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Race and Gender Bias Leaks Into Personal Injury Damages

The Washington Post's Kim Soffen has a fascinating--and sad--analysis of how racial bias and gender bias affects the amount of money that plaintiffs can recover from lawsuits. This results from the use of models to determine how much a plaintiff has lost in future income and that include estimates based on someone's race and gender. This isn't just a reflection of the gender and racial wealth gap in the United States because we already know that implicit bias appears to cause a difference in how much white men make in comparison to white women and women of color for the same jobs. Soffen reports that projections that take into account average earnings by race and gender result in white and male victims receiving larger awards.

The Affordable Care Act has banned the the use of race and gender averages in health care premiums. Perhaps tort recovery lawsuits should have the same rule.

Personal Injury Litigant Accused of Falsely Claiming Mother Died to Excuse Court Absence

Submitted by Amaris Elliott-Engel on Wed, 09/14/2016 - 10:46

Here's a recent piece I wrote for the Connecticut Law Tribune about a bizarre scenario: a litigant suing for alleged personal injury has been charged with perjury because he allegedly falsely claimed his mother had died in order to excuse his absence from court. Sometimes, you can't make the world of law up.


An Arizona man sued Dollar Tree Stores, alleging that he fell due to a hole in the floor of one of the chain's stores in Hartford County.

But Kenneth Rowe has fallen into an even bigger hole after he apparently falsely claimed that his mother recently died and that was why he failed to show up in court for his civil lawsuit.

That so irked Connecticut Superior Court Judge Robert E. Young that he ordered that Rowe's testimony be referred to the state's attorney for the New Britain Judicial District to investigate if Rowe perjured himself.

In late August, an arrest warrant was issued for Rowe's arrest on one count of perjury, according to a report State's Attorney Brian Preleski sent to the judge.

Young has yet to decide if he will sanction Rowe.

Rowe started his lawsuit in February 2014, alleging that he fell Dec. 8, 2013, due to a hole in the rear of the Dollar Tree store in Rocky Hill. He claimed he had a lumbar-spinal injury and hurt his left ankle.

According to a court transcript, Rowe's first lawyer, Paul J. Garlasco of the Law Offices of Paul J. Garlasco, had trouble keeping in touch with his client, and he asked Dollar Tree to make a settlement offer of $5,000 "in order to entice [Rowe] back into communication."

When Garlasco relayed the settlement offer to Rowe late last year, Rowe allegedly hung up on his attorney. Shortly before the case was supposed to go to trial, Garlasco moved to withdraw from the case.

Rowe failed to show up at the trial management conference on Dec. 8, 2015. Then the judge, Garlasco and Nicole J. Tung, Dollar Tree's lawyer from Halloran & Sage, agreed to a judgment of nonsuit being entered against Rowe.

Rowe engaged John A. Locus, a Rocky Hill attorney, who filed a motion to reopen the judgment of nonsuit. In the motion, Locus wrote that his client was caring for his mother in the fall of 2015 after she experienced four strokes and dementia. Rowe further claimed he transferred his mother from Springfield, Illinois, to an assisted living facility in Scottsdale, Arizona, and continued to care for her until her death on Feb. 5, 2016.

"It was both reasonable and compassionate for the plaintiff to tend to his mother in her final months as her health deteriorated," Locus wrote. "To preclude the plaintiff from reopening his case would deny him his rightful day in court."

The judge held a hearing on whether to overturn the nonsuit in May. According to a court transcript, Rowe testified he had told Garlasco he couldn't make the conference because he was caring for his ailing mother.

According to the court, however, Garlasco only said that all communications had broken down with his client and he needed to withdraw from the case.

While cross-examining Rowe, Tung presented an affidavit of a defense investigator who contacted Rowe's mother, Theodora Rowe, three months after she had allegedly died. According to the law firm, it received an anonymous tip that Rowe's mother was alive and well in Chicago and a phone call proved it to be true.

Young immediately asked for a recess at the spring hearing. After the recess, Locus said that Rowe consented to withdraw the motion to reopen his case.

