Monday, December 5, 2011
New comment about old topic: the (no) relation between tort reform and doctors' migration
The PopTort is reporting today (here) on an article in the Washington Post blog that reminds us once again that there is little or no relation between the number of doctors available in certain states or the patterns of migration of doctors among states and tort reform. The claim that lawsuits, or fear of lawsuits, or the lack of tort reform contributes significantly to doctors abandoning their practices or moving to other states has been discredited by a number of studies and reports over the years. This new article serves as a reminder (even though apparently the article itself did not acknowledge those older studies on the same issue.)
Not one of the top blogs
Once again, my blogs did NOT make it into the list of the "best" law blogs. What's the matter with you people?! Don't you like me? C'mon... I am getting discouraged here!!! I guess I need to get organized and start a campaign much sooner next year... Is it that my blogs don't have "catchy" titles? Then help me come up with a better one... Torts Talk? Today in Torts? All About Torts? ....
All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam.... Decide for yourself after you read his post here.
Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.
All kidding aside - or most of it, anyway - for an interesting look at what has become a competition among blogs take a look at popular blogger Eric Turkewitz's post in which he argues that the ABA's list is a popularity contest and the Lexis/Nexis is a scam or is it a sham, or maybe spam.... Decide for yourself after you read his post here.
Meanwhile, you can check out all the finalists (and vote for your favorites) in the ABA Journal's competition here.
Thursday, December 1, 2011
Yet another article criticizing Congress' attempt to "reform" medical malpractice
I have criticized the proposed attempts by Republicans in Congress to enact tort reform legislation (particularly a medical malpractice bill) here, here, here, here, here, here, here, here and here. See also here.
I don't really know what happened to the bill that was originally proposed, but now reports are coming in that the U.S. Senate is set to consider on the Republicans' Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas.
Hopefully, someone will point out to the Senators Public Citizen's recently published report documenting the failures of tort reform in Texas (see here).
In the meantime, you can read an article by Shirley Svorny on the subject in which she argues that caps on damages not only (obviously) hurt the most severely-injured individuals who seek compensation for their injuries, but also increase the risk of injury because they reduce medical professional liability insurers' financial incentives to reduce practice risk. You can read her full article here.
I don't really know what happened to the bill that was originally proposed, but now reports are coming in that the U.S. Senate is set to consider on the Republicans' Jobs Through Growth Act, which contains a section aimed at reforming medical malpractice by imposing caps on economic and non-economic damages similar to those in place in Texas.
Hopefully, someone will point out to the Senators Public Citizen's recently published report documenting the failures of tort reform in Texas (see here).
In the meantime, you can read an article by Shirley Svorny on the subject in which she argues that caps on damages not only (obviously) hurt the most severely-injured individuals who seek compensation for their injuries, but also increase the risk of injury because they reduce medical professional liability insurers' financial incentives to reduce practice risk. You can read her full article here.
Wednesday, November 30, 2011
FDA appeals ruling on new cigarette labels
Back in June I reported that the FDA enacted a regulation to mandate new labels for cigarette packs with various graphic images and messages such as “Smoking can kill you.” Some time later, after five of the nation's largest cigarette manufacturers filed suit against the FDA, the federal judge presiding over the case granted a preliminary injunction that prevents the FDA from enforcing the new rule. Now comes news that the FDA has filed notice that it intends to appeal the judge's order. For more on this story, including links to some of the relevant documents go to the Blog of the Legal Times and the First Amendment Center.
Monday, November 28, 2011
Should we recognize a cause of action for loss of a pet?
Courts have traditionally held that animals are "chattels" and that there is no cause of action for emotional distress, loss of companionship and the like when they are injured by others. Usually, if a cause of action is recognized, the injuries are valued based on the "market value" of the animal.
I don't think anyone would question that owners feel affection for their pets and that injuries to pets can cause their owners sadness, grief and emotional distress. Thus, I really don't see why owners should not have to right to try to claim these types of injuries.
The reason I am writing about this today is that the TortsProf blog recently reported that the Texas Court of Appeals has held "that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet." The case is called Medlen v. Strickland and it is available here.
For more on this story go to Courthouse News Service and the Animal Law Blog.
I don't think anyone would question that owners feel affection for their pets and that injuries to pets can cause their owners sadness, grief and emotional distress. Thus, I really don't see why owners should not have to right to try to claim these types of injuries.
The reason I am writing about this today is that the TortsProf blog recently reported that the Texas Court of Appeals has held "that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet." The case is called Medlen v. Strickland and it is available here.
