Federal Court denies motion to dismiss, allowing claim for emotional distress based on pre-impact terror to move forward

As reported in Day on Torts:

A federal judge in Chicago has agreed to allow a jury to consider whether airplane crash victims experience preimpact terror before their deaths.  Faced with no Illinois law directly on point, the federal court determined that the reasoning in  Haley v. Pan American World Airways, Inc., 746 F.2d 311, 314-15 (5th Cir. 1984), was persuasive.  The Haley court found the courts of Louisiana would permit recovery for emotional distress “during a negligently produced ordeal”

From the opinion:

A jury could reasonably infer from the evidence that will be presented at trial that the passengers on ET 302 perceived that they were going to crash, horrifically, to their certain death. Boeing has not demonstrated that Illinois authority bars plaintiffs from recovering for the preimpact emotional distress they suffered as a result, and the Court concludes that the Illinois Supreme Court likely would permit recovery of such damages.

The Court also concluded that there was sufficient evidence of emotional distress to create a jury question given the anticipated testimony about the movements of the plane before the crash.

You can read the opinion here.

More coverage of Tort reform in Florida

I recently posted a note about Tort Reform in Florida.  See here. The TortsProf blog has more coverage and links here.

Illinois considers eliminating ban on punitive damages in death cases

I have never been able to figure out the public policy reasons behind the principle of Illinois law that holds that the right to seek punitive damages for personal injuries does not survive the death of the injured party.  This means that punitive damages are not recoverable in actions brought pursuant to the Illinois Wrongful Death Act and the Survival Act.  I first wrote about this anomaly back in 2011.  See here.

I call this Illinois rule an anomaly because I don't know of any other jurisdiction that recognizes the right to seek punitive damages in some cases but not in death cases.  

I also call it wrong because the policy results in a perverse incentive to cause more harm rather than to deter wrongful conduct, which is one of the main goals of tort law.   

Thankfully, after all these years, it is possible this wrongheaded policy might be partially abandoned.  

The Illinois General Assembly is currently considering a bill that would allow plaintiff to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute.  You can read the bill here.

Unfortunately, the bill does not go far enough because it still recognizes an exception for medical and legal malpractice cases.  This means that plaintiffs who seek to recover for the death of a decedent will not have access to punitive damages regardless of the degree of negligence or reprehensibility of the conduct of the defendant.  

This should change too.  But we are moving in the right direction, even if we are doing it one slow step at a time.  (The bill also recognizes an exception for claims against the state, but that is not unusual.  The Federal Torts Claim Act, as well as typical state versions, do not recognize a right to punitive damages in claims against the state.)

Not surprisingly, organizations dedicated to advocating for the interests of those whose conduct puts others at risk and causes injury, and their insurers, are not happy about this development.  Lacking sound policy arguments, as usual, they resort to using insults and exaggerations, calling the proposal a “calamity,” and a “shameless attack on businesses” and referring to the state a “judicial hellhole.”  See this post by the American Tort Reform Foundation, for example.  

I do agree with the ATRF that the exception for medical and legal malpractice cases does not make sense, but the solution to that disparity is not to reject the proposal altogether, thus depriving the plaintiffs of all access to recovery, but rather to eliminate the exception and thus to provide access to justice to those who deserve it.  After all, punitive damages are awarded in a very small minority of cases anyway.

Florida overhauls litigation rules to adopt "tort reform" to make it more difficult for plaintiffs to recover for injuries

Last week, in a closed-door ceremony shut out to reporters, Florida Governor Ron DeSantis signed into law one of the most sweeping tort reform bills in the state’s history, targeting attorney fees, medical reimbursement and liability in negligence cases.

Supporters of the new law have called it an antidote to frivolous lawsuits and rising insurance rates but what it really does (and what it was intended to do) is make it more difficult for victims of accidents to recover for their injuries, and, for those who do get to recover, to make it so that they recover less.  The idea is not to limit frivolous lawsuits, but to limit valid lawsuits in order to protect the insurance industry.

Courthouse News Service has more on the story.

New York Governor Vetoes Bill to Expand Wrongful Death Lawsuit Benefits

 New York Governor Vetoes Bill to Expand Wrongful Death Lawsuit Benefits. Read the story here.

Golf and how not to plead a defamation claim -- UPDATED

August 26, 2022

Long time readers of this blog know that over the years I have posted many stories about golf related torts.  Go here and scroll down to see them.  Most of them relate to cases in which a golfer's negligence results in damages to another golfer or to a nearby property owner.  So today I bring you a golf story of a different sort.

If you know anything about professional golf, you know that there is a huge to do about the fact that a new professional tour (funded by Saudi Arabia) has been created to compete directly against the American PGA tour.  When a good number of top, established, PGA pro players signed to play with the LIV tour, the PGA banned them from playing in PGA events and the debate about the new tour started to get heated.

The availability of the LIV tour now threatens the PGA's control of the pro tour and its players, and the reaction to the competition has been very fierce on both sides.  PGA faithful players and commentators have spoken publicly against the players who defected to the LIV tour.  Players who defected have accused the PGA of many things...  etc.... ...  Insults and accusations are being thrown in all directions. ... You get the idea.

