First lawsuit filed related to the shooting in Colorado

It is not unusual to have injured people file lawsuits following events like the shooting in Colorado last week.  However, I am sometimes surprised at how quickly some of those suits are filed. What is the hurry? Are the parties really in a position to begin litigation so quickly?

In any case, Injured is now reporting that the first lawsuit from the Colorado shooting has been filed by a man who did not suffer a physical injury.  His claim is based on the fact that his best friend was shot in the chest and died. In other words, the claim is for the fear the plaintiff suffered himself and for the emotional distress at witnessing someone else suffer a physical injury.  Different states deal with those types of claims differently and I am not familiar as to which approach Colorado takes.  The majority view requires the plaintiff to be within a physical zone of danger where he himself was at risk of physical injury and it would seem that the plaintiff can make a claim he was.

What is more interesting about the report on this lawsuit, though, is the list of defendants.  The plaintiff (and I assume at the suggestion of his lawyer) has sued the movie theater, the doctors of James Holmes, and the film studio that produced the movie.

The claim against the movie theater (for negligence related to the emergency exit) I can understand.  The claim against the doctor will be a tough sell.  The claim against the producers of the movie sounds dangerously close to frivolous.  Interestingly, there are no claims against any member of the gun industry.

The claim against the doctors argues that the doctors should have foreseen the shooters' violent tendencies and should have made sure he was not skipping his medication. I am not familiar with what is known about the medical treatment the shooter was under but the question will depend on the issue of the proper medical duty of care.  I suspect the doctors will argue they did not have a duty to anything beyond what they did.

The claim against the producers of the movie is that the previous movies were so violent they caused the shooter to imitate the conduct depicted in them.  I could be wrong about this, but I think this is a claim that has been raised and defeated many times before in other types of cases involving movies, tv and video games.

Reply to med mal proposal in Florida

New York lawyer and blogger Eric Turkewitz has posted a reply to a proposal to replace the current medical liability system with a type of worker compensation system (in Florida).  The proposal appeared in an opinion piece today in the Tampa Tribune.  Eric Turkewitz's response is available here.

Debate on Michigan bill that would radically change the concept of duty in med mal cases

Hundreds of protestors turned out in Michigan’s capitol city of Lansing this week to speak out against a proposed bill that would radically alter the element of duty in medical malpractice lawsuits which would allow doctors to avoid liability in most, if not all cases. Senate Bill 1116 states that a doctor could not be held liable in Michigan if he or she "acts with a reasonable and good-faith belief that the person’s conduct is both well founded in medicine and in the best interests of the patient.”  Read literally, this would allow a doctor to escape liability if he or she is convincing when claiming they acted in good faith.  This is the old "I did the best I could" approach to duty which, as every lawyer knows from the first week of class in their Torts course, was abandoned as unfair and unworkable.  For more information go here.

I commented on this bill back in May (here).  In part, I said:

"[a] person exercises professional judgment if the person acts with a reasonable and good-faith belief that the person’s conduct is both well founded in medicine and in the best interests of the patient.”

This statement is contrary to generally accepted principles of tort law.  It makes the standard of care subjective.  According to this proposed standard, the doctor is not negligent if the doctor can convince others that he really thought he was not being negligent.  How self serving is that?!

The proper standard is that the plaintiff has the burden to show what the standard in the profession is and that the doctor acted below that standard. If the accepted standard in the profession allows for discretion, the doctor will not be found negligent as long as the doctor exercised that discretion using reasonable care.  The fact that the result of that exercise of discretion was an injury to the plaintiff does not mean the plaintiff has a right to recover nor that the doctor was negligent.

This current standard places the burden on the plaintiff (where it should be) and it is not an easy burden to meet (the way it should be).  There is no reason to change it.

And in case you think that the drafters of the bill maybe just did not know the law, think again.  After creating this new way out for a defendant, the Bill states that "[i]f the court determines … that the [defendant] … did not meet the burden of proving that the act or omission was an exercise of professional judgment, the question of whether the person failed to provide the recognized standard of acceptable professional practice or care is a question for the trier of fact to decide."

In other words, the Bill creates a way for the defendant to excuse their conduct, but if they can't do it, then the "old" rules of law would apply.

I hope for the sake of injured patients in Michigan that this bill is defeated.

New report responds to most common claims by tort reformers

The Center for Justice and Democracy has posted a very good (and short) new response to many of the most common claims by tort reformers.  You should take a look at the full report here.