"We have a situation here where either Theodora Rowe is dead or alive," Young said. "She can't be both. And if, in fact, Theodora Rowe is alive, and Mr. Rowe—Ken Rowe is here today sitting next to me under oath and testifying to the death of his mother, that would be a very serious fraud upon the court."

Rowe could not be reached for comment. Locus did not respond to a request for comment, while Tung declined comment.


Spotlight Put on Limits on Gun Torts in Mass Shootings

Submitted by Amaris Elliott-Engel on Sun, 08/28/2016 - 18:53

Here is a recent piece I wrote for the Connecticut Law Tribune about the limits on liability for mass shootings:

The debate over guns usually brings to mind the Second Amendment and legislators passing laws about background checks and keeping guns out of the hands of people on the terrorist watch list or with mental health problems.

An event last week at the American Museum of Tort Law in Winsted highlighted the role of tort law in addressing the shooting of unarmed people. Speakers included Connecticut U.S. Sens. Chris Murphy and Richard Blumenthal and plaintiffs attorney Joshua Koskoff.

Koskoff is prosecuting a tort lawsuit on behalf of some of the families of the children killed in the Sandy Hook school shooting against Remington Arms Co., which manufactured the "Bushmaster" AR-15 rifle used by Adam Lanza to kill six adults and 20 children in 2012.

In an interview prior to the event, Murphy said that the purpose of tort law is to give victims a means of redress and, as a result, "tort law has had an ancillary benefit over the years in making products safer."

But, according to Murphy, victims of gun violence cannot get the same means of justice as other victims of civil wrongs can.

He points to the federal Protection of Lawful Commerce in Arms Act (PLCAA), which was enacted 11 years ago and bans lawsuits against firearms manufacturers for harms resulting from the criminal or lawful misuse of those type of products.

The PLCAA "represents the apex of the gun industry's power," Murphy said.

However, Murphy said the political influence of the gun industry is clearly on the decline and it is now playing defense, not offense, on legislation. "There was a period of time when they were getting anything they wanted," he said.

Murphy rose to national attention for giving a 14-plus hour filibuster in June until the Senate acted on gun control legislation.

Koskoff, an attorney with Koskoff Koskoff & Bieder, has a pessimistic view of the PLCAA, saying it was hard to imagine a more favorable law to the gun industry, especially in comparison to the laws of other countries.

The plaintiffs in the Sandy Hook lawsuit have been successful in arguing that the PLCAA does not prevent them from prosecuting their theory that the AR-15 is a military weapon that should not have been sold to civilians.

In an interview after the event, Koskoff said that he explained in his remarks that the theory of the Sandy Hook case is that the AR-15 is uniquely perilous among other guns because it was created for the military to kill enemies in war.

The theory is that the gun is a dangerous instrument and it is negligently entrusted by Remington by selling he AR-15 to civilians who go on to use the gun in fatal shootings at schools, holiday parties and nightclubs, Koskoff said.

The lawsuit does not present theories that the AR-15 was defective or that the AR-15 is more dangerous than it needs to be, Koskoff added.

By participating in the museum event, Koskoff said he learned how interested the community is in the issue of gun violence and how they can help make things safer. "We can't just go on the way we've been going," Koskoff said. "It's not consistent with a thriving civilization."

Tort law not only provides a remedy to people who have gone through a terrible loss, but it creates a deterrence for wrongdoers and helps inform their future choices, Koskoff added.

"Without that you have no incentive for industry to act in a manner that keeps us all safer," Koskoff said.

Rick Newman, the executive director of the museum, said that the museum is holding events to highlight the benefits of tort law in making life better for everyone.

"Tort law really benefits people by compensation but also by deterrence and disclosure of wrongdoing," Newman said.

This spring, the museum had an event about how tort law has exposed patterns of sexual abuse in religious institutions. The museum also is planning a program in the future about sports and torts.

