Barry N. Feldman, Ph.D., LICSW, is a nationally recognized educator, trainer, researcher, and clinical expert in the field of suicide intervention and prevention. He specializes in suicide-related training, critical incident response, and crisis stabilization services for schools, military, law enforcement, emergency medical responders, healthcare providers, veterinary medical practitioners, and other professionals.
I would have thought the answer was Yes – and not just because I’m in the expert referral business. But I’ve just learned that, in point of fact, the answer is a resounding No. In Laccetti v. Ellis, (No. 22-P-466, Mass. App. 3/20/23), the court cited cases from seven states and the U.S. Virgin Islands to that effect and probably could have cited more. Only Delaware is (possibly) an exception.
Today’s case is Bayes v. Biomet, https://ecf.ca8.uscourts.gov/opndir/22/12/212964P.pdf (8th Cir., No. 21-2964, 9/21/2022), a lawsuit against the manufacturer of a failed metal-on-metal hip replacement. The trial court instructed the jury on two theories of recovery: strict liability and negligent design. The outcome was unusual – at least, it seems unusual to me. As the Eighth Circuit Court of Appeals explained,
Reading today’s case took me back to Boston University Law School and my first-year civil procedure course, which was taught by one of those professors who yell angrily at students who are unprepared to answer Socratic questions but are really nice guys outside the classroom. (I say “guys” because there were maybe half a dozen female professors, yet women comprised at least a third of my class. And when I argued cases in the Rhode Island and Massachusetts supreme courts and the First Circuit, there were no female judges on any of them.
Frankel v. Deane (Md. 8/25/2022), https://www.mdcourts.gov/data/opinions/coa/2022/43a21.pdf, illustrates the legal issue that is the title of this post. It also illustrates what is technically a legal issue (a trial court’s abuse of discretion in excluding expert medical testimony), but is actually a practical issue that every trial lawyer has to deal with sooner or later, even multiple times in the course of a long career: the nightmare trial judge. I will discuss the legal issue first.
That is the title of a recent post by Professor Ilya Somin in The Volokh Conspiracy blog. The subtitle is, “The ruling authorizing the award is at odds with other federal court decisions holding that law-enforcement exercises of the ‘police power’ are exempt from takings liability.” The trial was on damages only – the ruling referred to in the subtitle is U.S.
In Ruan v. United States (No. 24-1410, 6/27/22), https://www.supremecourt.gov/opinions/21pdf/20-1410_1an2.pdf, the Court addressed the mens rea requirement of the Controlled Substances Act as applied to physicians. From the syllabus:
When surgery leads to a bad result, the plaintiff almost always files suit for medical malpractice. I say “almost always” because a recent Massachusetts case has reminded me that occasionally a plaintiff can sue a surgeon for breach of contract, and that in such a case expert testimony is not only not required, but if offered would not be admissible. Based on the court’s opinion and the cases it cites, it appears to me that the occasion for a breach of contract action against a surgeon will arise almost exclusively in the context of elective cosmetic surgery.
Both before and during World War II, the Nazi government obtained vast quantities of Jewish-owned art and artifacts – mostly by outright expropriation, sometimes by coerced sale at a deep discount. Today, 77 years after the end of the war, heirs of the original owners are still seeking to recover wrongfully acquired artworks, by informal negotiation if possible, otherwise by lawsuits. Two such cases were decided by the U.S.