University of Louisville Law Faculty Blog

Pre-Impact Emotional Distress in Death Case

Wrongful Death cases have traditionally had lower damage awards then serious injury awards. There are, at least, two reasons for that. Serious injury cases usually have substantial future medical bill awards. In addition, serious injury cases have long term pain and suffering awards. For wrongful death cases, there are no pain and suffering damages. If the deceased lived for some period of time before dying, then the pain and suffering while still living could be recovered in the survival actions. For the deceased who died instantly, there would be no pain and suffering damages.

 

In other jurisdictions, plaintiff's lawyers have sought to recover pre-death pain and suffering in a wrongful death case. The theory is that the deceased saw a horrible accident coming and suffered substantial emotional distress prior to actually dying. That claim has been allowed in some jurisdictions.

 

Kentucky has ruled on that issue in Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920 (Ky. 2007). The deceased was killed in a  car accident and appeared to die instantly. The plaintiffs alleged that the deceased saw the accident coming and suffered substantial pre-death emotional distress. The Kentucky Supreme Court ruled that this emotional harm would have been the result of trying to recover for negligent emotional distress. In Kentucky, negligent emotional distress cases require some impact. Although the plaintiffs alleged that there was impact and that it occurred after the emotional distress began, the Court ruled that was not a correct reading of the law. In Kentucky, the emotional harm has to be caused by the impact. Since the emotional harm was pre-impact, there could be no recovery.

 

There was some hint of possible change in the future in Kentucky law. The Court noted that this case was not strong on the evidence of actually showing that the emotional distress. The Court suggested that the requirement of impact might be lifted in a case where there was reliable evidence of demontrable mental distress resulting in a medical injury proven by expert testimony. 234 S.W.3d at 930.

 

Plaintiff's lawyers in the future may want to consider raising a negligent emotional distress case where there is clear and substantial evidence of mental distress resulting in medical injuries. If that evidence can be found, the Court will consider lifting the impact requirement. Such issues could apparently be raised as either a simple negligence case resulting in the emotional harm, or a pre-death emotional harm case. 

Louisville Law Alums in Kentucky State Government

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Governor-elect Steve Beshear has only just begun to make appointments to his administration-in-waiting but it looks like graduates of the UofL law school will play a prominent role. Louisville Law already is strongly represented in the judicial branch with Chief Justice Joseph E. Lambert (class of 1974), Court of Appeals Chief Judge Sara Walter Combs (1979), and Administrative Office of Courts Director Jason M. Nemes (2003) all graduates of the school. However, UofL alums also will be taking the two top legal jobs in the Beshear executive branch. Ellen Hesen (1984) been named the governors' general counsel and Judge Combs' classmate J. Michael Brown (1979) will be heading the justice cabinet. The election of Jack Conway--a George Washington University National Law Center alum--as attorney general does prevent UofL from claiming all Kentucky's top public sector legal jobs, but at least Jack has a good pedigree: his father F. Thomas Conway is a 1968 graduate.

UPDATE: Beshear announced Friday that UofL alum Vince Gabbert (2001) will be deputy chief of staff and that general counsel Ellen Hesen will also serve as acting secretary of the Health and Family Services Cabinet.

Labor Law Renewal?

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I recently read Benjamin I. Sachs, Labor Law Renewal, 1 Harv. L. & Pol'y Rev. 375 (2007).  In it, he explores some of the ideas earlier discussed by Cynthia L. Estlund, in The Ossification of American Labor Law, 102 Colum. L. Rev. 1527 (2002) and nicely summarizes the current state of labor law.  Sachs proposes that a dynamic reordering of labor law is in process.  He describes three new legal channels for employee collective action: private agreements governing the right to organize, state and local regulation, and federal statutes other than the National Labor Relations Act ("NLRA").    Sachs proposes "that each of these three decentralizing trends constitutes a form of experimentation with the optimal way to restructure American labor law."

As to state and local regulation, Sachs discusses the trend by states to assume the role of employer and collective bargaining partner for "atypical" workers, such as homecare workers.  Sachs also discusses the ability of local entities to mandate employment terms when acting in a proprietary capacity.  While the NLRA generally preempts the ability of local entities to regulate in the area of labor law, local entities can mandate employment terms when acting in a proprietary capacity.

I believe significant labor law reform is needed and have several concerns about the three new channels of experimentation.  None of my concerns are likely novel, nor do I have the impression that Sachs would disagree with most of my concerns. 

First, private agreements are dependent on the bargaining strength of the parties, and workers and their unions often have much less bargaining power than employers.  Workers and their union sometimes have less economic resources than the employer, and an employer often has more ability to make a significant negative impact on the workers' lives than the workers have to impact the employer's business.  Thus, legal recourse to equalize the bargaining positions of the parties would improve the ability of unions to enter into and enforce private agreements. 

Second, setting up employer agencies that bargain with workers who would otherwise be independent contractors works well in a setting like that of the homecare workers.  But an expansion of such arrangements may lead to joint employer issues that make it difficult for workers and their unions to enforce rights to decent working conditions beyond those to pay and benefits. 

