Strike!
Can a community college be sued when a pitcher on its baseball team intentionally hits an opposing player in the head with a baseball?
Sure.
Can the school be held liable?
7th Circuit Rebufs Lawsuit of Wrongfully Imprisoned Man
Mr. Wallace was 15 years old when he was charged with murder. He served eight years in prison before an appellate court determined that he was arrested without probably cause and that his confession was tainted by the illegal arrest.
He sued, but the 7th Circuit Court of Appeals held (a) the suit was untimely because it had to be filed at the time of the arrest, not after the conviction was voided and (b) any damages would be limited to the period between the arrest and the arraignment, not for the eight years spent in prison. The case is Wallace v. City of Chicago, No. 04-3949; read it here.
The result is not only at odds with the 2nd, 4th, 5th, 6th and 9th Circuits but also with a decision of the 7th Circuit just a couple years earlier in Gauger v. Hendle, 349 F.3d 354 (2003).
ATLA Takes On The President
ATLA CEO Jon Haber’s Statement in Response to Bush’s Attacks Today on the Civil Justice System
(Washington, DC)-ATLA CEO Jon Haber issued the following statement in response to Bush’s attacks today on the civil justice system:
“It would take the President less than a minute to discover the number of physicians is on the rise, not declining, and that the reason for inflated malpractice insurance premiums is directly attributable to insurance industry greed. Bush carelessly throws around terms like ‘junk lawsuits.’ But the civil justice system he is attacking protects families who lose children as the result of medical negligence and patients who suffer devastating injuries — all of whom deserve accountability. So it appears the ‘plethora of lawsuits’ the President referred to must be buried out there somewhere with the weapons of mass destruction in Iraq.”
The State of the Vioxx Litigation
Here is probably the best article I have read about the status of Vioxx litigation after the New Jersey verdicts.
Lynn Swann Calls for Tort Reform
Lynn Swann, Republican candidate for Governor of Pennsylvania, has called for tort reform. Read more here.
Yet another reason for me to dislike the Steelers (except the Bus – I think the Bus is fantastic.)
Thanks to Torts Prof Blog for bringing this article to my attention.
Drug Sharer to Face Jury
Mr. Kasey shared his Oxycontin with another, who gave it to her boyfriend (at the same party) who it turn consumed the drug with alcohol. The recepient/user died in his sleep from the combination of the drugs. His mother sued Kasey.
Kasey defended by arguing that he did not owe a duty of care to the decedent and that his conduct was not the proximate cause of the death.
The Arizona Court of Appeals held that a duty was present, saying as follows:
Error to Show Photos of Vehicles in Minor PD Case
Here is another decision that makes it reversible error to show photos of vehicles involved in a wreck, point out minor property damage, and then argue that the plaintiff could not have been injured.
The New Jersey Appellate Division said this:
“Given the narrow field of dispute, the photographs served no apparent purpose other than to suggest the accident was low-impact and minor and, therefore, not the cause of plaintiff’s condition. For reasons already advanced, we find this inference impermissible absent an expert foundation. And lest there be any doubt as to defendant’s real purpose, counsel referred to the accident as a “fender bender” on three separate occasions in her opening and closing remarks. Clearly, this argument played a prominent role in the defense, especially in light of the polarity of medical views on causation, and was identical to that found objectionable in Davis. By the same token, nowhere in her argument did defense counsel explain to the jury how, based merely on the extent of property damage, a fact finder could assess the origination of plaintiff’s injury or whether any pre-existing condition she may have had was exacerbated by the impact. In any event, defense counsel’s argument clearly transgressed what was to be, at least according to the trial court’s tacit understanding, the limited use to which the photographs would be put. Even more significant, however, counsel’s commentary contradicted her own medical expert who opined no such connection or correlation between impact and injury exists. Under the circumstances then, we conclude that the introduction of the photographs without appropriate limiting instruction, when considered together with counsel’s uncured comments thereon, allowed the jury to speculate, unguided by any expert basis, as to the cause of plaintiff’s injuries, and thus created a clear capacity for an unjust result.”
Lanier v. Merck, Round 2, Post 21
The jury has punitive damages under consideration. Read more here.
Patient Wins Doctor’s Case Against Insurance Company
This doctor got hit for an excess verdict in a medical malpractice case. He assigned the patient his bad faith claim against his insurer, alleging that it refused to settle the case within the policy limits and assigned him a lawyer with a conflict. The patient won compensatory and punitive damages. The case is Jurinko v. The Medical Protective Company, No. 03-CV-4053 (E.D. Pa. March 29, 2006).
The trial judge affirmed entry of judgment and issued the opinion including the following remarks:
“[Defendant] Medical Protective employee James Alff admitted that he knew that [the original defendant] Dr. Marcincin’s exposure was in excess of $50,000, and yet he never offered more than $50,000.9 The jury also heard testimony that the [excess] CAT/MCARE fund had informed Medical Protective that their failure to tender was in bad faith and was undermining the settlement of the case. Alff admitted that Dr. Marcincin could not negotiate with funds from his $1 million secondary line of coverage (the CAT/MCARE fund) without tender of the full policy limits. Alff also admitted to unfair gamesmanship in his negotiating tactics, and attempting to get the CAT/MCARE fund to cover Dr. Marcincin’s liability from Dr. Edelman’s line of coverage in order to save Medical Protective money. The evidence demonstrated that both Alff and Jacqueline Busterna, who was negotiating for the CAT/MCARE fund, believed the case would settle for around $1 million. From the evidence presented, it was also possible for the jury to conclude that the Jurinkos would have been offered approximately $1 million had Medical Protective tendered its policy, even if the CAT/MCARE fund had not offered any money from Dr. Marcincin’s $1 million line of secondary insurance. Overall, the Court finds sufficient evidence for the jury to find bad faith.