Jury finds Roundup weed killer is major factor in man’s cancer

Great News For Plaintiffs Involved in Roundup Litigation

SAN FRANCISCO — Roundup weed killer was a substantial factor in a California man’s cancer, a jury determined Tuesday in the first phase of a trial that attorneys said could help determine the fate of hundreds of similar lawsuits.

The unanimous verdict by the six-person jury in federal court in San Francisco came in a lawsuit filed against Roundup’s manufacturer, agribusiness giant Monsanto. Edwin Hardeman, 70, was the second plaintiff to go to trial out of thousands around the country who claim the weed killer causes cancer.

Monsanto says studies have established that Roundup’s active ingredient, glyphosate, is safe.

A San Francisco jury in August awarded another man $289 million after determining Roundup caused his non-Hodgkin’s lymphoma. A judge later slashed the award to $78 million, and Monsanto has appealed.

Hardeman’s trial is before a different judge and may be more significant. U.S. Judge Vince Chhabria is overseeing hundreds of Roundup lawsuits and has deemed Hardeman’s case and two others “bellwether trials.”

The outcome of such cases can help attorneys decide whether to keep fighting similar lawsuits or settle them. Legal experts said a jury verdict in favor of Hardeman and the other test plaintiffs would give their attorneys a strong bargaining position in any settlement talks for the remaining cases before Chhabria.

The judge had split Hardeman’s trial into two phases. Hardeman’s attorneys first had to convince jurors that using Roundup was a significant factor in his cancer before they could make arguments for damages.

The trial will now proceed to the second phase to determine whether the company is liable and if so, for how much.

Hardeman declined to comment outside court.

“This has been a long time coming for Mr. Hardeman,” said one of his attorneys, Jennifer Moore. “He’s very pleased he had his day in court, and we’re looking forward to phase two.”

Many government regulators have rejected a link between cancer and glyphosate. Monsanto has vehemently denied such a connection, saying hundreds of studies have established that the chemical is safe.

Bayer, which acquired Monsanto last year, said in a statement after the verdict that it continues to “believe firmly that the science confirms glyphosate-based herbicides do not cause cancer.”

“We are confident the evidence in phase two will show that Monsanto’s conduct has been appropriate and the company should not be liable for Mr. Hardeman’s cancer,” it said.

Monsanto developed glyphosate in the 1970s, and the weed killer is now sold in more than 160 countries and widely used in the U.S.

The herbicide came under increasing scrutiny after the France-based International Agency for Research on Cancer, which is part of the World Health Organization, classified it as a “probable human carcinogen” in 2015.

Lawsuits against Monsanto followed. The company has attacked the international research agency’s opinion as an outlier.

The U.S. Environmental Protection Agency says glyphosate is safe for people when used in accordance with label directions.

Hardeman started using Roundup products to treat poison oak, overgrowth and weeds on his Sonoma County property in the 1980s and continued using them through 2012, according to his attorneys. He was diagnosed with non-Hodgkin’s lymphoma in 2015.

Justices affirm maritime liability for manufacturers of asbestos-dependent equipment

Opinion analysis: Justices affirm maritime liability for manufacturers of asbestos-dependent equipment

Great News For Asbestos and Mesothelioma Victims

This morning’s 6-3 opinion in Air and Liquid Systems Corp. v. DeVries affirms the decision of the lower court holding that the manufacturers of asbestos-dependent equipment used on Navy ships can be held liable to sailors who became ill because of their contact with the asbestos.

Because the case involves liability for conduct at sea, the dispute arises under the “maritime law,” a type of federal common law for which the U.S. Supreme Court is the final authority. In the same way that the New York Court of Appeals is the final authority for the law of negligence in accidents that occur in New York, the U.S. Supreme Court sets the rules for tort liability when the injury occurs at sea.

Justice Kavanaugh with opinion in Air & Liquid Systems Corp. v. DeVries (Art Lien)

In this case, the injuries arise from equipment that the defendants manufactured and sold to the Navy in a “bare-metal” state. The equipment would not function properly without the application of asbestos, but the manufacturers did not themselves apply the asbestos. Rather, the Navy or its agents did. The Navy appears to have sovereign immunity from this type of liability, and the asbestos manufacturers are all bankrupt. Thus, the only people from whom the sailors can hope to recover are the manufacturers of the equipment to which the Navy applied the asbestos.

The trial court adopted a “bare-metal” defense, under which manufacturers cannot be liable for injuries from equipment (the asbestos insulation) that they did not make, sell or distribute. The court of appeals, by contrast, held that the manufacturers were liable if the harms from application of the asbestos were foreseeable. The Supreme Court, in an opinion by Justice Brett Kavanaugh, adopts a middle standard, under which the manufactures are liable if the product required incorporation of a part (the asbestos) and the manufacturer had reason to know that the integrated product would be dangerous for its intended uses.

