Showing posts with label Dalila Wendlandt. Show all posts
Showing posts with label Dalila Wendlandt. Show all posts

Monday, April 24, 2023

No right to physician aid in dying, Mass. high court holds, rejecting analogy to same-sex marriage right

In 2017, Rep. Eleanor Holmes Norton (D-D.C.) and D.C. residents
protest to protect "death with dignity" law from congressional meddling.

Ted Eytan, MD, via Flickr CC BY-SA 2.0
There is no right to physician aid in dying in the Massachusetts constitution, the commonwealth high court held in December, leaving room for legislators to fill the gap.

A cancer patient and a doctor brought the case. The plaintiff patient, a retired physician with metastatic prostate cancer, wanted counseling on physician aid in dying; the plaintiff doctor wanted to give counsel to his patients struggling with potentially terminal illness. Both plaintiffs argued that they could not get what they want for fear that doctors can be prosecuted for the state common law crime of manslaughter, that is, reckless killing, or worse.

The court opinion refers consistently to "physician-assisted suicide" (PAS), but I'm here using the term "physician aid in dying" (PAD), a difference I'll explain. The medical action at issue here is the ability to "prescri[be] ... barbiturates [with] instructions on the manner in which to administer the medication in a way that will cause death." But the plaintiffs confined their demand to patients facing fatality within six months. 

In a footnote, the court said it used "PAS" because the American Medical Association (AMA) prefers the term. The AMA regards "PAD," or the more modish "medical aid in dying" (MAID), preferred by the plaintiffs, as unfavorably "ambiguous."

Massachusetts remains with majority of states in not recognizing PAD right.
Terrorist96 (upd. Apr. 2021) via Wikimedia Commons CC BY-SA 4.0
Facially, both terms are potentially ambiguous; the quibble over semantic precision faintly masks the policy disagreement. "PAS" implicates suicide in the conventional sense, comprising the intentional ending of one's life for any reason, including the expression of mental illness. That's a bigger ask in terms of constitutional entitlement. The 10 states (plus D.C.) that allow PAD, such as Oregon, require a terminal diagnosis and purport to exclude conventional suicide. "PAD" and "MAID," accordingly, mean to narrow the fact pattern to a patient who is hastening a process of natural death that already is under way, or at best ending an inescapable and intolerable suffering.

I learned about this distinction, and more in this area, only recently, as a student in my Comparative Law class is working on a research paper comparing MAID laws in Oregon and the Netherlands. In her early stage of topic selection, I referred her to, and recommend to everyone, my top This American Life segment of 2022, "Exit Strategy." The heartbreaking segment comprises excerpts of Connecticut writer Amy Bloom reading from her book, In Love: A Memoir of Love and Loss, which documented the figurative and literal journey of her and her husband to end his life in Switzerland after his diagnosis with Alzheimer's. I might one day read the whole book, but I'll need to work up the emotional strength.

The court's thorough opinion by Justice Frank M. Gaziano largely tracked the reasoning of the U.S. Supreme Court in declining to recognize PAD as a fundamental right, because it's supported neither by historical tradition nor widespread acceptance. Insofar as PAD is a reality on the ground for doctors and terminally ill patients, it still carries a stigma, the Massachusetts opinion observed. The medical community itself is divided over PAD, evidenced by amici in the case. In the absence of a fundamental right, state criminal law easily survives rational-basis review for substantive due process.

The Supreme Judicial Court recognized its own power and responsibility, in contrast with the more conservative U.S. Supreme Court, to tend and grow the scope of fundamental rights protected in Massachusetts, adapting the state Declaration of Rights to new social challenges. The Massachusetts court exercised that very power when it approved same-sex marriage in the commonwealth in Goodridge v. Department of Public Health (2003), 12 years before the U.S. Supreme Court did likewise for the nation in Obergefell v. Hodges (2015).

Voters reject the PAD initiative in Massachusetts in 2012.
Emw & Sswonk via Wikimedia Commons CC BY-SA 3.0
But the milieu in Massachusetts is hardly conducive to Goodridge delivering this plaintiff ball across the goal line, the court concluded. To the contrary, the court observed, Massachusetts voters rejected a PAD ("Death with Dignity") ballot initiative in 2012 (51% to 49% in "ferocious political battle"), "over a dozen bills" to legalize PAD have failed in the legislature, and statutes regulating healthcare affirmatively disallow PAD counseling.

