Wednesday, October 27, 2021

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.

Thursday, October 21, 2021

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. 

Sunday, September 19, 2021

"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.

Sunday, September 5, 2021

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.

Sunday, August 15, 2021

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.

Sunday, July 11, 2021

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.

Sunday, July 4, 2021

Texas Supreme Court holds that Amazon can not be held liable for injuries caused by products sold by others through Amazon

Back in May I reported that a California Appellate Court held that Amazon can be liable in products liability for products sold by other vendors through Amazon.  As this happened, the exact same issue was certified to the Texas Supreme Court, and now we have a ruling.

In direct contrast with the California Appellate Court, the Texas Supreme Court held that Amazon can NOT be liable because it does not act as a seller.  

If you are looking for good topic for a law review article, here you go!  Now you have two totally opposite views on exactly the same issue.  

In both cases Amazon argued that it should not be liable to the consumer because it operates only as a marketplace, not as a seller in the chain of commerce.  The court in California did not agree, but the court in Texas did.  

The California court found that Amazon operated as a seller, or at least a distributor in the chain of commerce, rather than as a neutral "mall".  Amazon handled all product advertising, payment processing, and communication between the buyer and the manufacturer.   Also, Amazon may be the only member of the distribution chain reasonably available for an injured consumer to recover damages.

The Texas court held that Amazon did not qualify as a seller because it was not engaged in the business of distributing products through ordinary sales or placing products in the stream of commerce through non-sale commercial transactions, even though Amazon controlled the process of the transaction and the delivery of the product.

It is difficult for me to understand how someone who "controls the process of the transaction and delivery of the product" is not placing the product in the stream of commerce, so my best guess is that the issue comes down to the phrase "ordinary sales."  

Courthouse Network News has a short analysis of the case here.

Tuesday, June 29, 2021

Important Reminder: if you currently get this blog's updates by e-mail, you need to change "carrier"; here's how to do it

Hopefully, by now you don't need this last reminder, but just in case...

In case you have missed the previous posts on this, you should know that Google has announced changes that will affect your ability to get updates by e-mail after July 1 (in two days). So if you currently get your blog stories by e-mail, this message is for you.  

I already posted about this a few days ago and what follows is essentially the same message, including information on how to sign up for updates by e-mail from different websites.  If you already signed up with one of the new services, whatever services you picked should be working already and you do not have read any further.  

So, the bad news is that Google will terminate the system they use now to send updates by e-mail.  The good news is that there are other options you can use to re-subscribe so you don't miss the blog's content.  

Please take a minute to select a new e-mail delivery service so you don't risk missing content.  It really takes only a few minutes.  I explain how to do it in detail below.  Feel free to contact me by e-mail if you need more information.

As you know, there are two main ways in which readers can get updates when I post new stories.  One is to add the blog to a “news aggregator” such as “Feedly” which is the one I use myself to collect the stories from all the blogs I follow.  The changes announced by Google will NOT affect the use of an aggregator.

The other way to keep up with the new stories is to subscribe by email and that is the system Google is going to eliminate in two days.

So, if you want to continue receiving your updates by e-mail, you will need to sign up using a different service, and below I will describe two options in detail.  

The first option is Blogtrottr.  This is the easiest to set up BUT when you get the e-mail message with the blog stories, there will be a big ad at the top and another at the bottom.  I don't like ads, so this is not my preferred way to subscribe.  If you don't mind the ads, then feel free to sign up for the updates this way.  If you don't want ads, I recommend a service called Follow it.  It has ads but they appear at the bottom of the message and are not intrusive.

I also prefer Follow-it because you can set it up as a news aggregator just like Feedly.  So it is both an email subscription service and a news aggregator in one.  Here is what you need to do to sign up.  It only takes a few minutes but there are a few steps.  (I will also explain how to set up Blogtrottr below).

To sign up for email update through Follow it, here is what you need to do:

Go to https://follow.it/intro where you will see this page:

Click on "No, I am a reader..."  This will take you to this page:

Here, type in his blog's address (https://bernabetorts.blogspot.com/) in the blank (as shown) and hit Go.  This will bring you to this page:


These are the different options on how to follow the blog.  If you want only one message per day with all the stories published the previous day, choose the first box (maroon) that says "Newspaper" by email.  If you want to use Follow it as a news aggregator, click on the purple box that says "News page."  You can sign up for more than one option.