The opinion proceeds by explaining the flaws in the two alternate approaches that persuade the Supreme Court to adopt the “required-incorporation” standard. On the one hand, the opinion expresses “agree[ment] with the manufacturers that a rule of mere foreseeability would sweep too broadly.” Kavanaugh notes that products “can foreseeably be used in numerous ways with numerous other products and parts,” and suggests that “[r]equiring a product manufacturer to imagine and warn about all of those possible uses … would impose a difficult and costly burden on manufacturers.”

Conversely, Kavanaugh also rejects the proposed “bare-metal” defense. As he explains, few quarrel with the rule of the “Restatement of Torts” that a manufacturer has a duty to warn if it “‘knows or has reason to know’ that the product ‘is or is likely to be dangerous for the use for which it is supplied.’” For the majority, there is “no persuasive reason to distinguish” that situation from the situation at hand, “when the manufacturer’s product requires incorporation of a part that the manufacturer knows or has reason to know is likely to make the integrated product dangerous for its intended uses.”

Kavanaugh also rejects the manufacturers’ argument that warning by manufacturers will be counterproductive and impractical, first by referring to economic literature suggesting that “the product manufacturer will often be in a better position [to warn] than the parts manufacturer,” and second by scoffing at the suggestion that the warning requirement will “meaningfully add” to existing disclosure obligations. Finally, Kavanaugh notes the court’s longstanding “longstanding solicitude for sailors” and suggests that the maritime context – in which the plaintiffs are “families of veterans who served in the U.S. Navy” – makes liability “especially appropriate.”

The court divides sharply on the question, with Justice Neil Gorsuch (joined by Justices Clarence Thomas and Samuel Alito) dissenting. In general, the dissenters believe that the court’s “required-incorporation” standard is lacking in “meaningful roots in the common law” and also too vague for predictable application. For that group, the bare-metal defense adopted by the district court provides a better answer.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case. The author of this post is not affiliated with the firm.]

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Promising New Developments for Spinal Cord Injury Victims

People who have suffered spinal cord injuries in accidents may have more hope today. For the first time, researchers at the University of California San Diego have used rapid 3D printing techniques to create a spinal cord. Then, they implanted that scaffolding , which was loaded with neural stem cells, into areas that were severely injured in the spinal cords of rats.

These implants were described in a January 2019 edition of Nature Medicine. They are designed to promote the growth of nerves across serious spinal cord injuries, restoring lost nerve connections and lost functionality. In the rats in the trials, the 3D scaffolds supported actual regrowth of nerve tissue, the survival of stem cells and expansion of neural cell axons from the scaffolding and into the actual spinal cord.

According to one of the researchers, scientists have moved closer to the goal of regeneration of damaged axons in serious spinal cord injuries, such as those that occur in car accidents, swimming accidents and falls.

The implants feature dozens of channels 200-micrometers wide that can provide guidance for stem cells and axons growing on the length of the host spinal cord. The printing technology the team used made 2-millimeter-sized spinal implants in less than 2 seconds. A traditional nozzle printer may take hours to produce structures that are much simpler.

Also, the treated rats’ circulatory systems were able to penetrate the interior of the implants to form a functioning network of tiny blood vessels. This assisted in survival of the neural stem cells.

The successful trials on rats mean scientists now plan to scale up the 3D technology for testing on bigger animal models, with possible human tests in the next several years.

What to Consider Legally in Spinal Cord Injury Cases

While it is encouraging there have been advances in treating spinal cord injuries in rats, people who suffer spinal cord damage in accidents face a tough future. Legally, suits focused on spinal cord injuries usually can be traced back to either negligence or a defective product. Negligence means an action or lack of action by a person that led to the spinal cord injury. On the other hand, a spinal cord injury case caused by a defective product is one where the product’s design flaw or manufacture somehow caused the injury.

There are other claims pertaining to spinal injury accident cases, but negligence and defective products comprise most. In any case, it is required for liability to be fully proven to win and obtain much-needed compensation.

The post Promising New Developments for Spinal Cord Injury Victims appeared first on Guajardo & Marks, LLP.

Sorting out a statute-of-limitations question in False Claims Act case

Argument analysis: Sorting out a thorny statute-of-limitations question in False Claims Act case

The Supreme Court engaged in a relatively lively argument today over a thorny issue of statutory interpretation under the False Claims Act: how two separate statute-of-limitations provisions apply to whistleblower, or “qui tam,” actions when the federal government has not intervened in a suit brought by a private party, or relator.

“These types of actions are exceptional in many ways,” Chief Justice John Roberts observed about the qui tam suits brought under the 1863 statute that was meant to battle rampant fraud by contractors during the Civil War.

Theodore J. Boutrous Jr. for petitioners (Art Lien)

Cochise Consultancy Inc. v. United States, ex rel. Hunt stems from a more recent period of U.S. military history — the deployment of U.S. forces in Afghanistan and Iraq. Whistleblower Billy Joe Hunt alleges that Cochise Consultancy and another defense contractor defrauded the federal government in a contract to clean up munitions left behind by Iraqi forces.

