Saturday, June 28, 2014

Supreme Court petition to watch out for

Here is a case to watch out for.  Yesterday, the SCOTUS blog picked the following product liability petition as its "petition of the day":

Teva Pharmaceuticals USA, Inc. v. Superior Court of California, Orange County

Issue:  Whether the California Court of Appeal erred when it deepened an acknowledged circuit split and held—contrary to this Court’s decisions in Buckman Co. v. Plaintiffs’ Legal Committee and PLIVA, Inc. v. Mensing; the decisions of the Fifth and Eleventh Circuits in Morris v. PLIVA, Inc. and Guarino v. Wyeth, LLC; and the plain language of the federal Food, Drug, and Cosmetic Act (“FDCA”)—that federal law does not preempt state tort claims predicated on allegations that a generic drug manufacturer violated the FDCA by failing to immediately implement or otherwise disseminate notice of labeling changes that the United States Food and Drug Administration had approved for use on a generic drug product’s brand-name equivalent.

For more information, including links to the lower court opinion, the petition, the briefs and other important documents go here.

Connecticut court rules client has no right to recover for emotional distress in malpractice claim

Last year I reported on a case from Iowa that held that a plaintiff in a legal malpractice lawsuit had the right to recover for the emotional distress caused by the lawyer's negligent conduct.

In contrast, a few days ago, The Connecticut Law Tribune reported that a trial judge took the opposite position and dismissed the emotional distress claims in a malpractice suit filed by a plaintiff who was allegedly injured by her attorney's negligence in not filing a claim in time.

According to the article, the judge opined that if an attorney engages in ordinary negligence that does not involve the practice of law, presumably a client could sue and allege emotional distress but that the case was different because the negligence involved the attorney's "failure to follow appropriate standards for the practice of law."

As I said back when I commented on the Iowa case, I find it difficult to understand why courts typically do not recognize claims for emotional distress in cases where the plaintiff does not suffer physical injuries. Assume an attorney's malpractice causes a client to lose his house, or custody of his children or to be separated from his children for years.  Is it really that difficult to believe that the attorney's negligence can cause emotional distress?  I don't think so.  As long as we recognize that emotional distress is a distinct type of injury that can result from negligent conduct, it is difficult to argue that a plaintiff should not have the right to bring a claim as long as he or she can support the elements of the cause of action.

This distinction the judge in Connecticut is suggesting does not make sense to me.  According to that reasoning attorneys are suddenly immune from injuries they cause due to their negligence.  I would understand if there is a reason to support this conclusion, but I just don't see one.

I can understand the argument that you may not want to allow recovery for emotional distress because that opens the door to recover for injuries that are difficult to quantify or verify or because it opens the door to too much possible liability.  I don't necessarily agree with it; but I can understand it.  But if that is the case, then you would have to argue that we should not allow recovery for emotional distress under any circumstances.  Otherwise, you are saying we can allow recovery for emotional distress in some cases and not in others, with no clear explanation of what supports the distinction.

The only distinction is the old argument that there should be no recovery for emotional distress in cases where the distress is based on pure economic injury.  But, again, is it not foreseeable that economic injury can result in emotional distress?  I know I am in the minority here, but I just don't find the distinction convincing.

If we are willing to admit that it is foreseeable that the conduct can result in emotional distress, then we should be ready to recognize a right to recover for the foreseeable injury.

Friday, June 27, 2014

More comments on the Missouri Supreme Court decision on assumption of the risk while watching a baseball game

Yesterday I reported on the Missouri Supreme Court's decision in the case against the Kansas City Royals for an injury caused by its mascot during a game.  The most important issue in the case was whether the plaintiff assumed the risk of injury by attending the game.  The court found that getting hit with a hot dog - as opposed to a baseball or a bat - thrown into the stands is not an inherent risk of watching baseball games.

Today, Prof. Jonathan Turley has a comment on the case in his website here.  The TortsProf blog also has a note here.

Wednesday, June 25, 2014

Missouri Supreme Court decides flying hot dog case; holds that being hit by a flying hot dog isn’t an inherent risk of watching baseball

Two years ago I started following a case filed against the Kansas City Royals seeking compensation for an injury caused by a hot dog shot out of a cannon by the team's mascot into the crowd.  The hot dog hit a spectator in the face causing an injury to his eye.  My first reports on the case are here and here (including links to comments on the claim and to the original complaint).

Eventually, the case went to trial and the jury found for the defendant. However, the Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. The court reasoned that a plaintiff’s voluntary participation in an activity serves as consent to the known, inherent, risks of the activity itself and relieves the defendant of the duty to protect the plaintiff from those harms.

