Tuesday, September 15, 2015

Yet another disturbing video of football violence

Watch the defensive end of the team in the black uniform rip an opponent's helmet's off and then use it as a weapon against him.

According to NJ.com, this happened last weekend during a game between New Jersey high schools Immaculata and Linden. According to the story, the player who was hit with the helmet received 10 stitches after the game. Local police is looking into the incident.

Monday, September 14, 2015

Pac Man Jones will not be suspended for violence on the football field

Sunday I commented on the conduct of Bengals corner Adam “Pacman” Jones on the football field to illustrate the recurring issue of whether conduct while participating in sports could give rise to a claim for battery.  As an update, it is now being reported that Jones will be fined but not suspended.

South Carolina redefines when the clock starts for purposes of the statute of limitations in a claim for legal malpractice

Last week, the South Carolina Supreme Court overruled prior precedent and held that the statute of limitations in a legal malpractice claim starts to run after the underlying case that gives rise to the malpractice action is resolved on appeal.

In this case, everyone agreed that the statute starts to run when the affected party knew or should have known that it had a legal malpractice claim against its trial counsel.  The question was whether the party 'knows or should have known' at the time they lose the case at the trial level, or at the time the higher court affirmed the decision of the trial level.

Overruling prior precedent on the issue, the court held as follows:  "We overrule Epstein and now hold that the statute of limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal. We find this rule comports with the discovery rule and effectuates the purpose of the statute of limitations."

The case is called  Stokes-Craven Holding Corp., v. Scott L. Robinson and Johns on McKenzie & Robinson, LLC, and it is available here. The Legal Profession Blog has more information here.

Sunday, September 13, 2015

More violence in football

By now I am sure you are familiar with the story about the high school football players who attacked an official in the middle of a game last week.  Well...  here is another incident.  For the second week in a row, a San Antonio-area high school is dealing with a player who hit an official in the middle of the game. Here is the video.

Not to be outdone, the pros began their season today and here is a video of Bengals player PacMan Jones ripping an opponent's helmet off and pushing the opponent's head into it after the play was over.

As in the story from last week, the torts issue is the same.  Are these incidents within the scope of the consent to the "inherent risks" of the game?  Is the conduct within the "customs" of the game?

UPDATE (9-14-15):  It sounds like PacMan Jones will not be suspended for his conduct.

Wednesday, September 9, 2015

Baltimore Fraternal Order of Police calls suggestion of a settlement with family of Freddie Gray "ridiculous" and "obscene"

According to a report by CNN, available here, Gene Ryan, president of the Baltimore Fraternal Order of Police, reacted to the announcement of the settlement by the city of Baltimore with the family of Freddie Gray (see here), stating that the settlement was a "ridiculous reaction" and that "[t]o suggest that there is any reason to settle prior to the adjudication of the pending criminal cases is obscene..."

Baltimore agrees to settle claim Freddie Gray's family for $6.4 million

The city of Baltimore has agreed to pay a $6.4 million settlement to the family of Freddie Gray, who died at age 25 in police custody last April after suffering a serious spinal injury in the back of a police van.  (Six city police officers are facing criminal charges in the matter also.)   Slate, NPR and Gawker have more information.

New information on breed specific regulations

The website Dogsbite.com, a very good source of information related to regulation of dogs and cases involving dogs, has released a new FAQ section on breed specific regulation.  Go here for links to a lot of information including the effectiveness of these ordinances, which breeds are involved and the three most common types of ordinances.

Tuesday, September 8, 2015

Public defender sues for arrest while trying to represent her clients -- UPDATED

Back in January several outlets reported on an incident in San Francisco involving an arrest of a public defender which was caught on video.  Today, the ABAJournal.com is reporting that she has filed a complaint against the city and the police department.

