TortsProf Blog

New at the American Museum of Tort Law

Bob Rabin discusses Dominion's defamation suit against Rudy Giuliani here.

Dorit Reiss answers two questions:  1. What happens if the Covid vaccine injures you?  2.  Should we deny medical care to those who refuse the vaccine?.  

NY: Grandparents in the "Zone of Danger" Can Recover Emotional Distress Damages

Last week, the New York Court of Appeals ruled that a grandparent in the zone of danger can recover emotional distress damages for the death of their grandchild.  Unlike many jurisdictions, New York does not recognize negligent infliction of emotional distress for bystanders.  However, this holding expands recovery within the "zone of danger" by including grandparents as an "immediate family" member.  Debra Cassens Weiss has the story at ABA Journal.

AMTL: Two New Founders

The American Museum of Tort Law has added two new founders:  James E. Fitzgerald of Wyoming and Marc J. Bern of New York.  The entire list is here:  Download Our founders February 2021

IN: Senate Passes COVID-19 Immunity Bill

Last week, the Indiana Senate passed a COVID-19 immunity bill.  As with many such bills, there is an exclusion for gross negligence or willful and wanton conduct.  The Indiana House of Representatives votes on a similar bill this week.  Lexology has details.

MO: COVID-19 Immunity Bill Ready for Vote in Senate

In Missouri, a COVID-19 immunity bill passed out of committee and is ready for a full vote in the Senate.  Senate Bill 51 provides:  "No individual or entity engaged in businesses, services, activities or accommodations shall be liable in any COVID-19 exposure action."  There is an exception for recklessness or willful misconduct.  Additionally, a one-year statute of limitations is imposed.  News-Press Now has details.

Nursing Homes Plead PREP Act Immunity to COVID-19 Cases

Nursing homes across the country are invoking the Public Readiness and Emergency Preparedness (PREP) Act to claim immunity from COVID-19 suits.  The PREP Act was originally passed in 2005 in order to encourage production of emergency vaccines during an epidemic by providing immunity to pharmaceutical manufacturers.  The Trump administration invoked the Act in March relating to COVID-19:

It authorizes the Secretary of the Department of Health and Human Services (HHS), during a public health emergency, to shield from liability makers of “countermeasures” such as diagnostic tests, protective gear and vaccines like those developed by Pfizer Inc, Germany’s BioNTech and Moderna Inc.

The PREP Act does not apply to instances of serious injury or death caused by willful misconduct; when immunity applies, the injured person may seek compensation from a government fund (though most claims are denied).  

All rulings have been against nursing homes so far, but pleading the Act, which allows defendants to move from state to federal court, can buy them time.  In December, the Trump administration added agency guidance in favor of nursing homes.  Only one ruling, against a defendant, has come down since the guidance, so it remains to be seen whether nursing homes will begin winning cases.  Tom Hals at Reuters has the story.

COVID-19 Suits in 2020

Relatively few suits alleging physical or economic harm due to COVID-19 were filed in 2020:

Lex Machina released its first Torts Litigation Report in November, identifying 173 tort cases related to COVID-19. Most were filed against cruise lines and nursing homes, and as Law.com reports, judges have dismissed many of them.

The largest group of COVID-19 suits were filed by businesses against their insurers.  ABA Journal has the story.

IA: Punies Not Available for Victims of Excessive Force by Law Enforcement Officers

Last Thursday, in a case about excessive force by law enforcement officers, the Iowa Supreme Court ruled that there is no vested right to punitive damages and the state legislature may bar them completely, as it did in the Iowa Tort Claims Act.  Alina Rizvi has details at Jurist.

NJ: Supreme Court Accepts Attorney-Client Arbitration Agreements

In the context of a legal malpractice case, the New Jersey Supreme Court accepts arbitration clauses in attorney-client contracts, but requires a full explanation to the client of the advantages and disadvantages.  The case is Delaney v. Sills, and George Conk has commentary at Otherwise.

Rothstein & Irzyk on Employer Liability for "Take-Home" COVID-19

Mark Rothstein and Julia Irzyk have posted to SSRN Employer Liability for "Take-Home" COVID-19.  The abstract provides:

Workplace exposure to SARS-CoV-2 has been a source of morbidity and mortality from COVID-19, especially for “essential workers,” such as those employed in health care and meatpacking. Many family members of these workers also have become infected and died. If the employee’s exposure was the result of the employer’s negligence, the family member or the family member’s estate might be able to recover from the employer using the “take-home” liability theory first developed in asbestos cases. This article discusses the elements of these cases and how they relate to workers’ compensation, OSHA enforcement, and other aspects of workplace safety and health protections.