For more on this story go to Courthouse News Service and the Animal Law Blog.
Comment on why Merck did not update the warnings on Propecia in the US even though it did so in other countries
Why didn’t Merck update its U.S. labels back in, say, 2008, when it updated the Swedish warning? Maxwell Kennerly has a good comment on it here in which he discusses this issue. He also argues that when, eventually, the company did change the warning, it adopted language that is "designed to make doctors and consumers ignore the warning."
New case on the Alien Tort Statute could result in the end of statute as we know it
As I reported a few weeks ago, the Supreme Court has agreed to review two cases on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute and the Torture Victim Protection Act. For more details, go here and scroll down to see multiple posts on the subject.
Now, a petition for certiorari has been filed with the court making a series of arguments clearly contrary to the majority trend among courts regarding other aspects of the application of the ATS. Were the court to decide the case in favor of the petitioners, the result would essentially mean the end of the ATS as we know it.
The new case is Sarei v. Rio Tinto, PLC, a case that has been going up and down from the district court to the court of appeals (of the 9th circuit) for years. In the most recent decision in the case, the Ninth Circuit voted (en banc) 7-4 to permit an ATS suit to proceed against a mining company accused of aiding and abetting the government of Papua New Guinea in violating the human rights of residents of the island of Bougainville.
The petition for certiorari, available here, lists the following issues:
1. Whether U.S. courts should recognize a federal common law claim under the ATS arising from conduct occurring entirely within the jurisdiction of a foreign sovereign, especially where the claim addresses the foreign sovereign’s own conduct on its own soil toward its own citizens.
2. Whether U.S. courts should recognize a federal common law claim under the ATS based on aiding-and-abetting liability, even absent concrete factual allegations establishing that the purpose of the defendant’s conduct was to advance the principal actor’s violations of international law.
3. Whether a plaintiff asserting a federal common law claim under the ATS addressed to conduct occurring entirely within the jurisdiction of a foreign sovereign must seek to exhaust available remedies in the courts of that sovereign before filing suit in the United States, as international and domestic law require.
4. Whether federal common law claims asserted under the ATS for violations of international human rights law norms may be brought against corporate entities.
None of these issues is new. They have all been addressed by a number of courts in other cases, the vast majority of which have rejected the arguments of the petitoners.
Very recently, for example, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011), Judge Posner concluded that the argument that plaintiffs must exhaust legal remedies in the nation in which the alleged violation of customary international law occurred "border[s] on the ridiculous" and that there is no basis for the argument that the statute has no extraterritorial application except to violations of customary international law that are committed on the high seas. As Judge Posner points out, "Courts have been applying the statute extraterritorially (and not just to violations at sea) since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially; and Sosa [the only case on the ATS decided by the Supreme Court] was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained. Deny extraterritorial application, and the statute would be superfluous . . ."
As to the second issue - on whether there can be a claim for aiding and abetting under the ATS - there is no doubt the established law recognizes the cause of action. At one point in the past there was a debate as to whether the definition of aiding and abetting should be based on notions of national or international standards, but the clear trend now is to apply the international standard. If the issue raised by the petitioners in Rio Tinto is merely whether the plaintiffs' allegation in the particular case actually meet the requirements of the standard, that's one thing, but if the petitioners are arguing that there should be no cause of action for aiding and abetting altogether, they are clearly swimming against the current.
Finally, the fourth issue is the one currently before the court in Kiobel.
Is it likely that the Supreme Court would decide a case in favor of petitioners making arguments that have been rejected by the majority of courts that have considered them? It is not easy to say. One thing I can say is that Justices Scalia and Thomas agreed in Sosa that the ATS should only be used to support claims based on the same type of conduct that had been recognized as supporting a claim when the statute was enacted in 1789, which did not include violations of human rights. Unless they have changed their minds since then (2004), more than likely that's two votes against the plaintiffs' right there.
Now, a petition for certiorari has been filed with the court making a series of arguments clearly contrary to the majority trend among courts regarding other aspects of the application of the ATS. Were the court to decide the case in favor of the petitioners, the result would essentially mean the end of the ATS as we know it.
The new case is Sarei v. Rio Tinto, PLC, a case that has been going up and down from the district court to the court of appeals (of the 9th circuit) for years. In the most recent decision in the case, the Ninth Circuit voted (en banc) 7-4 to permit an ATS suit to proceed against a mining company accused of aiding and abetting the government of Papua New Guinea in violating the human rights of residents of the island of Bougainville.
