Civil procedure in the federal courts has changed dramatically over the past few years, primarily through the Supreme Court’s manipulation of doctrine to encourage lower courts to dismiss tort, class action, antitrust, and civil rights cases. As I wrote a year ago in a guest post at TortsProf:

[A]s the courts become increasingly obsessed with deciding complicated cases by reference to procedural doctrines that ask the court to leave its expertise in the law and feign expertise in complex factual situations, courts run an increasing risk of becoming wholly unmoored from the facts of the disputes they are trying to decide. If a primary concern about tort litigation is that it is unpredictable — as is often stated by tort reformers — then everyone should be concerned when judges decide for themselves the dispositive facts of cases.

In early May of this year, Professor Suja Thomas had published an article in Judicature explaining how the summary judgment standard had “become a proxy for a judge’s own view of the evidence.” In one of her examples, she compared the majority and dissent opinions in Scott v. Harris, 127 S. Ct. 1769 (2007), a civil rights case involving a police chase, and just how far the majority had to leap to enter summary judgment for the defendant, preventing the plaintiff from ever presenting his case to a jury.

Then, on May 5, 2014, came Tolan v. Cotton, a civil rights case with depressingly common facts: with slim-to-none probable cause, a police officer instigated a confrontation with homeowners and ended up shooting a family member, permanently injuring him. There, all nine members of the Supreme Court agreed that the underlying court had dismissed the case based on their own view of the evidence, and so reversed the entry of summary judgment: 
Continue Reading The Supreme Court’s Results-Oriented Summary Judgment Precedent

First, an important credit: The Philadelphia Inquirer has devoted a half-dozen stories to the plight of Barbara Mancini. All the facts described in this post come from their reports.

Joseph Yourshaw, 93 years old and a World War II veteran who had served in the Battle of the Bulge, was in home-hospice dying from kidney failure, end-stage diabetes, and heart disease, with additional complications from a stroke and pain from arthritis. Barbara Mancini was a nurse in Philadelphia and, it seems, quite a good daughter, as she had made the 2-hour trek up to Pottsville in Schuykill County to be bedside with him and to help him with his medications. He was in severe pain, as usual, and he had a prescription for morphine. She asked the hospice nurse for a bottle of morphine; it’s apparently disputed whether she asked for a second one after already giving him one, or whether she asked for a second one because the first hadn’t arrived yet and Yourshaw was in pain.

And that’s when the nightmare started. The hospice nurse called 911, and reported the following:

The nurse “told me that her client had taken an overdose of his morphine with the intent to commit suicide,” [police officer] Durkin wrote in his report.

The nurse said Mancini, who also is a nurse, gave her father the morphine “at his request so that he could end his own suffering,” Durkin wrote.

Before getting to the prosecution, let’s start with the factual predicate. If everything the nurse said was true — thus far, as is typical when there is a criminal prosecution, Mancini has not given her side of the story publicly — then so what? Pennsylvania law allows a person to voluntarily die by way of suspending medical care, food, water, ventilation, and so on and so forth; the state even has a website set up so people can correctly set up their advance directives for health care paperwork. If we allow someone to literally starve himself to death rather than continue living with a terminal illness, why don’t we allow him to simply increase the dosage of the pain medication he’s already taking?

Indeed, the United States Supreme Court has already said it’s okay for States to allow patients to request life-threatening levels of palliative medication:

Just as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended “double effect” of hastening the patient’s death. See New York Task Force, When Death is Sought, supra n. 6, at 163 (“It is widely recognized that the provision of pain medication is ethically and professionally acceptable even when the treatment may hasten the patient’s death, if the medication is intended to alleviate pain and severe discomfort, not to cause death”).

