TortsProf Blog

USSC: Cert Granted in FTCA/Bivens Case

Mandy Gillip at Ballotpedia News writes:

The Supreme Court of the United States agreed to hear a case in its October 2020-2021 term concerning the Federal Tort Claims Act (FTCA). The case, Brownback v. King, came on a writ of certiorari to the United States Court of Appeals for the 6th Circuit.

In 2014, James King violently resisted arrest after being stopped by FBI Special Agent Douglas Brownback and Grand Rapids Police Department Detective Todd Allen. King was tried and acquitted of charges of assault with intent to do great bodily harm, aggravated assault of a police officer, and resisting arrest. He then sued the United States under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). The U.S. District Court for the Western District of Michigan held Brownback and Allen had not violated King’s constitutional rights under Bivens. The district court also decided against King’s FTCA claims. On appeal, the 6th U.S. Circuit Court of Appeals reversed the district court’s ruling.

SCOTUS will consider the following issue:

• • Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1), on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.

PA: Workers Compensation and Coronavirus

Rebecca Moss of Spotlight PA has a story about obtaining workers compensation benefits for coronavirus in Pennsylvania.  The gist is that it will be extremely difficult for workers to prove they developed the sickness on the job:

The state Department of Labor and Industry assured workers on March 16 by saying those who contract the coronavirus on the job might be eligible for workers’ compensation benefits. But legal and public health experts say that help may be very hard to obtain.

To be eligible for workers’ compensation, a claimant must prove they were injured or made sick at their workplace. For a disease that's scope is both constantly changing and unprecedented, proving it was contracted while on the job will be challenging, if not impossible.

First Coronavirus Lawsuit

At Maryland Injury Lawyer Blog, Ron Miller covers the first coronavirus lawsuit.  It stems from the Grand Princess cruise ship.

Experts: Suing Successfully for Quarantines is Difficult

Governments are given wide latitude in responding to public health emergencies is the bottom line from this piece in Claims Journal.

Bernstein at the Faculty Lounge

Anita Bernstein is blogging at the Faculty Lounge.  Her most-recent post is about June Medical Services, LLC v. Russo, argued yesterday at SCOTUS.

USSC: No Bivens Claim in Cross-Border Shooting

On Tuesday, the United States Supreme Court ruled the parents of a 15-year-old boy cannot sue the federal agent who shot him across the U.S.-Mexico border.   NBC News has coverage, and Howard Wasserman reviews the decision at Prawfs.

Bettman on Supreme Court of Ohio on Wrongful Termination

At Legally Speaking Ohio, Marianna Brown Bettman provides a thorough analysis of the Supreme Court of Ohio's decision in House v. Iacovelli.  In that case, the court stated:  “It is less likely that a wrongful-termination-in-violation-of-public-policy claim is necessary when remedies for statutory violations are included in the statutory scheme.”  The court rejected the wrongful discharge claim; the fact there was no remedy for the individual employee affected did not alter the court's decision.

This reminds me of a recent Iowa case:  Ferguson v. Exide Techs., Inc., 936 N.W.2d 429, 434-435 (Iowa 2019) (“[W]hen the legislature includes a right to civil enforcement in the very statute that contains the public policy a common law claim would protect, the common law claim for wrongful discharge in violation of public policy becomes unnecessary.”).  The major difference between the two is that the Iowa holding leaves the individual employee with a claim. 

NJ: Public Defenders and the Tort Claims Act

On Monday, the New Jersey Supreme Court heard oral arguments in the case of a wrongly convicted man now suing his public defender.  The court is considering two issues.  First, whether an attorney acting on behalf of the government to represent a private client, where representation is required by the constitution, is entitled to protections under the state's tort claims act when sued for legal malpractice.  Second, whether the plaintiff's loss of liberty is separate from pain and suffering.

George Conk represented the state bar association on the first issue.  He has details at Otherwise.

CA: PG&E Reaches $13.5B Settlement with Wildfire Victims

On Friday, Pacific Gas & Electric announced a $13.5B settlement with victims of multiple wildfires alleged to have been started by the company's negligence.  Dozens of people died in those fires and tens of thousands of homes were destroyed.  The settlement "will cover claims stemming from some of the deadliest and most destructive fires in the state’s history, including the 2018 Camp Fire and the 2017 Tubbs Fire. A federal bankruptcy judge needs to approve the accord before it becomes final."  Derek Hawkins at WaPo has the story.

