Ronald Miller (Maryland Injury Lawyer Blog) on a case called Jarrett v. Jones: “The Missouri Supreme Court found [July 29] that a truck driver who was in a truck accident with another driver can sue for the emotional damages he suffered when he saw the dead victim in the other car. I’m not sure the decision is legally wrong. But it would not fly in the court of Moral Justice court.” (Aug. 8).
Rep. Sheila Jackson-Lee posed additional questions to me about my congressional testimony on the legislation to expand the 9/11 Victim Compensation Fund to cover Ground Zero dust litigation and “psychological injury.” I have posted my answers on line.
Walter’s post about Tehmina Haque’s lawsuit against American Airlines over her “fear” of an unrealized peanut allergy is not the first time her attorney, Kenneth Mollins, has attempted such a tactic.
Seems it’s not considered tortious when it’s done for a good cause by Mothers Against Drunk Driving and the local constabulary to a captive audience of public school students. (Balko, Reason “Hit and Run”; Pat Sherman, “El Camino teens face heavy emotions brought about by drunken-driving dramatization”, San Diego Union-Tribune, May 30). P.S. Scott Greenfield apparently has been thinking along similar lines.
The Canadian Supreme Court overturned the lower court C$341,000 decision in Mustapha v. Culligan of Canada, but it’s worth noting that the result would have been different in the United States. To recap, Waddah “Martin” Mustapha saw (but did not consume) a fly in a bottled water. As Yoni Goldstein memorably recounts:
[Mustapha] proceeded to vomit all over his house, and later experienced problems drinking anything with water in it, showering (because that also involves water) and going to work and having sex (where, presumably, water was involved in some major, incapacitating way).
Culligan did not contest that it was negligent; it did not even contest that the sight of the fly caused Mustapha’s injuries. It simply argued that Mustapha’s idiosyncratic reaction was not its concern, and that it should only be liable for the reaction of the reasonable person who had seen a fly in a bottle of water. In the US, that argument does not fly: basic 1L Torts teaches the “eggshell plaintiff” rule–you take the plaintiff as you find him or her. Canada differs. “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.” Canada is thus less prone to the sort of absurd claims that Mustapha raised than the United States is, as, if the courts follow the law, there is less incentive to exaggerate the scope of injury. In a US case, the defendant would have to engage in expensive pre-trial discovery to demonstrate that Mustapha’s psychological disorders were not caused by the incident, and would still have to go to a jury if Mustapha could produce an expert for hire who would testify differently. According to the Canadian Supreme Court, the appropriate approach is to simply use common sense and toss the case. But, as the lower court decision shows, there are certainly some in the judiciary who wish to move the Canadian model closer to the disastrous American one.
Martin Mustapha of Windsor, Ont. had won $340,000 over the fly for emotional distress and phobic reaction, though neither he nor any family member had come in contact with the water in question, since they spotted the insect before opening the bottle. Now the Supreme Court of Canada has refused to disturb an appeals court’s reversal of the award, and has ordered that Mustapha pay the water company’s legal costs. (”SCC quashes man’s suit over fly in bottled water”, CTV, May 22; earlier here and here).
An Arizona antiwar activist has been much criticized for selling a T-shirt with the slogan “Bush Lied, They Died” along with the names of the more than 4,000 U.S. servicemen killed in the war. Parents of a soldier killed in action in Iraq are suing, saying the use of their son’s name has caused them emotional distress; they want class-action status on behalf of all the parents of other soldiers killed in action, amounting to $40 billion. The suit’s Amended Complaint does little to advance the dignity of its cause with assertions like, “Most respectfully, this is a concept that even a mentally-challenged monkey could grasp.” (Howard Wasserman, Prawfsblawg, May 5; Balko, Reason “Hit and Run”, May 6; The Smoking Gun, Apr. 23).
Updating our Jul. 25, 2007 post:
A plaintiffs lawyer who alleged in court that his adversary’s questions at a deposition caused his client emotional distress has been sanctioned for filing a frivolous suit.New Jersey Superior Court Judge Alfonse Cifelli entered an order March 26, assessing $2,500 in sanctions against Bruce Nagel, of Roseland, N.J.’s Nagel Rice. He must also pay his adversary’s legal fees of $11,630.
However, Cifelli stayed both payments until the Appellate Division rules on a pending appeal of his ruling last October that dismissed Nagel’s suit.