Vacco v. Quill, 521 U.S. 793, 807, Fn 11 (1997). But, just because something is “ethically and professionally acceptable” doesn’t mean it’s lawful in Pennsylvania, and our Commonwealth still has the absurd notion that what allegedly happened to Mr. Yourshaw was a terrible crime.
Continue Reading Barbara Mancini, Allegedly Guilty Of Mercy For Her Father

It’s October, which means the Supreme Court is back in session, ready to continue its pro-big-business charge. It also means it’s time for me to get back to a recurring theme on my blog: if past sessions are any indication, then no matter what the Supreme Court decides this year, it’s likely that it won’t have a clue what it’s talking about, and its opinions will be littered with dubious factual conclusions.

This problem seems to be getting worse in the era of the Roberts Court, which has taken judicial activism to a new level. Back in 2009, I recommended the Supreme Court circulate draft opinions publicly — the same way that bills are proposed in Congress and regulatory changes are proposed in agencies — before making them the law of the land. In February 2012, Alli Orr Larsen wrote about “Confronting Supreme Court Fact Finding,” perhaps by way of an agency analogous to the Congressional Research Service, which I discussed here.

But it’s important we recognize that the problem of Supreme Court “fact finding” isn’t just a matter of the Court not understanding cable television markets or how plaintiff’s lawyers are compensated differently from defense lawyers. The Supreme Court’s factual misunderstandings intrude very deeply into some of the Court’s core doctrine.

Take, for example, qualified immunity in civil rights lawsuits. It would make sense if people could sue State governments to recover damages when their constitutional rights are violated — like when police officers literally break someone’s face for back talking — but the Supreme Court has erected tall barriers against such relief. It’s not enough to prove constitutional rights were violated; the plaintiff also has to jump through a variety of hoops, such as suing the police officer individually, rather than the municipality or county, for the violation, and then they have to show that their right was “clearly established” and that the violation “shocks the judicial conscience,” which is so ambiguous that it’s really just code for giving federal judges a way to get rid of civil rights lawsuits they don’t think should succeed. 
Continue Reading The Depth Of The Supreme Court’s Factual Misunderstandings

Yesterday, the Supreme Court unanimously held in Millbrook v. United States that 28 U.S.C. § 2680(h) — the statute that permits lawsuits against “investigative or law enforcement officers of the United States Government” for claims arising “out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” — means just what it says, reversing nearly thirty years of law in the Third Circuit. So why did the Supreme Court have to tell us that a statute meant what it obviously meant?

The case arose from a prisoner in the United States Penitentiary in Lewisburg, Pennsylvania, who alleged “that he was taken to the basement of the SMU and forced to perform oral sex on Correctional Officer Pealer while Correctional Officer Edinger held his neck and Correctional Officer Gimberling stood watch by the door.” “SMU” stands for “Special Management Unit”; if you’ve ever watched a movie or TV with a prison in it, you know SMU as “the hole.”

Millbrook alleged he was assaulted, battered, and falsely imprisoned by three law enforcement officers of the United States. Under § 2680(h), there’s not much more to ask about the case: his claim was exactly the sort of claim Congress sought to permit when it amended the Federal Tort Claims Act in 1974 in response to a disturbing rise in “no knock” raids that destroyed homes and even killed people — without even probable cause or a warrant, as required by the Fourth Amendment. (It’s a couple years old now, but this long report from Radley Balko on the rise of paramilitary raids by domestic law enforcement is essential reading — sadly, the problem has gotten much worse in the past 40 years.) The law means, quite simply, that the United States is liable when investigative or law enforcement officers of the United States Government commit those specific intentional torts in the scope of their employment.

In the years since the Act’s passage, the courts have been busy eviscerating it by granting the government and its employees an increasing amount of immunity. In 1986, the Third Circuit decided in Pooler v. United States, 787 F.2d 868, 872 that  § 2680(h) was limited to claims where the “investigative or law enforcement officers” were “executing a search, seizing evidence, or making an arrest.” The Third Circuit reasoned: 
Continue Reading Allegedly Abused Prisoner Wins Unanimous Supreme Court Tort Case (Was It All Justice Alito’s Doing?)

