Family members of student victim in the Michigan school shooting sue school district

The family of Riley Franz, a student who was shot in the neck at Oxford High School last week, is suing the school district and school officials in Oxford, Mich., for $100 million, saying they failed to prevent the mass shooting that killed four students and injured seven people, despite multiple warnings and signs for concern. More on the story here.

The case will hinge on whether the court recognizes that the school had a duty to each student and whether the duty extends to protecting against intentional and criminal conduct.  

The general common law does not recognize a duty to help or to control the conduct of others.  However, over time, courts and the Restatement of Torts have recognized limited duties in certain circumstances.  Some of the most commonly accepted exceptions to the general rule are based on the existence of a special relationship between the person alleged to have a duty to help and the person in need of help.  Traditionally, a special relationship exists when one party depends on the other for protection and the other party has the ability to provide the needed protection.  For this reason, whether a relationship constitutes a special relationship which creates a duty to help or protect has usually been interpreted narrowly.  In fact, for a long time the concept was limited to the relationship between common carriers and their passengers, and between innkeepers and their guests.  However, for a variety of reasons, the notion of special relationships has been extended to include other types of relationships such as those between landlords and tenants, and commercial establishments and their customers.

Likewise, over the years, jurisdictions have shifted their approach on whether schools have a special relationship with their students.  The Restatement (Third) now includes the relationship between a school and its students as one that gives rise to a duty to help.  However, because there are many different types of schools, whose students also vary in terms of age and maturity, the Restatement recognizes that there must be differences in analysis depending on whether the case involves elementary schools or high schools, as opposed to colleges and universities.  As it explains in a comment to the section that recognizes duties based on special relationships, "because of the wide range of students to which it is applicable, what constitutes reasonable care is contextual–the extent and type of supervision required of young elementary–school pupils is substantially different from reasonable care for college students."

Thus, according to this approach, while a school does not have an automatic, broad duty to protect students, certain duties may be triggered under unique circumstances if there is a special relationship between the institution and an individual based on the foreseeability of harm.  

This apparent shift toward imposing a limited duty toward students is not necessarily new, but it seems to be broadening, and given the rising tide of gun violence in schools, it is an important issue for schools of all levels.

I once wrote an article on the possible duty of a college or university to its students.  You can read it here.

Jury awards millions in damages against white nationalists for injuries caused during "Unite the Right" rally in Charlottesville

After a monthlong trial, a jury in U.S. District Court in Charlottesville found the white nationalists liable on four counts in a lawsuit filed by nine people who suffered physical or emotional injuries during two days of demonstrations.  The jury awarded more than $25 million in damages for the injuries suffered after violence that erupted during the 2017 Unite the Right rally.

Lawyers for the plaintiffs invoked a 150-year-old law passed after the civil war to shield freed slaves from violence and protect their civil rights. Commonly known as the Ku Klux Klan Act, the law contains a rarely used provision that allows private citizens to sue other citizens for civil rights violations.

For more coverage you can check:  Politico. Jurist, NPR, ABA Journal, The Guardian, Above the Law, and Democracy Now.

Oklahoma Supreme Court reverses judgment against opioid manufacturers in public nuisance case; but lower court in Ohio finds against pharmacies

About three weeks ago, (on November 7) I posted a story about a decision in California dismissing a claim for public nuisance against several opioid manufacturers and distributors.  Two days after that, the Supreme Court of Oklahoma announced a decision reversing a trial court's judgment against opioid manufacturers in a similar case.  The case is State ex rel. Hunter v. Johnson and Johnson and you can find it here.

These two decisions resulted in an article in the NY Times with the very descriptive title "The Core Legal Strategy Against Opioid Companies May Be Faltering."  You can read it here.

Yet, a couple of weeks later a jury in Ohio found that three retail pharmacy chains created a public nuisance by recklessly distributing vast amounts of pain pills in two Ohio counties.  See here.  I have no doubt this verdict will be appealed. 

Evidently, the litigation over the opioid crisis is a big deal.  There are thousands of pending cases and how each is decided ultimately will influence how the issue is addressed in other jurisdictions.  

