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: 
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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.


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Insurance-Funded Congressional Representatives Again Try To Deny Justice For Patients Injured By Medical Malpractice

Some bad ideas just will not go away. A few days ago The Pop Tort noted that the new, anti-patient Congress was holding hearings on medical malpractice liability. If they had listened to the excellent testimony of Joanne Doroshow, Executive Director of the Center for Justice & Democracy, they would have realized that injured patients need more, not less, legal protection.

But the “hearings” were a sham anyway, and a few days later the insurance-backed members of Congress introduced a new plan to strip away the rights of medical malpractice victims.

Phil Gingrey (R-GA11) ran unopposed last election, but that did not stop health services companies, HMOs, hospitals, pharmaceutical companies, medical device companies, and insurance companies from contributing nearly $500,000 to his “campaign.”

It seems like he is ready to pay them back. As his press release trumpets:

Senior Health Subcommittee Member Phil Gingrey, M.D. (R-Ga.), House Judiciary Committee Chairman Lamar Smith (R-Texas), and Congressman David Scott (D-Ga.) today introduced The HEALTH Act (H.R. 5), a bill that includes meaningful medical liability reforms to lower the cost of health care while strengthening the doctor-patient relationship.

The press release has little by way of facts, except for this whopper: “According to the Harvard School of Public Health, 40% of malpractice suits filed in the U.S. are ‘without merit.’”

That’s funny, since I actually read the Harvard study on medical malpractice, and it said:

The researchers analyzed past malpractice claims to judge the volume of meritless lawsuits and determine their outcomes. Their findings suggest that portraits of a malpractice system riddled with frivolous lawsuits are overblown. Although nearly one third of claims lacked clear-cut evidence of medical error, most of these suits did not receive compensation. In fact, the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid. …

“Some critics have suggested that the malpractice system is inundated with groundless lawsuits, and that whether a plaintiff recovers money is like a random ‘lottery,’ virtually unrelated to whether the claim has merit,” said lead author David Studdert, associate professor of law and public health at HSPH. “These findings cast doubt on that view by showing that most malpractice claims involve medical error and serious injury, and that claims with merit are far more likely to be paid than claims without merit.”

Most claims (72%) that did not involve error did not receive compensation. When they did, the payments were lower, on average, than payments for claims that did involve error ($313,205 vs. $521,560). Among claims that involved error, 73% received compensation.Overall, the malpractice system appears to be getting it right about three quarters of the time,” said Studdert. “That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.” The 27% of cases with outcomes that didn’t match their merit included claims that went unpaid even though the injury was caused by an error (16%); claims that were paid but did not involve error (10%); and claims that were paid but did not appear to involve a treatment-related injury (0.4%).

The title of the study’s own press release was “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits.” Who are you going to believe, a paid-for Congressman or your lying eyes?

The study did not find that 40% of medical malpractice lawsuits were without merit. The study found that one-quarter of medical malpractice victims did not recover compensation, while, at most, only one-tenth of successful claims involved injures not caused by medical malpractice — and the plaintiffs in those cases received far less than the plaintiffs who had injures which even a panel of doctors thought were caused by medical malpractice.

The system works imperfectly, but so does every system — including our medical system, which costs the economy a minimum of $20 billion just in treating medical (iatrogenic) injuries. When you recognize that our entire medical malpractice liability system costs under $5 billion a year, you realize that, all in all, our medical malpractice liability system is downright cheap, and is compensating victims of medical negligence for only a fraction of their damages.

Even if we put aside the fact that, for every dollar spent on compensating the victims of medical negligence, more than $5 dollars in damage was caused by medical negligence, it bears repeating that the overall costs of compensating injured patients is so small that it the medical malpractice liability system does not restrict access to health care. Similarly, malpractice lawsuits have not been shown to change of physician behavior — so-called “defense medicine” — even in high-risk, high-liability cases like obstetricians’ decisions to perform c-sections when the baby shows signs of fetal distress.