Last week's program highlighted the tension between "how do we preserve and protect the Constitution [with its] right to bear arms and, at the same time, balance people's fear against sudden, random, mass slaughter," Newman said.

Newman said he does not have a position on where to draw the line, but that he wants the museum to be part of convening that conversation.

Suit Over Fallen Tree Highlights Bane of Foreclosure

Submitted by Amaris Elliott-Engel on Mon, 08/15/2016 - 00:18

Here is a freelance piece published last month by the Connecticut Law Tribune:

Vacant, foreclosed homes have become a bane in many neighborhoods in the United States. There are currently 896,913 properties in some stage of foreclosure in the United States, according to RealtyTrac.

The impact of vacant, foreclosed homes is affecting Connecticut too. Two homeowners in Wyndham County have been living through the experience of having a foreclosed home in their neighborhood.

HSBC Bank owns the property at 231 Ballouville Rd. in Killingly, after foreclosing on the prior owners in April 2014. The property has been listed for sale through real estate agent David Izzo.

Neighbors Clinton Corbin II and Barbara Bouthillier complained to HSBC's realtor in February 2015 that a tree on the property was damaged, decaying and a danger. Izzo came out to take pictures of the tree.

A month to the day that the realtor had been out to inspect the tree, it fell onto Corbin's and Bouthillier's work shed. The shed, which was appraised for $28,000, was destroyed and all of the work tools and other personal items were destroyed, according to the plaintiffs' complaint.

The property owners sued, claiming that HSBC was negligent in not taking reasonable care to remove the damaged tree from the foreclosed property. They also argued that the tree was a nuisance which created an unreasonable interference with their use and enjoyment of their property.

Corbin and Bouthillier, however, ran into the barrier of the common-law rule, which started in England, that landowners are only liable for artificial conditions they create on their land, not for trees and other natural conditions on their land.

Connecticut Superior Court Judge Harry E. Calmar ruled that Connecticut continues to follow the common-law rule, which is reflected in the Restatement (Second) of Torts law treatise. The Second Restatement says that a property owner is not "liable for physical harm caused to others outside of the land by a natural condition of the land," except for trees falling on public highways when properties are in urban areas.

"Natural condition of the land is used to indicate that the condition of the land has not been changed by any act of a human being," Calmar wrote. "There is nothing in the plaintiff's complaint to suggest the tree in question is anything more than a natural condition upon the land, and for such reason the rule of the Restatement applies."

Corbin and Bouthillier were unsuccessful in their effort to change Connecticut law and obtain a ruling that private landowners can be liable for damages when a tree falls on private property.

Matthew-Alan Herman, of the Law Office of Alan Scott Herman in Putnam and counsel for the homeowners, argued that Connecticut should follow a different legal treatise, The American Jurisprudence Second Edition. That treatise says that "a landowner who knows or should know of a dangerous condition of a tree on one's property may be held liable for the injuries caused or damage done when the tree falls on an adjoining landowner's property."

"An extensive search of case law shows that the law has moved away from the traditional approach recited in the Restatement," Herman argued. "Connecticut, while not yet ruling directly on the issue, has also indicated it has adopted the more modern approach establishing liability."

Herman said in an interview he was disappointed that his client's case was dismissed at the motion to strike stage even though the trend in other jurisdictions has been to recognize liability for property owners when they have constructive or actual notice that a tree is in defective condition.

The idea that property owners have no liability for a natural condition "doesn't add up in fairness or equity," Herman said. "They should be held responsible for something they knew … and were aware of was in defective condition."

Herman noted in the homeowners' brief that the Restatement only allowed liability for a fallen tree near a highway, while the American Jurisprudence treatise permits liability when a tree falls onto an adjoining landowner's property.

Some courts have followed a similar line of reasoning as the American Jurisprudence treatise. For example, the New Hampshire Supreme Court ruled in an issue of first impression just five years ago that a landowner who knows a tree is decayed or defective has a duty to eliminate the tree's dangerous condition.

Connecticut courts, however, view the Restatement extremely favorably, Herman said.