Given that the incident was caught on video, the facts are easy to observe.  The plaintiff's clients were in court that day for a hearing related to a misdemeanor robbery charge.  While hanging out with their lawyer (the plaintiff) in the hallway, a police officer approached them to talk about another case and said he needed to take photos of the clients.  The lawyer objected and the police officer then told her she would be arrested "for resisting arrest."  That is a curious charge, since the police had not said they were going to arrest anyone.  In other words, the lawyer was not interfering with the police's attempt to arrest her clients.  She was also not resisting her own arrest since the police was not trying to arrest her.  Bottom line, the cop essentially said "let me do what I want to do here or you will be arrested."  And that is exactly what happened.

From what I can see, there is basis for a claim of false imprisonment here, but it is not clear what is the level of damages.  The claim, however, is apparently not for common law false imprisonment but for violation of civil rights.

See below for a a video of the incident.   

UPDATE:  The complaint in this case eventually was dismissed by a federal district judge and that decision was affirmed on appeal.  Go here for the story.  Reading this story, however, raises several questions for me, the most important of which is why was the case argued the way it was?

It appears that the main argument for the plaintiff was that she was arrested (in violation of her constitutional rights) because she exercised her freedom of speech.  I suspect that was the argument so they could make a federal case out of what would otherwise have been a simple state torts claim.

This turned out to be a mistake.  From the limited evidence I can see (by which I am admitting that I could be totally wrong if I had all the evidence available), this was, at least on paper, an easy false arrest claim.  

The police officer arrested her for "resisting arrest" which is absurd to being with.  How can you arrest someone for resisting arrest if she was not being arrested?  You can get arrested for something, and then get charged with resisting arrest if there is evidence that you did resist arrest in the process of getting arrested for the conduct you are getting arrested to start.  

So the charge used to justify the arrest is nonsense, and the video disproves the allegation.  Then, there's the fact that the lawyer was released and not charged with anything.  The police simply arrested her so they could get her out of the way and talk to her clients without her being present.

In dismissing the complaint, the judge concluded that there was enough probable cause to conclude that the lawyer was "obstructing justice" or interfering with a valid police investigation.  

I don't think so but even if that is the case, that conclusion does not support the court's decision because that is NOT what the lawyer was arrested for.  If she had been arrested for and charged with obstruction of justice, that argument may have been a valid way to retroactively justify the arrest; but those were not the facts.

Even if there was probable case to arrest for obstruction of justice, the arrest was for something else.  Therefore, the arrest was not valid.  

Here is the video of the original arrest:

Monday, September 7, 2015

Kansas Supreme Court rules a criminal defendant does not have to show actual innocence to support legal malpractice claim

In most jurisdictions, a plaintiff suing an attorney for malpractice arising out of the attorney's representation in a criminal matter has to meet not only the elements of the cause of action but also has to show actual innocence.  This approach has been criticized by many in the literature but it continues to be the majority view.

However, a few days ago, the Kansas Supreme Court joined the minority of jurisdictions where this is no longer the case.  In a case called Mashaney v. Board of Indigents' Defense Services, the Court held that a convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence.

The Legal Profession Blog and the Chicago Legal Malpractice Lawyer Blog have more on the story here and here.

Illinois court of appeals reaffirms state's (unfair) approach to legal malpractice

In the past, I have criticized the fact that Illinois has adopted a statute of repose for legal malpractice cases.  But that is just the beginning of the problem.  Not only is there a statute of repose, it is very short and it can't be tolled.

Now, about two weeks ago, in a case called Lamet v Levine, available here, the Illinois court of appeals has reaffirmed the unfairness of the use of this type of statute.  The court explained that the statute of repose begins to run not when the negligent act is discovered by the client but when the negligent act occurred.  In other words, the statute of repose in a legal malpractice case begins to run as soon as an event giving rise to the malpractice claim occurs, regardless of whether plaintiff knows of the attorney's conduct or whether the plaintiff's injury has been realized.  Also, the court followed the consistently held view in the state that the statute of repose is not tolled merely by the continuation of the attorney-client relationship.

