Saturday, September 12, 2020

Third Circuit issues opinion on whether prosecutor can be sued for conduct that resulted in wrongful conviction

Prosecutors are usually protected from possible civil liability because they can claim immunity.  However, immunity only applies to their conduct as litigators, not as investigators and defining the line between one and the other is a matter of much debate.  

There are many cases out there that discuss the issue and now the Court of Appeals for the Third Circuit has added a new one.  In a case Weimer v. County of Fayette, Pennsylvania, the court examines the claim of plaintiff Crystal Dawn Weimer who spent more than eleven years in prison, and then, after her convictions were vacated, filed suit under 42 U.S.C. § 1983, alleging that the County of Fayette, Pennsylvania; its former District Attorney, Nancy Vernon; the City of Connellsville; and several city and state police officers violated her rights under the U.S. Constitution and Pennsylvania law. 

The Court found that certain aspects of the prosecutors conduct were protected by immunity, but many others were not and remanded the case for further  proceedings.

You can read more about the case here, where you can also find an embedded copy of the opinion. 

Saturday, August 15, 2020

Recent law review article compares cost-benefit analysis and consumer expectation as the tests for determining design defects

In his article An Essay on the Quieting of Products Liability Law, 105 Cornell Law Review 101 (2020), Aaron D Twerski, one of the reporters of the Restatement (Third) of Torts: Products Liability, compares the difference between the risk-utility test applied in most states (which relies on having the plaintiff prove a "reasonable alternative design (RAD)") and the consumer expectations test followed in 17 jurisdictions to determine if a product has a design defect.   He concludes that, regardless of the approach used, the vast majority of cases include proof of a RAD.

Twerski theorizes that using proof of a RAD: 1) tells “a far more compelling story” than consumer expectations; 2) relates to fault which, in turn, leads to higher damage awards; 3) may be needed as a substitute if a judge denies a “consumer expectations” instruction, and 4) supports the claim that a product disappoints consumer expectations.  

For a summary of the article go here.

California appellate court finds that Amazon can be sued for products liability

In an important new decision, a California state appellate court recently held that Amazon is subject to product liability claims for defective goods sold on its website by third-party vendors. The case is called Bolger v. Amazon and you can read the opinion here.

The key to why this is important is that last phrase: "third party vendors."  Amazon did not manufacture or retail the product.  It merely provided a space for the retailer to "connect" with its buyers.  For that reason, Amazon argued that it was not part of the chain of distribution, as that concept is typically used in products liability cases.  But the court held that “Whatever term we use to describe Amazon’s role, be it ‘retailer,’ ‘distributor,’ or merely ‘facilitator,’ it was pivotal in bringing the product here to the consumer.”

This case follows the first successful product liability case against Amazon (in Pennsylvania) which was then appealed to the Third Circuit Court of Appeals and remanded to Pennsylvania Supreme Court this past June.  That case is now pending.

For more on Bolger v. Amazon, go to Courthouse News Service, LawStreet, and the ABA Journal.

USA Today publishes op-ed on why blanket COVID-19 liability immunity is not a good idea.

USA Today publishes Op-Ed on why blanket COVID-19 liability immunity is not a good idea. You can read the article here.

Wednesday, August 5, 2020

More on the issue of whether businesses and other institutions should be immune for liability related to Covid-19

During the past few weeks there has been a lot of discussion on whether it would be a good idea to grant immunity or to make it more difficult for plaintiffs to recover for injuries suffered when the defendant's negligence causes the plaintiff to catch the Covid-19 virus.  I have posted articles about it here, here, here and here.

NPR has the latest here.

Sunday, July 12, 2020

Louisiana approves tort reform bill -- UPDATED

About two weeks ago, the Louisiana legislature passed a tort reform bill that the Governor said he would sign, (after he had vetoed an earlier version).

The bill, which appears to be explicitly designed to favor the auto insurance industry adopts a limitation of the collateral source rule, removes the ban on mentioning whether a plaintiff was wearing a seat belt, limits when an insurance company's name can be mentioned in court, and reduces the threshold for jury trials from $50,000 to $10,000.

The first two measures are common in tort reform bills, but the measure related to the jury is strange because usually juries are thought of being more generous that judges when calculating damages.  It is not clear, why a tort reform bill designed to favor defendants tries to expand the number of cases that will be tried by juries.

Like most, if not all, tort reform bills, this one fails to address the real issue.  The bill is supposed to help lower car insurance rates, but  instead of drafting a bill that regulates those rates, the legislature drafted a bill to help insurance companies make more money while doing nothing to lower the bills.  I suppose it remains to be seen what will happen but more than likely, the consumers will get screwed twice: the insurance rates will remain the same (or continue to rise), and the injured victims will get lower compensation....  unless they miscalculated the gamble on whether juries will be less generous.

The TortsProf blog has more on the story here.

UPDATE 8/2/20: The Governor signed the bill....  Story here.

Missouri holds that public defenders are immune for discretionary functions

In a case called Laughlin v. Perry, decided on June 30, 2020, the Missouri Supreme Court found that public defenders are immune for legal malpractice liability under the doctrine of discretionary functions.   You can read the opinion here.   The court summarized its conclusion as follows:
As public defenders, Perry and Flottman are entitled to official immunity because they are public employees whose official statutory duties concern the performance of discretionary acts. . . . One need not be a public official engaged in the essence of governing to be entitled to official immunity; such immunity extends to protect public employees from liability for alleged acts of negligence committed during the course of performing discretionary acts requiring exercise of a degree of reason and judgment. There is no dispute Perry and Flottman were acting pursuant to their constitutionally and statutorily mandated duties in representing Laughlin, and . . .  choosing which defenses to raise and which arguments to pursue on appeal on behalf of indigent clients constitutes a discretionary act entitled to official immunity.

Thursday, July 2, 2020

Liability waivers in the age of the novel coronavirus

The ABA Journal has published a short article on issues related to the use of liability waivers in the age of the novel coronavirus.  You can read it here.

Sunday, June 28, 2020

Wisconsin reaffirms that criminal defendants must show actual innocence to support malpractice claim against former defense counsel

Long time readers of this blog may remember that I have posted many stories commenting on the fact that many (probably most) jurisdictions require former criminal defendants to prove actual innocence as a requirement to support malpractice claims against their criminal defense counsel.  In recent years, a number of jurisdictions have rejected this notion, but it still seems to be the majority approach.

I am writing about this again today to report that earlier this month, the Supreme Court of Wisconsin reaffirmed its position on this in a case called Skindzelewski v. Smith, which you can read here.

Wednesday, June 10, 2020

New article refutes arguments regarding "defensive medicine"

In a new article entitled The Paradoxes of Defensive Medicine, authors Michael Saks & Stephan Landsman review the evidence behind the belief that medical malpractice claims lead to defensive medicine and find little support for it.  This is not surprising for those who follow the literature and history of the "tort reform" movement, of course, but it is always good to see new articles on the issue.  The abstract of the article states, in part:
For decades, “defensive medicine” has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice is widely believed to exist throughout American healthcare as a response to fears of malpractice litigation, and thought to be enormously wasteful of healthcare dollars. In consequence, it has become a justification for law reforms insulating the healthcare industry from tort liability. These claims are promoted by the healthcare industry even though they imply that most providers routinely engage in healthcare fraud and violate their own ethical rules. 
If you subscribe to SSRN, you can download the article here.