The FCA helps the federal government recover some $3 billion in fraudulent contracting expenses annually, with the government taking the lead in about one-quarter to one-third of cases, while private relators initiate the rest (with the possibility of the government stepping in at any point).

If the government intervenes in a civil action brought by a relator under the statute, the relator is generally entitled to between 15 percent and 25 percent of any monetary recovery. If the government declines to intervene and the relator successfully prosecutes the action, the relator receives between 25 percent and 30 percent of the recovery.

The case before the court centers on the FCA’s two statute of limitations provisions.

As explained in David Engstrom’s preview, the law’s original statute of limitations, Section 3731(b)(1), requires lawsuits to be filed within six years of the alleged fraud. In 1986, Congress added a second statute of limitations, Section 3731(b)(2), which permits suits up to three years after “the official of the United States charged with responsibility to act in the circumstances” learns the “facts material to the right of action,” but not more than 10 years after the alleged fraud. Both statutes of limitations apply to a “civil action under section 3730,” and “whichever occurs last” controls the case.

Hunt’s FCA suit was filed in 2013, more than six years after the alleged fraud, which occurred in 2006 and 2007. Hunt argues that his case qualifies for Section 3731(b)(2)’s alternative statute of limitations because he filed suit less than three years after the relevant “official of the United States” learned of the alleged fraud in 2010.

If the federal government had intervened in Hunt’s suit, the alternative statute of limitations plainly would have applied. But the government did not intervene. The district court dismissed the suit as untimely, but the U.S. Court of Appeals for the 11th Circuit reversed, taking a position different from conflicting views in several other circuits. As Engstrom’s preview explained, the 11th Circuit held that relators can invoke Section 3731(b)(2) in suits in which the United States is not a party and that Section 3731(b)(2)’s three-year limitations period does not begin until the government learns of the alleged fraud, regardless of when the relator discovers it.

Arguing on behalf of the contractors today, lawyer Theodore Boutrous said that under the 11th Circuit’s approach, “a relator could conceal from the United States and could wait to sue for a decade and still take advantage of the principle of equitable tolling.”

According to Boutros, that approach conflicts with Graham County Soil & Water Conservation District v. United States, ex rel. Wilson, in which the Supreme Court held that the six-year statute of limitations did not apply to actions brought under an FCA provision that governs retaliation.

Graham “held that these provisions must be interpreted in context, not in isolation,” Boutrous said.

Boutrous quickly ran into difficulty. Justice Neil Gorsuch said:

I just put my cards on the table so you can play them as you wish. In Graham, we held that retaliation claims just simply aren’t covered by this provision at all, and they don’t qualify under that introductory language for either purposes of [Section 3731] (b)(1) or (b)(2). Here, you’re asking us to split the baby, as it were. And we normally don’t read the same language to mean two different things. And I believe that’s a problem you face that we did not face in Graham.

Justice Sonia Sotomayor told Boutrous that the provisions appear to give relators a longer statute of limitations than the government, but it may be important to look at the broader purpose of the FCA, which is “is to ensure that when some fraud has occurred against the U.S., that there is recovery for the United States.”

Boutrous observed that Hunt waited seven years to file his qui tam suit, “and one of the cases that creates the conflict that brings us here was eight or nine years. It is so contrary to the very essence of equitable tolling to allow someone to lie in the weeds and conceal from the United States.”

Roberts interrupted him to say that seems to be more of an “academic concern.”

The relators “know if they don’t move promptly, another relator might preempt them,” the chief justice said. “They know that if they don’t move promptly, the government itself might find out before they have a chance to file, and that would preempt their action as well. The theory of a relator just sort of, as you say, waiting in the weeds I think is not a realistic one.”

Boutrous repeated several times that statutes of limitations serve important purposes.

“Ten years in civil litigation, memories fade, people — witnesses die,” Boutrous said. “They disappear. And so the difference between six years and 10 years is a very long time.”

Justice Samuel Alito seemed most sympathetic to the contractors’ side.

“This is an interesting case because it really does create a statutory interpretation dilemma,” Alito said. “This is a terribly-drafted statute. It may serve wonderful purposes, but if I were to grade whoever drafted it—anyway, I’ll pass that.”

But “you have a real problem trying to fit this into the statutory text,” he told Boutrous.

Two attorneys argued that relators can rely on the longer statute of limitations even when the government declines to intervene in a case.

Earl Mayfield, representing Hunt, said “the absurdity here would be if the statute didn’t result in the United States obtaining more funds or if there was some anomalous result.”

Mayfield said that Congress has “built a statutory scheme that confines the very harms” that petitioners raise.

“Virtually all relators bring their suits … as soon as they get a lawyer who is able to identify the fraud and bring it forward, because otherwise … they’ll lose everything,” he said. “It would be like taking a lottery ticket and dropping it in the toilet. No one does that. And at the end of the day, every time a relator acts, no matter when he does it, whether it be year one, year five, or year ten, it is the government that ultimately benefits.”

Matthew Guarnieri, an assistant to the U.S. solicitor general, also argued in support of Hunt’s position.

