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Tort Law Remanded, Revised, Reviewed, Reengrossed an Enrolled

And now, it's off to see the Governor:

Posted: July 1, 2020

RFAs 4 Life - the Medical Literature

After repeated defense successes limiting repeat RFA treatments before Judge Susie Morgan of the Eastern District (see Brandner and Brooks), plaintiffs strike a blow for ablations for life in the Western District. In Tyson v. National Specialty Ins. Co., 5:17-cv-01427 (USDC-WDLA 06/29/20), Judge Elizabeth Foote distinguished the Brandner decision specifically for lacking the medical evidence presented to her in the form of the International Spine Intervention Society's "Practice Guidelines for Spinal Diagnostic and Treatment Procedures" (attached below).

Posted: July 1, 2020

3 New Jersey Restaurant Business Interruption Class Actions

Three class actions were recently filed in the federal District of New Jersey alleging bad faith denial of covered business interruption claims. They include:

Truehaven Enterprises, Inc. d/b/a Fiorino Ristorante v. Chubb Ltd and Indemnity Insurance Company of North America

N&S Restaurant, L.L.C. v. Cumberland Mutual Fire Insurance Company

Beniak enterprises, Inc. v. Chubb Ltd and Indemnity Insurance Company of North America

Posted: May 7, 2020

Reduced Miles Traveled and Auto Insurance Rebates

Auto insurers are rebating premiums to policy holders in response to decreased miles traveled under stay-at-home policies. One consumer group suggests the amounts are insufficient.

The Consumer Federation of America ("CFA") is pressing the matter with published data and through pressure on state insurance commissioners. Their report is available below.

Specific to Louisiana, CFA reports a vehicle miles traveled decrease of approximately 60% from late March through Late April.

Other information available at the group's website includes:

The letter from CFA Director of Insurance, J. Robert Hunter, to state insurance commissioners is also posted below.

Posted: May 7, 2020

Another Southern District of Florida Class Action

They're beginning to pile up. A Miami Beach salon has become the latest lead plaintiff to file a COVID-19 class action in the Southern District of Florida.

Posted: April 30, 2020

COVID-19, Sovereign Immunity & China

We've discussed in passing at the CQ Newsflash various aspects of post-pandemic litigation, including public and private claims against China. One hinderance to such claims would be immunities enjoyed by sovereign nations to suit outside of multi-national institutions and accords.

The protection is not inviolable, as the Saudi government learned on passage of the Justice Against Sponsors of Terrorism Act in 2016. Arkansas Senator Tom Cotton and Texas Congressman Dan Crenshaw recently filed the ‘‘Holding the Chinese Communist Party Accountable for Infecting Americans Act of 2020’’ (attached below) modeled after the 2016 legislation.

The Washington Post reports that the Trump administration is getting behind the idea.

Posted: April 30, 2020

Exclusion of Loss Due to Virus or Bacteria - CP 01 40 07 06

The ISO form exclusion relevant to many COVID related business interruption claims is attached below.

Posted: April 23, 2020

Business Interruption Claims - Early Filings

A handful of high profile claims have already been filed regarding business interruption insurance coverage. A suit filed in CDC on behalf of New Orleans restaurant Oceana Grill and a declaratory judgment action filed by Travelers Insurance against the Geragos & Geragos law firm in Los Angeles federal court are attached below.

Posted: April 23, 2020

SCOTUS Strikes Louisiana Non-Unanimous Jury Conviction - Many Retrials May be Necessary

The following summary deconstructs the Court's opinion. Scroll down to see the actual opinion.

Justice Gorsuch's opinion for the Court begins with a history lesson on race. He explains the foundation of Louisiana’s procedure allowing, non-unanimous criminal convictions. He explains that 10-2 jury convictions were, in effect, an 1898 gerrymandered response to federal pressure against racial exclusion in jury selection. A less than unanimous vote to convict was a way to cancel out enforced African-American participation in the process. Justice Gorsuch states that courts in Louisiana and Oregon (the only other state allowing non-unanimous jury trial convictions) “have frankly acknowledged that race was a motivating factor in the adoption of their … nonunanimity rules” with supporting citation to an 11th JDC (Sabine Parish) criminal matter - State v. Maxie, No. 13–CR–72522 (La. 11th Jud. Dist., Oct. 11, 2018), App. 56–57.

He moves on to consider what is required by the Sith Amendment right to jury trial. Beginning with the observation that it must require something and 400 years of consistent practice preceding the Bill of Rights must mean that jury unanimity was included.

