Sunday, March 29, 2020

Should a plaintiff always need an expert witness in a malpractice case?

Because the practice of law is considered to be a profession, and a profession is defined, among other things by the fact that it requires special knowledge, education and training, courts usually require that plaintiffs in malpractice actions provide an expert witness to support their arguments as to duty and breach to the jury.  But what if there is no jury?  What if the case is going to be a bench trial?  Should a plaintiff be required to have an expert to explain to the judge what the standard of care of the profession is?  Or can we assume that the judge - obviously a lawyer himself or herself - knows the law that applies to the practice of the profession they belong to?

In a recent case in Delaware (Cannon v. Poliquin), the court decide no help from an expert is needed.  Go here for a short summary.

Wednesday, March 18, 2020

Article on possible negligence claims and liability for mishandling of matters related to the coronavirus

On March 9, 2020, a couple quarantined on the Grand Princess cruise ship, sued Princess Cruise Lines Ltd. after docking in Oakland, CA. This case marks the first negligence lawsuit filed in direct response to the rising coronavirus epidemic gripping the world. 

There are sure more claims to follow.  Here is a short comment that previews some of the issues.

Tuesday, March 17, 2020

Trump campaign sues CNN

A few days ago, I reported that the Trump campaign had filed lawsuits against the NY Times and the Washington Post (here and here).  Today, the news is that they have followed up with a case against CNN.  TechDirt, which has referred to the claims as "laughable SLAPP suits" has the story here.

Sunday, March 8, 2020

Trump campaign sues Washington Post

Last week I commented on the fact that the Trump campaign had filed a claim against the New York Times for defamation based on an Op-Ed piece.  See here.

Today I am here to tell you that they are at it again, having filed another (essentially the same) lawsuit this time against the Washington Post.

Marking what he calls a "less than noble moment," one commentator concludes that "the lawsuit is weak and unlikely to succeed."  See here.

Courthouse News Service, Jurist and Reuters have more on the story.

Sunday, March 1, 2020

Article on the use of public nuisance claims as product liability cases

Back in 2010 I posted a link to an article on the tort of "public nuisance" that stated:
The National Law Journal has published a short article on the tort of "public nuisance" interestingly called "The tort that refuses to die." Here is the first paragraph: "The tort of public nuisance has seen its fortunes rise and fall dramatically during the past several years. It was once hailed by the legal literati as the next big tort. More than one court described it as a monster threatening to devour tort law because of its propensity for reaching conduct that other tort theories could not. . . . Recent events confirm that analogy to a degree. Public nuisance resembles nothing so much as a zombie — a mindless creature perhaps not particularly dangerous at first glance but incredibly difficult to kill once and for all." The authors then discuss how the recent reversal of a case against former lead paint manufacturers alleging that lead paint was a public nuisance in Rhode Island, suggested public nuisance would not be an effective legal theory. But there have been many other cases that have challenged this conclusion. The article can be found here ..."
 I am bringing this up again today because I just read a new short article discussing the use of public nuisance claims related to opioid products, which starts as follows:  "Manufacturers are used to defending strict product liability actions when plaintiffs claim that their products are defective. But in the opioid litigation, plaintiffs have filed something else: more than 2,500 public nuisance cases so far."

The article is titled Trending in Tort Law: Transforming Product Liability Claims into Public Nuisance Actions and you can read it here.

Tennessee Supreme Court Upholds Constitutionality of Damage Caps

Last week, in a 3-2 opinion, the Tennessee Supreme Court declared that the state's statute that caps noneconomic damages to $750,000 (in most cases) is not unconstitutional. 

Day on Torts has links to all the opinions here.

Trump campaign sues New York Times for defamation

Donald J Trump for President, Inc. (the official name of Trump's reelection campaign) filed suit against the New York Times for libel last Wednesday claiming defamation by the author of an Op-ed piece.  According to the complaint, the plaintiff's reputation was damaged by statements in the opinion article that there was an “overreaching deal between the Putin Oligarchy and the Trump campaign to help the campaign against Hilary Clinton.”

The reaction I have seen to the complaint has been consistent in that it is almost certainly guaranteed to fail, for the most part, because the article represents an opinion rather than an assertion of fact.  It has also been criticized as mere political hyperbole, not a complaint based on actual facts.

I agree that the case is likely to fail, although I think it can be argued that some of the statements in the piece can be read to assert facts rather than opinion.

What is more interesting to me is something else.  I wonder if the plaintiff's lawyers realize that if the case is not dismissed on a motion to dismiss and proceeds to discovery, the newspaper could serve Trump with a subpoena to appear in a deposition as part of discovery.  That would be fun to watch.

For comments on the complaint, check out the following:

Jonathan Turley ("The selection of an opinion piece makes this case especially difficult. . . .  In my view, the column is protected speech under the First Amendment.")

New York Personal Injury Law Blog ("First off, the complaint doesn’t start well as it’s supposed to be written with actual facts. This one is chock full of political hyperbole. . . . And most folks with functioning neurons — and I think most of our judges have them — know that when that kind of nonsense appears in a complaint it’s to mask the emptiness of the complaint.")

Courthouse News Service


The Daily Beast

Louisiana Court of Appeal Rejects Collectability Defense In Legal Malpractice Case

To support the element of cause in fact in a legal malpractice case, the plaintiff has to argue (and later prove) that he or she would have been successful in the underlying representation; or, in other words, that had it not been for the negligence of the lawyer, the plaintiff would have won (or obtained a better result) in the underlying case.

In response to such a claim, some jurisdictions, however, allow the defendant to defeat the plaintiff's argument by showing that the plaintiff would not have been able to collect on the underlying claim.  It is not clear whether this argument is a defense or a part of the plaintiff's prima facie case, but, if applicable, it can defeat the cause of action.

I am writing about this today because The Chicago Legal Malpractice Lawyer Blog has a comment on a recent case in Louisiana addressing the issue here.