Debate on the movie Hot Coffee

You may remember last year's big debate about the movie Hot Coffee.  For some background on the movie and links to articles and comments go here, here, here, here, here and here. For an older interview with the director of the movie go here.

Thanks to the TortsProf blog, here is a link to a video showing Susan Saladoff, the director of the movie  "Hot Coffee" and Victor Schwartz, General Counsel for the American Tort Reform Association discussing the movie at a screening in Widener University.  They both participated via "skype."  This is probably the first time the two have appeared together in such an event.  Unfortunately, you can't hear the questions from the audience and the quality of the video is not great, but here it is anyway: http://db.tt/QpuOaXPi

I think that if you are interested in the issue of tort reform, you should take the time to watch the movie Hot Coffee even though I don't think it is a particularly good movie.  It has a lot of good and interesting information and I agree with the "spirit" behind it.  However, I have to say that the movie is not an effective documentary because it tries to do too much.  It tries to combine very different issues and does not do a particularly good job at making the connections between them.  Having said that, I still think people should watch it.

The symposium on the Alien Torts Statute continues

Now that all the articles in the ongoing symposium on the Alien Torts Statute are in, some of the authors are posting responses to some of the other articles.  The original articles are available here.  Here are the first four responses: 

A response to Colangelo, Feder, and Ramsey

Response to symposium contributions

Response: International law supplies the conduct rules and domestic law governs enforcement 

Response: Adjudicative versus prescriptive jurisdiction, translating historical intent, and a brief universal jurisdiction rejoinder

Response: Plain text, stare decisis, and déjà vu all over again

Response: The ATS and choice of law


I will continue to add links to other responses as they become available.

New report: medical malpractice payments at an all time low

A new report by Public Citizen indicates that medical malpractice payments dropped to an all-time low last year, once again disproving claims by tort reform proponents that medical malpractice lawsuits are an important factor in the increasing cost of health care.  The new report is available here. For more information go to AboutLawsuits.

Articles on whether corporations can be sued under the Alien Tort Statute and related issues

Last week I posted (here) an announcement of an upcoming on line symposium on Kiobel v Royal Dutch Petroleum, the case currently pending before the Supreme Court on whether a corporation can be sued under the Alien Tort Statute.  All the contributions to the symposium are now available.  Here are links to all of them:

The Alien Tort Statute and the law of nations

Precedents, pirates, and the presumption against extraterritoriality

The Alien Tort Statute, Kiobel, and standard tools of statutory interpretation

Kiobel, “vigilant doorkeeping,” and the parochial purposes of the Alien Tort Statute

International law and Alien Tort Statute litigation

Kiobel and the original meaning of the Alien Tort Statute

A brave new world of transnational human rights litigation

The Alien Tort Statute and the foreign relations fallacy

The Alien Tort Statute as a species of extraterritorial U.S. law

The ATS is in good company

The Alien Tort Statute and the importance of historical evidence

For ATS claims, universal jurisdiction isn’t the answer

New twist on Kiobel: Obama administration sides with the defendants on the issue of extraterritoriality

As you probably remember in Kiobel v. Royal Dutch Petroleum the issue before the Supreme Court was whether corporations (or other entities) could be liable under the Alien Tort Statute.  After hearing oral arguments, however, the Court surprisingly set the case for a rehearing and asked the parties to prepare briefs on an issue that had not been presented to the Court - whether the Alien Tort Statute could apply extraterritorialy.  Go here for all the background information and previous posts. Go here for my comments specifically on the question of extraterritoriality, which I think can essentially kill the ATS forever.

But now for today's news:  Alison Frankel is reporting (here) that while in Kiobel's first trip to the Supreme Court, the U.S. government sided with the plaintiffs, when the justices sent the case back to the parties for briefing on whether the statute applies to conduct outside the United States, the Justice Department switched sides. The government's amicus brief, filed last month, argues tepidly that the ATS is not appropriate in this particular case, though it stops short of advocating for an absolute bar on ATS cases stemming from overseas conduct. Interestingly, the State Department, which had joined the Justice Department in signing the first Kiobel amicus brief, did not sign the second one.  Go here for the full report and analysis.

In addition, go here for links to all the articles in the recent symposium on Kiobel sponsored by the SCotUS blog.

Texas adopts learned intermediary rule

Last month the Texas Supreme Court formally adopted the learned intermediary rule in a case called Centecor v. Hamilton (available here).  For a comment praising the decision go here.  For a comment criticizing the learned intermediary doctrine in general go here.