TortsProf Blog

VA: Bill to Eliminate Med Mal Cap Fails

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.

IN: Senate Passes COVID-19 Immunity Bill

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.

MO: COVID-19 Immunity Bill Ready for Vote in Senate

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.

Nursing Homes Plead PREP Act Immunity to COVID-19 Cases

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.

China's New Civil Code

China Global Television Network, the English language version of China's state television, hosted a discussion of China's new civil code.  At Otherwise, George Conk, a panelist on the show, has details.

IA: Punies Not Available for Victims of Excessive Force by Law Enforcement Officers

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.

Sen. McConnell Ties Increased Stimulus Checks to the Repeal of Section 230

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.

"Personal Rights" in China's New Civil Code

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. 

PA: Governor Vetoes COVID-19 Immunity Bill

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. 

Op-Ed: Capers, Goldberg & Zipursky on Reforming Police Liability at the State Level

At The Washington Post, Bennett Capers, John Goldberg & Ben Zipursky explain that reforming police liability does not necessarily take an act of Congress.

Lytton: Against COVID-19 Lawsuit Immunity

Tim Lytton has an editorial in USA Today:  "Blanket COVID-19 liability shield for businesses is not the immunity we need in this crisis".

TN: Special Session on COVID-19 Immunity

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.

LA: Tort Reform Bill Signed by Governor

In early July, I reported that a tort reform bill in Louisiana had passed both houses of the legislature, and the governor said he would sign it.  Governor Edwards did sign the bill and JD Supra has this overview.

CA: Med Mal Cap Vote in 2022

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.

NY: Lawmaker Introduces Bill Requiring Police Officers to Carry Personal Liability Insurance

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.  

LA: Tort Reform Bill Passed; Governor Will Sign It

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.

MO: Governor Signs Bill Reforming Punitive Damages

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.

GA: COVID-19 Immunity Adopted

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.

COVID-19 Waivers

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.

 

Ramirez on Reforming the Police Through Liability Insurance

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.