Then, back in December 2013, the Missouri Supreme Court took the case and it finally issued its decision today ruling that being hit in the eye with a flying hot dog is not an inherent risks of watching a baseball game and that, therefore, the  trial judge wrongly asked the jury to consider the defense of assumption of the risk.  For the reasons explained in my previous posts on the case, I think this is the correct decision.  You can read the opinion here.  Here are some links to more information about the case.

In one of my earlier posts on the case I copied this video of the team mascot launching hot dogs. The woman taking the video yells at the mascot for a hot dog when the mascot is throwing them by hand, but listen carefully how, after watching the laucher send a hot dog off in the air, she sounds a little nervous about the possibility of the mascot sending one her way. She says "no, no, no. "We just want you to "toss" us a hot dog," and then seems to be telling her friend that "we are too close"...


Tuesday, June 24, 2014

More updates on the GM debacle and now on other automakers too.

News and comments regarding General Motors keep piling up and none of it is good for the automaker.  I have been very busy this summer and haven't had time to keep up, so I will just provide you with links to some of the articles I have saved to read later.

Monday, June 16, 2014

More comments on the GM debacle

The debacle surrounding GM's car recalls, lawsuits and corporate culture has generated a great debate on issues related to torts, safety, litigation, the use of bankruptcy protection, alternative compensation funds and the role of lawyers.  Sadly, much of the debate shows we (whatever you interpret "we" to mean - society, lawyers, judges, regulatory agencies) have not learned important lessons from the past.   You really should take a few minutes and go to the following sites to read up on the issues (and make sure you read the comments too):

The Legal Ethics Forum reports (with links) that GM has fired lawyers as a result of an investigation.

Link to the report prepared by a lawfirm for GM.

"Shades of Enron: the Legal Ethics Implications of the General Motors Scandal"

New York Times article:  "G.M. Lawyers Hid Fatal Flaw, From Critics and One Another"

Richard Zitrin explains the connection between secrecy in litigation and the current issues

The PopTort on GM corporate culture

Sunday, June 15, 2014

Article criticizing GM and its legal strategies

The PopTort has a short post on GM and its legal strategies here.

Debate over the effectiveness of surgical checklists in reducing medical mistakes

Following a study published earlier this year that questioned the effectiveness of surgical checklists in reducing the risk of medical mistakes, a debate has emerged within the medical community over the validity of the research and the push to require checklists at hospitals throughout the country.  For more on this story go to AboutLawsuits.

Meanwhile, over at FiveThirtyEight, there is a story discussing the risks and benefits of approaching medical decisions from a rules based decision making process, as opposed to the exercise of discretion.

Wednesday, June 4, 2014

Maryland adopts new bill in reaction to Tracey v. Solesky

Two years ago I reported (here) that the Court of Appeals of Maryland issued an opinion in a case called Tracey v. Solesky holding that the owner of a pit bull could be held strictly liable for the injuries caused by the dog.

Soon thereafter pit bull owners and their advocates persuaded state legislators to convene a task force aimed at overriding the decision of the Court of Appeals.  See here.

However, after a very long process, the attempt by the legislature to enact a statute to override the holding in Tracey appeared to have failed. Both the House and the Senate approved statutes but they did not agree on the approach to use to deal with the issue.  A committee was formed to reconcile the bills, but the resulting compromise bill did not have the votes to pass.

Eventually, however, a new bill was agreed upon and it was recently signed into law.  Section 2 of the bill specifically states that "it is the intent of the General Assembly that this Act abrogate the holding of the Court of Appeals in Tracey v. Solesky, 427 Md. 627 (2012)."  To achieve this, the statute does two things:  it creates a rebuttable presumption that in cases where a dog causes an injury to another the owner knew or should have known that the dog had vicious or dangerous propensities and it specifically says that if the defendant is not the owner of the dog, the law that applies is the law that was applicable before Tracey was decided.

What I find interesting about this act, though, is that, for cases against dog owners, it has adopted a standard that is more favorable to plaintiffs than it was pre-Tracey.

The law used to be that a plaintiff has the burden to show either negligence or that the defendant knew or should have known of the dog's dangerous propensities.  What Tracey held was that a plaintiff only had to prove the animal was a pit bull to meet the requirement of proving that knowledge.

Instead of scaling back the reach of the Tracey ruling, the new bill actually appears to expand it.  Now all dog owners are presumed to have knowledge and the burden would shift to them to prove the negative. After Tracey, pitbulls were presumed to be inherently dangerous; now all dogs are presumed inherently dangerous.

For a very complete summary of the issues involved go here.