Two weeks ago I discussed how banks routinely targeted the most financially vulnerable members of society for fraudulent overdraft and debt collection procedures. If there are three words to sum up the American economy for the lower half of earners, it’s “nickel and dimed.” When Barbara Ehrenreich was researching her book Nickel and Dimed, she was shocked by “the totalitarian nature of so many low-wage workplaces. On two jobs, for example, there was a rule against talking with your fellow employees.”

It’s hard not to use the phrase “nickel and dimed” every time I read about a Fair Labor Standards Act case, and yesterday The Legal Intelligencer reported on the $20.9 million settlement of a wage-and-hour class action against Rite Aid. If anyone’s interested, the Order approving the settlement is here. While it was being litigated, the case also produced a good opinion in the Third Circuit, reported at 675 F.3d 249, which allowed state and federal wage-and-hour claims to be brought together in hybrid class/collective actions, bringing claims for the same actions under state and federal statutes.

The class action was brought on behalf of Rite Aid’s assistant store managers and co-managers, whom the company had claimed were part of management, and thus, they claimed, exempt from overtime pay requirements under the FLSA and its analogous state wage-and-hour laws. The lawsuit sought a change in the employees’ designation as well as reimbursement for unpaid overtime wages — and it won on both fronts, forcing a change in the company’s policies two years into the lawsuit and recovering an average of $1,800 to each of the class plaintiffs. (If you’re interested in exemptions law, back in October, Andrew Frisch of Morgan & Morgan at the Overtime Law Blog summarized some recent exemption court opinions.)

There’s a lot of doom-and-gloom in the plaintiff’s bar these days. Over the past decade, the Supreme Court has amended by fiat the Rules of Civil Procedure relating to pleading, has been on the warpath against class actions, has granted the word “arbitration” magical powers even greater than “abracadabra,” and has blown up virtually all lawsuits against generic drug manufacturers — all regardless of the laws Congress actually wrote.

But one area in which plaintiffs have done well recently has been the Fair Labor Standards Act. 
Continue Reading Using The Fair Labor Standards Act For Nickel And Dimed Employees

“Referral fee” can mean a lot of different things in the law. The plainly unethical version involves lawyers paying non-lawyers (like doctors or tow truck drivers or union bosses) to send them potential cases, but, when plaintiff’s lawyers use the term “referral fee,” they usually mean: the part of a damages award or settlement that one lawyer takes from the overall contingent attorney’s fees for sending a potential client to another lawyer. Perhaps the most common is the “third of a third,” in which the client is represented on a one-third contingent fee (i.e., the lawyer takes one-third of any settlement or verdict), and then that fee is split between the lawyers so that the referring lawyer takes one-third of the fee while the lawyer who litigated the case takes two-thirds of the fee. If the underlying fee agreement with the client seeks 40%, then often the referral fee will be 40% of that fee.

Referral fees are the lifeblood of the injury, malpractice, and product liability world. Sure, the litigating attorneys frequently grumble about paying such a sizable fee given that the referring attorney “did no work” and “didn’t pay any costs.” But those same attorneys, when they’re the referring attorney, don’t hesitate to point out that the litigating attorney wouldn’t have the case at all without the referral fee, and that the referring attorney could have just as easily run with the case as co-counsel. (Indeed, referral attorneys often do stay around as “co-counsel” on the case, even if they do only nominal work, a point we’ll return to in a moment.)

The existence of referral fees creates a marketplace among lawyers for injury claims, and thus a marketplace for good lawyers. Take a look at the top plaintiff’s law firms in a given city and I can guarantee you that not one of them was built on television commercials, or Yellow Pages (yes, they still exist), or Avvo reviews, or search engine optimization — they were built on reputation and referral fees. Those lawyers proved themselves in court, and, as their good reputation grew, more and more cases were referred to them, providing stronger and larger cases and allowing them to be more selective, and the virtuous cycle continued.

