Monday, September 27, 2021
Last Wednesday, legislation was introduced in Congress to update the Limitation of Liability Act of 1851, pursuant to which boat owners can limit their liability to the value of the remains of the vessel. The proposed legislation, introduced by Rep. Salud Carbajal and Sen. Dianne Feinstein, would mean that owners of small boats could be held legally responsible for maritime accidents regardless of the value of the boat after the incident. The changes would be applied retroactively to compensate the victims of a 2019 incident off the coast of Ventura County, California. In that case, 34 people were burned to death in the bunkroom of the Conception, a scuba-diving boat. The AP's Stefanie Dazio in the Los Angeles Times has the story.
Tuesday, August 31, 2021
In South Korea, the ruling Democratic Party is on the verge of passing a Media Law Amendment that authorizes punitive damages against the media of up to five times compensatory damages. The standard for punitive damages would be intent or gross negligence. The law is presented as a way to curtail "fake news," and the government defends the law on the basis that US law is even harsher regarding punitive damages toward the media.
I don't know what the government has in mind, but, regardless, US law does not support the Media Law Amendment. The USSC has interpreted the Due Process Clause of the US Constitution as establishing a flexible cap on punitive damages in the form of a single-digit multiplier of compensatory damages (no more than nine times). Sitting as a common law court in a maritime case, however, the Court referred to a 1:1 ratio as a "fair upper limit." Moreover, the Due Process limit is said to protect all types of defendants from a system of punitive damages that is widespread in the US. As I understand Korean law, punitive damages are not generally available; they must be authorized by particular statutes. Thus far, only a handful of specific statutory allowances of punitive damages have been enacted. So, in this case, the authorization of punitive damages would be targeting the media specifically. Additionally, I understand that Korean punitive damages have traditionally been set at a 3:1, not a 5:1, ratio.
The bigger problem with arguing that US law is harsher against media defendants than the proposed Korean law is that it doesn't take the free-speech protections of the US Constitution into account, particularly the standard needed to prove liability for damages in defamation cases. The Korean Media Law Amendment would allow punitive damages based on a standard as low as gross negligence. Very few US jurisdictions allow punitive damages in any kind of case based on gross negligence; the vast majority require a higher standard. Under US law, for certain types of plaintiffs in a defamation case, gross negligence would not be sufficient to recover even compensatory damages. Interestingly, in a recent statement, Democratic Party leader Song Young-gil cited Gertz v. Welch as support for the Media Law Amendment, stating the US imposes "tremendously heavy punitive damages." On remand, the plaintiff in Gertz was awarded $100,000 in compensatory damages and $300,000 in punitive damages. Gertz, however, is widely understood as requiring "actual malice"--knowledge of falsity or reckless disregard for the truth--prior to receiving punitive damages, at least from a media defendant on matters of public concern. The $300,000 award was made after the plaintiff proved the "actual malice" standard. Gross negligence would not have been sufficient.
Whatever the merits of the Media Law Amendment, and I'm dubious about them, US law does not support its passage.
Kyung-Won Lee of the Seoul Broadcasting System has the story (in Korean).
Update: Consideration of the bill has been postponed for a month for further discussion.
Monday, August 2, 2021
Monday, July 12, 2021
Tim Lytton has an article at The Conversation regarding New York's new law defining illegal firearms as a public nuisance. He anticipates a Second Amendment challenge to the law, but even if it survives:
The main impact of these lawsuits is to put pressure on gun manufactures to do more to prevent inventory theft and illegal sales by retailers. Since 2000, the gun industry has operated a program to prevent illegal straw purchases, suggesting manufactures think they may be able to affect how retailers operate. Even still, little is known about whether this program has had any impact on gun violence rates. That’s why no one really knows if forcing gun manufacturers to more closely supervise retailers will work.
Part of the problem is a lack of government funding since the mid-1990s for public health research on alleged links between industry sales practices and gun crimes. Recent funding for this kind of research may clarify the value of regulating illegal gun sales as a public nuisance.
Until then, passing laws to prompt litigation against the gun industry is just a shot in the dark.
Wednesday, May 5, 2021
Justice Thomas issued a dissent from cert denial in which he made it clear he believes Feres was a policy judgment by the Court and not based on the Federal Tort Claims Act. He stated succinctly, "Feres was wrongly decided." ABA Journal has the story.
Tuesday, March 30, 2021
On Monday, Florida became the most populous state to enact COVID-19 immunity. The law is similar to those passed in other states. Among other entities, it covers corporations, hospitals, nursing homes, government entities, schools and churches. There is an exception for gross negligence or intentional conduct. Law 360 has the story.
Monday, March 29, 2021
Last week, the New York City Council enacted legislation eliminating qualified immunity as a defense for city police officers when sued under the new local statute. Qualified immunity remains a defense if an officer is sued under federal or state statutes. CBS News has the story.
Monday, March 22, 2021
In 2011, the Pennsylvania General Assembly altered the common law rule of joint and several liability with the Fair Share Act. That Act restricted joint and several liability to intentional torts or misrepresentations, the release or threatened release of certain hazardous substances, serving alcohol to a visibly intoxicated patron, and, most importantly, to defendants who were found to be 60% or more responsible for the tortious injuries of the plaintiff. Last week, the Superior Court ruled that the Fair Share Act does not apply in cases in which the plaintiff is not found to be contributorily negligent for her own injuries. In other words, for wholly innocent plaintiffs, joint and several liability remains in place. (The opinion is here: Download KEITH SPENCER Appellant v CLEVELAND JOHNSON TINA GAINER JOHNSON AND PHILADELPHIA) This argument was put forth by Widener alums Scott Cooper & Lara Antonuk is their contribution to Widener's Mass Tort Litigation symposium in 2013. (The article, check particularly footnote 143, is here: Download Cooper-antonuk---ready-for-pub.-6.18.14)
Tuesday, March 16, 2021
Yesterday, the New Mexico Supreme Court unanimously ruled that the state's $600,000 noneconomic damages cap in med mal cases does not violate the constitutional right to a jury trial. The Los Alamos Daily Post has the story.
Thursday, March 11, 2021
Virginia has a cap on total (not non-economic) damages in med mal cases of $2.45M. A bill to eliminate that cap didn't make it out of the Senate Judiciary Committee before the legislative session ended last month. Law360 has details.
Thursday, February 4, 2021
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.
Tuesday, February 2, 2021
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.
Thursday, January 28, 2021
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.
Monday, January 11, 2021
Monday, January 4, 2021
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.
Wednesday, December 30, 2020
Sen. Mitch McConnell has introduced a bill combining $2,000 stimulus checks with the repeal of CDA Section 230. The move is widely seen as a poison pill to scuttle the larger checks. The Verge has coverage.
Monday, December 28, 2020
China has a new civil code that will take effect on January 1st, and it includes a section on "personal rights." George Conk has coverage at Otherwise; here is a sample:
The section - of which we will soon publish a translation - is a real contribution to China's developing civil law. It embeds in fundamental law personal rights to life, bodily integrity, personal security from unlawful searches, personal and organizational names, health, reputation, and privacy. It bars commercialization of organ donation while preserving the voluntary right. Remarkably it establishes a right to be free from sexual harassment - a right the Supreme People's Court last year recognized. But its location in the nation's first comprehensive civil code highlights and secures the principle.
Wednesday, December 2, 2020
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.
Tuesday, August 18, 2020
Wednesday, August 12, 2020
Tim Lytton has an editorial in USA Today: "Blanket COVID-19 liability shield for businesses is not the immunity we need in this crisis".