I could go on — like how Gingrey’s proposal of “non-economic caps” would slam the courthouse doors shut on all but a few injured patients, and even then only those patients who were earning high incomes when they were injured or died — but I think the burden of proof here should lie with the people, like Gingrey, saying there’s a “medical malpractice crisis.” So far, he can’t muster anything more than a lie about the Harvard study.


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All the signs were there:

[Dr. Rolando G. Arafiles Jr. had] a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was

Sometimes, a police officer’s hunch is right:

Columbia [Missouri] Police Officer Jessica McNabb pulled over then-19-year-old Daniel Sanders at Stadium Boulevard and Audubon Drive for running a red light and failing to use his headlights at night. Sanders didn’t have a license. He asked for an attorney almost immediately.

After a search of the trunk, McNabb found the body of Sanders’ mother beneath a tire — next to a new shovel with the price tag still on it.

Sometimes not:

Jordan Miles, who is black, thought his life was in jeopardy when three white men jumped out of a car on the night of January 11 as he walked not far from his home.

"My son tried to run thinking his life was in jeopardy," Terez Miles said. "He made three steps before he slipped and fell." After that, she said, the [Pittsburgh] police used a stun gun and beat him, pulling out a chunk of his hair.

The criminal complaint says the officers, considering Jordan Miles’ appearance suspicious, got out of the car and identified themselves as police. He tried to flee, fell, and then struggled to escape.

The officers "delivered 2-3 closed fist strikes to Miles’ head/face with still no effect," and then a "knee strike to Miles’ head causing him to momentarily stop resisting," so that he could be handcuffed, the document says.

Miles’ mother said the officers did not identify themselves as police to her son, a viola player and student at the city’s Creative and Performing Arts High School.

The complaint says the police officers believed Miles was engaged in criminal activity and possibly armed with a "large heavy object." The object turned out to be a bottle of Mountain Dew.

There’s a law for both:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Ironically, Daniel Sanders might have a better chance of avoiding a conviction for his mother’s murder than Jordan Miles has of recovering compensation for his injuries.

Last year, the Supreme Court held in Arizona v. Gant that the Fourth Amendment prohibits "a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle," with a limited exception for such searches "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."

Sanders was not pulled over or arrested for his mother’s murder, so the exception doesn’t apply. There’s no doubt that he was "secured" — he didn’t even put up a fight, he just asked for his lawyer.

His lawyer has moved to exclude from the trial all evidence found from the search of Sanders’ car, including, of course, his mother’s body:

In that motion, [Sanders’ lawyer] Slusher said McNabb continued to question Sanders after he asked for an attorney and that the search of the car was conducted without a warrant or probable cause. Slusher characterized the search and the continued questioning as unconstitutional and thus inadmissible in trial.

He might win it. I’m sure the district attorney’s office is burning the midnight oil to find some daylight in Arizona v. Gant.*

Returning to Miles, it’s quite possible that the officers identified themselves as police and that Miles didn’t hear them. Police confrontations are often fraught with confusion. Consider this instance:

Defendant Murphy approached the driver’s side window and asked Plaintiff to produce his identification and credentials for inspection. (Frohner Dep. at 39.) Plaintiff, who kept his credentials in the door pocket of the driver’s side door when driving, (Pl.’s Br. Ex. C at 4), began to reach down to retrieve his credentials. (Frohner Dep. at 39.) As Plaintiff was reaching down, Defendant Murphy shouted at Plaintiff, "keep your hands where I can see them." (Id. at 39-40.) Plaintiff, "[n]ot immediately understanding what was transpiring," continued to reach for his credentials in the door pocket, which prompted Defendant Murphy, who by this time had drawn his firearm, to again shout to Plaintiff to keep his hands in view. (Id. at 39-42.) Plaintiff complied with Defendant Murphy’s second order and ceased reaching down to the door pocket. (Id. at 40.)

Frohner v. City of Wildwood, 07-1174 (D.N.J. 2008).

Plaintiff there — who was almost shot — was an on-duty undercover FBI agent. He was approached by a uniformed police officer who had pulled him over in a marked police car. Yet, even he didn’t "immediately understand what was transpiring."

