Should a public defender be protected by a state torts immunity act?

Just a few days ago, the New Jersey Supreme Court heard oral arguments in a case that should be called Chaparro Nieves v. Office of the Public Defender (but is being mistakenly identified as Nieves v. Office of the Public Defender)** in which the Court has been asked to decide whether the Office of the Public Defender should be covered by the state's Torts Claims Act.

In this case, the plaintiff had been incarcerated for twelve years on serious charges, including first-degree aggravated sexual assault, when the charges against him were dismissed on his petition for post-conviction relief.  At some point thereafter, he filed a legal malpractice complaint against the public defender's office and an individual lawyer.  The trial judge denied defendants' motion for summary judgment as to the legal malpractice claim but the Appellate Division reversed, holding, among other things, that it is clear that the office of the public defender is a public entity and public defenders are public employees that come within the Tort Claims Act’s immunities and defenses.  You can read that opinion here.

The case is now before the Supreme Court where Professor George W. Conk, of the Louis Stein Center for Law & Ethics at Fordham University School of Law, argued on behalf of the New Jersey State Bar Association urging the Court to affirm the Appellate Division’s decision to apply the TCA to legal malpractice claims.  The Bar Association's statement concludes that "[c]ompetent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs. Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill served."

You can read the full statement of the Bar Association here.


** I say the case "should be called" that because I have seen it referred to everywhere as just Nieves v.  Office of the Public Defender, which shows ignorance about the use of two last names in the Latin American tradition.  The plaintiff's name is Antonio Chaparro, not Antonio Nieves.  But that is just a pet peeve of mine and I will leave it at that.

More than 100 families of fallen members of the military sue defense contractors alleging they funded the Taliban, which resulted in the deaths of their relatives

In a very interesting development, NPR is reporting that more than 100 families are suing several major defense contractors alleging they made "protection payments" to the Taliban which constitutes funding funding terrorism under the federal Anti-Terrorism Act.

I am not familiar with the exact content of this Act, but given the complaint I am guessing it recognizes a cause of action for those who can allege that a defendant funded a terrorist group whose conduct causes an injury to the plaintiff (or decedent).  According to the complaint the "protection payments aided and abetted terrorism by directly funding an al-Qaeda-backed Taliban insurgency that killed and injured thousands of Americans."

The 288 page complaint is available here.

According to one expert, paying insurgents is "pretty universal" among defense contractors because it is the only way to get the supplies needed for their operations.  In contrast, the complaint argues that the defendants put the decedent's lives in danger in order to save money:  "it was cheaper to buy off the Taliban than it would have been to invest in the security necessary to mitigate the terrorists' threats."

Senate approves Defense Authorization Bill which includes provision to provide compensation to military personnel injured by negligence of military doctors

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 under any circumstances while the plaintiff was 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, for example.

The debate over whether the Feres Doctrine should be abandoned has raged ever since.  In fact, last May, two Justices of the Supreme Court suggested it was time to get rid of it.  See here.  Soon after that, the New York Times published an Op-Ed piece urging Congress to eliminate the doctrine.  See here.

Maybe in response to these events, later in the year Congress debated inserting a provision into the annual defense authorization bill to offer payouts to victims of military medical malpractice.  The provision did not alter the Feres doctrine, but it creates a system to provide limited recovery to some victims of military medical malpractice.

Last week, the Senate voted, 86-8, to pass the National Defense Authorization Act including $400 Million for the Defense Department to investigate and pay out military medical malpractice claims internally, bypassing the Feres Doctrine. 

This sounds great, but the details of the provision severely limit its possible benefits.  Most importantly, claims would be limited to under $100,000, and legal fees are capped at 20%.  Unfortunately for the victims, these limits will make it difficult for them to find lawyers to on the representation.  Medical malpractice cases are typically very expensive to litigate and being able to recover only $20,000 will make the cases not viable financially.

According to the bill, the Secretary of Defense can create regulations that allow them to pay more, but those regulations haven’t been written.

The New York Personal Injury Law Blog has a good short comment on the bill here.

Arizona Appeals Court suggests it is time to starting thinking of suicide as any other intervening cause

As in many other jurisdictions, a decedent's conduct in committing suicide is considered a superseding cause, presumably based on the notion that it is always unforeseeable that someone would commit suicide. 

But we all know that this statement is nonsense.  That someone might commit suicide is as foreseeable as any other intervening event.  Sometimes it is, sometimes it isn't.  And, for that reason, it is not convincing to hold as a matter of law that suicide is always unforeseeable.  Yet, that is what many courts do.

I am writing about this today because I just read in Bloomberg news that an Arizona appeals court recently dismissed a legal malpractice suit against two law firms brought by the parents of a woman who killed herself.  The court cited that accepted view of suicide as a superseding cause as the reason for its ruling, but urged the state supreme court to revisit “the aging majority rule” because it’s “primitive and unduly inflexible."