The petition for certiorari, available here, lists the following issues:
1. Whether U.S. courts should recognize a federal common law claim under the ATS arising from conduct occurring entirely within the jurisdiction of a foreign sovereign, especially where the claim addresses the foreign sovereign’s own conduct on its own soil toward its own citizens.
2. Whether U.S. courts should recognize a federal common law claim under the ATS based on aiding-and-abetting liability, even absent concrete factual allegations establishing that the purpose of the defendant’s conduct was to advance the principal actor’s violations of international law.
3. Whether a plaintiff asserting a federal common law claim under the ATS addressed to conduct occurring entirely within the jurisdiction of a foreign sovereign must seek to exhaust available remedies in the courts of that sovereign before filing suit in the United States, as international and domestic law require.
4. Whether federal common law claims asserted under the ATS for violations of international human rights law norms may be brought against corporate entities.
None of these issues is new. They have all been addressed by a number of courts in other cases, the vast majority of which have rejected the arguments of the petitoners.
Very recently, for example, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011), Judge Posner concluded that the argument that plaintiffs must exhaust legal remedies in the nation in which the alleged violation of customary international law occurred "border[s] on the ridiculous" and that there is no basis for the argument that the statute has no extraterritorial application except to violations of customary international law that are committed on the high seas. As Judge Posner points out, "Courts have been applying the statute extraterritorially (and not just to violations at sea) since the beginning; no court to our knowledge has ever held that it doesn’t apply extraterritorially; and Sosa [the only case on the ATS decided by the Supreme Court] was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained. Deny extraterritorial application, and the statute would be superfluous . . ."
As to the second issue - on whether there can be a claim for aiding and abetting under the ATS - there is no doubt the established law recognizes the cause of action. At one point in the past there was a debate as to whether the definition of aiding and abetting should be based on notions of national or international standards, but the clear trend now is to apply the international standard. If the issue raised by the petitioners in Rio Tinto is merely whether the plaintiffs' allegation in the particular case actually meet the requirements of the standard, that's one thing, but if the petitioners are arguing that there should be no cause of action for aiding and abetting altogether, they are clearly swimming against the current.
Finally, the fourth issue is the one currently before the court in Kiobel.
Is it likely that the Supreme Court would decide a case in favor of petitioners making arguments that have been rejected by the majority of courts that have considered them? It is not easy to say. One thing I can say is that Justices Scalia and Thomas agreed in Sosa that the ATS should only be used to support claims based on the same type of conduct that had been recognized as supporting a claim when the statute was enacted in 1789, which did not include violations of human rights. Unless they have changed their minds since then (2004), more than likely that's two votes against the plaintiffs' right there.
Sunday, November 27, 2011
Missouri Supreme Court considers challenge to state's cap on punitive damages
According to The Kansas City Star (here) about three weeks ago, the Missouri Supreme Court heard oral arguments in a case that challenges the punitive damages cap in Missouri. The case is called Estate of Max E. Overbey and Glenna J. Overbey v. Franklin. The plaintiffs argued that the state’s punitive damages cap is unconstitutional because violates the constitutional separation of powers, the right to trial by jury, the right to equal protection of the law and due process, among other things. Go here for more information.
Friday, November 18, 2011
Video quiz
Here is a video that raises a few interesting questions. Take a look first and keep reading below.
Obviously, we don't have all the necessary information, but we can see the guard hits the button to close the gate and then walks away before it is completely closed. Assuming the guard was too far to notice what was happening to the woman, is this negligence by the guard?
Then let's talk about the woman. She seems to be aware the gate is closing and decides to chance it anyway. Is this negligence on her part? Is it assumption of the risk? How do you distinguish between conduct that is negligent (which may allow the plaintiff to recover some value of her injury) and conduct that is assumption of the risk (which will eliminate her right to recover entirely)?
Thanks to Prof. Jonathan Turley for the video.
Obviously, we don't have all the necessary information, but we can see the guard hits the button to close the gate and then walks away before it is completely closed. Assuming the guard was too far to notice what was happening to the woman, is this negligence by the guard?
Then let's talk about the woman. She seems to be aware the gate is closing and decides to chance it anyway. Is this negligence on her part? Is it assumption of the risk? How do you distinguish between conduct that is negligent (which may allow the plaintiff to recover some value of her injury) and conduct that is assumption of the risk (which will eliminate her right to recover entirely)?
Thanks to Prof. Jonathan Turley for the video.
Thursday, November 17, 2011
Video on the Penn State sex scandal -- UPDATED (to add a podcast)
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