With unanimity confirmed, the previously recognized Sixth Amendment incorporation against the states under the Fourteenth Amendment carries with it all that the right to trial by jury includes.

So, asks Justice Gorsuch rhetorically, how did Louisiana and Oregon get away with less than unanimous verdicts for so long? Responding, he reference a “badly fractured set of opinions” in Apodaca v. Oregon and Johnson v. Louisiana. In Apodaca, Justice Powell broke a 4-4 tie on a partial incorporation idea previously rejected by the Court. Justice Powell’s “neither here nor there” allowance for “dual-track” incorporation in Apodaca left him on the side of four justices disinclined to impose the unanimity requirement on states.

Justice Gorsuch credits Louisiana’s “sensible” approach in defending non-unanimous convictions by questioning unanimity as a fundamental feature of jury trials under the Sixth Amendment. Sensible, perhaps, but not much easier to “defend” than Justice Powell’s counter-precedential endorsement of the notion that incorporation might be something other than an all or nothing rule. In so concluding, Justice Gorsuch adopted an interpretation strictly reliant on ratified text over a legislative history approach argued by the state. He was not interested in the fact that an explicit unanimity requirement was stripped from James Madison’s draft amendment and “left on the cutting room floor.” The clause, in his view, may “easily” have been removed as “surplusage.”

One approach adopted in other contexts by “Resisters” to the current administration finds its way into the opinion of President Trump’s first appointment. Justice Gorsuch rejected an Apodaca court cost-benefit analysis, in part, because of the racially discriminatory “reasons” for the non-unanimity rules adopted by Louisiana and Oregon “in the first place.” In effect, Justice Gorsuch advances support for the controversial position that a constitutional act may be rendered unconstitutional by the actor’s underlying intent. Granted, the states’ reasons here were historically explicit, as opposed to President Trump’s assumed hidden agenda in, for example, ordering a “travel ban.” But that is a distinction likely to have already been deemed without difference in first drafts of Romano scholarship.

The remainder of Justice Gorsuch’s cost-benefit critique is in accord with the reasons I found constitutional law tedious in law school. Measures of effect as cost or benefit are often taken in perfunctory fashion. Justice Gorsuch dismisses the Apodaca cost-benefit analysis for unexamined certitude. By that standard, how many other constitutional law precedents would suffer under the same critique? That, it seems to me, is the sine qua non of results oriented jurisprudence. and Justice Gorsuch admits as much in the observation that Apodaca employed a “functionalist assessment.”

While he takes a charitable view of Louisiana’s advocacy, Justice Gorsuch confers no such benefit to dissenting stare decisis arguments. Deconstructing Apodaca, he is unable to find any precedential value in a 4-4 split carried on the iconoclastic concurrence of a justice whose own view explicitly rejected obeisance to stare decisis. The discussion might be helpful to those, like me, whose confused dislike of constitutional law left them without an appreciation for the finer points of applying precedent. Justice Gorsuch continues, suggesting that the dissent’s reasoning is “dressed up to look like a logical proof.”

For all of my delight with Justice Gorsuch giving voice to so many of my complaints about constitutional law, I can’t help but notice that he’s not above employing conclusory statements where it suits his purposes. Responding to the objection that mandating unanimous jury verdicts as a requirement of Sixth Amendment incorporation will lead to collateral review of final judgments, he observes that “under Teague v. Lane, newly recognized rules of criminal procedure do not normally apply in collateral review.” For some unstated reason, he relegates this opinion to a rank falling short of a “watershed rule … implicat[ing] the fundamental fairness [and accuracy] of” criminal trials. Why? Is it not a fundamental watershed moment when the United States Supreme Court holds that a class of criminal convictions are procedurally unconstitutional and doesn’t that, in turn, invalidate the fundamental fairness of those trials?

It seems a better approach would have been to pass on the issue as it clearly goes beyond the question before the Court. And that is exactly how he proceeds in the following paragraph. But, to say as much as he does is to speculate that an unconstitutional conviction may not be fundamentally unfair. Really? Here I was thinking constitutional protections for criminal defendants were all about fundamental fairness. Regardless, the result is sound, even if the opinion would have been more honest by simply admitting that it likely invalidates many convictions.

Posted: April 23, 2020

OSHA - COVID-19 Guidance

See below for OSHA 3990-03 2020 - Guidance on Preparing Workplaces for COVID-19

Posted: April 16, 2020