Tort reformers press for an alternative to this system, one in which referral fees are banned.  If they get their way, the prohibition on referral fees would remove the incentive that drives “large net” advertising, which can be annoying but serves the purpose of connecting injuries people with appropriate legal counsel. Without referral fees, the lawyers with the inclination and the budgets to advertise won’t send clients to the lawyers who are best able to handle the client’s claim. That, in turn, would encourage lawyers who are not the best suited for a particular claim to “give it a shot” and to try to litigate the case themselves — to the detriment of the client.

Which brings us to the Law Offices of Catalano & Plache v. Brustin case reported by the New York Law Journal. I’m not familiar with Catalano & Plache, which, according to the NYLJ, “had an ongoing relationships with the Ramapough Tribe, which has a presence in Bergen County, N.J., and Rockland County, N.Y., and had represented the tribe’s interests for more than 17 years.” But I am familiar with the defendants, Neufeld Scheck & Brustin and Emery Celli Brinckerhoff & Abady, two of the most prominent civil rights law firms in New York City. You might be, too: the “Neufeld” and “Scheck” are the co-founders of the Innocence Project. 
Continue Reading On The Legality of Referral Fees: The NJ Civil Rights Attorney’s Fee Fight

I suppose it’s unsurprising that criminal defense lawyers and plaintiff’s lawyers would all have concerns about the use of Tasers — the Taser victims and their family members end up in our offices — but even prosecutors and municipal and state defense lawyers (speaking off the record, of course) express dismay at the frequency and manner in which Tasers are used.

By Amnesty International’s count, since 2001 over 500 people have died in the US as a result of Taser use. Police departments have just begun admitting there’s a problem. Cincinnati’s police chief has admitted Tasers can kill. Seattle won dismissal of the civil rights claims in a case case where they Tasered a pregnant woman for refusing to sign a speeding ticket and, rather than crowing over their victory, said they had already changed their policy. It’s a start; as I’ve discussed before, the tendency of police departments to move from zealous law enforcement to brutality is all too common.

Alas, if you’re a criminal defense lawyer or a civil rights lawyer, then you instinctively rolled your eyes the moment you read the phrase “changed their policy.” To what? Do these new policies treat Tasers the way they should be treated — given the studies confirming real risks of heart attacks and skull fractures — as a means of last resort, literally a substitute for a bullet, instead of a more convenient means of obtaining compliance? Or do these new policies merely warn about “extended or repeated Taser exposure” — which some police officers will gladly read as including more than a minute of tasing, and dozens of shocks — with an all-purpose exception for “active resistance,” so the police officers can always claim the suspect was “actively resisting” and thereby comply with the Potemkin policy?

Which brings us to the point of this post. So, you’re a plaintiff’s lawyer, and a client (or their survivor) has just come in after a tasing incident. Now what?

There are three main claims you could bring: (1) excessive force civil rights claims against the cops; (2) a Monell practice or policy claim against the police department; and, (3) a products liability claim in strict liability or negligence against Taser International itself.

Excessive force claims (of all types, not just Tasers) are common; they’re disfavored by federal courts that are a bit too keen on summary judgment, but they’re typically inexpensive to litigate and can provide for attorney’s fees if successful, which is important because the verdicts and settlements are typically fairly low unless the client is brain damaged, paralyzed, or deceased. The real art is in distinguishing strong claims from merely meritorious ones in effectively conveying your own client’s version of events while undermining the police officer’s undoubtedly different version, and in grappling with the tendency of many jurors to believe your client got what was coming to them.

Monell claims are also tough. Courts rarely let any type of civil rights claim get to a jury, and courts are even more strict on Monell claims. There’s little harm in alleging them in the complaint, but get moving in discovery to back them up — and if you can’t back them up, know when to fold them and stop wasting everyone’s time. Truth is, Monell claims are generally not the province of generalist personal injury lawyers doing an occasional police brutality or wrongful prosecution case, they’re more for civil rights and public interest lawyers who have repeatedly seen the same problem and so already have the inside knowledge needed to back up the claims.