“The key thing to keep in mind” with respect to the policy result, Guarnieri said, “is that a relator is permitted to sue to vindicate an interest of the United States. The United States is the injured party in all of these cases. The United States is a real party in interest regardless of whether or not it elects to intervene in the action, the majority of any recovery would go to the United States. And in that context, it made good sense that Congress chose to make the tolling rule in (b)(1) applicable based on the knowledge of the injured party; that is, the United States.”

Despite some persistent questioning from Alito, both Mayfield and Guarnieri apparently felt confident enough in their arguments to finish well before their time had expired.


Past case linked to in this post:

Graham Cty. Soil Water Con. v. U.S. ex Rel. Wilson, 545 U.S. 409 (2005)

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondent in this case. The author of this post, however, is not affiliated with the firm.]

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8 must-know tax tips for your side hustle

As tax season gets into full swing and Americans everywhere gear up for that ever looming April 15th deadline, there is no shortage of information for business owners—or for traditional nine-to-fivers—about how best to handle their tax situations.

But what about for those individuals who fall somewhere in between—who have a traditional 9 to 5 job while also running a small business that generates income on the side?

Being a side-hustler comes with its own set of tax requirements and special considerations that may not be relevant for those who solely run their own business or those who solely work a traditional 9 to 5.

If you’re busy burning the candle at both ends as a side hustler, these eight must-know tax tips are for you:

1. Understand your business tax obligations

Whether you’re a freelancer or have a formally structured business such as an LLC or C-Corp, any person who brings in self-employment income not covered by a traditional employee W-2 is expected by the IRS to make regular estimated tax payments. These payments cover not only your standard income taxes but also self-employment and alternative minimum tax obligations.

To determine your estimated tax obligations for the current year, the IRS recommends using the estimated tax calculation worksheet within Form 1040-ES as a guide. This document will help you configure your expected gross income, deductions, and credits for the year to determine your tax liability.

From there—provided you expect to owe more than $1,000 in annual taxes on your self-employment income—you’ll need to make quarterly payments either online, by phone, or by mail to avoid a penalty for late payment.

2. Use a separate business bank account and credit card

You’ve likely heard it before, but the importance of using a separate business bank account and credit card for your business expenses can’t be overstated—especially when you have a side hustle.

When you’re working from home or on-the-go alongside your regular job, it is all too easy for the lines to become muddled between what is business and what is personal. And when you look back on your finances at the end of the year to prepare for tax season, it can be almost impossible to tell which is which.

To avoid any confusion, keep a separate business bank account and credit card under the name of your business and vow to use those accounts for business-related expenses. Any overlap will only create additional confusion—and it could make you more susceptible to a tax audit.

3. Maintain your bookkeeping monthly to avoid tax-time stress

When you have a side hustle in addition to regular income, tax time is already stressful enough. But if you haven’t been maintaining accurate books for your business throughout the year, that tax season stress can quickly escalate.

Ideally, you should be maintaining your business accounting through an online tool. But even if all you’re using is a simple spreadsheet, you should still take the time to reconcile your business revenue and expenses each and every month.

4. Automate putting aside your estimated tax payments

One of the hardest things about managing business cash flow as a side hustler is having to hold money in your account that is earned and freely available to you—but that needs to be set aside for paying estimated taxes. It can be hard to keep track of how much you owe to the government in the first place, and it takes discipline to continually keep that money set aside for taxes as opposed to taking a share of the profit or reinvesting in your business.

Avoid this unnecessary battle of wills and constant number crunching by creating a second business bank account into which you automatically transfer savings for estimated taxes.

As a starting point, most accountants will recommend saving around 25 percent of your gross profit for federal taxes, plus another 5 percent for state and local taxes if that applies in your location.

By automatically saving towards your tax payment either with every transaction you take in or on a weekly or monthly basis, you can keep track of exactly how much you need to save for estimated taxes and have a clear-cut policy to follow when opportunities arise that tempt you to dip into that extra cash on hand.

5. Consider increasing your employee tax withholdings

Does it take every ounce of your self-control to see estimated tax savings sit in your bank account when you could be reinvesting in your business? If you have traditional W-2 income in addition to your side hustle—or if you’re married and filing jointly with a spouse who files a W-2—there may be a better way.

By refiling your statement W-4 with your employer, you can actually choose to have additional taxes withheld (state and federal) from your regular employee paychecks. This additional withholding can cover the estimated taxes for your side hustle, eliminating the need to save for and pay quarterly estimated taxes within your business accounts.


6. Remember these often overlooked business deductions

With all of the time and energy that you put into your side hustle on top of a full-time job, even the most motivated and optimistic of entrepreneurs can easily be discouraged by the idea of setting aside a full 25 percent of the money you make for Uncle Sam.

But before you panic remember this: Your tax liability is calculated by using 25 percent of the gross profit of your business—not your business’s revenue. This means that any expense considered “ordinary and necessary” to the operation of your business can be deducted from the total amount that you’ll be taxed upon.

