In a Chinese defamation case, the Beijing Internet Court has ruled in favor of the plaintiff and contrary to American tort norms regarding ISP immunity and posthumous defamation.
Sixth Tone reported on the suit "filed by the son of the late playwright, screenwriter, and composer Zhao Zhong" (赵忠). The suit alleged that an anonymous user of Baidu's Baike, China's answer to Wikipedia, edited Zhao's biographical page to defamatory effect. The edits by user "charming and beautiful woman" (Qiaonü Jiaren) criticized Zhao as a "thief" and cultural "traitor," and deleted the libretto of the opera Red Coral from his listed oeuvre. The changes remained on the page for five years, from 2013 to 2018, until Zhao's family noticed and demanded correction. Baidu reversed the edits. The son nevertheless complained of negligence in Baidu's failure reasonably to moderate content and consequent reputational injury to the family.
The court ruled against Baidu. Beijing tort lawyer Qu Zhenhong told Sixth Tone that Baidu's compliance with the defamation notice-and-takedown procedure of PRC Tort Law article 36 did not relieve the internet service provider of liability under article 6 for the defamation's five years in publication. That approach deviates from the powerful ISP immunity of 47 U.S.C. § 230 in the United States—which has faced slowly mounting criticism both at home and in Europe.
A second deviation from American tort norms arises in the allowance of a defamation action by the family after the death of the person defamed. Common law jurisdictions including the United States continue generally to observe the historic rule that defamation claims die with their claimants, though states are widely experimenting with the posthumous right of publicity by statute. Cf. The Savory Tort on Defaming the Dead.
The court made clear that it approves of a family's ancillary defamation claim, not just a decedent's claim that persists after death. "A negative social assessment of the deceased not only violates the reputation of the deceased, but also affects the overall reputation of the deceased's close relatives as well as personal reputation," People's Court News wrote in summary of the court's decision (Google translation). "Therefore, for any close relative of the deceased, they have the right to request the court to protect the right [of the] deceased, or to pursue the responsibility of infringing on their own reputation based on their close relatives."
By its publisher's description, Red Coral (Hong shan hu) "describes the story of the peoples who lived in the red coral
island and fought against the troops of Chiang Kaishek. They cooperated
with the Red Army and defeated the enemy with the guidance of the
people's Liberation Army." Red Coral was adapted to film in 1961 (DVD pictured).
A number of stories have broken in the last couple weeks that, ordinarily, I would like to write about on this blog. I've been traveling a good deal and unable to keep up, so here's a short, uh, roundup. Hat tip to my Torts II class, which is ever vigilant.
Strict product liability—Roundup. In phase one of a bifurcated trial proceeding, plaintiff Edward Hardeman succeeded in causally tracing his cancer to glyphosate, the active ingredient in Roundup herbicide. (NYT, Mar. 19.) Bayer, which purchased Roundup maker Monsanto, saw its stock price tumble on the German exchange, Fortune reported. This finding follows the notorious $289m award (later reduced to $78m) entered in favor of Dewayne Johnson against Monsanto in California state court in August 2018 (Phys.org), now on appeal (Justice Pesticides). Recap is tracking Hardeman v. Monsanto, 3:16-cv-00525, in federal court in the Northern District of California.
Gun liability—Sandy Hook. The Connecticut Supreme Court issued its long awaited ruling in the Sandy Hook families' case against gun maker Remington, allowing the case to go forward on one theory of Connecticut consumer protection law. (NYT, Mar. 14.) The court delivered 4-3 upon the dubious conclusion that the U.S. Congress, in immunizing gun makers from liability upon a host of tort theories, did not mean to preempt remedies under state consumer protection statutes such as the Connecticut Unfair Trade Practices Act. The dissent was unpersuaded. Meanwhile many a pundit had commented on the gun regulatory response pending in New Zealand since the Christchurch attack, marking the contrast with U.S. legislative paralysis amid shootings here. The case is Soto v. Bushmaster Firearms International, LLC, No. SC-19832.
Wrongful death, collateral estoppel—Aaron Hernandez. The Massachusetts Supreme Judicial Court reinstated the conviction of former NFL player Aaron Hernandez in the June 2013 murder of Odin Lloyd. Lower courts had thrown out the conviction after Hernandez hanged himself in prison in 2017. Massachusetts law appeared to require that the conviction be vacated upon the common law doctrine of "abatement ab initio," because the defense appeal was not resolved when the defendant died. Instead the Massachusetts high court held that the doctrine is antiquated, and the record should read "neither affirmed nor reversed." In the case of Lloyd, the victim's mother had settled her civil claim. But the Court recognized
the potential impact abatement ab initio can have on collateral matters, including undermining the potential application of issue preclusion.... There are a host of potential other interests than can be affected by the outcome of that prosecution and, although we must be mindful not to let any one of those other interests override a defendant's rights, they are worthy of recognition when considering the best approach to follow when a defendant dies during the pendency of a direct appeal.