Finally, product liability lawsuits in general are not for the faint of heart nor plaintiff’s lawyers on shoestring budgets, and lawsuits directly against Taser International are no exception. Consider this: Taser won the first 60 product liability lawsuits filed against it, going back to the early 1990s, then finally lost one in 2008. Similarly, like with most product liability claims, plaintiffs’ firms should expect to pay $100,000 in costs just to get to a jury and should have the wherewithal to pay $250,000 on a single risky case. Needless to say, that means Taser product liability suits tend to make sense only when your client has been catastrophically injured or when your suit is on behalf of survivors. Study the Fontenot and Rich cases below; if you don’t have a case like that — e.g., a client who died from a heart attack after being tasered in the chest by a cop taught by Taser to go for “center of mass” — then consider forgoing the product liability claim because it’ll just chew up your time and money, reduce the recovery for your client, and create bad law for the rest of us. If you have a case like that but don’t have the ability to prepare or to fund it, refer it to someone who can.

Now, on to the law.Continue Reading A Trial Lawyer’s Guide To Taser Lawsuits

The Republican Party controls both the Governorship and the General Assembly in Harrisburg, and they have made it one of their top priorities to prevent injured workers, consumers, and patients from receiving fair compensation for their preventable injuries.  Back in September, I wrote about this attack on Pennsylvanians’ rights, discussing a legislative alert put out by the Pennsylvania Association for Justice which described some of the bills that Republican legislators had proposed as a means of further eroding Pennsylvania’s civil justice system.

Those bills included, for example, HB 304, which would impose a 15 year statute of repose in all product liability cases, which would mean that manufacturers of all types of products would be completely immune from any liability for products made before 1998.  If you were driving down the road and a 1997 Ford suddenly caught fire and crashed into you, you would have no recourse against Ford.

Then there’s HB 808, which would force injured workers to continue treating with employer-designated healthcare providers for 180 days, instead of the current 90 days.  The point of that law is to allow employers to send seriously injured workers to doctors the employers know will discount their complaints and dismiss their injuries, thereby making the worker and their lawyer more likely to settle their workers compensation claim. Even if the worker doesn’t settle, the employer-designed physicians can create an unfavorable, inaccurate medical record about the most important time in the care, the first six months after the accident, just in case the plaintiff decides to seek more compensation.

There’s also HB 1552, which would sharply limit where personal injury lawsuits could be filed (it would no longer matter where the defendant committed the negligence, where the defendant did business, or where the defendant kept their offices), part of an effort to pull personal injury lawsuits away from the fast-moving urban courts in Philadelphia and Pittsburgh and put them instead in the underfunded rural courts. Rural courts don’t have the same resources, so cases take longer to complete, thereby making it more likely the plaintiff — who, being injured, may have lost their ability to work and has incurred significant expenses relating to the injuries — will compromise the value of their case, all while allowing insurance company to make more money investing the insurance proceeds.

So imagine my surprise when I saw many of these same representatives who fight so hard to limit Pennsylvanians’ access to civil justice suddenly developing a passion for a certain type of civil lawsuit.  Was their sudden display of sympathy for children brain damaged by malpractice in delivery?  Workers paralyzed by employers who violated safety laws and regulations?  Consumers who were injured or died as a result of taking dangerous prescription medicines?  Victims of sexual abuse precluded from justice by the statute of limitations?  
Continue Reading PA Legislators Finally Develop Sympathy… For Illegal Gun Sales

Via Eric B. Mayer’s Twitter feed, I saw that a few days ago the Wall Street Journal’s blog for working parents, The Juggle, posted on a hot legal issue these days, “Should Pregnancy Be Treated as a Disability?”

A recent study by a University of Dayton law professor, Jeannette Cox, asserts that pregnant women should be covered by the Americans with Disabilities Act, to protect them from being fired or forced to perform labor that could be harmful to mother or child. (The paper is forthcoming in March in  the Boston College Law Review.)

