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".
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.