New comment on Kiobel: The United States Can’t Be the World’s Courthouse by Eric Posner

Eric Posner, a professor at the University of Chicago Law School, has written an essay on the Supreme Court's decision in Kiobel v Royal Dutch Petroleum in which he argues the Court made the right decision.  It starts as follows:

...Last week’s 9-0 Supreme Court ruling in Kiobel v. Royal Dutch Petroleum has finally put an end to [litigation in which foreigners bring suits in U.S. courts against other foreigners, for human rights violations in foreign countries.] Human rights groups complain that the decision means that foreign governments and corporations will be able to violate human rights with impunity. But cases like Kiobel, in which a group of Nigerians sued a Nigerian corporation and its Dutch and British corporate parents over their role in human rights abuses in Nigeria, never led to real human rights enforcement. In more than 30 years of litigation involving hundreds of cases, hardly any money went to victims. The Supreme Court got rid of a popular but unworkable idea that U.S. courts can be used to police behavior around the world.

 You can read the full article here.

Supreme Court decides Milbrook v. US, recognizing cause of action against the federal government

About two months ago I commented on a case now before the US Supreme Court called Milbrook v. US in which the Court was asked to consider whether a plaintiff can recover under the Federal Torts Claims Act for injuries caused by law enforcement officers other than when they are executing a search, seizing evidence or making arrests for violations of federal law. See here, here and here.

The Court decided the case about three weeks ago and you can read the opinion here.  In an opinion by Justice Thomas, the Court held that the Federal Government is not immune from a claim for damages if the assaulting government officer was acting within the scope of his/her employment even if the officer was not making an arrest or seizing evidence at the time. 

For some comments on the opinion you can go to Torts Today and to Litigation and Trial.

Supreme Court decides Kiobel v. Royal Dutch Petroleum, holding Alien Tort Statute can't be applied extraterritorially

Long time readers of this blog probably remember that I have been following the decisions in Kiobel v. Royal Dutch Petroleum closely for almost two years.  (Go here and scroll down for all my posts).  This is the case that challenged the applicability of the Alien Tort Statute to corporate defendants.  After that issue was argued before the Supreme Court last term, the Court asked the parties to brief and prepare for argument on a different issue:  whether the ATS can be applied extraterritorially.  This was surprising since the issue had not been raised by the parties because, before the Supreme Court brought it up, there probably was little disagreement about that question.  For more than thirty years, since the Second Circuit’s 1980 decision in Filartiga v. Pena-Irala and the 2004 Supreme Court decision in Sosa v. Alvarez-Machain, courts have interpreted the ATS as giving rise to a remedy in US courts for international law violations.

When the Supreme Court asked the parties to prepare to argue the issue I suspected that it would decide the statute can't be applied extraterritorially thus essentially ending the ATS as we know it. In its decision, the Supreme Court rejected what was seemingly the entrenched understanding of the ATS.

Needless to say, the opinion has generated a tremendous amount of commentary, some praising it, some criticizing it.  Because I have been away from my office for days I have not had a chance to read the actual opinion, so for now I will only give you links to comments and to the opinion itself so you can reach your own conclusions.

The SCotUS blog has published a series of comments about the opinion here.  Scroll down and you will find links to a summary of the opinion and to at least five separate comments (plus articles published before the opinion was issued). 

In addition you can find articles about the opinion in Jurist (here and here), PrawfBlog (here and here), The Washington Legal Foundation (here) and the New York Times (here), which laments the opinion constitutes "a giant setback for human rights."

I agree.  Under the previous interpretation of the statute, it allowed the US federal courts to operate as an international civil tribunal where victims of international rights violations could bring their claims for damages.  No so anymore.  One of the comments published in SCotUS blog suggests the door is still open - very slightly open - for such a claim, though.  The NYT editorial suggests the opening comes from Justice Breyer' concurring opinion which said suits under the law should be allowed when “the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”  Reportedly, however, the majority opinion essentially eviscerated the statute and made it much more difficult to vindicate that interest, and, according to one author, the opinion "is wildly out of step with the rest of the federal judiciary, the direction of American law, and the concerns of the American people."

But you (and I) will have to read the opinion itself to decide for ourselves.  You can find it here.

Florida senate approves tort reform package

Bad news for victims of medical malpractice in Florida.  The state senate just approved a tort reform package (SB 1792) that would make med mal cases more difficult to pursue. For links to more information on the story go here and here.

New York Times on whether the court should dismiss the claims against the NFL

As you probably know, more than 4,000 retired players are suing the National Football League for failing to protect players from chronic risks of head injuries routinely inflicted in professional football games — and then willfully concealing those risks from players.  This week, attorneys for both sides appeared before Judge Anita Brody of Federal District Court in Philadelphia, who is considering whether the cases can proceed. The N.F.L. argued that the cases amounted to a labor dispute that the judge should dismiss. I a short editorial (available here), the New York Times makes the argument that the judge should allow the cases to proceed. For my previous posts on this case go here and here.

Possible ban on energy drink sales to minors?

As you probably remember there has been a lot of discussion on the dangers of caffeinated drinks like Monster, Red Bull and others recently. See here for some links to my previous posts. The controversy has now reached the point where the state of Illinois and a New York county are considering new legislation that would restrict the sale of energy drinks to minors. AboutLawsuits has the full story here.

 

Why Aren’t More NY and NJ Lawyers Looking For Hurricane Sandy Insurance Claims?

Why Aren’t More NY and NJ Lawyers Looking For Hurricane Sandy Insurance Claims?   Basically because, as Max Kennerly explains over at Litigation and Trial, insurance bad faith claims in New York and New Jersey are risky and difficult cases that usually pay poorly, and often don’t pay at all.  Go here for the full story.

Post oral argument comments on Mutual Pharma v. Bartlett

The big news in torts last month was the oral argument before the US Supreme Court in Mutual Pharmaceutical v. Bartlett which asks the Court to decide whether a generic drug maker can be held liable for a design defect.  I wrote about it here, here, here, here and here.  For even more on the issues related to generic manufacturers, products liability and warnings cases, click on the "labels" below this post.

Just a few days ago, the SCotUS blog published a detailed look at the argument here.

New study on side effects of robotic surgery; case moves on

A couple of weeks ago I reported that the FDA has launched an investigation into the safety of the da Vinci surgical robot following a number of reports involving severe complications, internal injuries and patient deaths associated with the machine.  See here and here.  Some days later, the nation’s largest organization representing obstetricians and gynecologists recommended avoiding the use of robotic surgery system for hysterectomies.  See here. Now AboutLawsuits is reporting that a new study indicates that many individuals who elect to undergo robotic surgery for the prostate, kidney or bladder may face a risk of suffering a nerve injury. Go here for the full story.

In addition, a judge in Washington state court has denied an attempt by Intuitive Surgical to dismiss a wrongful death lawsuit filed over problems with the da Vinci surgical robot, allowing the product liability case to proceed over the manufacturer’s failure to provide adequate training for doctors using the device. Go here for that story.

More on the controversy over "high energy" (ie, caffeinated) drinks

As you probably remember there has been a lot of discussion on the dangers of caffeinated drinks like Monster, Red Bull and others recently.  See here and here for some links to my previous posts. Now AboutLawsuits blog is reporting on a new study that suggests that side effects of energy drinks could interfere with the electrical operation of the heart for some people, potentially increasing the risk of death.  Go here for the full story.