The ADA doesn’t recognize pregnancy as a disability, leaving pregnant women physically and financially vulnerable on the job, concluded Cox, who studies employment discrimination. She found that pregnant women are at risk for losing their jobs when “reasonable adjustments” aren’t made, such as retail workers fired for drinking water at work or pregnant police officers forced to perform rigorous assignments (while injured officers were given lighter duty).

She’s not kidding about “water at work” — I’ve heard of plenty of cases about pregnant women whose employers denied them basic necessities like water or chairs or bathroom breaks. Professor Cox’s idea is eminently sensible, of course, because there’s really no difference between a complicated pregnancy and the types of permanent disabilities covered by the ADA, except that the former is usually temporary.

In general, a woman with an uncomplicated pregnancy is unlikely to need anything more than the types of “accommodations” most of us take for granted, like drinking water when we’re thirsty or sitting down when we need to rest our legs. Pregnancy usually becomes an issue in the workplace in two circumstances: either the employer started imposing extra restrictions on the pregnant employee (sometimes as a means to force the pregnant employee out and thereby avoid Family and Medical Leave Act duties, and sometimes just out irrational prejudice in violation of the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964) or the pregnant employee developed a complication like pre-eclampsia, placenta previa, or gestational diabetes, and so has a weight/lifting restriction imposed upon them by their doctor.

At that point, the employer can either accommodate the pregnant woman, force her to take whatever family leave is available to her (often exhausting it before the birth of her child), or try to fire her. A disturbing number of employers do the latter two.Continue Reading Pregnancy Is (Legally) Like A Disability If Employers Accommodate Temporarily Disabled Workers

There was a recent thread on Reddit titled, “Hey Reddit, what’s your best ‘I got fired on the spot’ story?” Included are plenty of the types of stories you would expect, like employees playing pranks on one another and employees who got so fed up with their jobs they stopped doing them and were fired in response.

But a disturbing trend emerged: many were fired illegally. Consider these examples, which I’ve edited down for space:

The next day I [a waitress] went into work and my boss FIRED me for stealing money from those [rude customers]. They told her that I’d left with money and didn’t come back with the change (like 15$). She wouldn’t give me my last paycheck until I gave her the ‘stolen’ money.


Worked for a video game store in 2004. I made a whopping $6 an hour. Someone stole a $50 game during my shift. The next day the manager tried to make me and another coworker reimburse him for the full $50, even though the manager paid way less to stock it. I told my boss, “Just because someone stole from you doesn’t give you the right to steal from me.” A few minutes later my job was stolen from me.


We were closing down the bar after a big Saturday night and my boss asked me and someone else to stay (unpaid) for another hour to mop the floor because the cleaners wouldn’t be in the next day. After my boss had exited the room I turn to my colleague and say “I’m gonna throw a bucket of soap water over it, make a sandwich and then have a nap on the sofa. The stupid smackhead wouldn’t know a clean floor if he was snorting H off it.” I turn around laughing, and see my boss stood behind me, about to hand me the keys to lock up for the night. Oops!


I was a cook at a local momnpop burger joint. When I came in for my shift the supervisor told me that the reach-in died in the night and all the patties were warm. I asked how long they had been warm and he said he didn’t know so I said “I’ll cook the frozen ones from the walk-in and it will only take 1 minute longer with the presses.” He said “Cook the warm patties.” I argued why this was a bad idea and he said “Do it or your fired.” I said “No.”

Every one of those — from withholding payroll by alleging employee theft, to not paying overtime, to firing an employee for refusing to serve spoiled food — involves a violation of the employee protection laws of every state I know. Many employees believe they have more rights than they really do (for example, most employers don’t need to accommodate employees for temporary injuries that didn’t occur on-the-job), but most states have good Wage & Hour laws that ensure employees get paid for every hour they work.Continue Reading Employer Violations Of Wage Payment And Overtime Laws Remain Depressingly Common