If you’re unsure what qualifies as “ordinary and necessary,” here are some common examples of deductible expenses that side hustlers often overlook:

Website Hosting, including domain registration, hosting services, and email

Professional Services, including graphic designers, consultants, accountants, business coaches, virtual assistants, and more

Apps and Software, including accounting software, project management apps, social media tools, and any other one-time or ongoing subscription costs

●  Equipment used for business, including technology, office supplies, or any tools required to make your product or perform your service

●  Supplies and Inventory, including costs of inventory you sell or raw materials used to create your product

Every business is different, so there’s a good chance you’ll have additional deductible expenses that aren’t listed here. Consult with a knowledgeable bookkeeper or accountant to ask about deductible expenses that may be specific to your business.

7. Deduct shared personal and business expenses by percentage used

In addition to these basic business expenses, most side-hustlers also incur expenses that live in a gray area between business and personal.

For example, have you purchased a personal computer that you also use for your business? Do you use your cell phone for business calls? What about your home internet, or even your car?

Applying the full cost of these expenses as a deduction for your side hustle would likely raise some red flags with the IRS. However, you can deduct a portion of the expenses according to the amount or frequency of their use for your business. For example, if a third of your time spent on the internet is doing work for your side hustle, you can qualify a third of your monthly internet bill as a deductible expense. As long as you’re willing and able to show justification for these calculations in the event of a tax audit, you can apply the same percentage calculation to any mixed-use expense.

8. When in doubt, work with a professional

Between keeping track of the correct IRS forms for each of your income streams, saving for and paying estimated taxes, and doing the math on percentages for your business and mixed-use expenses, navigating the tax code as a side hustler is downright complicated. If you’re at all in doubt about how to proceed, your best bet is to work with a professional accountant or tax lawyer.

Remember, the cost of hiring an accountant qualifies as a deductible business expense—and in most cases, a capable CPA can save you enough money on taxes to more than make up for their fee.

There’s no denying that dealing with taxes is one of the most stressful aspects of owning a small business. But with these tax tips in hand, you have everything you need to cross this year’s tax season off your to-do list and move right along with your business goals.

The post 8 must-know tax tips for your side hustle appeared first on Rocket Lawyer.

Automakers Equipping Vehicles with Automatic Emergency Braking

Automatic Emergency Braking is the Future

The National Highway Traffic Safety Administration (NHTSA) recently issued a press release about 10 automakers equipping more than half of the vehicles they produced between September 1, 2017 and August 31, 2018 with automatic emergency braking (AEB). This is the second wave of updates on the progress of these automobile manufacturers as they work towards equipping every new passenger occupant vehicle with crash avoidance technology by 2022.

The companies involved are all high-volume automakers. Honda, Nissan and Toyota are involved. Additionally, Mercedes-Benz, Tesla and Volvo all report 93 percent or higher conformance with the voluntary commitment, and Tesla had 100 percent.

Toyota Steps up in Crash Avoidance Technology Manufacturing

At this time, Toyota is the top automaker in terms of total number of vehicles produced with AEB. According to the NHTSA, Toyota equipped 2.2 million (90 percent) of its 2.5 million vehicles with AEB. Nissan and Honda follow behind with 78 percent and 61 percent of vehicles produced with AEB, respectively.

This data is being reported as part of a voluntary commitment by 20 automobile manufacturers. The ultimate goal is to equip virtually all new light-duty cars and trucks with a gross vehicle weight of 8,500 pounds or less with a low-speed AEB system that includes forward collision warning  (FCW) and crash imminent braking (CIB) to help prevent and mitigate front-to-rear crashes.

Improving Roadway Safety With Crash Avoidance Technology

The Insurance Institute for Highway Safety (IIHS) estimates that the commitment to introducing these crash avoidance technologies will prevent 28,000 crashes and 12,000 injuries by 2025. AEB systems with both FCW and CIB reduce rear-end crashes by half, and FCW alone can reduce them by more than a quarter.

The target is to get all new light-duty cars and trucks equipped with this technology by 2022. As it stands, automakers are working ahead of schedule. That being said, some automakers haven’t been conforming to the AEB commitment. Jaguar Land Rover didn’t report any vehicles with AEB.

The post Automakers Equipping Vehicles with Automatic Emergency Braking appeared first on Harris Personal Injury Lawyers.

Finding The Right Car Seat for Your Child

Young girl in car seat.

Is Your Child in the Right Car Seat?

Officials with the National Highway Traffic Safety Administration (NHTSA) want to help motorists find the right car seats for their children. The NHTSA now has a super easy-to-use tool on their website to help parents and caregivers find appropriately sized car seats for their children. All you have to do is plug in your child’s date of birth, height and weight, and you will be given all the appropriate options for your child’s age and size.

The NHTSA has guidelines posted for what types of car seat are appropriate for children of different ages and sizes. From birth to approximately 12 years old, it’s important to make sure your child is in the correct size and stage appropriate car seat or booster seat.

