TortsProf Blog

Concern that Convergence of Flu and COVID Could Boost Med Mal Claims

Because initial symptoms of flu and COVID-19 are similar, some experts are concerned that physicians will mistake the two, leading to an increase in malpractice claims.  Business Insurance has details.

Justice Thomas Signals His Support to Contract Section 230 Immunity

Yesterday Justice Thomas signaled he would like the Supreme Court to take up the issue of the immunity provided by Section 230 (of the Communications Decency Act of 1996).  That section exempts websites from civil liability for most of the content provided by third parties.  Many argue that the scope of the exemption has been expanded beyond the text of the statute by lower court decisions.  The Supreme Court declined to hear an appeal on Section 230 from a Ninth Circuit decision, and Justice Thomas used that occasion to remark that in an appropriate case the Court "should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms."  Multichannel News has the story.

OH: Amazon is Not a Supplier for Purposes of Products Liability

Last week, the Supreme Court of Ohio ruled that Amazon is not a supplier for purposes of the Ohio Products Liability Act, and therefore not liable for the death of a teenage boy killed by an overdose of caffeine powder sold on the website.  Marianna Bettman has details at Legally Speaking Ohio.

PA: Appeals Court Holds PLCAA Unconstitutional

On Monday, the Pennsylvania Superior Court held that the Protection of Lawful Commerce in Arms Act (PLCAA) was unconstitutional.  In March 2016, J.R. Gustafson was killed when his 14-year-old friend accidentally shot him with a semi-automatic handgun that he thought was unloaded.  Gustafson's parents sued both the manufacturer of the weapon and the store that sold it.  Both defended themselves by invoking the PLCAA, a federal law passed in 2005 that provides businesses cannot "be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended."  The trial court dismissed the case in January, but the appellate court held that PLCAA violates the Tenth Amendment and principles of federalism.  This is the first court to hold the law is unconstitutional in its entirety.  CNN has the story.  The opinion, thanks to Tim Lytton, is here:  Download Gustafson-opinion (002)

Czaczkes, Baker & Witt: Liability Insurance Coverage is a Reason to Reject COVID-19 Immunity

Yale undergraduate Josh Czaczkes, Tom Baker, & John Witt have just finished a really interesting research project.  Using a database run by Baker at Penn, the group determined that 80% of liability policies have coverage for losses for infection by virus.  Only 20 of 100 policies had an exclusion.  Thus, COVID-19 immunity would primarily benefit large insurers and not businesses, many of which are small.  The group uses the finding to oppose immunity legislation.  Their post is at Balkinization. 

Moreover, the early cases are being won by defendants.  See here and here.  I have spoken to several plaintiffs' lawyers over the last few weeks, and they all say the same thing about COVID-19 cases.  They are very wary of them, and would only take such a case under limited conditions.  Specifically, I have heard from more than one firm that the injury would have to be death before it would be worth considering.  I think immunity is unnecessary. 

COVID-19 Cruise Ship Cases Dismissed for Problems with Causation, Injury

At Law.com, Amanda Bronstad has a piece covering the dismissal, without prejudice, of cases filed by passengers alleging they caught COVID-19 on a cruise ship.  Two different federal judges in the Central District of California dismissed cases without prejudice from passengers alleging they actually caught COVID-19.  An earlier ruling dismissed filings alleging only fear of catching COVID-19.  Both judges focused on causation and injury, though the judges differed a bit on what would count as an injury, at least at the 12(b)(6) stage.  Causation seemed to be the biggest problem for most of the cases, and it is unclear if the plaintiffs will be able to plead sufficient new facts to survive dismissal.  If causation is difficult to establish when on a cruise ship for weeks, it will generally be much harder if allegations are brought against owners of grocery stores, gyms, etc.  It will be interesting to watch as different factual variations appear.

More coverage at ABA Journal.

Legally Speaking Ohio: Invasion of Privacy and Drug Testing

At Legally Speaking Ohio, Marianna Brown Bettman provides a thorough analysis of Lunsford v. Sterilite of Ohio, L.L.C., in which the Supreme Court of Ohio held that at-will employees have no cause of action for invasion of privacy when consenting to an employer-required direct observation method of submitting a urine sample for drug testing.

IL: TikTok Sued for Intrusion Upon Seclusion

The app TikTok has been sued in the Northern District of Illinois for intrusion upon seclusion:

One of the specific allegations against the company’s application is that it collects user’s private draft videos that were never intended for publication…without consent. The videos according to the plaintiff class are then mined by Chinese engineers for biometric identifiers and information. The expectation of privacy in these instances may indeed meet the elements of the Intrusion Upon Seclusion cause of action. As previous case law notes, consent is a defense to Intrusion Upon Seclusion, but only as far as the consent given.

ClearanceJobs has the story.

French on Forum Shopping in COVID-19 Business Interruption Claims

Christopher French has posted to SSRN Forum Shopping COVID-19 Business Interruption Insurance Claims.  The abstract provides:

Insurance disputes are typically governed by state law, and state insurance laws vary considerably, with some states being favorable to policyholders and others being unfavorable. With forum shopping, a plaintiff often has many choices regarding where it can bring a lawsuit, including multiple states in which to bring the case and whether to bring the case in federal or state court. Of the over 900 COVID-19 business interruption insurance lawsuits filed thus far, more than 600 of them have been filed in federal court, with more than 100 filed as class actions. Many of them were also filed in states with insurance laws that are not favorable to policyholders.

Conventional wisdom provides that a plaintiff’s chances of winning are generally much higher in state court than in federal court and that historically federal class actions against insurers have been successful only approximately twenty-five percent of the time. So, why were so many of the COVID-19 business interruption insurance cases filed in federal court in unfavorable states and as class actions when the historical chances of winning are so low in such forums, particularly as class actions?