Cifelli, who sits in Newark, had found Nagel failed to state a claim, holding the litigation privilege allowed the adversary, Judith Wahrenberger, to pursue questions she considered relevant without fear of being sued and that the questions were not “extreme or outrageous.”
Nagel says he has received much encouragement from fellow plaintiff’s lawyers for his action; however, any suspension of the usual litigation privilege in favor of personal liability for attorneys would have been very much a double-edged sword, since the asking of emotionally distressing questions during depositions is not exactly a rarity on either side. (Maria Vogel-Short, New Jersey Law Journal, Apr. 9)(link fixed now).
A Utah federal court will consider the Pace family’s lawsuit against California anesthesiologist Barry Swerdlow, whom they had earlier hired as an expert witness as part of their medical liability suit against another anesthesiologist, Stephen Shuput, whom they blamed for their late daughter’s death. After agreeing to come on board as an expert for the Paces, Swerdlow examined Shuput’s deposition and concluded that Shuput had met the standard of care; he proceeded to inform Shuput’s lawyers of this, and they quickly got the case dismissed. The Paces then sued Swerdlow for “malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress,” to quote AMNews’s catalogue. Swerdlow conceded that he was new at the expert witness game and that it would probably have been a good idea for him to have read Shuput’s deposition earlier. The EleventhTenth Circuit ruled that a lower court should consider the Paces’s contention that they had suffered legally actionable damages from Swerdlow’s actions. (Bonnie Booth, “Expert who changed mind claims immunity, but plaintiffs still sue”, American Medical News, Apr. 14).
Judge Gorsuch, dissenting from the EleventhTenth Circuit’s ruling, wrote:
Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court beyond the pleading stage simply for changing their opinions - with no factual allegation to suggest anything other than an honest change in view based on a review of new information - we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve.
(Decision of the Day, Mar. 5; Karen Franklin, Forensic Psychologist, Mar. 7; The Briefcase, Mar. 7).
A snapshot from Massachusetts of the campaign (national in scope) to create rights to sue for intangible damages against veterinarians, motorists, and others judged to have negligently killed a pet. Debra Campanile of Haverhill is on a mission to enact such a law, which, along with provisions for unbounded emotional distress damages, would require punitive damages to be awarded in a sum of at least $2,500. The story does not specify whether the $2,500 would be payable per incident or per actual creature whose life was ended, which could make quite a difference in the case of negligently knocking over Billy’s ant farm. (Laurel J. Sweet, “Push for liability in animal deaths would put….”, Boston Herald, Mar. 10).
Inevitably so? Maybe not. As longterm readers will recall, we were early and vocal among those calling attention to the legal travesty that was the Nifong prosecution, but it’s quite a jump from there to the proposition that the taxpayers of Durham, the university and its president Richard Brodhead personally should fork over money for emotional distress damages to, say, students never prosecuted at all and family members, who comprise the plaintiffs in this new case. (Kristen M. Daum, Newsday, Feb. 21; Bob Van Voris, “Duke Lacrosse Players to Sue School Over Rape Probe”, Bloomberg, Feb. 21; Malkin). The plaintiffs have a website here. (Corrected to fix misstatement on identity of plaintiffs. And broken link now fixed).
More: James Taranto at the WSJ quotes the Raleigh News & Observer under the heading “Yoo Hoo! Over Here! Ignore Us Please!”:
*** QUOTE ***The latest Duke lacrosse suit got off to a big start Thursday with publicists, lawyers of national renown, a media blitz at the National Press Club and a lawsuit with its own Web site.The 38 members of the 2006 Duke lacrosse team who filed the suit in federal court say their reputations were damaged by their association to an escort service dancer’s phony gang-rape allegations.
The players chose not to appear at the news conference, said Bob Bork Jr., the group’s hired publicist, because they don’t want to attract attention.
*** END QUOTE ***
If they didn’t want to attract attention, it might have made more sense not to call a press conference. Or, if they had already called it and felt they had no choice but to go through with it, maybe they could have created a diversion by having a stripper show up or something.
The News & Observer also notes at the end of its article:
Only three members of the 2006 team have not filed suit — Matt Zash, a former captain; Matt Danowski, the current coach’s son, and Kevin Mayer.