The case is Commonwealth v. Hernandez, No. SJC-12501 (Mass. Mar. 13, 2019).
Invasion of privacy, infliction of emotional distress—Monica Lewinsky. John Oliver did a brilliant segment on, and interview with, Monica Lewinsky on his Last Week Tonight. Looking back at comedians' crass jokes in the 1990s—Oliver includes himself, but it's Jay Leno who is cringeworthy—makes one uncomfortably aware of how far #MeToo has evolved our perception of power dynamics in the workplace. The sum of the experience is newfound empathy and more than a little angst over online bullying. I now follow Lewinsky on Twitter, as she's a more effective anti-bullying spokesperson than Melania Trump.
Defamation, Supremacy Clause—Summer Zervos. The Appellate Division of the New York Supreme Court ruled that Summer Zervos's defamation suit against President Trump may go forward despite the President's constitutional objections. Zervos alleges that Trump defamed her through his spiteful attacks on her credibility over claims of his sexual misconduct after she was a contestant on The Apprentice. In Clinton v. Jones style, the President sought to have a stay in the action until his White House service concludes. The U.S. Supreme Court rejected that claim in Clinton, ruling that the lower court could manage the case with deference to the demands of the presidency—a conclusion, incidentally, that might have been proved erroneous in light of subsequent events. Anyway President Trump tweaked the tack, arguing that because this case arises in state law in state court, vertical federalism, as expressed in the Supremacy Clause, should not permit the arguably untenable subservience of a sitting President to the supervisory authority of the state court. The Appellate Division concluded 3-2 that the problem can be managed; as in the past, for example, a President might testify via video. Some court orders might violate supremacy, the court explained, such as a contempt ruling, but that mere possibility does not warrant stay of the action in its entirety. The Appellate Division also ruled that the charge essentially of "liar" is not mere rhetorical hyperbole, but is capable of defamatory meaning. The case is Zervos v. Trump, No. 150522/2017 (N.Y. App. Div. Mar. 14, 2019).
Criminal libel, First Amendment—Montana statute. The U.S. District Court for the District of Montana struck down the state's criminal libel statute for want of an actual-malice-as-to-falsity standard of fault. The case arose from an ugly dispute in election of a county district judge. The statute came close to the actual malice standard, requiring knowledge of a statement's defamatory character, but making no mention of recklessness. The federal court acknowledged that the state high court had read First Amendment standards into other state statutes. But the criminal libel law had been applied without modification. Moreover, although the law originated from 1962, before New York Times v. Sullivan and Garrison v. Louisiana in 1964, the legislature had amended the statute more than once, in fact once amending it to ensure truth as a defense, so had passed up chances to bring the statute into full constitutional conformity. Recap is tracking Myers v. Fulbright, No. 9:17-cv-00059-DWM-JCL (D. Mont. Mar. 18, 2019). Professor Eugene Volokh wrote about the case for Reason.
Syria owes more than $300m in wrongful death damages to the family of American journalist Marie Colvin, who was killed while working for the U.K. Sunday Times covering the siege of Homs in the Syrian civil war in 2012, the U.S. District Court for the District of Columbia ruled January 30, per U.S. District Judge Amy Berman Jackson (e.g., N.Y. Times).
The Assad regime did not answer the lawsuit, and the court entered judgment by default. The claim arose under the state-sponsored terrorism exception to the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1605A. The exception was amended into the FSIA in 2008 to strengthen an earlier 1996 exception after claims against Iran faltered in enforcement. Section 1605A spells out the existence of a private cause of action in federal law, irrespective of the vagaries of state tort law. The court found that the Colvin family presented sufficient evidence to prove that Marie Colvin's death was an "extrajudicial killing," beyond the shield of FSIA immunity. The law also excepts torture, aircraft sabotage, and hostage taking from FSIA immunity.
The case is furthermore noteworthy because the court awarded damages to Colvin's sister upon a liability theory of intentional infliction of emotional distress. Typically in state law, actions alleging emotional distress inflicted on a "bystander" by the killing of a loved one fail for the plaintiff's inability to prove intent as to the suffering of the bystander. However, in the Colvin case, the court reasoned that the very purpose of a terrorist attack is to inflict emotional suffering on third parties.