This Essay provides some possible answers to that question. In doing so, it explores forum shopping considerations in general, the conventional wisdom regarding litigating in federal versus state court, and the empirical data regarding the odds of winning in state versus federal court.

Zettler, Berman & Parasidis on Drug and Vaccine Development and Access

Patricia Zettler, Micah Berman & Efthimios Parasidis have posted to SSRN Drug and Vaccine Development and Access.  The abstract provides:

This Chapter explains how drugs and vaccines for COVID-19 can reach the market in the United States. As is always true, drug and vaccine manufacturers may seek U.S. Food and Drug Administration (FDA) approval of their products via traditional approval mechanisms and drug manufacturers may offer pre-approval access under the expanded access or right to try pathways. In a public health emergency like COVID-19, an additional mechanism is also available: the Emergency Use Authorization (EUA) pathway. This Chapter (1) assesses how FDA has used its EUA authorities for COVID-19 drugs thus far, (2) considers how FDA has balanced the need for robust evidence of safety and effectiveness for COVID-19 pharmaceuticals against the urgent need to speed patients’ access amid the clinical and political realities of the pandemic, and (3) highlights considerations specific to vaccines should FDA be faced with a request to issue an EUA for a COVID-19 vaccine. The Chapter concludes with recommendations for policymakers and regulators at the federal and state levels. The recommendations aim to improve public understanding of the regulatory process for COVID-19 drugs and vaccines, protect scientific decision making from undue political pressure, and ensure that manufacturers develop robust evidence of safety and effectiveness—and ultimately safe and effective COVID-19 countermeasures.

This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.

PA: COVID-19, Fall Sports, and Liability Insurance

On Friday, the Pennsylvania Interscholastic Athletic Association (PIAA) voted, via Zoom, to hold the fall sports season in Pennsylvania.  The next step is that each school district will vote regarding whether to participate.  PIAA has an insurance policy covering all schools, paid out of the schools' dues to PIAA.  One problem is that the insurance does not cover communicable and viral diseases.  Adding that coverage is cost prohibitive.  This may weigh on schools boards as they wrestle with the decision.  PennLive has the story.  

Op-Ed: Capers, Goldberg & Zipursky on Reforming Police Liability at the State Level

At The Washington Post, Bennett Capers, John Goldberg & Ben Zipursky explain that reforming police liability does not necessarily take an act of Congress.

Lytton: Against COVID-19 Lawsuit Immunity

Tim Lytton has an editorial in USA Today:  "Blanket COVID-19 liability shield for businesses is not the immunity we need in this crisis".

AMTL: Is Trump a Tort?

Rick Newman, the Executive Director of the American Museum of Tort Law, interviews Jim Zirin, author of Plaintiff in Chief:  A Portrait of Donald Trump in 3,500 Lawsuits.

Feinman on "Five Myths about Lawsuits"

Jay Feinman has an opinion piece in WaPo:  "Five Myths about Lawsuits."

CA: Med Mal Cap Vote in 2022

In 1975, California enacted MICRA, a law which, among other things, capped pain and suffering damages in medical malpractice cases at $250,000.  In 2013, there was an unsuccessful ballot initiative to raise the cap to $1.1 million.  Proponents of the "Fairness for Injured Patients Act" have collected enough signatures to again attempt to alter the cap, this time in 2022.  The initiative would do three things:  1. adjust the cap for inflation, and adjust it annually thereafter; 2. allow judges and juries to exceed the cap in certain cases of catastrophic injury or death; and 3. require the cap be revealed to jurors.  Insurance Journal has the story.

PA: Hospital Admits Fault in Deaths of, and Injuries to, Three Premature Babies

A Pennsylvania hospital has taken the "extraordinary step" of admitting fault as it settled cases stemming from the deaths and injuries to three premature babies.  Geisinger Medical Center of Danville, PA acknowledged the process it used to prepare donor breast milk led to a fatal outbreak in the neonatal ICU.  The monetary terms of the settlement were not disclosed.

Attorney Matt Casey, who represented the families of two of the infants who died and a third who suffered serious brain injury, said Wednesday his clients insisted that Geisinger take full legal acceptance of responsibility as a condition of the settlement.

He said Geisinger agreed — something he said he’s never before seen in a civil settlement in over two decades of medical malpractice work.

PennLive has the story.

First COVID-19 Lawsuit Filed Is Dismissed

You may recall that back on March 19, I posted a link to Ron Miller reporting on the first COVID-19 lawsuit, arising out of the Grand Princess cruise ship.  The plaintiffs in that case sued the cruise line for emotional distress because of fear of exposure to COVID-19.  Yesterday, a federal judge dismissed the lawsuit and warned of a "flood of trivial cases."  Tom Hals at Reuters has the story.

GA: Non-driver in DUI Accident Potentially Liable for Uncapped Punies

The Georgia Supreme Court unanimously ruled that a non-driver in a DUI accident can be an "active" tortfeasor, and, thus, potentially liable for uncapped punitive damages.  The allegations in the case involved a drunk man loaning his car to a man he knew to be drunk, devoid of a license, and having a habit of recklessness.  The driver then hit and injured someone.  Neither of the defendants was represented by counsel and a concurrence asked the legislature to consider whether the decision was the desired law of Georgia.  Property Casualty 360 has the story.

NY: Lawmaker Introduces Bill Requiring Police Officers to Carry Personal Liability Insurance

Last month, I reported on a proposal by Deborah Ramirez to require police officers to carry liability insurance.  The idea was to provide financial incentives to police officers to behave reasonably, in that claims against them would result in higher premiums.  In New York, Senator Alessandra Biaggi has introduced a bill to make that idea the law of the jurisdiction.  The Hill has the story.