COVID-19 Suits, Preemption, and Workers' Compensation

At Law.com, Amanda Bronstad covers suits by employees against Tyson Foods.  The defendants in those cases have argued negligence claims are preempted by the Federal Meat Inspection Act and the Poultry Products Inspection Act.  In the cases filed in Iowa, defendants also cited the workers' compensation bar.  Tyson opted out of workers' compensation in Texas, the only jurisdiction in the United States in which that is possible.  Bronstad then discusses preemption as applicable to other industries.  For instance, nursing homes sued for negligence have attempted to argue preemption based on the Public Readiness and Emergency Preparedness (PREP) Act:

At least four federal judges, in New Jersey, Kansas, Pennsylvania and California, have ruled against the nursing homes, granting remand of the cases to state courts.

“The allegations are ‘you didn’t take enough steps to keep us from getting COVID.’ Courts are looking at that, saying that’s not what the PREP Act had in mind,” Robinette said. “Basically, what the PREP Act is talking about is certain drugs, biological products or devices—for instance, once a vaccine has been developed. But the suits are alleging things like your failures to do certain things have led to us getting COVID.”

Sharkey on Holding Amazon Liable As a Seller

Cathy Sharkey has posted to SSRN Holding Amazon Liable As a Seller of Defective Goods:  A Convergence of Cultural and Economic Perspectives.  The abstract provides:

Amazon’s e-commerce business, which offers a platform for third-party vendors, defies conventional categorization for products liability purposes. Professor Marshall Shapo’s conception of “tort law as a cultural mirror” sheds light on how products liability law has evolved so as to hold Amazon liable even as the seismic shift away from brick-and-mortar physical stores to the virtual marketplace has transformed the reasonable expectations of consumers. Holding Amazon liable is likewise supported by the economic perspective embodied in the “cheapest cost avoider” analysis; namely, that Amazon is best situated to take actions to minimize risks and prevent accidents from defective products. This convergence of cultural and economic perspectives and the emergence of a culturally specific norm of efficiency-as-responsibility in the context of the virtual marketplace, signals tort law’s ever moving march forward into the modern era.

PA: Governor Vetoes COVID-19 Immunity Bill

On Monday,  Pennsylvania Governor Tom Wolf vetoed a bill that would have provided immunity to certain businesses, including schools, from COVID-19 lawsuits.  Governor Wolf got it right, for reasons I explained in an earlier post:

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.  Plaintiffs are having trouble proving injury and, especially, causation.  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. 

ALI Podcast: "MDLs Go Mainstream: Mass Torts Today"

The latest episode of the ALI's podcast, Reasonably Speaking, is "MDLs Go Mainstream:  Mass Torts Today," hosted by Elizabeth Chamblee Burch.

Approximately 90,000 Sexual Abuse Claims Filed Against Boy Scouts of America

The deadline for filing claims against the Boy Scouts of America (BSA) in bankruptcy was this week, and nearly 90,000 claims were filed.  That number is significantly higher than expected.  Eventually, a compensation fund will be created for the victims.  The very first case I started working on back in 1996 was on behalf of a sexual abuse victim against BSA and local organizations, and even then it was not a new story.  ABC News has details.

Grey & Orwoll on Tort Immunity in the Pandemic

Betsy Grey & Samantha Orwoll have posted to SSRN Tort Immunity in the Pandemic.  The abstract provides:

A fundamental premise of our common law tort system is that the risk of liability will help deter unsafe behavior. Yet, as we continue to battle the COVID-19 pandemic, proposals abound to shield businesses from tort liability. Politicians have even conditioned fiscal-stimulus for our ailing economy on passage of tort liability shields. This essay examines the pros and cons of such shields, and concludes that their questionable benefits do not justify loss of the deterrent value of tort liability. Although businesses would surely prefer to avoid lawsuits, those that act reasonably--even without tort immunity--face little risk of damage judgments and would be hard prey for plaintiff personal-injury lawyers. To be found negligent, businesses would need to flaunt such basic precautions as social distancing, gloves, masks and disinfecting measures. Presumably, we should not encourage such behavior by removing the tort system’s incentives to operate safely. And even if a business arguably could have done more to keep their customers and employees safe, plaintiffs would still have the tall burden of establishing causation--that they caught the disease because of the defendant’s neglect as opposed to other sources. Beyond all that, businesses already enjoy the protection of workers’ compensation laws, and strong defenses like regulatory compliance. On the other side of the equation, creating immunity shields may signal to employees and customers that they return to work or patronize business at their own peril--creating an anxiety that undermines the trust and confidence we want to instill to restart of our economy. Finally, other systems, such as insurance and government compensation funds, can be used to encourage businesses to reopen and stay open.

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)