Monday, April 6, 2020
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.
- 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.
Thursday, April 2, 2020
At JD Supra, a team from King & Spalding discusses tort immunity under the PREP Act and COVID-19 Response Declaration. The basics:
Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), on March 17, 2020, the Secretary of Health and Human Services (“HHS”) published the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19. The COVID-19 Declaration immunizes broadly certain entities from “suit and liability under federal and state law with respect to all claims of loss” related to the manufacture, testing, development, distribution, administration and use of certain countermeasures to COVID-19.
Monday, March 30, 2020
Dani Wachtel (Widener Commonwealth Class of 2020) and I have posted to SSRN Raising Compulsory Automobile Insurance Minimum Amounts: A Case Study from the United States. Published in Insurance Review (Poland) as a contribution to a symposium, the abstract provides:
This article discusses a decision both European Union Member States and states in the United States must make: whether to raise their compulsory automobile insurance minimum amounts. The authors review a case study from the United States, the Commonwealth of Pennsylvania, and conclude a proposed increase in the compulsory minimum amounts should pass the legislator. The purpose of compulsory automobile insurance is to compensate victims of automobile accidents. Due to inflation, the minimum amounts in Pennsylvania no longer compensate adequately. Moreover, the data do not support the contention that an increase in the minimum amounts will cause large increases in premiums and uninsured rates. The authors conclude that compulsory minimum amounts should be periodically reviewed, as they are in the European Union, and that arguments about large increases in premiums and uninsured rates should be subjected to a careful review based on data.
Thursday, March 12, 2020
A sweeping tort reform bill was withdrawn in the Georgia Senate after bipartisan opposition:
The sprawling Senate Bill 415 would alter many areas of Georgia’s civil judicial system from landlord protections and large medical damages to key tweaks on what evidence can be presented in court like seatbelt use.
But the bill ran up against opposition from Senate lawmakers on both sides of the aisle, wary that too many changes were crammed into a single bill. They narrowly voted 27-26 to table the bill upon request from its sponsor, Senate Majority Whip Steve Gooch.
It appears unlikely a tort reform bill will pass in this session. The Augusta Chronicle has the story.
Wednesday, March 11, 2020
One of the places to watch regarding tort reform right now is Louisiana. A new legislative session started Monday, and several reforms almost, but not quite, passed at the end of the last session. Many of the proposals are aimed at automobile accidents; Louisiana has the second-highest automobile insurance rates in the nation. Whether those high rates are attributable to tort law or other factors is a subject of dispute. Insurance Journal has the story.
Tuesday, March 3, 2020
Several bills in the Georgia General Assembly propose tort reforms. Some details:
The legislation before the Senate stems from the work of a study committee that adopted an ambitious set of tort reform proposals in December. Its recommendations included prohibiting plaintiffs from seeking “phantom damages,” compensatory damages beyond what a plaintiff will actually pay for medical care or treatment, and making it harder for juries to find defendants guilty of “premise liability,” negligence for injuries victims suffer on a home- or business owner’s property at the hands of a third party.
The study committee also supported allowing defense lawyers in personal injury cases to introduce into evidence whether an injured motorist was wearing a seatbelt at the time of a crash. That recommendation has found its way into Senate Bill 226, a broader measure sponsored by Sen. Randy Robertson, R-Cataula, that expands Georgia’s seatbelt requirement to the back seats of motor vehicles.
Another tort reform bill, which cleared the Senate Insurance and Labor Committee Feb. 24, is aimed at streamlining settlement offers so plaintiff lawyers can’t gum up the system by tacking on additional non-monetary demands. Under Senate Bill 374, settlement offers must contain only five terms: the time period within which an offer must be accepted, the amount of the payment, the defendants who will be released from a claim if the offer is accepted, whether the release is full or limited and itemization of the claims to be released.
The Augusta Chronicle has the story.
Wednesday, February 26, 2020
In 2016, an Ohio Supreme Court ruling threw out a $3.6M jury award to a woman who had been raped by her pastor at the age of 15. The court reduced the award to around $385,000 based on a noneconomic damages cap. Proposed legislation would exempt rape victims from the cap. A similar effort failed right after the 2016 ruling. Surely exempting rape from the cap is the decent thing to do. The Washington Times has details.
Friday, February 21, 2020
In 2016, Iowa adopted a $250,000 cap on noneconomic damages for medical malpractice, but excluded cases involving permanent disfigurement or death. Now a bill has been proposed to remove the exceptions. Iowa Public Radio has the story.
Monday, February 10, 2020
In 2002, the legislature passed a law that, among other things, limited venue in med mal cases to the county in which the cause of action arose. The Pennsylvania Supreme Court adopted the venue restriction into the rules of civil procedure to fix a constitutional problem with the legislation. About a year ago, the court announced it was considering eliminating the restriction. A committee of the legislature requested a year to study the change. That report was released last week, and the committee stated it had insufficient data to assess the impact of the proposed change. No recommendation was made. It is likely there will be a renewed period of public comment prior to any decision by the court. JD Supra has details.