Consider what Miles would have "immediately understood" when three men in plainclothes jumped out of a car and started chasing him.

To win in a civil lawsuit, though, Miles has to show more than that the officers made a mistake.

First, he has to show his constitutional rights were violated. Then, he must overcome qualified immunity by showing "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir. 2007). Neither is easy to prove; most plaintiffs alleging violations of their constitutional rights lose their cases.

Miles has two constitutional rights that were potentially violated: the right to be free from false arrest and the right not to be subjected to excessive force during an arrest. I don’t know what about his "appearance" was "suspicious," but the article reports "the police officers believed Miles was engaged in criminal activity and possibly armed with a large heavy object." From that, we can presume their nominal purpose was to perform a Terry v. Ohio stop and frisk to see if the Mountain Dew was an illegal weapon. If either the judge or the jury believes that, then the officers (really, the City of Pittsburgh, which will indemnify them) are free from liability for the false arrest claim.

When it comes to the excessive force claim:

In deciding whether challenged conduct constitutes excessive force, a court must determine the objective reasonableness of the challenged conduct, considering the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Other factors include the duration of the officer’s action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.

Couden v. Duffy, 446 F.3d 483, 496-97 (3d Cir. 2006). 

Hence the emphasis on the Mountain Dew: the officers want to justify their conduct by arguing "the possibility that the suspect may be armed." It also likely that, at some point, Miles was "actively resisting arrest or attempting to evade arrest by flight," given that he thought he was being assaulted. Such resistance, under excessive force precedent, makes the officers’ punching and kicking less "objectively unreasonable."

After showing all of the above, Miles must also show the judge "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted" to overcome qualified immunity. Miles can’t just show what the officers did was wrong; he has to show it was so wrong that the officers had to know it was illegal.

Can Miles do that? Maybe so. Then again, a lot of constitutional rights / qualified immunity cases — like Curley v. Klem, in which a police officer was accidentally shot — end with a jury verdict for the defendant and a speech from the appellate court like so:

The mistake Klem made has undoubtedly been terrible in its long-term consequences for Officer Curley and his family, and we do not for a moment discount the pain, sorrow, expense, and frustration that it has visited on them in their innocence. But a mistake, though it may be terrible in its effects, is not always the equivalent of a constitutional violation. … "[P]olice officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397, 109 S.Ct. 1865. Those were the circumstances facing both Trooper Klem and Officer Curley at the George Washington Bridge toll plaza. Viewed from that perspective, Saucier, 533 U.S. at 205, 121 S.Ct. 2151, the seizure effected by the mistaken shooting was not unreasonable under the Fourth Amendment. It therefore was not a constitutional violation.

Courts of law, not of justice.


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[UPDATE: The WSJ Law Blog rounds up reactions by the parties, while SCOTUSBlog rounds up reactions from the media and bloggers.]

[UPDATE II: For a peek behind the corporate curtain, see the memo that Republican election lawyer Benjamin L. Ginsberg (of Patton Boggs) is circulating. I think he’s going too far in his conclusions; as much

Years ago, Jonathan Turley, professor at George Washington University Law School, found himself unable to decide whether he wanted to be a professor or a litigator, so he cloned himself to be able to do both.

I am only half-joking; even after factoring in big firm co-counsel (including associates, paralegals, assistants, et cetera), being

Following up on yesterday’s post about “ex parte blogging,” i.e. the possibility that the Supreme Court might see a newspaper editorial, article or blog post about a pending case, let’s consider the supposed worst-case scenario, in which a Justice sees an editorial, article or blog post which has an effect on their interpretation of the

Ashby Jones at the Wall Street Journal reports on absolute judicial immunity:

In January, federal prosecutors filed fraud charges against Mark A. Ciavarella and Michael T. Conahan, judges on the Luzerne County, Pa., Court of Common Pleas. Prosecutors alleged that the judges sent numerous juveniles to detention centers over several years in exchange for