Sunday, July 24, 2016

Court of Appeals for the 2nd Circuit holds GM can be liable for injuries caused before it filed for bankruptcy

Last year I wrote about the possibility that a large number of lawsuits filed against General Motors could be dismissed as a result of the fact that GM filed for bankruptcy in 2009.  To make a long story short, the issue was whether the “New GM” (after bankruptcy) would be responsible for the conduct of the “Old GM” (pre bankruptcy).  Go here for links to my older posts on this question. 

The issue is now back in the news because about 10 days ago, the Court of Appeals for the Second Circuit has decided that General Motors can't use its 2009 bankruptcy to fend off lawsuits over faulty and dangerous ignition switches exposes the automaker to billions in additional liabilities.  The Associated Press has the story here.   The Pop Tort has a comment on it here.

Thursday, July 21, 2016

Washington State Supreme Court holds plaintiff has to show actual innocence in malpractice claim against former criminal defense lawyer

Back in February I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  The majority view is that the plaintiff does have to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. Yet cases in Kansas and Iowa recently held otherwise.

Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.  The case is called Piris v Kitching and you can read the opinion here.  The Legal Profession blog has more details here.

One Justice dissented in Piris, making what I think is a persuasive argument.  Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.
Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...
In other words, the plaintiff in the malpractice case (defendant in the original criminal case) endured a longer stay in jail (more than a year) because of the attorney's conduct.  Yet the court says he was not entitled to a remedy because he was "due" some time in jail anyway.  The fact that the attorney's conduct caused him to suffer more than he was legally "due" is irrelevant to the majority.  I agree with the dissent in this case.  This view is not justified.  It allows for an injustice to go unpunished and gives a pass to an attorney whose conduct clearly caused injury to the client.  I don't see why it makes sense to give the attorney such a free pass.

Monday, July 11, 2016

New Jersey expands reach of possible liability in case where the plaintiff was exposed to toxic substance brought home by exposed worker

Back in May I wrote about a few recent cases that have recognized a cause of action on behalf of a spouse for injuries suffered due to exposure to toxic substances brought home by their spouse.  Typically, the cases involve mesothelioma caused by exposure to asbestos.  Go here for that post, which has links to others on the same subject.

As I explained back then, plaintiffs in these cases argue that the defendant should be liable because the injury is a foreseeable consequence of the risk created by the negligence conduct or product (depending on whether the claim is for negligence or strict liability). 

Since this is, obviously, just an argument in support of the element of proximate cause, defendants reply that liability could extend too far thus defeating the reason for proximate cause in the first place.  Since the notion of proximate cause is used to limit the reach of possible liability, they argue liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.  What if the worker, instead of going straight home after work, went to a bar every day for a beer or two with friends and other co-workers.  Any "regulars" at the bar could have a cause of action. 

It is not a frivolous argument, but courts have avoided it since the plaintiffs so far have been spouses, thus allowing courts to use the proximate cause analysis based on foreseeability while limiting the reach of the possible liability to the immediate family members.  

But, as you would expect, once you open the door...  The New Jersey Supreme Court has just expanded the reach a bit more by recognizing a cause of action for a plaintiff who was not married to the person exposed directly.  According to TortsProf blog the case involved a woman was not married to the worker whose clothes carried the asbestos at the time the exposure began, but who did later become his spouse. 

The important thing is that in reaching its conclusion, the court stated the spousal relationship was not the key, but rather that the most important factor, among several, to consider is foreseeability.   In the NJ case, although the plaintiff was not a spouse, she had a close personal relationship with the exposed worker and was exposed because she spent time with him at his residence during the time before their marriage. 

That makes complete logical sense; but the moment we base the analysis squarely on foreseeability, the more difficult it becomes to distinguish the case from the claim of the regular at the bar.

As Andrews famously said in Palsgraf (I am paraphrasing here), we may not like where we draw the line, but a line we must draw...

Go here for more information.

First fatality related to a self-driving car opens the door to litigation & policy discussion

I just updated my post on thoughts on issues related to possible liability for accidents involving automated or self-driving cars (see below).  The topic has been in the news lately because tragically a man driving a Tesla Model S in Florida recently became the first self-driving car fatality.  Apparently the car failed to distinguish the white side of a turning tractor trailer from the bright May sky and did not apply the brakes.