Thursday, January 30, 2020
The Chamber's Institute for Legal Reform has published Selling More Lawsuits, Buying More Trouble: Third Party Litigation Funding A Decade Later. The abstract provides:
When ILR documented the early development of third party litigation funding (TPLF) in the U.S., the industry barely existed. Now, according to a recent survey, U.S. funders alone have over $9.5 billion under management. ILR’s research looks at how exactly this explosive growth has happened, how the industry is fueling abusive litigation, how the few TPLF agreements that have been made public reveal deep ethical issues with the practice, and how lawmakers and rule makers can approach TPLF reform.
Among the solutions documented in the paper are proposals that:
- TPLF agreements must be disclosed to all parties in litigation, to minimize conflicts of interest and ensure plaintiffs retain control of their case
- Fee-sharing agreements between lawyers and non-lawyers should be banned (as several bar associations have already done) in order to preserve the independent professional judgment of attorneys
- TPLF should not be permitted in the class action context, because funding creates a potential obstacle to class counsel and named plaintiffs satisfying their fiduciary duties to the class
Monday, January 20, 2020
Friday, December 20, 2019
FL: Appellate Court Upholds Constitutionality of Med Mal Cap if Arbitration Offer Had Been Rejected by Plaintiff
On Wednesday, a south Florida appellate court upheld as constitutional a $350,000 cap on pain and suffering in med mal cases in which a healthcare provider's offer to arbitrate was rejected and the plaintiff filed suit. The distinction is important because the Florida Supreme Court held in 2017 that caps on pain and suffering in med mal cases generally are unconstitutional. WUSF has the story.
Thursday, December 19, 2019
On Tuesday, the Senate voted, 86-8, to pass the National Defense Authorization Act. The Act included $400M for the Defense Department to investigate and pay out military med mal claims internally, bypassing the Feres Doctrine. President Trump is expected to sign the legislation shortly. I reported about this possibility last week. Fox 46 has details.
Wednesday, December 11, 2019
Under a provision inserted into the annual defense authorization bill, Defense Department officials could offer payouts to victims of military medical malpractice. In what is essentially a compromise, the Feres doctrine, prohibiting victims of military medical malpractice from recovering in court, would not be overturned. Instead, an administrative compensation program would be created:
In the legislation, lawmakers noted that although the move “does not change or repeal the Feres doctrine, it authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death … that was the result of medical malpractice caused by a Department of Defense health care provider.”
Most claims would be limited to under $100,000, although the secretary could authorize larger payouts in some circumstances.
The House should vote on the bill today, with the Senate following early next week. The legislation has passed Congress in each of the last 58 years. Military Times has the story.
Tuesday, December 3, 2019
New Jersey's two-year window to sue for victims of child sexual abuse has just opened. One of the first lawsuits filed is by a few of the five sisters in one Harrisburg, Pennsylvania family who were abused by a priest in both New Jersey and Pennsylvania. The priest was moved from New Jersey to Harrisburg, where he met the family. Some of the assaults occurred when the priest took the sisters to a home in New Jersey.
Pennsylvania just expanded its statute of limitations for child sexual abuse; separately it started a constitutional amendment process to open a two-year window for those victims barred by the old statute of limitations. For the amendment to pass, the legislature, which has passed a bill on the amendment once, must pass it again next year. Then the issue will be on the ballot and voters must approve of it. The process will take at least two years, but was necessary to break a stalemate in the legislature over the issue.
Pennlive has the story.
Monday, December 2, 2019
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.
Wednesday, November 20, 2019
For three years, the Pennsylvania legislature has been at odds over extending the statute of limitations for child sexual abuse. The House has repeatedly passed reform bills; the Senate has not. Currently victims of child sexual abuse have until age 30 to file civil suits and age 50 for the filing of criminal charges. There has been widespread agreement about extending those time periods, but there has been conflict over a retroactive window to allow victims to bring claims that are time-barred under current law.
This year, the House has again passed bills, and Governor Wolf has indicated he would sign them. Yesterday, the Senate Judiciary Committee unanimously passed the bills, clearing the way for a floor vote this week. The bills, now expected to pass in the full Senate, would:
- Leave a person who commits serious sexual abuse against a child forever exposed to potential criminal prosecution, giving that crime the lifetime tail that now applies to only the most serious of crimes like criminal homicide. It also expands the window for childhood victims to file civil suits against their abusers to their 55th birthday.
- Amend the state constitution in a way that would allow victims of past childhood sexual abuse a two-year window to file civil suits against those that they say abused them, as well as any employers or institutions that might have attempted to sweep those abuses under the rug.
Pennlive has the story.
Thursday, November 14, 2019
Wednesday, November 13, 2019
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).
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.
Monday, November 4, 2019
In a 4-3 ruling, the Supreme Court of Pennsylvania held that a 7-year statute of repose for medical malpractice, passed as part of a 2002 law designed to ease an alleged health care crisis, was unconstitutional. The majority found the statute of repose violated the right of access to the courts and had no substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums. Courts in at least 6 other states--Alabama, Indiana, Kentucky, New Hampshire, Rhode Island, and Utah--have also held med mal statutes of repose to be unconstitutional. Modern Healthcare has the story.