If we go by history, the use of public nuisance as a way to address social problems created by distribution of products has not been successful.  The vast majority of cases that attempted it failed, including cases against tobacco companies, lead paint manufacturers and gun manufacturers and distributors.  For this reason, the cases against opioid manufacturers are going to be difficult to win.  But it is possible courts will change their view on this.  I am very interested in following this story which will not go away any time soon.

Here is a short PBS News report that summarizes many of the issues involved in the current litigation.  (While you are at it, if you are interested, you can find many other videos on the topic of the opioid crisis on YouTube.)

More coverage on the verdict against the pharmacy chains here:  AboutLawsuits.com, ABA Journal, NPR, The Guardian, and Courthouse News.

Judge recently issued a "tentative decision" against the plaintiffs in California case related to opioid crisis

If you have been watching "Dopesick" on Hulu or "Goliath" on Amazon Primes, you might be disappointed to hear that this week a judge in California issued a "tentative decision" holding that a lawsuit seeking to hold drug companies liable for the opioid crisis must fail because the plaintiffs didn’t show that false and misleading marketing caused an increase in medically inappropriate prescriptions.  The defendants included Johnson & Johnson, Teva Pharmaceutical Industries, Endo International and AbbVie Inc.’s Allergan unit.

More than 3,300 lawsuits have been filed by state and local governments over the opioid crisis. In the only other case that went to trial, an Oklahoma judge found Johnson & Johnson liable for $465 million. 

The ABA Journal has the full story here.  Reuters has more here, and NPR's coverage is here.

Family members of former NHL player sue the NHL for wrongful death

The family of deceased former Chicago Blackhawks player Steve Montador have sued the National Hockey League in Cook County court, claiming it encouraged Montador to get into fist fights on the ice, which resulted in brain damage before his death.  You can read the complaint here.

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.

Wrongfully Convicted Man who was Imprisoned for 23 Years Sues Prosecutor

 A recently exonerated man who spent 23 years in prison has filed a complaint against a longtime Mississippi district attorney alleging various violations of the U.S. and Mississippi state constitutions.  The plaintiff was tried six times for the 1996 murders of four people.  The defendant prosecuted all six trials, none of which resulted in a legally valid conviction.  Four of those murder trials resulted in convictions and death sentences but all convictions were vacated due to prosecutorial misconduct.  One of the opinions reversing one of those convictions was written by now Supreme Court Justice Brett Kavanaugh who wrote that “The state’s relentless, determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” 

The background story is very compelling but the case will be an uphill battle.  I expect that the prosecutor will argue qualified immunity and will cite Supreme Court precedent which makes it very difficult if not almost impossible for exonerated plaintiffs to win claims against former prosecutors.  For this reason, cases like this often settle out of court, which provides some level of compensation.

For more information on the case go to Law&Crime, NPR, and Courthouse News Service.

Missouri Supreme Court upholds statutory cap on non-economic damages

I am not happy to report that the Missouri Supreme Court appears to have dropped its hostility towards tort reform. This past July, it upheld a statutory cap on noneconomic damages for actions against health care providers, finding that the cap does not violate one’s right to a jury trial under the Missouri Constitution. See Ordinola v. Univ. Physician Assoc., — S.W.3d –, 2021 WL 3119063 (Mo. July 22, 2021). This ruling most likely brings to an end a decades-long, contentious battle between the Missouri General Assembly and the Missouri Supreme Court over the imposition of statutory caps.  

The Washington Legal Foundation has commentary and analysis here.

Louisiana Court of Appeals rejects wrongful life claims

 About two weeks ago the Louisiana Court of Appeals issued an opinion in which it joins the majority of jurisdictions in rejecting the notion of wrongful life. The case involved a claim brought by the parents of a child born with Down syndrome. They argued that they would have terminated the pregnancy had they been informed of a lab test that showed the child was at risk of being born with the condition. The court affirmed the lower court's dismissal of the claim noting that people with Down syndrome are valued members of society and actively participate in educational, social and recreational activities. 

The case is called Robinson v. Mitchell and you can read the opinion here.