Thomas A. Kaelin, of Woodbury and counsel for HSBC, argued in court papers that "the general rule still governs and the rule is that in cases not involving public highways, there is no liability on a landowner for damages caused by a tree falling on a neighbor's property."

Counsel for HSBC declined to comment.


Private Prison Company Can Be Held Liable for Rapes, Court Rules

The New Mexico Supreme Court ruled this week that a private prison company can be held liable for three female inmates who were raped by a guard, The Associated Press' Morgan Lee reports. The Corrections Corporation of America was found liable for $3 million in damages.

That award is on appeal to the Tenth Circuit. The federal circuit court certified a legal issue to the New Mexico Supreme Court on whether the prison operator could be found liable when the employee was aided in committing the rapes due to his job position. The state court ruled affirmatively on the question.


Small-Scale Violations of Medical Privacy Go Unpunished

Small-scale breaches of patients' medical privacy are going unpunished because officials at the federal office for Civil Rights focus on voluntary compliance as the remedy, ProPublica's Charles Ornstein reports. Many people also cannot turn to their own lawsuits for redress. The Health Insurance Portability and Accountability Act doesn't allow for a private cause of action, and states vary on how much protection tort law provides for medical privacy.

Indiana courts have ruled that healthcare providers are liable for employees who snoop in medical records, but courts in Ohio, Minnesota and New York, as well as other states, have rejected those types of claims, Ornstein reports.

Small-scale breaches of medical privacy can cause the most harm, Ornstein reports. For example, an employee at a New Jersey hospital disclosed that an 11-year-old boy had attempted suicde. The revelation caused him to be bullied at his school, Ornstein reports. In another example, a dental assistant had a former friend post on Facebook that she had the STD human papillomavirus.


BP Can Appeal Some Gulf Spill Claims

The U.S. Court of Appeals for the Fifth Circuit ruled earlier this month that British Petroleum has the right to appeal some damage claims awarded in the aftermath of the Gulf oil spill, Reuters' Jonathan Stempel reports.

The circuit court found that the settlement agreement did not resolve claims itself, but established a mechanism for the trial court to resolve claims. As a result, BP can appeal claim determinations by U.S. District Court Judge Carl Barbier.

NY Legislation Would Criminalize Filming Patients Without Prior Consent

A New York Assemblyman has proposed legislation that would make it a felony to film patients receiving medical treatment without prior consent and give patients and their families a private cause of action to sue for damages, ProPublica's Charles Ornstein reports. The bill was filed after a TV show aired the final moments of a patient's life while he was being treated at NewYork-Presybterian Hospital/Weill Cornell Medical Center, and his wife recognized his voice when she saw the episode. New York does not recognize a common law right to privacy.

Attorneys Fight Decision on Asbestos Punitive Damages

Defense attorneys plan to appeal a decision by a Manhattan Supreme Court justice to allow the consideration of punitive damages in asbestos lawsuits for the first time in almost 20 years, The New York Law Journal's Jeff Storey reports. Supreme Court Justice Sheri Klein Heitler, coordinator of the New York City Asbestos Litigation (NYCAL) court, opined that plaintiffs are able to seek punitive damages in every court except her court and "'I, for one, cannot justify a situation in which an asbestos plaintiff is permitted to apply for punitive damages in Buffalo but not in this court.'"

The NYCAL has been criticized by the defense bar and tort reform groups as an outlier where "damages are significantly higher than in other jurisdictions and rulings and procedures do not give proper regard to due process rights of defendants," NYLJ further reports.

Sandy Hook Families Sue School Over Shooting

Two families of children killed in the Sandy Hook Elementary School shooting two years ago have sued the town of Newtown over allegedy lax security at the school, the Hartford Courant's Dave Altimari reports. The lawsuit alleges that a substitute teacher "had neither a key to lock the door nor any knowledge of the … safety and security protocols rehearsed at the Sandy Hook Elementary School in case an intruder or other dangerous individual gained access to the school." In that classroom, shooter Adam Lanza killed all but one girl.



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