NY Times article on medical malpractice law

About a week ago, the NY Times published a short article on medical malpractice that is worth noting, even though, in the end it does not say anything that anyone paying attention to the subject didn't know already.  For much more on medical malpractice theory and practice go to the medical malpractice section of this blog (scroll the topics on the right hand side and click on it).  Here are some key sections of the article (you can read the full article here):

Only in Albany can a bill pass the Assembly with overwhelming bipartisan support, be sponsored by a majority of the State Senate, be endorsed by Gov. Andrew M. Cuomo, and yet never come up for a final vote. That happened to Lavern’s Law, a bill that would have helped grievously injured victims of medical malpractice have their day in court. This summer, the Senate majority leader, John J. Flanagan, a Republican, wouldn’t allow the bill to be voted on, effectively killing it.

....  Hospitals are dangerous places. In 1999 the Institute of Medicine at the National Academy of Sciences published a study, “To Err is Human,” which concluded that at least 44,000 patients were killed (and many more injured) in hospitals each year because of medical errors. By 2011, a study in the journal HealthAffairs estimated that the number of avoidable deaths was probably 10 times higher. Hundreds of thousands more patients are seriously injured through negligence. Doctors and hospitals are doing a poor job of policing themselves, yet they have been successful at keeping anyone else from doing it.
The opposition to Lavern’s Law came from the hospital and health care lobby, apparently concerned that the bill might result in more medical malpractice lawsuits. It very well might, but the actual number would probably be minuscule: Of the hundreds of possible cases we evaluate every year, only a handful are outside the statute of limitations. ...
Surprisingly, despite the frequency of avoidable errors, very few wind up as medical malpractice lawsuits. A 2013 study concluded that about 1 percent of medical errors resulted in a claim.
And even if a victim wins a medical malpractice lawsuit, awards are generally modest. Thirty-three states restrict the amount of compensation for the pain and suffering victims have endured. According to the Department of Justice, the median award by juries is $400,000; in bench trials, where the judge also serves as the jury, the median award is $631,000.

Sunday, September 6, 2015

Battery during football game or consent?

After just one day into the high school and college football season, we now have several examples of cheap shots and concussions to write about.  However, the most disturbing is the play in the video below which shows two players in a high school team attack a referee. The incident took place during a game at Marble Falls High School, northwest of Austin. The attacking players are from John Jay High, in San Antonio's large Northside Independent School District. Their team was losing and the referee had called at least one penalty on the team before the two players apparently decided to take matters into their own hands.

As any first semester law student knows, there are some cases that discuss the fine line between battery and contact within the customs of a sport.  In negligence language, it is often said that players assume the inherent risks of the sport.  For the same reason, so do the umpires and refs.  I don't think anyone would dispute that baseball umpires assume the risk of getting hit by balls, having runners run into them and getting yelled at or criticized by players.  These are known risks.  In football, some of the refs have to be positioned close to the plays and it is not uncommon to be pushed or run over.

However, I don't think that refs assume the risk of being intentionally attacked from behind by players.  The conduct of the players involved in this video is inexcusable.  They should be expelled from the team and if their conduct was suggested or even condoned by their coaches, they (the coaches) should be fired.  There is no place for this in sports.  Knowing what we know about concussions in football, this vicious attack on the ref could have caused him serious injury.

The Marble Falls Police Department is conducting an investigation and I will try to update this post when I hear more.

UPDATE (Sept. 7, 2015):  ESPN is reporting that the two players who attacked the ref have been suspended from the team and from school pending the investigation.  It also reported that the Austin Football Officials Association wants to make sure the two players are not allowed to play football again.  I would support that decision. Slate also has the story here.  NPR has an update here.

UPDATE (Sept. 8):  Slate is now reporting two new pieces of information:  the students are claiming the ref used a racial slur toward them and the  school district it is treating the incident as an assault on a school official, an offense that could lead to expulsion. 

Saturday, September 5, 2015

Court dismisses complaint for wrongful birth against sperm bank in case in which mother claimed damages because her child was not white

Just about a year ago, I wrote about a complaint for the "wrongful birth" of a mixed race child filed in Chicago by a white mother against a sperm bank because the defendant mistakenly provided her with sperm from an African-American donor.  I wrote my comments on the case here, here and here and more recently published an article on the subject (available here). I won't repeat all my arguments now - please read the previous comments if you are interested.  Suffice it to say I argued strongly that the case should be dismissed.

