States Will Investigate Juul’s Marketing to Teens

A coalition of 39 states will look into the marketing and sales of vaping products by Juul Labs, including whether the company targeted youths and made misleading claims about nicotine content in its devices, officials said Tuesday.  Go here for more details.

Supreme Court holds plaintiffs can't sue in American courts to recover damages caused by cross border shooting

In one of several cases related to cross-border shootings, a 5-4 majority of the justices of the Supreme Court recently held against the right of the plaintiffs to sue in American courts.

In 2010, an on-duty U.S. Border Patrol agent who was at the border in El Paso, Texas, shot a boy at least twice. At the time, the boy, a Mexican national, was on the southern side of the border in Ciudad Juarez.  The boy's parents, who are Mexican nationals, sued for damages raising the issue of whether the parents have a legal standing to sue for a death that occurred outside of U.S. territory.

The parents argued that the federal agent's unreasonable use of excessive force violated the teenager's Fourth and Fifth Amendment rights, which protect a person from unreasonable search and seizure and assure due process protections.

On Tuesday the Supreme Court announced its decision holding that the plaintiffs do not have the right to sue.  You can read the opinion here.

The SCOTUS blog has analysis of the opinion here.

You can find articles and court documents on the case here.

NPR has some analysis of the opinion here.

Embassy Bomb Victims Ask Supreme Court to Reinstate Punitive Damages

The Foreign Sovereign Immunities Act. Enacted of 1976 was enacted to protect foreign countries from being hauled into U.S. courts as defendants in actions for damages. However, the law was amended to allow plaintiffs to sue in cases of alleged terrorist activity. 

Last Monday, the attorney for the plaintiffs in case based on the allegation that Sudan supported a pair of embassy bombings in Kenya and Tanzania, argued that the 2008 amendments to the statute also opened so-called state sponsors of terrorism up to the possibility of punitive damages.

Courthouse News has details here.

Germany's highest court declares law banning assisted suicide is unconstitutional

Germany’s highest court on Wednesday ruled that a 2015 law banning professional assisted suicide was unconstitutional, as it robbed terminally ill patients of “the right to a self-determined death.”

Courthouse News Service has more details here.

Should animals have the right to sue?

If an animal is mistreated and suffers an injury, should the law recognize the animal the right to sue?

Over at Verdict, Professor Sherry F. Colb (Cornell) summarizes the argument in support of the position that animals should be allowed to sue. You can read her position here (it is a very short article).

Missouri tort reform advocates move toward creating limits for punitive damages

Fresh off major wins in the 2019 session, Missouri tort reform advocates are shifting their focus to a new target: punitive damages. Following a string of large punitive damages awards from St. Louis City courts, legislators in both chambers introduced bills to sharply curb such claims.  For more information go here.

Recent news about the debate on qualified immunity: the Institute for Justice joins the fight

As you know, the doctrine of qualified immunity recognizes a defense for certain government officials from liability for injuries caused by their conduct.  It applies, for example, to prosecutors when they engage in investigative or administrative tasks, which is often limited to conduct before an indictment.  And, of course, it applies to many other government officials when engaging in their official capacities.

The doctrine exists to provide protection to those officials so they can perform their duties without fear that their decisions will be later questioned or second-guessed by courts, a position that is justified by the principle of separation of powers.

The doctrine, however, is not particularly old and it is not universally accepted.  The Cato Institute has referred to it as "an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s" and as "a court‐​confected doctrine that provides rights‐​violating police and other government officials with an unlawful shield against accountability for their misconduct."

To do something about this, the Cato institute launched a strategic campaign to challenge the doctrine on March 1, 2018, the centerpiece of which has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. In addition, the Institute has organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity.  This "alliance" includes the ACLU, the NAACP Legal Defense Fund, the Alliance Defending Freedom and the Second Amendment Foundation.

I am writing about this today because yet another group has officially announced it will join the campaign.  About two weeks ago (on Feb 15), The Wall Street Journal published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the battle against qualified immunity.  You can read it here if you have a subscription.

For more on the CATO Institute's position on this issue go here.

Alabama Supreme Court to decide whether suicide is a superseding cause

Long time readers of this blog know that I have posted many stories on issues related to claims of injuries related to suicide; and one of the most common issues is the question of whether someone's decision to commit suicide should be considered to be a superseding cause that eliminates the possible cause of action against a defendant whose alleged conduct resulted in the suicide.  I recently wrote about this here (discussing Arizona law) and here (Tennessee law).

The issue is now back in the news because a federal court in Alabama recently ruled that a tort case brought by the parents of a woman who killed herself against the man she said sexually assaulted her should be stayed pending the Alabama Supreme Court’s answer of whether suicide is an intervening cause that breaks the chain of causation stemming from a defendant’s intentional tort.  The court's decision is available here.

For all my posts related to suicide cases, go here and scroll down.

Judge Determines Johnson & Johnson Should Be Required to Pay $6.8M in Punitive Damage For Failing to Warn About Risperdal Risks

In a ruling issued last week, the judge presiding over a product liability action against Johnson & Johnson, reduced the award of punitive damages granted by the jury to $6.8 million, which is 10 times the amount of compensatory damages which is generally held to be the upper threshold for punitive damage awards that are constitutionally permitted.  The jury had originally awarded $8 billion in punitive damages.  Go here for more details on this story.

Should a public defender be protected by a state torts immunity act?

Just a few days ago, the New Jersey Supreme Court heard oral arguments in a case that should be called Chaparro Nieves v. Office of the Public Defender (but is being mistakenly identified as Nieves v. Office of the Public Defender)** in which the Court has been asked to decide whether the Office of the Public Defender should be covered by the state's Torts Claims Act.

In this case, the plaintiff had been incarcerated for twelve years on serious charges, including first-degree aggravated sexual assault, when the charges against him were dismissed on his petition for post-conviction relief.  At some point thereafter, he filed a legal malpractice complaint against the public defender's office and an individual lawyer.  The trial judge denied defendants' motion for summary judgment as to the legal malpractice claim but the Appellate Division reversed, holding, among other things, that it is clear that the office of the public defender is a public entity and public defenders are public employees that come within the Tort Claims Act’s immunities and defenses.  You can read that opinion here.

The case is now before the Supreme Court where Professor George W. Conk, of the Louis Stein Center for Law & Ethics at Fordham University School of Law, argued on behalf of the New Jersey State Bar Association urging the Court to affirm the Appellate Division’s decision to apply the TCA to legal malpractice claims.  The Bar Association's statement concludes that "[c]ompetent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs. Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill served."

You can read the full statement of the Bar Association here.


** I say the case "should be called" that because I have seen it referred to everywhere as just Nieves v.  Office of the Public Defender, which shows ignorance about the use of two last names in the Latin American tradition.  The plaintiff's name is Antonio Chaparro, not Antonio Nieves.  But that is just a pet peeve of mine and I will leave it at that.