Enter Patrick Reed, a pro golfer who recently decided to leave the PGA and join the LIV tour.  For this, one of the commentators of the Golf Channel criticized him (and others) strongly over a series of broadcasts and Reed has now filed a claim for defamation.

That was a long intro for me to get to my point today.  If you want to learn how NOT to draft (or argue) a defamation claim, read the complaint now.

Here are some of the problems I see with the complaint. First, because of his celebrity golfer status the plaintiff will likely be considered a public figure so he has to meet a higher burden of proof against the defendants, who are members of the press.  Second, the complaint is full of conclusory statements characterizing the statements upon which it is based as "defamatory" with weak explanations as to how that conclusion is supported.  This is a problem because as alleged it is easy to point out that the vast majority, if not all, of the statements in question are not actionable because they are either statements of opinion (as opposed to statements of fact), insults or permissible hyperbole.  

And then there is the chance that maybe the judge could be convinced that the plaintiff is actually "libel proof" since his reputation is, well, not the best among many.  You can read more about the case and about Reed and his reputation here.  (As the author of that article says "It was a chain of suspicious incidents involving Reed and his golf ball, however, that smudged his image with a mark no eraser can fully eradicate.")

The complaint does have some statements that could be considered statements of fact (I think the point is debatable but I can see a judge not dismissing them for now) all of which relate to incidents in 2019 and 2021... and about those I wonder if they are affected by a statute of limitations.  

I am very interested in this case and I would like to see if the defendants file a motion to dismiss.  I would, and I think most if not all of the claims should be dismissed.  

---------------------------------

UPDATE (11-27-22):  In my original post I commented on how poorly the complaint in this case was drafted.  Not surprisingly, the court agreed and dismissed it.  The dismissal is without prejudice, so it is possible the plaintiff's lawyer may be able to fix it, but we will have to wait and see.  Here is the dismissal order.

I found out about the dismissal in the Golf Dispute Resolution blog, which includes a short comment that starts as follows: 

I typically question the wisdom of a public person with a questionable past filing a suit for defamation. The essence of defamation is damage to reputation. Thus, by commencing such a claim, plaintiffs invite inquiry into all aspects of their past. The damage calculation in many respects is a gap analysis: what is the difference between the reputation with and without the allegedly defamatory statements. A defamation claim can be the legal system’s warning that those living in glass houses shouldn’t throw stones.

Thus, like many, I was puzzled with Patrick Reed elected to take on Golf Channel and its media talent, Brandel Chamblee and Damon Hack, with claims that they had defamed him. Certainly, Reed’s history–including longstanding stories about alienation from his parents, issues with teammates during his college career, more recent suggestions that his on course professional play has included incidents of cheating–paint a large target on his back for defense lawyers eager to challenge claims that the broadcasters have damaged Reed’s reputation.

California Governor Signs Bill Raising Medical Negligence Caps

A few weeks ago, Governor Gavin Newsom signed Assembly Bill No. 35 into law, which received unanimous support for raising the California medical malpractice pain and suffering cap to reflect inflation, and provides better support for those who have been tragically hurt or killed by a medical mistake.

AboutLawsuits.com has the story here; the TortProf blog has a comment here.

New study in California concludes what we knew already: placing caps on damages in malpractice cases does not reduce malpractice

 As California seeks to pass new legislation that would increase the amount victims can recover for pain and suffering in medical malpractice lawsuits, a new study shows that setting damage caps for pain and suffering reduces the incentive to avoid malpractice, and results in an increased rate of malpractice lawsuits.  And, an increased rate of malpractice claims ultimately raises the potential cost to patients and insurers, along with noneconomic losses suffered by victims.

In other words, caps in malpractice lawsuits do not have any of the effects proponents of caps always argue they will have.  They do not result in deterrence, may result in higher costs, and do not prevent higher insurance premiums.

You can read more about the study here.

Book Review: "Tort Law and the Construction of Change: Studies in the Inevitability of History"

Over at Jotwell, Chris Robinette (Southwestern Law School) has published a book review of Tort Law and the Construction of Change: Studies in the Inevitability of History by Kenneth S. Abraham & G. Edward White.  You can read it here.  

Here is the conclusion:  The tension between stability and progress is an inherent feature of the common law. Stability in the law provides guidance to people in living their lives and reassurance that there is more to law than the personal preferences of those administering it. If, however, the law never changes with society, it will become ill suited to meet people’s needs. We know law changes over time, but how does it do so without being destabilizing?  Professors Kenneth Abraham and G. Edward White attempt to answer that question with regard to tort law in their latest book. They present an illuminating study of legal change grounded in compelling tort history. 

Big news of the week: Sandy Hook families reach $73M settlement in suit targeting gun marketing

 The big news this week was the announcement of a settlement in the case of the Sandy Hook families against gun manufacturers.  This is the first time a firearms manufacturer has settled a lawsuit brought by gun violence victims since Congress granted the industry sweeping immunity from civil liability in 2005.  The $73 million settlement is covered by The ABA Journal (where you can find more links), NPR (print) and NPR (audio).

The plaintiffs (Sandy Hook families) hope the settlement will lead to changes in the gun industry.  Yet, here is an article arguing why it probably won't.