Thursday, August 29, 2019

Football players claim against College for injuries suffered in practice survives motion to dismiss

Two football players at Lackawanna Junior College were injured during the same tackling drill in 2010. They sued the college in 2012, claiming the football staff was negligent and the school should have had certified athletic trainers available to aid and advise players who were injured. Instead, the college employed two women who had failed to gain certification as athletic trainers.

The claims were dismissed by the trial court on the ground the players had signed a waiver.  The Superior Court reinstated the suits and now the Pennsylvania Supreme Court has affirmed that ruling.  The court noted waivers against gross negligence and recklessness were ineffective and held there were sufficient facts for the players to present the case to a jury.

You can read more (although there isn't much) about the case here.

Wednesday, August 28, 2019

Podcast on the settlement over defective ear plugs used by the military

I have been following the litigation Multidistrict Litigation consolidating all 3M Combat Arms Earplug lawsuits pending throughout the federal court system, each raising similar allegations that veterans were left with permanent hearing damage as a result of design defects with the reversible earplugs that were standard issue by the U.S. military between 2003 and 2015.  I posted many links to information on the cases here, here and here

Today, here is a link to a recent podcast discussing a 9.1 million dollar settlement reached in litigation surrounding a defective earplug (3M Earplugs).  In it, the hosts and guests discuss the 2016 whistleblower lawsuit that started it all, how these earplugs have impaired its users, and future litigation.

You can listen to the podcast here or here.  You can download it here.

Tuesday, August 27, 2019

Court rules white nationalist must pay $14 million in damages for anti semitic campaign

A federal judge has ruled in an SPLC lawsuit that neo-Nazi leader Andrew Anglin must pay more than $14 million in damages for using his website to launch an antisemitic campaign of terror against a Jewish woman and her family.  You can read more about the story here and here

Monday, August 26, 2019

Recent Tennessee case holds suicide is a superseding cause

A couple of days ago I posted a comment about a couple of recent claims based on deaths by suicide.  Sadly suicide is a serious health issue.  There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country, which raises an interesting question for courts:  if the risk of suicide is known, can it be said that someone committing suicide is always unforeseeable?

I have published many stories on the issues raised by claims based on suicide over the years.  You can go here and scroll down to read them.  In a recent one I commented on an article that argues it is time to change the way courts approach suicide as a superseding cause that eliminates the right of a plaintiff to recovery -- a view I happen to agree with.

I am writing about this today because I just read about a new opinion out of Tennessee that provides the most recent and fairly comprehensive discussion on whether the act of committing suicide should be considered to be a superseding cause.  The case is called Cotten v. Wilson and you can read the opinion here.

As you may know already, some jurisdictions consider suicide a superseding cause per se, in all cases, while others presume it is a superseding but would consider evidence to support the claim that the presumption should be defeated.

Tennessee appears to be in the second camp.  According to the case, courts in Tennessee have generally held that suicide will be deemed a superseding cause of death if it was ‘a willful, calculated, and deliberate act of one who has the power of choice based on the notion that no reasonable person could foresee that a rational person would intentionally choose to commit suicide. But, courts would consider the conduct foreseeable under different circumstances including (1) where it is reasonably foreseeable that the defendant’s conduct will cause a mental condition in the decedent that would lead to the self-destructive act, (2) where the suicide occurs in a custodial context, (3) where there was a special relationship between the defendant and decedent, and (4) situations in which the defendant facilitated the suicide by supplying the decedent with the means to carry it out.

The case involved a woman and a psychiatrist who had been in a relationship.  The psychiatrist knew that the woman had attempted to commit suicide in the past, but nevertheless allowed her to stay in his home alone with an unsecured gun.

It seems to me that it is not too far fetched to argue that suicide could be considered to be foreseeable under those circumstances.  Yet, the Tennessee Supreme Court dismissed the claim holding that the “suicide constitutes a superseding intervening event that breaks the chain of proximate causation.”  One judge filed a dissenting opinion, which you can read here.

Tuesday, August 13, 2019

Utah holds criminal defendant does not have to show actual innocence to support malpractice claim against lawyer

As you probably know, jurisdiction are divided on the issue of whether a convicted criminal defendant should be required to show actual innocence as a requirement to support a malpractice claim against his or her former criminal defense lawyer.

I recently wrote that Mississippi and Kentucky adopted an exoneration requirement, while Iowa and Idaho rejected it.  (For more stories on the issue, go here and scroll down.)

Today I am writing about this because I just read that the Utah Supreme Court has affirmed and clarified its holding that a criminal defendant can sue counsel for malpractice without proving actual innocence in a case called Paxman v King, available here.

The Legal Profession Blog has more details here.

Sunday, August 4, 2019

Utah Supreme Court strikes down law requiring "certificate of merit" in medical malpractice claims

Like many other jurisdictions, at some point, Utah enacted a statute that requires plaintiffs in medical malpractice cases to file a so-called "certificate of merit" when filing a medical malpractice lawsuit.  In some jurisdictions, the certificate is simply an affidavit by an expert supporting the conclusion that the claim has merit.  In Utah, the certificate of compliance is issued once Utah’s Division of Occupational and Professional Licensing (DOPL) reviews the malpractice claim and determines it has merit. If the claim is rejected by the DOPL, plaintiffs can still receive the certificate upon attestation of their claims by an expert.

I have never been in favor of this requirement which is an artificial burden on plaintiffs created to make more difficult for them to get access to the courts, but it has become a standard in many states.

So, today's news is that, somewhat surprisingly, Utah’s Supreme Court has unanimously struck down the statute that required the certificate of merit holding that the law was unconstitutional because it violated the separation of powers doctrine by limiting the role of the judiciary.

The case is called Vega v. Jordan Valley Medical Center, and you can read it here.