And more: Bob Bork, Jr. writes to say he was misquoted in the News & Observer report, and says the following is a transcript of what he did say about the players’ absence:
One final comment before we start. None of the 38 players who are filing this lawsuit are here today. They considered participating, but many have jobs and some are still students and lacrosse team members at Duke. One is in Army Ranger school preparing to deploy to Iraq.Know this — the players are united behind this lawsuit. At the same time that they are understandably concerned about retribution and slanderous media coverage. Who can blame them after what they endured for 13 months in 2006 and 2007. They are walking a fine line between trying to live normal lives in the wake of an unspeakable trauma and at the same time trying to get answers to questions that remain unanswered by their university.
In Duke lacrosse; emotional distress; libel slander and defamation; schools; sports
Jeb Corliss is a professional stuntman and BASE jumper who has parachuted from the Eiffel Tower, the Golden Gate Bridge and the Petronas Towers in Kuala Lumpur, Malaysia, but apparently none of his stunts compared to the trauma of being forbidden from jumping off the Empire State Building in 2006: he’s sued for $30 million, complaining that the stress of being handcuffed to the railing (after security officers pulled him down as he was climbing over the safety railing) has caused “emotional distress” and “adrenal fatigue.” The suit is a counterclaim to a suit the building filed against Corliss (for an only slightly less implausible $12 million) meant to deter other jumpers from endangering third parties; a judge had dismissed reckless endangerment criminal charges on grounds that Corliss wouldn’t actually endanger anyone by jumping, a ruling the city is appealing. [NY Times City Room Blog]
Three years ago we prematurely reported that sanity had (as of that point) prevailed in the New Mexico case where firefighters and emergency medical personnel, otherwise uninjured, were seeking to sue El Paso Natural Gas over the emotional trauma of witnessing the disaster scene after a 2000 pipeline explosion. Earlier this month, however, the New Mexico Supreme Court ruled the other way, poking a big hole in the “firefighters’ rule” which traditionally barred recovery by rescuers against those who cause accidents. Chief Justice Edward Chavez wrote that to throw out the emotional-distress suits would be to “reward reckless or intentional acts”. The suits now head to trial. (Stella Davis, “Responders can sue in pipeline explosion”, Carlsbad Current Argus, Dec. 5).
…sue Rick Brookhiser. But that’s not to say the emotional distress on my end isn’t real (NRO “The Corner”, Nov. 17).
P.S.: And yes, he did misspell my surname, which an old friend really shouldn’t do. But I don’t want him to correct it, lest more people who Google on my name wind up landing on the post.
I previously posted on Washington’s Insurance Fair Conduct Act, known as Referendum 67. If passed by the voters, it would allow first party claimants to recover triple damages and attorney fees for those claims “unreasonably” delayed or denied.
Existing law already allows a wronged insured to bring three separate causes of action against his/her insurer for such claims: breach of contract, bad faith and violations under Washington’s Consumer Protection Act (CPA). Such existing remedies often yield bizarre results as we saw in the Woo v. Fireman’s Fund case.
The Supreme Court’s knuckleheaded 5-4 ruling upheld a judgment to pay Woo $250K he paid to settle an underlying suit, plus $750K in emotional distress and attorney fees. Obviously, there are already plenty of incentives for an insurer to avoid these judgments by acting fairly, and under this legislation Woo could have received three times more as punitive damages in addition to the “emotional distress” damages which have a punitive measure built into them. And in case you are wondering, Fireman’s Fund coverage position was perfectly reasonable.
The television ads for the Approve 67 camp are demagogic and misleading, if not outright lies. The worst has to be the ad featuring Tiffany Forslund whose father, firefighter David Potter, died allegedly because an insurer delayed payment for necessary health treatment. Forslund says:
My father would have given his life in the line of duty, turns out the insurance company took it instead.
What tripe. Not only would R-67 not apply to her father’s claim (it is intended to benefit auto, home and property policies–not health insurance) it’s not true according to the mayor of the city for which Potter worked, who said it would be covered as a workers’ compensation claim or through the city’s health plan. But the attorneys promoting this legislation could not resist such a sympathetic story of a firefighter allegedly killed by an insurance company, even if it’s entirely off-point and probably untrue. Demagoguery at its finest. And, if the claim is true Potter’s family already has remedies under existing law for emotional distress, which, for a lost loved one are rightfully substantial and the threat of such judgments deter wrongful insurer conduct. Why shall we now triple those damages?