The court awarded the family $11,836 in funerary expenses and $300m in punitive damages, and awarded Colvin's sister $2.5m in damages for emotional suffering ("solatium"). Photojournalist Paul Conroy, who worked with Colvin and survived the Homs attack, told the BBC that the ruling is not about money, which the family likely will never see, but is important to de-legitimize the Assad regime in the community of nations.
Colvin's story is the subject of Under the Wire, a 2018 documentary film by Chris Martin, available on iTunes (trailer below), and A Private War, a 2018 dramatic film by Matthew Heineman (IMDb), starring Rosamund Pike, due for DVD/Blu-ray release on Amazon in February. The screenplay derived from Marie Brenner's coverage of Colvin's life and death for Vanity Fair.
The case is Colvin v. Syrian Arab Republic, No. 1:16-cv-01423 (D.D.C. Jan. 30, 2019). Judge Jackson is an appointee of President Obama and recently presided over the Paul Manafort plea deal. In 2017, she dismissed a wrongful death suit arising from the Benghazi Mission attack, against Hillary Clinton, on grounds of official immunity.
When my 1L Torts class studies wrongful death, I take the occasion to challenge the notion that money, based on quantified loss, is necessarily the best way to effect a liability award (cf. Prof. Andrew McClurg's gut-wrenching and classic Dead Sorrow).Matthew R. Stevens, '21, posted the following on the class discussion board, and I think it makes a worthwhile complementary observation about tort awards in our age of debt and financial fragility. Reprinted with permission.
Professor Peltz-Steele discussed the idea of money damages
in wrongful death actions, and their ability to make up for what was lost. He
challenged whether they really made that pain any better, and whether a $1,000,000 award
helps any more than a $500,000 award. I just wanted to share my thoughts on a
possible argument that the monetary damages could help make up for what is
lost.
The loss of a family member is surely nothing short of a
nightmare. The impending depression, stress, and various other negative
emotions can impact someone’s life in irrepressible ways. No earthly remedy
could ever truly provide perfect relief for such a loss. I think it could be
argued, however, that money is well suited to lessen the impact of the loss.
According to a Case Western study [reported here by CNBC], increased income can
actually cause a “reduction in negative emotions” (CNBC, para. 6). Furthermore,
the study also found that higher incomes could “reduce the incidence of serious
mental illness” (CNBC, para. 6). It is important to note that the study is dealing
with annual incomes, and not large lump sums of cash. The study also notes that
the increase in happiness shows diminished returns as you reach upwards of
$160,000 a year (CNBC, fig. 2). I think this can be reconciled by looking at
the damages award as a lump-sum salary. For example, if a father at the age of
40 received a wrongful death damages award of $1,000,000, you could divide that
award by the remainder years before retirement (25) to create a net increase
in annual income of $40,000. That increased “income” could statistically reduce
his negative emotions, and reduce the chances of serious mental illness. An
award of $500,000 would surely help, but over time it would not have as big of
an effect, only creating an extra $20,000 in annual income. This of course is
not a fix-all, but it is certainly a start to fix the unfixable.
Moreover, on the other side of the coin, issues with money
statistically causes large amounts of stress. An APA survey in 2014 found that
“72 percent of Americans reported feeling stressed about money at least some of
the time during the past month” (APA, para. 3). Furthermore, 22% experienced
“extreme stress” over money in the past month (APA, para. 3). The study goes even
further to explain the types of issues stressing over money creates, including
avoiding medical care, and being a major conflict in relationships (APA,
para. 5). So then perhaps the increased monetary awards for wrongful death
actions could effectively reduce stress in the claimant’s life. With a large
influx of cash, it is arguable that a lot of money-induced stress would be
taken out of the picture and increasing the claimant’s quality of life.
This of course was a quick look into the idea of monetary
damages and their possible ability to remedy the loss of a loved one. I would
like to reiterate that I don’t believe money can ever replace the loss of a
loved one, but I’m simply saying there is an argument that money helps reduce
the net loss of quality of life for the claimant. It does appear that the
theory holds some weight, but with its issues: one major issue being the
diminishing returns on happiness when income reaches a certain threshold.
Perhaps this could be integrated into the analysis more, but I wanted to keep a
small scope for the analysis.
Massachusetts appellate courts have rendered two wrongful death opinions in the last two days, both favoring plaintiffs.
In Dubuque v. Cumberland Farms, Inc. (AC 17-P-266) (June 6, 2018), the Court of Appeals upheld a $20m judgment against the convenience store after inadequate "bollard" protection of a pedestrian who was killed when struck by an out-of-control car. The opinion includes an interesting discussion on evidence regarding the admissibility of past pedestrian-car collisions arguably similar or distinguishable.