As you would expect, the story has generated a lot of attention.  Here are some links:

ABA Journal

The Guardian

TortsProf blog, citing CNN

NPR (4 minute podcast)

Torts Today

More thoughts on tort liability and autonomous vehicles -- UPDATED

A few days ago I posted a comment on issues related to the possibility of liability for accidents involving autonomous (aka "self driving") cars.  See here.  In it, I commented on the fact that because the possible liability would be shifted from the driver to the programmer, we would have to consider the decision making process that programmers would use to determine what a car should do when facing the possibility of an accident, particularly if it involved making a decision between choices that would cause different types of injuries to others.

I am revisiting the question today because of a new article in Slate precisely on that issue.  It talks about how programmers are studying "the ethics of so-called crash-optimization algorithms" which seek to enable a self-driving car to “choose” the course of action that would cause the least amount of harm or damage. However, as the article goes on to discuss, what happens when all the choices would result in damage? What happens when one result would cause little damage to the occupant of the car but would likely cause catastrophic damage to another? How should the car be programmed to react?  What is the reasonably prudent thing to do?  Is it to always protect the occupant, who after all, expects the car to offer safety?  Or should the car avoid the worst type of possible injury, even if it means causing injury to the occupant?  The possibilities are almost endless.

You can read the full article here.

Meanwhile, another article, also published in Slate (and available here), argues that "Congress may need to provide a certain amount of legal immunity for creators of driverless car technologies, or at least create an alternative legal compensation system for when things go wrong."

The article acknowledges that one possible approach to the issues raised by liability for injuries caused by autonomous vehicles is to allow courts to apply tort law rules, or to develop new ones, just as we have always done.  That way the law would develop to provide the necessary balance in the societal cost and benefit analysis.

Yet, the article rejects this approach and proposes federal government intervention and regulation instead using the regulation over vaccines as an analogy.  I think this reasoning is flawed.

First of all, what's wrong with allowing the law to develop as it always has through the common law process by applying, or modifying, principles of tort law?  Courts have forever considered the consequences of imposing liability and have either expanded or limited the reach of the possible liability based on many factors.  As the article states, "So, if the autonomous car maker of the future ends up putting a fleet of defective robot cars on the road that they knew had serious programming issues, courts would force them to pay for any resulting damages. As a result, those driverless car makers will need to invest in better insurance policies to protect against that risk."

Someone explain to me why that would be a bad thing.

The article then takes on the issue of whether there should be liability on companies who provide the cars as a "service."  The product liability approach would not apply in such cases because those possible defendants would not be in the market of selling products.  The article argues:
"the car of the future is more likely to be . . . a fleet of robot cars that are just sitting out there waiting for us to hail them for a ride. As cars become more of a service than a final good, liability will rapidly shift to the owner of the fleet of cars and away from end users. But if all the liability falls on the manufacturer or fleet owners of driverless cars, there’s one big pitfall with this approach. America’s legal system lacks a “loser-pays” rule—i.e., the party who loses the case covers the other party’s legal fees—which means a perverse incentive exists to file potentially frivolous lawsuits at the first sign of any trouble. If enough lawsuits start flying, it could seriously undermine this potentially unprecedented public health success story. That’s why it may be necessary to limit liability in some fashion to avoid the chilling effect that excessive litigation can have on life-enriching innovation"
There are many things wrong with this simplistic analysis.  Let's start with the claim that liability will "shift" to the owner of the fleet of cars and away from the end users.  First, this implies that liability can be imposed on the owner of the fleet just because it is the owner of the fleet.  This is wrong.  Since the owner of the fleet is providing a service, its liability would not be strict.  It could be vicarious liability based on the negligence of one of its employees, or it could be direct liability based on its own negligence.  But in either case, the liability would be based on negligence which would require the plaintiff to prove the conduct and that it should be considered to be negligent to begin with.  Providing a car, by itself is not negligent.  The plaintiff would have to argue that there is something in the process of providing the car or in the type of car that makes it negligent to provide it to the public.  And if that is the case, again, someone explain to me why it would be a bad thing to allow the court system to operate as a way to help make the products and the process safer.  This is how the history of tort law has worked to make cars and transportation in general safer over the years. 