  • Rear-Facing Car Seats

    • Parents are encouraged to keep children in rear-facing car seats for as long as possible, as this is the safest configuration. Depending upon your child’s size and age, he or she could be in rear-facing seats between the ages of birth and three years old.
  • Forward-Facing Car Seats

    • When your child outgrows the rear-facing car seat, it’s time for a forward facing car seat. As with rear-facing seats, forward-facing seats should also be located in the back seat of your vehicle. When your child is ready to move up from a forward-facing seat, anywhere between ages four and seven years old depending upon size, they should move into a booster seat.
  • Booster Seats and Seat Belts

    • Continuing to keep children located in the backseat, the next step up is the booster seat. This can help to keep a child properly positioned in the vehicle’s seat, so that the seat belt fits them correctly. Children may need to ride in booster seats from ages eight up to 12 years old. Once your child is big enough to fit a in a seat belt properly without a booster seat, you can go directly to the seat belt only method. As always, parents are encouraged to keep their children in the back seat, where it’s safest.

The post Finding The Right Car Seat for Your Child appeared first on Harris Personal Injury Lawyers.

SCOTUS Round-Up 431

Monday round-up

This morning the Supreme Court begins its March sitting with two oral arguments. The first case is Virginia House of Delegates v. Bethune-Hill, an appeal by Republican legislators of a lower-court ruling that requires 11 state legislative districts to be redrawn to correct racial gerrymandering. Amy Howe had this blog’s preview, which was first published at Howe on the Court. Amanda Wong and Jared Ham preview the case at Cornell Law School’s Legal Information Institute, and Subscript Law has a graphic explainer. For The Washington Post, Gregory Schneider reports that “[i]n agreeing to hear the appeal, the Supreme Court said it would first consider the issue of whether the House Republicans have legal standing to bring it,” which “hinges on whether the House leaders can show they would be harmed by the ruling.”

Today’s second argument is in Smith v. Berryhill, which asks whether dismissal as untimely of a Supplemental Security Income claimant’s request for review is a final decision subject to judicial review. Kathryn Moore previewed the case for this blog. Garion Liberti and Tayler Woelcke have Cornell’s preview.

On Friday, the Supreme Court added a constitutional question to Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census, instructing the parties to brief and argue whether the decision violates the enumeration clause. Amy Howe covers the order for this blog, in a post that first appeared at Howe on the Court. At his eponymous blog, Lyle Denniston reports that “[t]he case up to now has been only a test of whether asking everyone in America about their citizenship would be a violation of two federal laws.” Additional coverage comes from Greg Stohr at Bloomberg, who reports that in another challenge to the government’s decision, a district-court judge recently ruled that “a citizenship question would lead to a less accurate count, violating the constitutional requirement of an ‘actual enumeration’ of the population every 10 years.”

For The Washington Post, Robert Barnes reports that “[w]hen the U.S. Supreme Court takes up Flowers v. Mississippi on Wednesday, it won’t be considering the evidence against [Mississippi death-row inmate Curtis Flowers:] Essentially, it will be Doug Evans’s prosecutorial tactics that are on trial, and whether he discriminated against African Americans in keeping them off the jury in [Flowers’] 2010 trial.” At Jurist, Chris Kemmitt weighs in on the case, urging the Supreme Court “to continue its long-standing commitment to the principle that racial prejudice has no place in jury selection—especially when the defendant’s life is on the line.”


  • For The New York Times, Adam Liptak writes that the challengers in on of next week’s two partisan-gerrymandering cases, Rucho v. Common Cause, a challenge to North Carolina’s congressional map, “will be making their arguments to a new audience, one that may not be as receptive as the court that included Justice Kennedy.”
  • At Law.com, Marcia Coyle reports that “[t]he Tenth Circuit Judicial Council on Friday denied 20 appeals of its earlier dismissal of misconduct complaints against now-Justice Brett Kavanaugh stemming from his nomination and confirmation to the U.S. Supreme Court.”
  • At NPR, Nina Totenberg reviews Evan Thomas’ new biography of Justice Sandra Day O’Connor, calling it “an unvarnished and psychologically intuitive look at the nation’s first female Supreme Court justice, and some of her contradictory characteristics.”
  • At Bloomberg Law, Kimberly Robinson explains that, even after the retirement of “swing” justice Anthony Kennedy, “there’s still potential for the court’s outnumbered liberals to cobble together majorities in certain types of cases, based on past votes and the newest justices’ histories.”
  • At The Hollywood Reporter, Eriq Gardner looks at a movie producer’s cert petition challenging “a conviction for defrauding Louisiana’s movie tax credit system [that] has now picked up support from 14 retired federal judges, nine criminal law professors and the National Association of Criminal Defense Lawyers.”

The post Monday round-up appeared first on SCOTUSblog.