Attorney fees are typically one-third of the gross recovery. So if the gross recovery is tripled it equals a bigger fee. But let’s say the insured prevails but the gross recovery is small? No problem. Just submit your fee request to the court on an hourly basis if it provides a greater recovery for the attorney. And, here’s another little tidbit: the attorney fee provision is mandatory but the triple damages are at the court’s discretion. Who’s looking out for who here, really? And, that the triple/punitive damages are for the deliberately vague “unreasonable” and not for criminal, willful or wanton conduct as you would expect (and would be deserved) to award punitive damages makes for a juicy tidbit indeed.
And, there’s no crisis in the first place. Check out this link from the Insurance Commissioner of Washington State showing the number of complaints against individual insurers. In 2006, Private Passenger Auto Insurance Complaints averaged one complaint for every $1.5M in premium and Homeowners Insurance Complaints averaged one complaint for every $2.5M in premium. Hardly a crisis, and nothing worthy of threatening triple damages in every instance.
This legislation will enrich those attorneys bringing these suits, bring a windfall to a small number of insureds at the greater expense of all who pay insurance, directly or indirectly.
We recently covered the Caterpillar lawsuit, in which an American company was sued because of the way a foreign government used its products. Although the suit was dismissed by the Ninth Circuit, it wasn’t because it’s absurd to blame a manufacturer for how its products are used; rather, it was because — as Walter noted — the Caterpillar products were actually paid for by the U.S. government. Given that, it may not be much comfort to other companies being sued over the actions of foreign governments.
In 2004 and 2005, various Chinese citizens were arrested in China by the government of China, prosecuted for their pro-democracy activities, convicted, and sent to jail. They allege that, while in these Chinese prisons, they have been treated poorly by the Chinese government, and that they have suffered physical and mental anguish as a result.
So, in April of this year, these Chinese prison inmates sued the obviously-responsible party: Yahoo, naturally. In California. They sued Yahoo for violating federal law against torture. And for assault, battery, false imprisonment, unfair competition, intentional infliction of emotional distress, and for violating the U.S. Electronic Communications Privacy Act. In China. What was Yahoo’s wrongdoing? The company — or, rather, its Chinese subsidiary — allegedly provided evidence to the Chinese government which enabled the government to identify these people and prosecute them for breaking Chinese law.
Now, one may have no love for the Chinese government, or for companies that do business in China. One can argue that, ethically, Yahoo should refuse to cooperate with the Chinese government. But those are policy questions, and however one comes down on them, one can’t argue that a federal court in California can order a company to break the laws of another country. (The flaws in this should be readily apparent; as Yahoo notes in its motion to dismiss the case, under the logic of the plaintiffs, “A court in France could issue an injunction mandating that French companies doing business in America refuse to provide evidence in cases where the defendant might be subject to the death penalty.”) One can’t argue that a federal court in California can order a company to get a prisoner released from a Chinese prison (Yes, that’s in the lawsuit.) One can’t argue that a federal court in California can act as an appeals court for a Chinese trial, finding Chinese laws unconstitutional.
Yahoo is seeking to dismiss the case in its entirety. (Washington Post)
(Incidentally, it should go without saying that my introduction was not intended to compare the actions of Israel’s government in fighting terrorism with the actions of China’s government in punishing peaceful dissent. The only parallel here is the attempt to hold an American company responsible for the actions of a foreign government.)
Meanwhile, in other attempts to use the U.S. courts to run world affairs, a group of Bolivians have sued the former president of Bolivia, in the United States, for human rights violations that took place in Bolivia. (Reuters)
A medical-malpractice plaintiffs’ lawyer has brought a second suit, this one against the attorney for the defendant, arguing that the questions asked at a deposition inflicted emotional distress on his client. (Lisa Brennan, NJ Law Journal, Jul. 25 (via Scheuerman)).
This suit may well fall into the “Be careful what you ask for” category. If a defense attorney can be liable for exploring whether a plaintiff has responsibility for a decedent’s fatal head injury, why can’t a defendant doctor sue a plaintiffs’ attorney when accused of the same thing? (Note the plaintiffs’-attorney commenter who told one doctor to suck it up.) Odds are the whole matter gets dismissed on grounds of the litigation privilege, the idea that immunity is appropriate lest attorneys be deterred from litigating on behalf of their clients. One only wishes that the same principle would be applied to other situations, such as doctors being deterred from practicing medicine. Earlier: POL Jun. 20, 2006.
Point of Law Volokh