Once you pick your options click on Follow it, and this will bring you to another page with more options

As you can see, these are optional, so you can decide what to do there.  I did not select any of these.  

Once you are done with all this, you will get a message by email asking you to confirm.  Make sure you do so because otherwise you will not be signed up and won't get the email updates.  If you don't get the message right away, make sure you check your junk or spam folder just in case.

The other option is easier to set up, but, as I said before, the e-mail messages you will get will have ads.  If you don't mind that, here is what you need to do: 

Go to Blogtrottr.com , where you will see this page 


Once there, enter the URL for this blog (https://bernabetorts.blogspot.com/) in the first blank on the left (where you see "http://").

Then enter your email address in the blank in the middle.

Then select how you want the updates to be delivered by clicking on the drop down menu on the left, where it says "realtime".  Realtime means you will get a message by email the moment I post something.  This means you will get multiple messages if I publish more than one story on any given day.  Click on the down arrow to see the other options.  If you want only one message per day (if there is new content) pick the daily digest option.

Once you have filled out these blanks, click on "Feed me".  That will take you to this page:

Pick one of the two options (I picked the one that says Feed Type: RSS) and you will then get a message by email asking you to confirm your subscription.  Check your junk or spam folder if you don't see it right away and make sure you follow the instructions to confirm.  You won't get the updates unless you do so.


I hope this message helps you figure out how to re-subscribe so you continue to get the email updates you are used to.  There may be other options out there that I am not aware of too.  These two are the two I know of.  I tried them both and they work well.  I prefer Follow it for the reasons stated above but they both work.  

Please let me know by email or by leaving a comment here if I can help you make the transition.  


Monday, June 21, 2021

Finally, some changes to the Feres Doctrine!

In Feres v US, the US Supreme Court expanded the interpretation of one of the exception to the Federal Torts Claims Act resulting in a ban on any claim for any injury suffered while the plaintiff is in military service (active or otherwise).  This has resulted in findings that members of the military can't sue for injuries caused by medical personnel. The debate over whether the Feres Doctrine should be abandoned has raged ever since.  For all the stories I have published over the years on the Feres Doctrine, go here.)

There have been many attempts to eliminate or at least to change the effect of the Feres doctrine over the years, and Justice Clarence Thomas recently expressed his support for change.  But all attempts had failed, Until now.  

Thus I am happy to report that the Defense Department has published a new rule governing how uniformed service members or their representatives can file claims against the military for medical malpractice.  This new rule states that (subject to some exceptions)

"A substantiated claim under $100,000 will be paid directly to the member or his/her estate by the [Department of Defense (DoD)]. The Treasury Department will review and pay claims that the Secretary of Defense values at more than $100,000. Service members must present a claim that is received by DoD within two years after the claim accrues."

However, it must be noted that the rule does not allow for judicial review of adjudicated claims, and that, therefore, their settlement will be "final and conclusive."

So, it while it is a good thing that plaintiffs will have the chance to recover for their injuries, the remedy provided is still short of the recognition of a possible judicially resolved tort claim.  

For more information, you can go to Military.com, Stars and Stripes and the NY Personal Injury Law Blog.

Supreme Court rules that Alien Tort Statute can't be used against defendants for conduct that happens overseas

Long time readers of this blog know I have followed the cases on the Alien Tort Statute (ATS) for some time.  For my posts on this topic, go here and scroll down.

The last time I posted something about the ATS was back in November of 2019, when I reported on a case against Nestle and Cargill alleging that the defendants aided and abetted in human rights violations by farmers in the Ivory Coast.  Back then the Court of Appeals for the Ninth Circuit held that a lawsuit filed by citizens of Mali who, as children, worked on Ivory Coast cocoa farms should be permitted to go forward under the Alien Tort Statute (ATS).  You can read that post here.

That case was appealed to the Supreme Court and the Court issued its opinion just a few days ago reversing the Circuit Court, by a vote of 8-1, because the lawsuit was based on conduct that occurred overseas. 

Evidently, the decision was a victory for the defendants, but it was not what the business community and the Washington Legal Foundation really wanted because the opinion left open for another day the question of whether the federal law at the heart of the case allows lawsuits against U.S. corporations to begin with.  (I comment on the WLF position in my post linked above.)  

You can read more about the case and the Court's opinion on the SCOTUS blogPolitico, and Howe on the Court.