Debate on whether therapists should have a duty to disclose information when patients pose risks to others

Every time there is another shooting involving a perpetrator who had been under psychiatric care the debate on whether the therapist should have a duty to disclose information is reignited.  In a recent "Room for Debate" exchange, the New York Times introduced the topic this way:
"Once again, senseless slaughter has raised questions not only about how mentally disturbed people can obtain guns, but why authorities can’t intervene to prevent violence. Do the laws regarding mental health professionals’ duty to warn the authorities of a threat need to be toughened to make them more effective"
The debate (available here) includes six authors, and I found interesting that they disagree as to what the state of the law is as to the duty of a therapist to disclose information.  This, in itself, I think shows that there is no agreement on the subject.

One author, for example, states that "[i]n most states, a psychiatrist or psychologist can only inform law enforcement officials about patients who "pose a clear and present danger to himself, herself, or to others"" while another author states that "[a]lmost all states have laws that either require or permit mental health professionals to disclose information about patients who may become violent." Interestingly, in this case, both authors agree that whatever the duty is, it needs to be broadened.  One of them proposes that "every state should have a mandatory duty-to-protect statute that takes effect even when there is no identifiable potential victim" which is the highest duty possible, one I am not sure therapists would agree is a good idea.

The reason for the confusion is due, at least in part, to the fact that contrary to what is usually assumed, Tarasoff v Regents of the University of California, a case pretty much everyone reads in law school, has not been followed in all jurisdictions.  Some, in fact, have expressly rejected it.  Adding to the confusion is the fact that, regardless of the common law, many jurisdictions have enacted specific legislation or regulation some of which may conflict with applicable federal laws

And, aside from the confused state of the law, there are the scientific and policy questions of whether a therapist really can predict a patient's behavior and, even if so, whether it is good public policy to have therapists reveal confidential information their patients expected them to keep secret.

New Jersey Appellate Court holds that a convicted criminal defendant does not have to show innocence to support a malpractice claim (if the defendant pleaded guilty)

As I have discussed previously (more recently herehere and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.  However, there are a few jurisdictions (last time I checked it was four) that have decided there is no need to show actual innocence.

A new case from New Jersey addressed the issue and found no need to show actual innocence while suggesting the requirement should still apply to most cases.  The court tries to make a distinction; but I don't buy it.

In this case, Cortez v. Gindhart, the defendant pleaded guilty to criminal charges but later brought a malpractice claim based on his trial counsel's alleged failure to follow up on the government's suggestion of a possible plea deal.  The lower court dismissed the complaint based on precedent cases in the jurisdiction that required the showing of actual innocence.  The Appellate Court, however found that those cases did not apply and held that the actual innocence requirement is not a requirement in all cases.

The court found that the issue was different because in the older cases, the plaintiffs (former criminal defendants) had claimed they were wrongfully convicted as a result of their public defenders' negligence while in Cortez the plaintiff had admitted his guilt.

According to the court, the claimed injury in Cortez is different because as a result of the alleged negligence, Cortez was deprived of an opportunity to accept a more favorable plea offer and, as a result of that deprivation, he received a harsher sentence.  Based on this, the court then concluded that there is no need for proof of innocence because “negligence in the discharge of duties for a client who pleads guilty may result in actual injury to a client even if guilty.”

I don't find the distinction convincing.  What the court is suggesting is that if a person is guilty of the charged crime, and they get convicted, they got what they deserved.  But what they deserved was a negligent free representation and if they can show that they would not have been convicted but for the negligence then they did suffer an actual injury even if they were guilty.

Assume for example that a criminal defendant is guilty of possession of an illegal substance.  He is guilty because he did, in fact, had the drugs in his possession, but for whatever reason decided to plead not guilty and goes to trial.  But also assume that the police obtained the drugs during an illegal search in violation of the defendant's constitutional rights.  Then assume that the defendant's lawyer negligently failed to file a motion to suppress the evidence which would have been granted and which would have resulted in the exoneration of the defendant or the dropping of the charges because there was no other evidence.  Wasn't the defendant convicted but for the negligence of the lawyer?  Didn't the guilty person suffer an actual injury?

Even if guilty, the criminal defendant in this case claim that that the attorney's negligence resulted in actual injury, just as much as the criminal defendant in Cortez could. I think the underlying argument on which both defendants are basing their claims is the same, and that the analysis of the court should be the same.  In fact, I think the court reached the correct result in Cortez, but it is wrong in holding that the result does not apply to other cases.  It should.  There should be no requirement to show actual innocence; period.

Having said all that, it should be noted that in Cortez the court affirmed summary judgment for the lawyer for a different reason.  The plaintiff could not establish that but for the lawyer's substandard performance the government would have offered—and the client would have accepted—a deal better than the one he eventually took.  In other words, the plaintiff's argument that he would have gotten a better result had it not been for the lawyer's negligence was based on speculation, not on an actual fact.  Had the state made a better offer and the attorney had failed to tell the client, then the client would have had a claim; but since no alternative offer was made, the client could not show that the negligent conduct was the cause in fact of the claimed injury.