CT Supreme Court to consider appeal in previously dismissed lawsuit against gun maker related to shooting at Sandy Hook Elementary

Almost two years ago, I reported that the families of nine of the 26 people killed two years ago at the Sandy Hook Elementary School in Connecticut filed a lawsuit against the manufacturer, distributor and seller of the Bushmaster AR-15 rifle used in the shooting. See here and here.

Back in October, however, several sources the case was dismissed.  NPR has more details on the story here.  Also, Politico has the story here.

Now comes news that the Connecticut Supreme Court has accepted an appeal. NPR has the story, although there are very few details.

Podcast: Challenges of self driving cars

The program Case in Point (Univ. of Pennsylvania Law School) has posted a new 20 minute podcast on "Challenges of Self-Driving Vehicles." 

Utah Supreme Court holds a person can sue herself under wrongful death and survival stautes

I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility.  The case is Bagley v. Bagley and you can read the full opinion here.

Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later.  Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms Bagley sued herself in an attempt to compel her insurance company to indemnify her.  Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time. 

Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.

Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.

The trial court granted a motion to dismiss, but the court of appeals reversed. 

On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”

In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant were represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest.  Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.”  It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her.  Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.

The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.”  (See footnote 37 of the opinion)

You can read the full opinion here.

Hospital System allegedly tries to force possible patients to give up right to sue or they will be charged more for services; and residents may be forced to work longer hours

NPR is reporting today that San Francisco area companies are complaining that Sutter Health is strong-arming them into a contract that would help the hospital system secure its power over prices and potentially raise the cost of medical care for their employees in the future. The report says taht dozens of companies have received a letter asking them to waive their rights to sue Sutter. If they don't, the companies' employees who get care through Sutter's network of hospitals, doctors and medical services will no longer have access to discounted in-network prices.

Meanwhile, in a separate story, the group that sets the rules for medical residents has proposed changing the rule that says that interns, doctors in their first year of on-the-job training after finishing medical school, can work no more than 16 hours without a break.  This rule was adopted many years ago to minimize the chances the rookie doctors would make mistakes while fatigued.  The new proposed rule would let these new doctors work for as many as 28 hours at a stretch.

What do you think would be the cumulative effect of these two events? 

Judge assigned to wrongful death case against Hilary Clinton steps aside and asks for case to be reassigned after allegations of forum shopping

Back in August I reported that the parents of two Americans killed in Benghazi, Libya, filed a lawsuit Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  I my post (here) I suggested the allegations in the complaint would be very difficult to prove and that there was a chance the case would be considered a frivolous lawsuit, in which case it should be dismissed and the lawyer should be sanctioned.

Now, a new report published in Politico (here) provides an interesting update on the story.  The judge who had been assigned the case decided to set aside and send the case back for reassignment.  It turns out the attorney who filed the case wanted that specific judge (a long time Clinton critic) and apparently tried to manipulate the system in order to get him.  According to the story, Clinton's lawyers filed a motion arguing, among other things that the plaintiffs' lawyer has a history of "judge shopping" and the judge gave up the case.

This new development adds to my concern over the plaintiffs' lawyer.  Did he first file a frivolous lawsuit and then try to manipulate the system in order to shop for the judge he wanted?   Will there be a hearing to discuss these questions?  Will the new judge impose sanctions?  Stay tuned...

What are "non-economic damages" and why do tort reformers want to limit victims' ability to recover for them?

A few days ago I reported that the Supreme Court of Arkansas eliminated a ballot initiative that would have drastically capped compensation for “non-economic damages” to victims of medical malpractice and nursing home abuse.  (In fact, it has been reported that the initiative was the brainchild of the nursing home industry.)

In response to this news, the PopTort has posted a good short comment on the nature of non-economic damages and the effects of placing "caps" on them.  You should read it here.

Movement afoot to prevent a vote on Arkansas referendum that would cap attorney fees and damages in medical cases -- UPDATED

September 3, 2016:   The ABA Journal online is reporting that two lawsuits have been filed this week to block an Arkansas ballot referendum that would cap non-economic damages and attorney fees in medical injury cases.  The state’s Bar Association also opposes the proposed measure which would require legislators to create a cap for non-economic damages in medical lawsuits against health-care providers of at least $250,000, and would limit contingency fees to one-third of any recovery after all costs of the litigation are deducted.