PA: Commonwealth Alters Statute of Limitations on Child Sexual Abuse

Last week I reported a breakthrough in a dispute over extending the statute of limitations for child sexual abuse in Pennsylvania.  As expected, bills were passed by the full Senate and signed by Governor Wolf.  Under new law:

Victims would have until they turn 55 to sue, compared to age 30 in current law. Young adults ages 18-23 would have until age 30 to sue, where existing law gives them just two years.

A separate law started a constitutional amendment process to open a two-year window for child sexual abuse victims whose claims are currently time-barred:

The multi-year amendment process has begun, but the bill must again pass both the House and Senate in the 2021-22 legislative session before voters will decide its fate in a statewide referendum.

Pennlive has the story.

Lytton on the Sandy Hook Case

Tim Lytton has responded to the USSC denying cert. in the case filed by plaintiff families of the Sandy Hook shooting victims against Remington, the manufacturer of the gun used by Adam Lanza in the attack.  Here is a sample:

The U.S. Supreme Court on Nov. 12 refused to block a lawsuit filed by the families of the Sandy Hook Elementary mass shooting victims, clearing the way for the litigation to proceed. Remington Arms, which manufactured and sold the semiautomatic rifle used in the attack, had hoped the broad immunity the industry has enjoyed for years would shield it from any liability.

The prospect of more claims from victims of mass shootings puts new pressure on the gun industry to reconsider the way it does business.

My research over the past 20 years on lawsuits against the gun industry examines how the threat of civil liability has the potential to promote safer gun designs, encourage more responsible marketing practice and reduce the risk of illegal retail sales.

USSC Denies Cert In Sandy Hook Shooting Case Against Remington

     In March, the Connecticut Supreme Court ruled, 4-3, that plaintiff families from the 2012 Sandy Hook school shooting could proceed to trial against Remington, the manufacturer of the Bushmaster AR-15 used in the attack.  The cause of action was based on the Connecticut Unfair Trade Practices Act for "personal injuries that result directly from wrongful advertising practices."  Significantly, the Connecticut high court rejected Remington's defense based on the Protection of Lawful Commerce in Arms Act.  The court ruled the suit fell into a “predicate exception  [that] permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or market of the [firearm], and the violation was a proximate cause of the harm for which relief is sought …’ 15 U.S.C. § 7903 (5) (A) (iii) (2012).

     Yesterday the United State Supreme Court declined to hear Remington's appeal.  Coverage from The Litchfield County Times at the time of the Connecticut Supreme Court opinion noted the case:

puts the victims’ families in a position where they may be able to try to prove a connection between Remington’s marketing for its Bushmaster AR-15 rifle and the horrific act of violence by a disturbed 20-year-old. The state Supreme Court said they can try; making the connection, lawyers and experts say, is a steep challenge.

“It is a Herculean task,” said Victor E. Schwartz, co-chairman of the public policy practice in the Washington, D.C. office of the law firm Shook, Hardy & Bacon.

Amtrak Removes Right to Sue

In the wake of a $265M settlement for 8 deaths and hundreds of injuries in Philadelphia in 2015, Amtrak added a clause to its ticket purchases requiring arbitration.  Though the change, made in January, has not received a lot of attention, that may change shortly.  Connecticut Senator Richard Blumenthal is looking into the issue, and the House Transportation Committee holds a hearing on Amtrak on Wednesday.  Politico broke the story last week. 

Can an Abortion Clinic (or Other Business) Be a Nuisance Because it Attracts Protesters?

Eugene Volokh writes:

     Yes, a Georgia trial court held, and the jury awarded the neighbors $1.5 million, see https://www.mdjonline.com/news/cobb-jury-tells-abortion-doctor-to-pay-million-for-creating/article_f2719f5a-de46-11e9-b3de-8fab09664f5b.html .  As best I can tell from the article and from some of the court papers, the plaintiff neighbors’ claim was chiefly that the clinic attracted a constant stream of protesters, some of whom displayed graphic images of aborted fetuses, some of whom trespassed and accosted visitors to other businesses in the office park, some of whom tried to organize a boycott of the whole office park, and some of them (people suspect) had set a fire and might do it again.  (Part of the claim seems also to be that the clinic’s operation violated parts of the office park owners association’s rules, in which all the owners promised not to create nuisances, but let’s set that aside here.)