Today in Correa v. Schoeck (SJC 12409), the Supreme Judicial Court reinstated Walgreens pharmacy as a defendant in the tragic death of a 19-year-old who was unable to fill a prescription for life-saving medication. The prescription was hung up on paperwork somewhere among pharmacy, doctor's office, and insurer. The court held the pharmacy bound to at least a thin reed of duty in the negligence claim.
Today the high court of Massachusetts held no duty, as a matter of law, in a wrongful death case of attenuated duty and causation in which the
plaintiff sought to hold the Massachusetts Institute of Technology liable in negligence for a struggling
student's suicide. The court
left the door open for proof of a special relationship on different
facts.
Tort watchers and university counsel near and far have been awaiting the decision in Nguyen v. Massachusetts Institute of Technology, No. SJC-12329 (May 7, 2018). The November 7 oral argument in the case is online here.
A university-student relationship is not completely outside the custodial scope that gives rise to a duty in tort law in K12, the court held; nor is it completely the same. Rather, the court "must ... take into account a complex mix of competing considerations. Students are adults but often young and vulnerable; their right to privacy and their desire for independence may conflict with their immaturity and need for protection."
With regard to a suicide risk, reasonable foreseeability is key to the special relationship/duty analysis. Relevant factors include whether student reliance on the university impeded others who might have rendered aid, as might occur in a student-residential environment; and, from research by emerita Washington & Lee University Law School professor Ann MacLean Massie, the court quoting,
"degree of certainty of harm to the plaintiff; burden upon the defendant to take reasonable steps to prevent the injury; some kind of mutual dependence of plaintiff and defendant upon each other, frequently . . . involving financial benefit to the defendant arising from the relationship; moral blameworthiness of defendant's conduct in failing to act; and social policy considerations involved in placing the economic burden of the loss on the defendant."
In discussing the flexibility of this analysis, Judge Learned Hand's famous BPL test made an appearance (a test customarily directed to breach rather than duty), off-setting the gravity of a suicide by probability, and balancing the result against the burden on the university of employing effective preventive measures. The court also emphasized the dispositive nature of actual knowledge: "Where a university has actual knowledge of a student's suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intentions to commit suicide, the university has a duty to take reasonable measures under the circumstances to protect the student from self-harm."
In the instant case, "Nguyen never communicated by words or actions to any MIT employee that he had stated plans or intentions to commit suicide, and any prior suicide attempts occurred well over a year before matriculation." He also strove to partition his mental health treatment from his academic life.
The court upheld summary judgment for the defendant on the tort claims as a matter of law.
Tonight marks the premiere of Goliath on Amazon TV/Video. Billy Bob Thornton, a native of Bill-Clinton-"Boyhood Home" Hot Springs, Arkansas, stars as a tort lawyer, presumably our David, in the saga of a wrongful death lawsuit against big-money interests.
The story line is far from unprecedented, but my expectations are high. This show comes to us from producers David E. Kelley and Jonathan Shapiro. We have Kelley to thank for a pantheon of my most beloved TV lawyers, including Arnie Becker, Douglas Wambaugh, Ally McBeal, Alan Shore, and Denny Crane. Jonathan Shapiro has been a key writer behind some of those characters, having worked on James Spader projects from The Practice to The Blacklist.
Goliath comes at a good time, as the election cycle has heightened American angst about dysfunctional institutions. With the Supreme Court opening its new term with only eight justices, Citizens United and the role of wealth in politics looms large over the weird dynamics playing out in all three branches of government right now. When Kelley and Shapiro appeared at the American Bar Association Annual Meeting in August to talk about Goliath, they said that dysfunction in the civil litigation system would be a central theme in the new show. The trial, figurative and literal, of protagonist Billy McBride (Thornton) would expose the impact on our justice system of dramatic resource disparities between individual plaintiffs and "Goliath" corporate defendants, as well as the related, gradual extinction of our jury system. I'll paste below my tweets from that event, which convey a flavor of the presentation.
Reviews of the show so far are positive, if guarded. The consensus seems to be that the haggard lawyer fighting for justice and thereby his own redemption is a tired cliché. Yet the Kelley/Shapiro-led execution of the show and the small-screen mastery of Thornton--whose understated lead as Malvo in TV's Fargo s1 was a morbid joy--make Goliath irresistible viewing nonetheless.
I'm tied up this weekend with a couple of projects and might not be able to binge Goliath off the bat. So no spoilers!
A second deviation from American tort norms arises in the allowance of a defamation action by the family after the death of the person defamed. Common law jurisdictions including the United States continue generally to observe the historic rule that defamation claims die with their claimants, though states are widely experimenting with the posthumous right of publicity by statute. Cf. The Savory Tort on Defaming the Dead.
