Tort by Tuba

Thanks to Prof. Jonathan Turley for this video...

Important changes to Federal Rules of Civil Procedure

I recently commented on how missing a deadline in litigation is one of the dumbest things a lawyer can do (here and here).... Well, now comes word that important changes to the Federal Rules of Civil Procedure will go into effect on December 1, 2009 (unless Congress stops them) that will affect the way time is calculated in federal court litigation. In a nutshell, the changes seek to standardize how days are calculated by counting all days. If a deadline falls on a weekend day, a federal holiday, or a day when filing is impossible because the Clerk’s office is closed or inaccessible, then the deadline falls to the next available day. Deadlines shorter than 30 days have been changed to multiples of seven (7) days, so that more often than not, the deadline will fall on a weekday. The Rule that allowed for adding time for service by mail has been deleted. The Drafting Committee has asked the district courts to revise their Local Rules accordingly, and to do so effective December 1. If it is not the rules will be a mess to deal with. For PowerPoint presentations explaining the amended rules and their operation in court proceedings go to www.uscourts.gov/rules/presentations.html. For more details on this story go to the Drug & Device Law Blog, which includes a list of the affected rules and other links.

Alaska newspaper attacks tort reform

The Anchorage Daily News has published an article criticizing Alaska's severe medical malpratice tort reform law in which it states, among many other things, the following: -- Even though Alaska has had tort reform measures in place for years, including a cap on non-economic damages adopted in 2005, tort reform has not helped drop health care costs for consumers. --Health care costs in Anchorage are on a steady upward trajectory -- they quadrupled between 1982 and 2009. --Health care costs have also continued rising in other states with tort reform including Missouri and Texas. --The Congressional Budget Office says there's no conclusive evidence that doctors are practicing so-called defensive medicine to an extent that would affect health care costs. --National tort reform will not yield the kind of cost savings that America needs in the health reform package. --In a one year study, the Congressional Budget Office noted that malpractice costs amount to less than 2 percent of overall health spending in one year. --Even a 25 percent to 30 percent reduction in medical malpractice premiums would not significantly affect total health care costs. --The threat of medical malpractice lawsuits cuts down on health spending because it puts pressure on medical professionals to avoid common medical errors. The article then concludes that "[w]hat it all adds up to: Even if tort reform could cut overall health care costs -- which there's no proof it will -- we shouldn't count on tort reform for big savings. BOTTOM LINE: Alaska's experience and that of other states suggest tort reform isn't going to do much to cure costly flaws in the American medical system." The full article is available here. A comment on the article is available here.

Most interesting stories of the week

It is Friday, which means it is time for the list of the most interesting Tort Law stories of the week, as selected by the TortsProf website, which is available here. In addition, this week the website AboutLawsuits.com had a number of interesting stories, including the following: Chrysler wrongful death settlement approved by bankuptcy court Lawsuits mount over Fixodent and Super PoliGrip denture cream poisoning Judge issues order to preserve evidence of Toyota rollovers New York nursing care quality protection act signed into law New lawsuit against Bayer Pharmaceuticals alleging Yaz birth control pill causes pulmonary emboli and deep vein thrombosis New study reports that use some diabetes drugs may increase the risk of bone fractures

Supreme Court to hear case re immunity for prosecutorial misconduct

On Wednesday, November 4, the U.S. Supreme Court will hear oral arguments in a case called Pottawattamie County, Iowa v. Harrington. It will be an important case with implications for the two courses I teach (torts and professional responsibility). The professional responsibility angle comes from the fact that the issue in the case originates in prosecutorial misconduct. Two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights. Prosecutors are lawyers subject to the ethical mandates of the rules of professional conduct. They have a lot of discretion in the performance of their functions but they are also considered ministers of justice whose main duty is to see justice done, not to advocate for a client or for a predetermined result.But this case is not about the misconduct. It is about a civil cause of action for damages based on the misconduct. As to that cause of action, the prosecutors contend that they have absolute immunity from liability. (The Obama administration has filed an amicus brief in support of this position, by the way.) Here is the interesting part: prosecutors generally have absolute immunity from civil liability for their conduct in the process of prosecuting the case, but in addition to being just prosecutors, prosecutors are members of the law enforcement team that investigates and "builds" the cases that they later prosecute. This "dual role" is simply part of their role in the system. Should their right to immunity (or, more accurately, the level of that immunity) change depending on the role they are playing at the time of the alleged violation of civil rights? In this case, the prosecutors' misconduct initially took place while they were involved in investigating the crime since they allegedly conspired with the police to manufacture false evidence. Their misconduct then continued during the trial since they presented perjured testimony. Therefore, the question is whether prosecutors should be entitled to absolute immunity when they engage in misconduct during the investigative phase of a case even if that misconduct is the basis for subsequent misconduct for which they have absolute immunity. For a lot more information, on this case copies of the briefs and other documents go to the Supreme Court Wiki site here. Thanks to the Drug & Device Law Blog for the info and links.

Former Toyota in house counsel turned whistleblower referred to disciplinary authorities for disclosing information

Here is another update on the continuing saga of the former in-house counsel for Toyota that claimed the company destroyed evidence in rollover cases: a judge has referred the lawyer to the State Bar of California for possibly violating the rules of professional conduct by disclosing confidential attorney-client information. For this aspect of the story go here.

Good Samaritan turned bad: Dr accused of abandoning rescue attempt to steal victim's Rolex

Prof. Jonathan Turley is reporting today that a California doctor has been sued for allegedly abandoning an effort to resuscitate man in order to steal his watch. The victim was brought into a hospital with cardiac arrest where the doctor assumed the responsibility of resuscitating him. The plaintiffs' argue that the Doctor then abandoned his efforts to resuscitate decedent leaving decedent to die in order to keep the victim's watch. According to the complaint, the nursing staff noticed that the timepiece was gone and then two nurses reportedly saw a wristwatch-shaped bulge in the doctor’s pocket. For more on the story, go here.

Drug companies hide results of bad clinical trials

A new study shows that drug companies regularly hide the results of bad clinical trials that may have a negative impact on their medications and attempt to only publish studies that show their products in a positive light. Go here for the full story.

Chrysler wrongful death settlement approved by bankruptcy court

A bankruptcy judge has approved a $24 million settlement for the family of a California longshoreman who brought a wrongful death lawsuit against Chrysler before the company went bankrupt. Go here for the full story.

Judge orders Toyota to preserve evidence

Following a whistleblower's claim that Toyota Motor Corporation had destroyed evidence relevant to a case about rollover accidents in some Toyota vehicles (see here and here), a federal judge has issued a temporary restraining order against Toyota, ordering the company not to destroy any evidence on the crashworthiness of its vehicles. Go here for the full story.