UPDATE (Oct. 13, 2016):  The TortsProf blog is reporting today that the Arkansas Supreme Court has just killed the ballot initiative.  TortsProf has a link to more information. 

Update on the debate regarding possible liability for injuries caused by autonomous cars

I have been following the debate regarding the development of so called "self driving cars" or "autonomous cars and the debate on the legal issues that will arise regarding liability for injuries caused by them.  My previous posts (with lots of links to more information) are here, here, here and here.

One of the more interesting questions that is being debated is whether a car should be programmed to kill its occupants if it means saving the lives of other people or whether government regulations should focus on a utilitarian model where the vehicle is programmed to prioritize the good of the overall public above the individual.

This philosophical question - usually referred to as the trolley car problem - has been the subject of discussion in philosophy classes and books for a long time.  (You can watch such a class at Harvard here).

Interestingly, however, Techdirt is reporting that according to some engineers, the trolley problem should not be an issue when it comes to autonomous cars.  Or, at least, not yet.  For now, engineers are concerned with more basic problems.  As the article concludes:

[The trolley questions is] still a question that needs asking, but with no obvious solution on the horizon, engineers appear to be focused on notably more mundane problems. For example one study suggests that while self-driving cars do get into twice the number of accidents of manually controlled vehicles, those accidents usually occur because the automated car was too careful -- and didn't bend the rules a little like a normal driver would (rear ended for being too cautious at a right on red, for example). As such, the current problem du jour isn't some fantastical scenario involving an on-board AI killing you to save a busload of crying toddlers, but how to get self-driving cars to drive more like the inconsistent, sometimes downright goofy, and error-prone human beings they hope to someday replace. 

You can read the article (and the comments posted below it) here. 

Ohio Supreme Court clarifies the meaning of the state's Good Samaritan statute

About two weeks ago, the Ohio Supreme Court issued an important opinion interpreting the state’s “Good Samaritan statute,” a phrase that, as I am sure you know, refers to statutes to provide immunity to people who cause injuries while trying to help others under circumstances where there is no affirmative duty to do so.  The case is called Carter v. Reese and you can read the opinion here.

Although most, if not all, states have enacted Good Samaritan statutes, their terms vary considerably from state to state. In some, they apply only to certain members of the medical and other related professions. This is so because while the goal of the statute is to encourage people who don’t have a duty to help to try to help, the public policy is to encourage only those who know what they are doing when it comes to providing emergency medical help. In other states, on the other hand, the statutes are more general and apply to everyone. In those states it has been decided that it is better to encourage people to help even if they are not trained to do so. Two other issues about which states differ are the definition of an “emergency” and the definition of the type of “care” involve.

Asked to interpret the statute in Ohio, which states that “No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency. . . , for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct,” the Court explained,

This case presents our court with two separate questions involving the legislative intent behind Ohio’s Good Samaritan statute. First, what did the General Assembly intend by using the phrase “no person shall be liable in civil damages”—did it intend to include only health care professionals who administer emergency care or treatment at the scene of an emergency, or, more broadly, to include any person who administers emergency care or treatment at the scene of an emergency? 

Second, what did the General Assembly intend by using the phrase “administering emergency care”—did it intend to limit emergency care to only the administration of medical care, or, did it intend to include all forms of care administered at the scene of an emergency?

The Court’s conclusion:

Ohio’s  Good  Samaritan  statute  applies  to  any  person  who administers emergency care or treatment at the scene of an emergency including but not limited to health care professionals. Moreover, the phrase “administering emergency care” in the statute is not limited to medical acts and includes rendering medical and any other form of assistance to the safety and well-being of another when the result of an unforeseen combination of circumstances calls for immediate action.  

Two Justices (O’Connor and Lanzinger) agreed with the majority’s holding that the statute applies to any person, but dissented as to the definition of “emergency” as “an unforeseen combination of circumstances.” They argued that the definition of an “emergency” should be “sudden events or circumstances that require urgent or immediate attention or action,” regardless of whether the events were foreseeable.

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