Justices consider availability of punitive damages in maritime unseaworthiness case

SCOTUS weighs in on the availability of punitive damages based on alleged “unseaworthiness” of a vessel

Argument preview: Justices consider availability of punitive damages in maritime unseaworthiness case

The few admiralty cases the Supreme Court hears often address common-law questions resembling those that normally arise on land and are generally within the province of state courts. These maritime adventures tend to involve a deep journey into relatively esoteric doctrinal areas, requiring the court to determine its proper judicial role as well as to make appropriate substantive choices.

This term’s second admiralty excursion, The Dutra Group v. Batterton, presents another such occasion. On March 25, the Supreme Court will hear argument on whether a Jones Act seaman may recover damages in a suit for personal injuries based on the alleged unseaworthiness of the vessel to which he was assigned. The simplicity of that statement hides the possible challenges of the doctrinal voyage that may await the justices, depending on the course they set. The question has produced a circuit split, whose resolution will likely require the Supreme Court to interpret at least two of its recent precedents, 1990’s Miles v. Apex Marine Corp. and 2009’s Atlantic Sounding Co. v. Townsend. The case will immerse the justices in decades, if not centuries, of maritime law regarding the various remedies available to seamen in personal-injury and wrongful-death cases and their sources in general maritime and federal statutory law.

Christopher Batterton, a seaman, allegedly injured his hand while working on a dredge vessel to which he had been assigned. Batterton sought recovery from his employer, The Dutra Group, under a familiar trilogy of maritime remedies: maintenance and cure; the Jones Act, 46 U.S.C. 30104; and unseaworthiness. Maintenance and cure is a limited, but strict-liability, quasi-contractual remedy that allows a seaman who is injured or falls ill in service of the ship to recover food, lodging and medical treatment until he is cured to the extent possible. The Jones Act authorizes a seaman to sue an employer for negligence, and the unseaworthiness doctrine allows recovery if injury results from a condition that renders the vessel not reasonably fit for its intended purpose. Maintenance and cure and unseaworthiness are judge-made doctrines; Congress passed the Jones Act in 1920. The Jones Act and the unseaworthiness doctrine allow a seaman recovery that compensates for loss from injury or wrongful death attributable to the employer. These damages differ from, and are more extensive than, the allowances for some basic living expenses and medical care that the more limited maintenance-and-cure action confers.

In addition to seeking compensatory relief, Batterton attributed the alleged unseaworthiness of the vessel to willful and wanton misconduct and sought punitive damages based on that theory only. That decision ultimately transformed this case from a standard maritime personal-injury dispute into a controversy worthy of certiorari. The district court denied Dutra’s motion to strike the punitive-damage count but certified that decision for interlocutory appeal, which the U.S. Court of Appeals for the 9th Circuit accepted.

The question, whether a Jones Act seaman could recover punitive damages for an injury attributable to vessel unseaworthiness, shined a spotlight on Miles and Townsend. In Miles, the Supreme Court, 8-0, denied recovery of nonpecuniary damages for loss of society in an unseaworthiness wrongful-death action and for lost future income in an unseaworthiness survival action. It reasoned that because such damages are not available in a congressionally created Jones Act wrongful-death suit, they should be unrecoverable under the alternative tort theory of general maritime law unseaworthiness.

In Townsend, however, the Supreme Court concluded, 5-4, that punitive damages are available for breach of the duty under general maritime law to provide maintenance and cure.

Miles did not discuss punitive damages. The four Townsend dissenters concluded that the Jones Act precludes punitive damages, but the majority, having determined that issue not to be decisive, specifically did not address it.

The 9th Circuit affirmed the district court’s decision. In ruling that punitive damages may be awarded to seamen for personal injuries in a general maritime unseaworthiness action, the appellate court followed its pre-Miles precedent, in part because it found Townsend the more dispositive Supreme Court decision. The 9th Circuit read Townsend as limiting Miles to claims for loss of society and lost future earnings in unseaworthiness actions and not foreclosing punitive damages in general maritime law actions. In the 9th Circuit’s view, Miles precluded nonpecuniary damages in unseaworthiness actions but did not bar punitive damages because they do not compensate the injured party for a loss.

The 9th Circuit’s conclusion put it at odds with decisions in other circuits with sizeable admiralty dockets, including a divided 2014 U.S. Court of Appeals for the 5th Circuit decision and post-Miles, pre-Townsend opinions in the U.S. Courts of Appeals for the 1st, 2nd and 6th Circuits, which had concluded that Miles precluded punitive-damage claims in general maritime unseaworthiness or negligence actions.

In its Supreme Court brief, Dutra argues that punitive damages are unavailable in general maritime law unseaworthiness actions. It identifies as a basic premise of Miles the separation-of-powers concern that admiralty courts should follow related congressional limits in shaping general maritime law in analogous areas and should preserve maritime uniformity. Although Miles did not involve punitive damages, Dutra interprets it as signaling that damages available in a judge-made unseaworthiness action are limited to those Congress allowed under the Jones Act. Because the Jones Act, like the Federal Employers Liability Act on which it was based, has been construed to preclude punitive damages, Miles’ command of judicial deference to congressional judgments dictates the same result for an unseaworthiness action.