Given my position, I am pleased to report today that the trial judge has, in fact, dismissed the complaint.  There is no question in my mind that this was the correct decision.  However, I have not had a chance to see the actual order, and every report I have seen repeats something very odd that caught my eye, something along the lines of  "the judge rejected both claims but said that the plaintiff (the mother) could refile the suit as a “negligence claim...”

This makes absolutely no sense to me.  The complaint included two claims, one for breach of warranty under the Illinois Blood and Organ Transaction Liability Act and one for wrongful birth.  The purpose of the Act is to prevent plaintiffs from filing strict liability actions against certain defendants.  Thus, the actions that can be filed under the act, if any, would be based on negligence.

The notion of a "warranty" in such a claim comes from the text of the statue in that it states that those involved in the rendition of any of the services described in the statute "warrants . . . that he has exercised due care and followed professional standards of care," or, in other words, that the defendant was not negligent.  This statement means nothing other than what the common law already requires. The plaintiff still has the burden of proof to argue and prove the standard of care and that the defendant breached it. Thus, the statute changes nothing and provides no additional, or different, avenue of relief to a plaintiff than a normal negligence claim. The claim "for breach of warranty" under the statute would only be valid, and survive a motion to dismiss, to the extent the plaintiff can support a claim for negligence.

For this reason, re-filing the claim as a negligence claim would be essentially the same thing as filing the original complaint, which the judge already dismissed!  And if it is re-filed, what damages would be claimed?  It would have to be the out of pocket economic damages (which have been reimbursed already, and therefore for which there is no claim) and the emotional distress due to the birth of the child, which is another way of arguing the same thing as the wrongful birth claim.

The wrongful birth claim, in turn, is, by definition, a negligence claim.  The label "wrongful birth" refers to the type of injury used as a basis for the claim, not as a reference to the theory of liability upon which the claim is based.  The theory of liability is negligence.  Clearly it is not intent nor strict liability, so what else could it be?

Thus, again, re-filing as a negligence claim would mean refiling the same case!

Why would the judge allow the plaintiff to re-file a claim that the judge has decided has no merit, when re-filing it would only mean the plaintiff will re-argue the same claim again?   It makes no sense. 

Like I said, I have not seen the actual court order, and maybe the newspapers are wrong in their reporting, but I have seen the same report in the Washington Post and the Chicago Tribune. 

Friday, September 4, 2015

FDA cannot prohibit the promotion of truthful, off-label uses

A federal judge has issued a preliminary injunction preventing the FDA from enforcing key regulations designed to prevent drug companies from promoting their products “off-label” uses, which have not been established as safe and effective by the agency. AboutLawsuits has more on the story here. Trial News adds that "Plaintiff attorneys are concerned about what this ruling means for consumer safety." Go here to read the full story.

New report on food safety

The American Association for Justice has just published a new report on issues related to food safety including a discussion of instances in which food companies knowingly let Americans eat food contaminated with deadly pathogens. For more on the story go here.  To get copies of the reports by the AAJ (including reports on auto safety, products liability, the drug industry and tort reform) go here.

Trial set to begin against DuPont for injuries caused by water pollution in a huge case you probably have never heard of

Back in 2008, the PopTort reported on a case brought by 80,000 people against DuPont USA alleging that it had knowingly “polluted water supplies of two West Virginia and four Ohio water districts with a chemical used to manufacture Teflon, called C-8,” and tried to cover it up. That case was settled but it did not include a settlement for individual personal injuries caused by the chemical in the water.  Since then, thanks to an epidemiological study that showed that a “probable link exists” between the chemical and at least 6 diseases suffered at unusually high rates by the residents in the affected areas, a claim for personal injuries was filed by 3,500 individual plaintiffs. The trial on the first of these, starts later this week. Go here for more information and links on the story.