The court opinion includes an intriguing discussion of standing. The case was something of a put-on, because local prosecutors did not threaten the plaintiff physician with prosecution. Again, the court acknowledged that doctors engage in PAD now, if quietly, criminal law notwithstanding. In reality, there is not a bright line between PAD and appropriate palliative care, or between "terminal sedation" and "palliative sedation." Prosecutors helped plaintiffs to sustain the case by saying that they would not decline to prosecute.

In the end, the court decided the case only in the matter of the physician. The court rejected the plaintiff patient's claim because he had not been given a six-month prognosis, and his cancer remained susceptible to treatment by multiple options. In the patient's defense, I'm not sure someone with a six-month prognosis would have time to prosecute the case to the high court, nor should be expected to. Justice Dalila Argaez Wendlandt aptly dissented on the point. The patient here submitted that he did not necessarily want PAD, but wanted to have the option to be counseled for it if the need arises. Anyway, the court allowed standing for the doctor on a theory of jus tertii ("third-party right"), when one person is allowed to assert the rights of another upon a close nexus of interests. This notion is implicated on the issue of standing in the mifepristone case now before the U.S. Supreme Court.

In separate opinions, Justices Wendlandt and Elspeth B. Cypher left the door ajar to a rights argument on the right facts. Justice Cypher wrote that some "constitutional zone of liberty and bodily autonomy" should preclude prosecution for "late-stage palliative care." Justice Wendlandt reasoned similarly that as a patient approaches death, the state interest in preserving life by way of criminal law wanes, eventually even as to fail rational-basis review of a "nonfundamental right."

Nothing about the court's opinion precludes the state legislature from reengaging with PAD, which has been legalized in the northeast in New Jersey, Maine, and Massachusetts neighbor Vermont.

The case is Kligler v. Attorney General, No. SJC-13194 (Mass. Dec. 19, 2022), available from the Alliance Defending Freedom, a conservative religious freedom advocacy group that participated as amicus on the side of the Attorney General.

Thursday, January 27, 2022

Mass. high court affirms 'component parts doctrine' in HVAC spat, unless maker was culpable in defect

Historical interior of the William Bliss House, 25 Exeter, Back Bay in Boston,
constructed 1882-1884: today the private home of the Nemirovsky family.
Source: Historic New England. 
In a December decision, the Massachusetts Supreme Judicial Court (SJC) reaffirmed the defense-friendly "component parts doctrine" in product liability.

The case arose from a faulty HVAC system installed in plaintiff's 22,000-square-foot Boston home. Evaporator coils in the system repeatedly failed and required replacement, costing the plaintiff hundreds of thousands of dollars, and then substantially more to replace the system in its entirety.  The coils themselves were not defective, but a defect in the system's Styrofoam drain pan caused the coils to fail prematurely.  The statute of limitations precluded plaintiffs' claims based on sale of the HVAC system, but not claims based on the later sale of replacement coils.

Sensibly, the widely accepted "component parts doctrine" ordinarily relieves from liability the manufacturer of non-defective component parts.  However, the SJC explained, citing the Third Restatement, "a component manufacturer may be liable, even if the component itself is not defective, if the component manufacturer is 'substantially involved' in the integration of the component into the design of the integrated product, the integration of the component causes the integrated product to be defective, and the defect in the integrated product causes the harm."

The Superior Court erred, the SJC concluded, in not applying the general rule of the component parts doctrine.  The Superior Court had reasoned that the coil manufacturer could be liable because the coils were made specifically for integration into the defective HVAC system and had no standalone functionality.  In other words, the product failure was foreseeable to the coil manufacturer.  But there are no such exceptions to the component parts doctrine, the SJC held.  Intended integration is not the same as the "substantial involvement" contemplated by the Restatement rule.  And standalone functionality is not the test to shield a component maker from liability.

The component parts doctrine is widely accepted in the states.  There was some hand-wringing over the vitality of the doctrine in 2016 when the California Supreme Court held the doctrine inapplicable when "injury was allegedly caused directly by the [defendant's] materials themselves when used in a manner intended by the suppliers."  In that case, a metal foundry worker had developed lung disease, he alleged, as a result of fumes and dust generated by the foundry's use of the defendant's materials in manufacturing.  But it was the defendant's materials that caused the disease, even if they had been physically transformed by the foundry.  And the specific intentionality attached to the use of the materials closely resembled substantial involvement, tightening the lasso of foreseeability.  The decision hardly unsettled the component parts doctrine.

