corporations CAN be sued under the TVPA 
-- Aldana v. Del Monte (11th Cir 2005).  The court in Bowoto states this case holds corporations can be sued under the TVPA although it does not state so explicitly.

More on the cases granted by the Supreme Court

Courtesy of the SCOTUS blog, here is a list of references to coverage of the Supreme Court's decision to grant cert in the cases related to the Alien Tort Statute and the Torture Victim Protection Act:

Greg Stohr of Bloomberg.

Mark Sherman of the Associated Press.

Adam Liptak of the New York Times.

The Wall Street Journal Law Blog.

The Huffington Post.

Finally, you can read a debate among several participants in the SCOTUS "community" site here.

Wisconsoin considers new preemption statute

At the request of Wisconsin Governor Scott Walker, a state Senate committee has proposed a bill that would protect drug and device makers from liability in state lawsuits, so long as their products were approved by the FDA, unless the manufacturer committed fraud against the FDA. The measure seems to be modeled after a statute in Michigan (see here), which has been described as the most restrictive in the country - meaning that it provides the most protection to manufacturers from injured victims' claims. An attempt to enact similar legislation in North Carolina was recently abandoned (see here). Pharmalot has more details here.  You can read the bill here.

Mohamad v. Rajoub - "the other case" granted by the Supreme Court & the corporate liability scorecard so far

As I reported earlier today, the Supreme Court has now officially agreed to review cases on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act. Kiobel v Royal Dutch Petroleum, decided by the Court of Appeals for the Second Circuit, was the first one to hold that corporations can't be sued under the Alien Tort Statute.  Since then at least two other Circuit Courts have rejected its reasoning.

Meanwhile Bowoto v. Chevron reached the same result under the Torture Victim Protection Act.  However, the Court has not yet granted review in Bowoto.  Instead, it granted review in a case called Mohamad v Rajoub, a decision from the DC Circuit which essentially copies the reasoning in Bowoto.  I don't understand why the Court would grant review in Rajoub and not in Bowoto since they hold the same thing, so I would not be surprised if the Court consolidates the cases... but we will have to wait and see.

What I want to point out here is an interesting development that relates to the Rajoub case.

At the time Rajoub was decided by the Court of Appeals for the DC Circuit, the issue of corporate liability under the ATS was pending before that same court in another case called Doe v Exxon. That case has since been decided, in favor of the plaintiffs.

This means that the DC Circuit has decided that corporations can not be sued under the TVPA but can be sued under the ATS.

So what is the scoreboard at the moment?  Here it is:

Deciding that corporations can NOT be sued under the Alien Tort Statute:
 -- Kiobel v Royal Dutch Petroleum (2nd Cir 2010)

Deciding that corporations CAN be sued under the Alien Tort Statute:
-- Doe v. Exxon (DC Cir 2011)
-- Flomo v. Firestone  (7th Cir 2011).  Judge Posner wrote the opinion in this case.  He flatly states that the factual premise of the majority opinion in the Kiobel is simply incorrect.

Deciding that corporations can NOT be sued under the TVPA
-- Bowoto v Chevron (9th Cir 2010)
-- Mohamad v Rajoub (DC Cir 2011)
--Aziz v. Alcolac, Inc. (4th Cir. Sept. 19, 2011)

Deciding that corporations CAN be sued under the TVPA 
-- Aldana v. Del Monte (11th Cir 2005).  The court in Bowoto states this case holds corporations can be sued under the TVPA although it does not state so explicitly.

Supreme Court grants review in cases regarding possible corporate liability for "international torts" -- UPDATED

A few days ago, I posted a note about two cases pending before the US Supreme Court on the issue of whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act.  Kiobel v Royal Dutch Petroleum decided that corporations can't be held liable for damages for violating the law of nations under the Alien Tort Act while  Bowoto v. Chevron reached the same result under the Torture Victim Protection Act.  As expected, the Court has now officially granted review in Kiobel.  For more go here.

Go here for more information on the issue and for links to the cases and other important documents.

UPDATE:   more information here

UPDATE #2:  the Wall Street Journal law blog has some comments here.

Strange result due to decision in Pliva v Mensing

As you probably remember, back in June the Supreme Court issued a decision PLIVA v. Mensing on the right to sue in state court when a generic drug maker fails to change its label to warn consumers of new harmful side-effects. Go here and here for some background and lots of links.  In a 5 to 4 decision, the Court decided that federal law preempts state lawsuits because their effect could be to force the defendants to offer labeling that is different from what appears on the label of the brand-name drug.

As you probably also remember, in March 2009 the Court decided 6-3 in Wyeth v. Levine that federal law did not preempt a failure to warn case.

Now here is the interesting part:  if you take the facts of Wyeth and substitute the drug used with a generic brand one, the case is preempted.  So let's say the plaintiff, suffering from pain and nausea, goes to the hospital and is administered an injection of "Phenergan".  The injection is accidentally put in plaintiff's artery instead of her vein and the resulting vascular injury requires amputation of plaintiff's right arm. Under Wyeth v. Levine, if that drug is a brand name, the claim is not preempted, but because that drug is, in fact, a generic the court in Schork v. Baxter Healthcare Corporation, 2011 U.S. Dist. LEXIS 107687 (S.D. Ind. Sept. 22, 2011) decided the claim is preempted under the ruling in Pliva.


Thanks to the Drug and Device Law Blog for the information.

More critical comments on Congress' attempt to enact tort reform legislation

I have criticized the proposed attempts by Republicans in Congress to enact tort reform legislation (particularly a medical malpractice bill) here, here, here, here, here, here, here, here and here.

Now here is some criticism from the right.  "Tea Party" supporter Rob Natelson of the Independence Institute in Colorado, has been described as the first conservative legal scholar to forcefully argue that federally imposed limits on medical malpractice and other health care-related lawsuits are unconstitutional.  See this letter back in April and this article back in May.


Thanks to Eric Turkewitz of the NY Personal Injury Law Blog for the links.