Recently in Injury and Tort Law Category

When we first read the Ninth Circuit Court of Appeals case in which Seattle cops used a Taser on a woman who was seven months pregnant because she wouldn’t sign a speeding ticket, we were shocked that the Ninth Circuit ruled that the cops were entitled to qualified immunity. We expected the plaintiff to appeal Supreme Court petition in the case, but we thought the cops would be happy with the ruling.

Well, color us surprised.

The Taser-happy cops in Mattos v. Agarano are petitioning the Supreme Court, claiming that the Ninth Circuit incorrectly concluded that they used excessive force against the pregnant speeder, reports The New York Times. Taser use in the situation wasn’t excessive force, they argue, it was a “useful pain technique.”

Discussions of the Supreme Court last week were focused on three things: (1) rehashing the healthcare argument, (2) speculating about the justices’ reaction to Justice Department’s judicial review homework assignment, and (3) the prison strip search decision in Florence v. Board of Chosen Freeholders of County of Burlington.

There was, however, a second opinion from the Court that we should discuss: Rehberg v. Paulk.

Regardless of how the Supreme Court rules in Kiobel v. Royal Dutch, the case will likely stand out in a year of big cases. A pro-plaintiff ruling would open U.S. courts to a flood of litigation under the Alien Tort Statute (ATS). A pro-defendant ruling might leave victims of human rights abuses without recourse against multinational companies.

From the outset of the Kiobel oral arguments on Wednesday, it sounded like the court would affirm Kiobel and disallow human rights claims under the ATS. SCOTUSblog notes that Justice Anthony Kennedy -- often the swing vote on the Court -- told the Kiobel attorney that his case was in jeopardy, while the remaining justices "looked notably unconvinced" by arguments that the ATS supports the Kiobel claims.

The Supreme Court affirmed the Third Circuit today in Kurns v. Railroad Friction Products, finding that the Locomotive Inspection Act (LIA) preempts a state-law tort for asbestos exposure.

Lead plaintiff George Corson worked as a locomotive welder and machinist for 27 years, installing brakeshoes on locomotives and stripping insulation from locomotive boilers. In 2005, Corson was diagnosed with malignant mesothelioma, the singular cause of which is asbestos exposure.

In 2007, Corson and his wife sued 59 defendants that manufactured and sold locomotives and parts containing asbestos in Pennsylvania state court, alleging that Corson’s injuries were caused by the defendants’ defective design and failure to warn.

Congress passed the Privacy Act of 1974 to establish protocols to govern the collection, maintenance, use, and dissemination of information maintained in federal agency records. The Act includes a private cause of action for violations

This week, the Supreme Court heard oral arguments in FAA v. Cooper, a dispute between the Federal Aviation Administration (FAA) and a pilot who claims that he suffered emotional distress as a result of a Privacy Act violation.

So how do we quantify emotional harm? And can a plaintiff recover actual damages for emotional harm under the Act?

In a past life, we worked in mortgage compliance. It was a dark time that we try to block from our memories. We mention this because it seems that mortgage law - specifically, the Real Estate Settlement Procedures Act or RESPA - is suddenly a hot topic.

When we left the mortgage world behind, we had a freedom party - as one does - and burned the RESPA rules in our fireplace. Even though our copy of RESPA is now a pile of ash, we remember the most basic tenet of the law: no kickbacks. The no-kickback rule forms the basis of the complaint in the first case of the Supreme Court's December sitting, First American Financial Corp. v. Edwards.

Will the Supreme Court rule once and for all on whether corporations can be held liable under the Alien Tort Act?

Experts believe that the Court will take up the issue. The question, however, is when it will happen. The circuit-level are-they-or-aren't-they-liable decision count stands at 7 to 1, but several circuits are in the process of re-hearing cases on this issue, en banc.

The United States Supreme Court ruled against five defendants in an extraordinary rendition case earlier this week. While the facts of the case dealt with the issue of torture in interrogations, the opinion of the Supreme Court was based largely on procedural issues.

The lead plaintiff, Binyam Mohamed, spent four years in Guantanamo Bay after allegedly confessing to terrorism plotting. According to The Los Angeles Times, Mohamed asserted that he confessed to crimes he never committed and that these confessions came after enduring torture during the course of his CIA detention: torture that included having his genitals sliced with a scalpel.

Krupski v. Costa Crociere S.P.A., No. 09-337, concerned a personal injury action for injuries plaintiff suffered on a cruise ship.  The Court reversed the Eleventh Circuit's affirmance of the district court's dismissal of plaintiff's claims against a newly added defendant, holding that relation back under Fed. R. Civ. P. 15(c)(1)(C) depended on what the party to be added knew or should have known, not on the amending party's knowledge or timeliness in seeking to amend the pleading.

As the Court wrote:  "Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading "relates back" to the date of a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations. Where an amended pleading changes a party or a party's name, the Rule requires, among other things, that "the party to be brought in by amendment . . . knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Rule 1 (c)(1)(C). In this case, the Court of Appeals held that Rule 15(c) was not satisfied because the plaintiff knew or should have known of the proper defendant before filing her original complaint. The court also held that relation back was not appropriate because the plaintiff had unduly delayed in seeking to amend. We hold that relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party's knowledge or its timeliness in seeking to amend the pleading. Accordingly, we reverse the judgment of the Court of Appeals."

Related Resources

• Full Text of Krupski v. Costa Crociere S.P.A., No. 09-337
• Fed. R. Civ. P. 15

Samantar v. Yousuf, No. 08-1555, involved an action by persons who were persecuted by the Somali government during the 1980s, alleging that defendant, who then held high-level government positions in Somalia, exercised command and control over the military forces committing the abuses, knew or should have known of such acts, and aided and abetted in their commission.  The Supreme Court affirmed the Fourth Circuit's reversal of the dismissal of the action, holding that the Foreign Sovereign Immunities Act (FSIA) did not govern petitioner's claim of immunity because there was nothing to suggest that "foreign state" in the FSIA should be read to include an official acting on behalf of that state.

As the Court wrote:  "From 1980 to 1986 petitioner Mohamed Ali Samantar was the First Vice President and Minister of Defense of Somalia, and from 1987 to 1990 he served as its Prime Minister. Respondents are natives of Somalia who allege that they, or members of their families, were the victims of torture and extrajudicial killings during those years. They seek damages from petitioner based on his alleged authorization of those acts. The narrow question we must decide is whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U. S. C. §§1330, 1602 et seq., provides petitioner with immunity from suit based on actions taken in his official capacity. We hold that the FSIA does not govern the determination of petitioner's immunity from suit."

Related Resources

• Full Text of Samantar v. Yousuf, No. 08-1555