Law students should take care not to confuse the component parts doctrine with "the single integrated product rule."  That rule determines when damage to an integrated product can be said to satisfy the injury requirement of product liability.  Standalone functionality is relevant to the analysis, but not necessarily dispositive.  If a component part is intended for integration into a larger product, and a defect in the component causes damage to the larger product, but no damage beyond the larger product, then the buyer of the defective component cannot meet the injury requirement to sue in product liability.  The theory of the rule is that the buyer, anticipating the integration, should protect itself in contract and warranty, rather than depending on tort law.  The component parts doctrine rather precludes component manufacturer liability for a non-defective integrated component upon the theory that the component buyer, responsible for the integration, is in the better position to ensure the safety of the integrated product.

In the Massachusetts case, the SJC's decision vacated a $10.6m award.  The jury had awarded just under $3.4m in its verdict.  Massachusetts does not allow punitive damages at common law, but an expansive statute protecting consumers against misrepresentation, "chapter 93A," subsumes much of what would be separate product liability claims in other jurisdictions and can hit defendants with punishing awards of damage multipliers and attorney fees.  Under 93A, the trial court had awarded double damages and attorney fees against defendant Daikin North American for its "willful and knowing" misrepresentation.  Daikin NA might not be off the hook entirely, as the SJC ordered a reexamination of its culpability on remand, to disentangle product liability based on defect from product liability based on culpable misrepresentation.

The case is Nemirovsky v. Daikin North America, LLC, No. SJC-13108 (Dec. 16, 2021).  Justice Dalila Wendlandt wrote the unanimous opinion.

 Ahh, rich people problems....

Tuesday, December 28, 2021

Police officer delivering lunch was on the job for worker comp but not for statutory immunity, court rules

Pixabay by Ronald Plett (license)
A personal injury claim against a police officer's automobile insurer highlights the different scope of what it means to be "on the job" for purposes of statutory immunity and worker compensation.

In a case the Massachusetts Supreme Judicial Court (SJC) decided in late October, Raynham, Mass., police officers on mandatory firearms training on public property in 2017 organized takeout for lunch for a paid break.  Returning to the training site in his personal truck with the takeout, one officer drove the gravel path "faster than [he] should have," braked, and slid into and injured another officer seated at a picnic table.

The plaintiff-officer was permitted to claim state worker compensation, because he was injured on the job.  The defendant-driver's insurer meanwhile claimed immunity under the Massachusetts Tort Claims Act, because the insured acted "within the scope of his ... employment."  The SJC denied the insurer of the defense.

The common law test for "vicarious liability, respondeat superior, and agency," the court explained, is "whether the act was in furtherance of the employer's work," and the same test informs the invocation of statutory immunity.  That analysis comprises three factors in Massachusetts law: "(1) 'whether the conduct in question is of the kind the employee is hired to perform'; (2) 'whether it occurs within authorized time and space limits'; and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'"

Only the middle factor favored the insurer, the court opined, so the analysis on balance disfavored immunity.

Worker compensation and common law master-servant doctrine are indistinguishable as a practical matter in many cases, when an employee suffers injury doing the employer's bidding.  Doctrines in both veins rely on "scope" or "course of employment" tests.

But even when the language is the same, the tests differ, and in some cases, the difference matters.  Worker compensation tests only loosely for a causal connection between employment and injury, thus famously allowing a traveling salesman to recover when his overnight motel was destroyed by a tornado.  Vicarious liability, and thus, Massachusetts immunity, requires a closer causal nexus between the employee's specific pursuit and the injury that results.

In this analysis, the defendant-driver's lunchtime carelessness, for which he was suspended for five days, was not a "frolic" as escapes worker compensation coverage, but, at the same time, was not in furtherance of the employer's work, so qualified for neither vicarious liability nor statutory immunity.

The case is Berry v. Commerce Insurance Co., No. SJC-13089 (Mass. Oct. 25, 2021).  Justice Dalila Wendlandt wrote the unanimous court opinion.