I agree, particularly given the statistics about suicide in this country, that as the court stated, the suicide rule is outdated, noting that it “draws from society’s historical view of suicide as sinful and immoral.”  The court's opinion states in fact that it "would not adopt the majority rule if it were within the scope of our authority to make that decision.”

The case is called Parton v. Jeans.

Auto accidents no longer the leading cause of traumatic brain injury deaths in the US

This is a truly sad and alarming bit of news: According to researchers with the U.S. Centers for Disease Control and Prevention (CDC), suicide is now the leading cause of traumatic brain injury deaths, passing automobile accidents for the first time.  Story here.

News about vaping products keep piling up

Here are a few bits of news related to vaping:

The American Medical Association has called for an immediate ban on all electronic cigarettes and vaping devices.

Yet another complaint has been filed against the manufacturer of vaping products.  In this one, an 11-year old child alleges to have developed a nicotine addiction from JUUL, indicating that the manufacturer’s aggressive marketing practices not caused vaping problems among high school and middle school students, but also ensnared children still in elementary school.  The story is here.

A new study suggests that JUUL products deliver much higher amounts of nicotine than other e-cigarettes, increasing the risk of addiction and other health problems.  Story here.

Another sports story: Mary Cain's claims against Alberto Salazar and Nike

Yesterday I wrote about the possibility of supporting a claim related to a fight on the football field.  Today I want to point out another story related to sports.

If you are a track and field fan, you probably have heard about Alberto Salazar.  Once a famous and successful runner, he then became a famous and successful coach. 

Now he is famous for other reasons.  Bad reasons. Over the years, Salazar became known for operating in a gray area, using unconventional methods and pushing the envelope of what might be allowable under the letter of the doping rules.  In 2015 he was accused of using his son as a guinea pig, and was forced to admit he had been testing a testosterone gel on his sons.

Then, earlier this year, after a multi-year US Anti Doping Agency investigation, Salazar was found guilty of doping violations linked to the Nike Oregon Project training camp. In addition it was determined that Salazar ran experiments with supplements and testosterone and possessed and trafficked a banned substance. As a result, he was suspended for four years.

I had heard that bit of news (and the accusation of using his sons as guinea pigs) back when it was announced, but it was not until a week ago that I had heard the allegations by female athletes against Salazar.

I first heard about this controversy when I saw a New York Times video in which Mary Cain discusses her experience as a female athlete in the Nike system.  You can watch the video below.  She is not the first female athlete to make similar claims.   Kara Goucher claimed she was pressured by Salazar to take thyroid medication not prescribed by her doctor to lose weight gained during her pregnancy in 2010.

I am writing about this today because I just read an excellent short comment on the issue linking it to the same question I asked about the football case:  Could an athlete support a claim under these circumstances.  The comment is written by lawyer (and athlete) Eric Turkewitz.  In it, he addresses the difference between assumption of the risk for participating in a sport and what he calls "coaching malpractice."  It is worth reading.  Go here for the full text.

Can Mason Rudolph (Pittsburgh Steelers quarterback) support a claim for battery against Myles Garrett?

If you are a football fan, and maybe even if you are not, you probably heard about or saw the video of a fight at the end of the game between the Cleveland Browns and the Pittsburgh Steelers a couple about a week ago.  At the end of the game, Myles Garrett (of the Browns) tore off Pittsburgh's quarterback Mason Rudolph’s helmet, and hit Rudolph in the head with it.  The NFL quickly responded by suspending Garrett for the rest of the season.  You can see the video here with the actual helmet to head contact here and here. 

Could Rudolph support a claim for battery against Garrett?

In sports cases, it is often said that players consent to conduct that would otherwise constitute battery if the conduct is inherent to the sport.  Likewise, if the claim were for negligence, it is often said that players assume the risks inherent to the sport.  For this reasons, given the violence inherent to football most of the time players can't support a claim.

But, is the risk of having an opponent rip off your helmet and use it against you like a weapon inherent to the sport of football?  I don't think so.  I think the conduct in this case is so far outside the inherent risks of the game that the quarterback should be allowed to have a cause of action.  What do you think?

California sues JUUL Labs

California and the city of Los Angeles sued e-cigarette maker Juul Labs on Monday, claiming the company caused a public health crisis by targeting teens with fruity, fun flavored vaping products and did not verify the age of its customers for online sales.  Here is the full story.  Bloomberg law podcast has a 7 minute comment on the claim here.

More news on vaping: Trump flip flops on regulation of vaping products

At some point earlier this fall, President Trump announced he was going to look into ways to keep vaping products away from teenagers and even stated his administration would ban most flavored e-cigarettes.  Of course, as is so often the case, he was only pretending to know what he was talking about and now that someone told him that such a move might cost him some votes, the plan is off the table.  You can now add that to the growing list of Trump's unfulfilled promises.  More on the story here.