Second, the article's assertion implies that liability is assigned either to the defendant or to the plaintiff.  In fact, in all but 4 or 5 jurisdictions in the United States liability can be, and often is, shared by the parties.  In most of those jurisdictions, the plaintiff can actually lose the right to recover if their portion of the blame is high enough.  This, of course, is what we know as comparative negligence (and in those 4 or 5 retrograde jurisdictions as contributory negligence).  Changing the analysis as to who can be liable has no effect on who would be liable, much less on the consequences of how the possible liability is allocated.

Having said, that, though, since the consumer of transportation in the article's car of future scenario does nothing other than get in the car, it might be difficult to argue their conduct was somehow negligent and that it contributed to the injury.  For this reason, the "shift" in possible liability is not caused by the legal analysis but by the technology itself which takes human error out of the equation.  If the person formerly known as the driver of the car has no control over the car, it can hardly be said they acted in a way that creates an unreasonable risk of injury to others, unless you argue that getting into an autonomous vehicle is, by itself, negligent. And who wants to argue that?

Third, the article's assertion seems to be based on the notion that all of a sudden there will be a massive increase in lawsuits, and frivolous lawsuits at that which will lead to dogs and cats living together and the end of the world as we know it.  Give me a break.  Anyone who knows anything about tort law knows that tort law claims are a small percentage of civil litigation.  New technology does not necessarily lead to more litigation.  And, even if it does, if more litigation leads to better safety, then more litigation is a good thing.

The article goes on to suggest that one potential model to solve the problem can be found in the National Childhood Vaccine Injury Act of 1986.   This is certainly a possible approach but it must not be forgotten that vaccines fall within a very distinct category of products: those that are unavoidably dangerous.  These are products that can not be made safer but whose social benefits outweigh the risks they create.  Should we be eager to pronounce that autonomous cars should be considered in this same category of products?  I am not.  Not yet, at least.  We haven't seen an autonomous car in the market yet, so why would we be so eager to say there is no way they can be made safer?  And if there is no way to avoid the dangers they create, I suggest what we should be doing is asking whether we are willing to tolerate the risks rather than say they should be rejected precisely because they are unavoidably unsafe.

The article concludes:  "Initially, the tort system should be allowed to run its course because it may be the case that the gains are so enormous that frivolous lawsuits are not even a cost factor. But if excessive litigation ensues over just a handful of incidents and begins discouraging more widespread adoption, Congress might need to consider an indemnification regime that ensures the technology is not discouraged but which also compensates the victims. Creating this system will have challenges of its own, but the life-saving benefits of driverless cars are well worth overcoming a few roadblocks"

I agree with the first part.  There are many issues to deal with as the industry continues to move forward with the notion of autonomous cars and we should let the tort system continue to develop.

UPDATE (7-11-16):  TechDirt has a short post on the ethical dilemmas that smart car programming presents.   It starts by framing the question this way:   "Should your car be programmed to kill you if it means saving the lives of dozens of other people? For example, should your automated vehicle be programmed to take your life in instances where on board computers realize the alternative is the death of dozens of bus-riding school children?"  Interestingly, it points out that "people often support the utilitarian "greater good" model -- unless it's their life that's at stake. A new joint study by the Toulouse School of Economics, the University of Oregon and MIT has found that while people generally praise the utilitarian model when asked, they'd be less likely to buy such an automated vehicle or support regulations mandating that automated vehicles (AVs) be programmed in such a fashion . . . To further clarify, the surveys found that if both types of vehicles were on the market, most people surveyed would prefer you drive the utilitarian vehicle, while they continue driving self-protective models. . ."

Illinois to decide whether discovery rule applies in wrongful death cases

Does the discovery rule apply to wrongful death claims? The Illinois Supreme Court debated that issue last month, hearing oral argument in Moon v. Rhode. The Appelate Strategist has more information here and here.

Friday, July 1, 2016

National pharmacists' association calls for end of direct to consumer advertising

Back in December I reported that the American Medical Association called for a ban on direct to consumer advertising.  Now comes news that the American Society of Health-System Pharmacists has also joined the call, arguing that much of of the information provided in consumer advertising is misleading and contributes to the overuse of pharmaceutical drugs.  Go here for more information.

I have long held the same position, but I think it is naive to expect the FDA to go back to the day when direct to consumer advertising was banned.  The United States is one of only three countries in the world that allow direct to consumer ads for prescription drugs.  (New Zeland and Brazil are the other two.)