Tuesday, May 11, 2021

Court rejects qui tam suit against big banks because whistleblower relied on publicly available data

"Big Ballin' Money Shot" by Louish Pixel CC BY-NC-ND 2.0
A whistleblower alleged that a who's who of big banks is improperly manipulating the municipal bond market to profit at the expense of Massachusetts taxpayers.  But the Massachusetts high court today rejected the whistleblower's lawsuit because he relied on public data.

This case is of interest because it arises under, and narrows, a state false claims act.  With the federal government doling out billions of dollars in pandemic relief to corporate America, I've predicted, and it doesn't take a crystal ball, that we're going to see a rise in corruption and a corresponding rise in enforcement actions.  One key enforcement mechanism is a false claims act.  In anticipation of good work to be had for lawyers in the false claims vein in coming years, I added the subject this spring to coverage in my 1L Torts II class.

False claims cases, or "qui tam actions," allow any person, a member of the general public called "a relator," to bring a lawsuit on behalf of the government, that is, the public, to recover money lost to fraud or misfeasance.  Derived conceptually from Roman law and carried on in Anglo-American common law for centuries, "qui tam" is short for a Latin phrase meaning one who sues on behalf of the king and for oneself.  Relators are incentivized by being entitled to a cut of any recovery.  Qui tam is authorized in the United States by federal law (§§ 3729-3722, and at DOJ) and the laws of many states (at Mass. AG), varying in their particulars, and also can be a part of sectoral enforcement mechanisms, especially in healthcare and finance.

In the instant case, relator "B.J." Johan Rosenberg, an investment analyst and capital adviser with experience in municipal securities, alleged that banks are pricing municipal bonds and manipulating the market in ways that profitably breach their obligations to their public clients.  Defendants in the Massachusetts case include Chase, Citi, Bank of America, Merrill Lynch, and Morgan Stanley.

The Supreme Judicial Court (SJC) dug into the particulars, which make my eyes glaze over and remind me why I have a financial adviser.  Suffice to say that Rosenberg understands this stuff well.  In 2019, Bloomberg described him as the "mystery man behind $3.6 billion in muni lawsuits," referring to qui tam actions in California, Illinois, and Massachusetts.  In 2015, Bloomberg reported, Rosenberg patented "MuniPriceTracker," a software designed to "ferret out Wall Street chicanery."

Rosenberg's analytical software is key in the instant case, and there the problem arises.  The false claims act in Massachusetts law (§§ 5A to 5O), as in federal law, bars claims based on publicly available information, whether from government reports or "news media."  The theory is that a qui tam statute should incentivize whistle-blowing by persons privy to information that the government and public are not, rather than potentially rewarding someone who rushes to the courthouse with old information.  As the SJC put it: "Where the essential features of an individual's purported chicanery already have been illuminated, ... affording a private party an incentive to bring suit is unwarranted, as it would add nothing to the Commonwealth's knowledge[.]"

The tricky bit in the instant case is that Rosenberg ran his software analysis on publicly available data.  That sourcing disallowed his action.  The court reasoned: "[I]t suffices that other members of the public, albeit with sufficient expertise and after having conducted some analysis, could have identified the true state of affairs by conducting the same data-crunching exercise as did the relator, using the data publicly available on the [Electronic Municipal Market Access] website."

Well, maybe.  To me, the phrase, "with sufficient expertise" is working overtime in that reasoning.  Rosenberg's method is sophisticated enough to be patent-worthy.  I don't think the average taxpayer spends weekends crunching market numbers, however publicly available they are.  And there's no evidence that anyone's doing it at the AG's office, either.  I worry that this narrowing of false claims to exclude "sweat of the brow" extrapolation from public records ill equips society to respond to sophisticated corporate malfeasance that can be revealed only by equally sophisticated detective work.

But I've already confessed my ignorance of finance.  You can read the 36-page opinion and decide for yourself.  Or choose among the views of the amici: the CFA Institute and Taxpayers Against Fraud Education Fund supported Rosenberg, and the Greater Boston Chamber of Commerce and New England Legal Foundation supported the banks.

The case is Rosenberg v. JPMorgan Chase & Co., No. SJC-12973 (Mass. May 11, 2020).  Justice Dalila Wendlandt wrote the opinion, affirming the lower court, for a unanimous SJC of six justices.  She was an accomplished patent attorney before going on the bench.