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".
Tuesday, August 11, 2020
Tennessee started a special session yesterday, primarily over COVID-19 immunity. Negotiations broke down in June over whether to make the legislation retroactive to March.
Gov. Lee indicated during a press conference last week that the impasse had been resolved. As written, the bill does not appear to provide retroactive protection for the early months of the health crisis. The change in Tennessee tort law would take effect Aug. 3, and expire July 1, 2022.
As introduced, the measure would grant immunity from “civil liability for loss, damages, injury, or death arising from COVID-19, unless the claimant proves by clear and convincing evidence of gross negligence or willful misconduct.”
WMOT 89.5 has the story.
Monday, July 27, 2020
Wednesday, July 22, 2020
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.
Thursday, July 9, 2020
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.
Friday, July 3, 2020
In the final hours of a special session in Louisiana, the legislature passed a tort reform bill that the Governor Edwards said he would sign. He vetoed an earlier version. The impetus for the reform was automobile insurance rates: Louisiana's are among the highest in the country.
The bill makes several changes: a limitation of the collateral source rule, removal of the ban on mentioning whether a plaintiff was wearing a seat belt, limits on when the insurance company's name can be mentioned in court, and a reduction of the threshold for jury trials from $50,000 to $10,000. The last reform likely strikes many as odd. Juries have a reputation for calculating damages more liberally than judges. Defense interests in Louisiana, however, believe that juries will be more conservative than judges, and are expanding the number of cases tried to a jury. The bill does not address direct reductions in insurance rates. WWL has details.
Thursday, July 2, 2020
On Wednesday, Missouri Governor Mike Parson signed a bill overhauling that state's punitive damages regime. The bill codifies a standard of punitive damages in which the "defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others." In medical malpractice cases, the standard is more stringent, "the health care provider intentionally caused damage or demonstrated malicious misconduct. Evidence of negligence, including indifference or conscious disregard for the safety of others, does not constitute intentional conduct or malicious misconduct." The bill also requires punitive damages be proved by clear and convincing evidence. Moreover, punies may not be alleged in the complaint, but may only be added by permission of the court no later than 120 days prior to the final pretrial conference or trial date. The Missouri Times has the story.
Tuesday, June 30, 2020
On Friday, the Georgia Legislature adopted COVID-19 immunity for health care providers and businesses. The legislation provides both immunity and an assumption of risk defense if certain warnings are provided. JD Supra has details.
Friday, June 19, 2020
As the U.S. reopens from COVID-19 quarantine, it is no surprise that businesses are asking both workers and customers to sign waivers. So far, at least 6 states--Utah, North Carolina, Louisiana, Oklahoma, Arkansas, and Alabama--have created some type of COVID-19 immunity, either through legislation or executive order. This piece from The Paducah Sun discusses the debate over the waivers. One law firm is tracking cases; it found that through Monday there were 2,741 lawsuits filed in the U.S. over COVID-19. The vast majority were over government shutdown orders and which businesses were deemed essential. Only 7 cases were filed by consumers and 49 were filed by employees over exposure to the virus.
Thursday, June 18, 2020
Rick Newman, Executive Director of the American Museum of Tort Law, interviews Deborah Ramirez about her proposal to require police officers to carry liability insurance. Police departments would pay the average premium, but officers would have to pay the excess over the average. The idea is that those officers who posed great risk would be priced out of the market, and would lose their jobs. For more details, the interview is on the AMTL's website.
Tuesday, June 16, 2020
Mike Rustad has published in the Northwestern University Law Review blog Your Right to Sue, Goodnight. The gist:
The civil justice system in the U.S. has been under an unrelenting attack since the mid-1980s. For decades “business and professional interests have been claiming that American tort law is out of control, imposing unjustified costs on defendants amounting to billions and billions of dollars annually.” Now, Senator McConnell and the corporate wrongdoer lobby have the perfect Trojan Horse—using COVID-19 as a decoy so that they can enact tort reform at the federal level. The avowed purpose of McConnell’s liability shield suggestion for businesses dealing with COVID-19 is to help the economy. However, in my opinion his true purpose is to deliver tort reform at the federal level for corporate wrongdoers, who contribute mightily to the Republican Party. Those interested in protecting the right to sue in the U.S. should say good night to Mitch McConnell’s legislative proposal.
Tuesday, May 19, 2020
The American Museum of Tort Law in Winsted, Connecticut is the only museum in the United States dedicated exclusively to law. Two items recently added to its website may be of interest. First, a video in which Executive Director Rick Newman interviews Tim Lytton about COVID-19 immunity. Second, an open letter written to President Trump and members of Congress arguing that COVID-19 immunity for businesses is a bad idea.
Monday, May 18, 2020
The [Senate Judiciary [C]]ommittee focused primarily on the question of whether to give businesses immunity from lawsuits over COVID-19. That wouldn’t be a good idea. But luckily, the hearing unearthed the real remedy to reassure businesses that it’s safe to reopen: giving them clear federal rules that will protect both well-meaning business owners and the ability to hold bad actors accountable. Now it’s up to the Trump administration to make that happen.
The entire editorial is here.
Friday, May 15, 2020
Writing at the Washington Legal Foundation, Mark Behrens and Jennifer Artman discuss recent Missouri legislation on punitive damages and consumer protection. Regarding punitive damages:
The new law codifies a clear standard of liability for punitive damages. Punitive damages will now be limited to egregious cases where a “defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The standard returns punitive damages to their intentional tort roots. See Klingman v. Holmes, 54 Mo. 304, 308 (1873) (exemplary damages “where an evil intent has manifested itself”). A separate but similar standard is provided for personal injury claims against healthcare providers.
The new law also codifies the “clear and convincing evidence” burden of proof standard for punitive damages that has been applied by Missouri courts. This standard reflects the quasi-criminal nature of punitive damages by taking a middle ground between the ordinary civil standard (“preponderance of the evidence”) and the criminal law standard (“beyond a reasonable doubt”).