Chronicling the high cost of our legal system
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Eugene Volokh recalls (with a followup) a groundbreaking 1973 case in which the Tenth Circuit ruled that it could be found negligent for a supermarket to have installed a silent alarm that summoned the police when a holdup was in practice; a hostage was killed in the resulting shootout. The case is consistent with others in which lawyers have advanced theories summed up in the phrase “negligent provocation”.
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Thirty years after a jury ruled against his claims to be the inheritor of a fractional share of the reclusive tycoon’s wealth, Melvin Dummar still hasn’t given up. In a 19-page opinion, the Tenth Circuit has now upheld the dismissal of his latest lawsuit. (Pamela Manson, “10th Circuit Court of Appeals rules against Melvin Dummar and the ‘Mormon Will’”, Salt Lake Tribune, Sept. 13)(via Know Your Courts, Tenth Circuit/Colorado gadfly site).
Robert Ambrogi has more discussion on that case from Utah (Apr. 8 ) in which a litigant is suing an expert witness who changed his mind on the eve of trial about his willingness to support a medical malpractice suit, resulting in an adverse outcome. He mentions this site and quotes Ted, who
believes that [dissenting Tenth Circuit Judge Neil] Gorsuch is correct in his analysis. “The incentives of expert witnesses to give independent truthful opinions are already distorted, and should not be distorted further.”Beyond that, the court appears not to have thought through the consequences of its decision, he says. “Every cross-examination of an expert at deposition should now include questions relating to the expert’s fear of being sued.”
(Bullseye newsletter, May; sidebar on state-by-state immunities for experts).
Point of Law Volokh