Dutra construes Townsend as applying to a maintenance and cure, not unseaworthiness, action and as leaving Miles in place. The maintenance-and-cure remedy involved in Townsend was an ancient doctrine that predated the Jones Act’s statutory negligence action and furnished a distinct recovery from that provided under the Jones Act. By contrast, the unseaworthiness remedy at issue in Miles and Dutra presents an alternative to Jones Act recovery for the same injury and incident, one that courts created in its current form after Congress had provided the statutory negligence remedy.

For his part, Batterton sees Townsend as the relevant precedent and concludes that it allows a seaman to recover punitive damages in an injury action for breach of the general maritime law duty to furnish a seaworthy vessel. He argues that Townsend establishes that the long-standing availability of punitive damages at common law extends to maritime claims, including personal-injury claims, absent evidence of exclusion. Townsend deemed Miles inapplicable when the general maritime cause of action and the remedy were well established prior to adoption of the Jones Act, as Batterton argues was true of unseaworthiness and punitive damages. Dutra responds that the unseaworthiness remedy was transformed beginning in the 1940s and that no established history of punitive damages in unseaworthiness actions predated the Jones Act.

Batterton maintains that Townsend rejected the argument that Miles precluded punitive damages in general maritime personal-injury actions. Instead, Miles focused simply on the scope of the general maritime law wrongful-death remedy the Supreme Court created in 1970 in Moragne v. States Marine Lines Inc. to coincide with federal statutory wrongful-death remedies. Because congressional action had shaped the creation of the general maritime law remedy, the court naturally tailored it to reflect those statutory wrongful-death actions. Batterton would confine Miles to the wrongful-death context. Dutra argues that permitting punitive damages in a seaman’s personal-injury, but not wrongful-death, action would be nonsensical and would contravene a purpose of Moragne: to harmonize recovery for injury and wrongful death.

Although Batterton argues that punitive damages are recoverable in an unseaworthiness injury action even if they are not available under the Jones Act, he also challenges Dutra’s premise that the Jones Act precludes awarding punitive damages. On the contrary, he maintains, the FELA and Jones Act allow the recovery of “damages,” which includes punitive relief. Batterton devotes 10 pages of his 50-page brief to arguing that punitive damages are permitted under the Jones Act and the FELA. Dutra replies that courts have never suggested that punitive damages were available under those two statutory remedies since Congress created them a century ago.

Batterton argues that punitive damages advance significant maritime policies, especially regarding personal-injury and wrongful-death claims of seamen. Dutra cautions that making punitive damages available in unseaworthiness actions would prompt potential defendants to overdeter harm by taking wasteful precautions or foregoing valuable commerce and would harm the economy, the environment and national security.

Although all nine of the current justices joined the court after Justice Sandra Day O’Connor wrote the decision in Miles, five of them participated in Townsend. Justice Clarence Thomas wrote the majority opinion, which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. Justice Samuel Alito’s dissent was joined by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy.

The parties’ briefs suggest various possible outcomes. The course the court takes is likely to depend on how it construes its two most applicable precedents, how it understands the history of maritime personal-injury and wrongful-death remedies, and how it sees its role in maritime matters.


Past cases linked to in this post:

Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009)
Miles v. Apex Marine Corp., 498 U.S. 19 (1990)
Moragne v. States Marine Lines, 398 U.S. 375 (1970)

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Justices add constitutional question to citizenship on the census case

Justices add constitutional question to citizenship case

The citizenship question on the census issue just hit center stage

On April 23, 2019 the Supreme Court will hear oral argument in the challenge to the decision to reinstate a question about citizenship on the 2020 census. The justices had originally granted review to decide whether that decision violated federal laws governing administrative agencies, but today the justices announced that they will also consider whether the decision violates the Constitution.

The justices’ order adding the constitutional issue to the case came four days after U.S. Solicitor General Noel Francisco sent a letter to Scott Harris, the clerk of the Supreme Court. The letter informed Harris (and, by extension, the justices) that a federal district court in California had ruled that the addition of the citizenship question violates both federal administrative laws and the Constitution’s enumeration clause, which requires the “actual Enumeration” of the U.S. population every 10 years, to allow congressional representatives to be evenly divided among the states. The only way to finally resolve whether the federal government can bring back the citizenship question, the government stressed, is to have the justices take up the constitutional issue too: Otherwise, even if the Supreme Court were to agree with the federal government that the citizenship question does not violate federal administrative laws, lower courts could still rely on the enumeration clause to block the government from including it.

With the June 2019 deadline to finalize the census questionnaire looming, the government continued, the best course of action would be for the justices to add the constitutional issue to the case slated for oral argument on April 23, which hails from a federal district court in New York. That is exactly what the justices did today, giving the challengers – states and civil rights groups, led by New York – an extra 2000 words to address the issue in their briefs, which are due on April 1. The justices gave the federal government (which had already addressed the enumeration clause in its opening brief) an extra 1000 words in its reply brief.

This post was first published at Howe on the Court.

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