     I’m quite skeptical of this result, as I would be if plaintiffs could sue a bookstore that drew protesters or even attackers because it sold controversial literature, a fur store that drew anti-fur protesters, or a business that drew labor protesters.  But I want to make sure I understand the proper nuisance law analysis here; any thoughts from people who have studied nuisance law more closely than I have? 

 

     Please respond in the comments. 

IL: $101M Med Mal Verdict for Baby Born with Brain Damage

Jurors deliberated for 6 hours before awarding $101M in damages to the family of a baby born with brain damage in Oak Park.  Attorneys alleged health care providers ignored the baby's external fetal monitoring strips for 6 hours before and during delivery, and experts testified the baby would have had normal functioning  if a doctor had been alerted and a C-section performed.  The Clifford Law Office represented the family.  The Chicago Sun-Times has the story.   

Bellwether Opioid Trial Settles; Talks Resume on $48B Larger Resolution

Behind an aggressive approach by Judge Polster of the Northern District of Ohio, the bellwether trial of Cuyahoga and Summitt (Ohio) counties against various manufacturers, distributors, and retailers of opioids has settled for $260M.  The settlement has increased momentum for a grand resolution of all opioid claims at $48B, with talks to resume as early as today.  Reuters has coverage here. 

NC: $750,000 Alienation of Affection Verdict

Only 6 states (HI, MS, NM, NC, SD, and UT) continue to recognize the cause of action of alienation of affection between spouses, but North Carolina is the undisputed champion in terms of volume.  A Pitt County, NC man sued his spouse's alleged lover in August 2017, two months after the couple separated.  The couple divorced in September 2018 after 12 years of marriage.  In August, a judge ruled the interloper--the spouse's lover--had to pay the former husband $750,000.  This verdict is on the small side.  A year ago, an interloper was hit with an $8.8M verdict for conducting a 16-month affair with another man's wife.  The ABA Journal has details.

OH: Grocery Store Not Liable When Customer Drives One of Its Motorized Carts Into Another Customer

At a Giant Eagle grocery store, one customer drives one of the motorized carts provided by Giant Eagle into another customer.  The injured customer sues Giant Eagle for negligence and negligent entrustment.  (The injured customer settled with the driver.)  Plaintiff argued Giant Eagle failed to train customers to use their motorized carts, and this lack of training led to her injuries.  Plaintiff won both compensatory and punitive damages at the trial level, and the intermediate appellate court affirmed with modifications.  The Supreme Court of Ohio reversed, finding a lack of causation.  The court found it was sheer speculation that the driving customer, who had driven these carts regularly for a year without incident, hit the injured customer because of a lack of training.  Marianna Brown Bettman has extensive analysis at Legally Speaking Ohio.  

Connecticut Adopts Alternative Liability

The Connecticut Supreme Court adopted alternative liability in a decision to be officially released tomorrow.  In Connecticut Interlocal Risk Management Agency and Town of Somers v. Jackson , it was alleged three men trespassed at a mill in June 2012.  The group drank and smoked approximately 15 cigarettes throughout the building.  The group failed to extinguish some of the cigarettes, sparking a fire that destroyed the building and a sewer line.  The plaintiffs, a town and its insurer, were not able to prove which specific defendant was responsible for lighting the fire, and the Superior Court granted a motion for summary judgment based on the failure to prove causation.  The Supreme Court reversed and remanded, adopting alternative liability.  

Thanks to Richard Wright for the tip.

OK: J&J Liable for Opioid Abuse; Must Pay $572M

In the first trial against an opioid manufacturer, a judge in Oklahoma found Johnson & Johnson liable for a public nuisance and ordered it to pay $572 million to the state of Oklahoma.  The court found J&J played down the dangers and oversold the benefits of opioids, forcing the state to pay addiction treatment costs.  The state had sought $17 billion.  J&J promises to appeal.  NYT has the story.