Third, because of the preemptive effect of the NLRA, the proprietary capacity of states and local governments to regulate is limited and the extent of that capacity is contested. Sachs recognizes the likelihood that the Supreme Court would grant cert on this issue and determine the continued viability of this form of experimentation.  And, indeed, the Supreme Court recently granted cert in Chamber of Commerce v. Brown, No. 06-939.  Having researched these issues of Garmon (San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)) and Machinists (Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976)) preemption as a practitioner, I can attest that the issue of when an entity acts in a proprietary capacity is not simple or clear-cut.  The outcome of the Brown case will have a significant impact on whether this avenue of experimentation remains open.

Moreover, if free to regulate in the labor law area, states and local governments might grant workers less rights than those provided by the NLRA, as indicated by the fact that some states do not provide the right to organize and bargain collectively to public sector employees. 

Finally, I find it difficult to endorse the idea that merely protecting nascent attempts to organize without providing further legal protection is sufficient to protect workers' rights.  Because the rights to organize and bargain collectively are fundamental workplace rights, these rights should be protected through the duration of the employer-employee relationship, just as are the rights to receive minimum pay, to take appropriate breaks, or be free of discrimination based on invidious traits.

Overall, I agree with Sachs that these three channels constitute forms of experimentation that can provide guidance on reforms necessary to provide a regulatory scheme specifically devised to protect the rights to organize and bargain collectively.  And I find interesting his proposal that a federal agency, like the National Labor Relations Board, could establish "‘rolling best practices' that would constitute a floor below which states and private parties could not fall."  This type of labor law scheme might eliminate many, though not all, of my concerns with the current state of experimentation. 

Brandeis Documentary Showing on PBS

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"Louis Brandeis: The People's Attorney," a new documentary about Brandeis has been popping up on PBS stations across the country. The documentary was commissioned by the Savings Bank Life Insurance Company of Massachusetts (aka SBLI) in honor of their 100th anniversary. Brandeis, among his many other accomplishments, created the system of savings bank life insurance in Massachusetts and was one of the founders of SBLI. The hour long documentary provides a good overview of Brandeis' life with a slight emphasis on his days in Boston. It is notable for having some rare moving image footage of Brandeis as well as having some local luminaries as talking heads, particularly Rabbi Joe Rapport and Laura Rothstein, former Dean of the Louis D. Brandeis School of Law at the University of Louisville. It will be shown in the Louisville area on KET1 on January 8 at 9:00 pm and on January 11 at 4:00 am, and on KET2 on January 14 at 10:00 pm.

SBLI has a 4 minute preview of the documentary here.

 

Legal Writing Tip

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I plan to periodically post legal writing tips that I hope will be useful to practitioners and scholars.  In response to my piece, Editing Tips for the Busy Attorney, Tom Hoy, Partner, Woodward, Hobson & Fulton, L.L.P., provides the following tip which is highly relevant to the practice of law today.

"I re-read all my e-mails before sending them and, where the e-mail is substantive or lengthy, I try to print it out as a draft and edit it in hard copy before sending it.  That is my tip for editing in this form of communication which has largely replaced the letter."

Partisan Defined

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When I said "partisan" judges in a prior post ("Samuel Steinfeld and the Old Partisan Kentucky Judiciary"), I meant judges formally elected under a political party's label. That is correct as a linguistic convention but it may confuse readers that are more familiar with word being used as a synonym for "ideologue." With the exception of election contests (and cases that had become explicitly political--think Fletcher-Stumbo) that party label often did not mean much as regards the fairness of judicial decision making. Because of the non-ideological nature of Kentucky parties in the last part of the 20th century, whether a judge was slated Republican in 1966 usually meant less then than whether a judge is rumored to be a Democrat means in 2008. (Indeed, some may argue that parties are more ideologically pure now than at any time since the Reconstruction era).

In some cases, a Kentucky judge's regional origin mattered more than party. The Jefferson County GOP was more progressive than its Democratic counterpart on a wide range of issues in 1966, especially race. The Eastern Kentucky GOP, on the other hand, was still defined by its opposition to FDR and was far more conservative. In the larger Democratic party, all political philosophies were accommodated so being labeled Democrat meant little ideologically. What mattered far more to voters was the alignment of a candidate within the party's factions. For example, if a voter cared most about civil rights, party label was not conclusive for picking a champion. The question would be: is he a Clements-Combs Democrat (progressive) or Chandler Democrat (conservative)? If the candidate is Republican, was he allied to Louisville moderates who helped elect Republican Charles W. Anderson the first black member of the Kentucky House of Representatives, or to the Roosevelt haters in the "Old Fifth" congressional district in Southeastern Ky.

The worst aspect of slating candidates was not ideological bias; it was competence. Far too often perceived loyalty to the court house gang or political machine that controlled the process was the the primary requirement for judges wishing to run on the party ticket. Many candidates who went on to be excellent judges convinced the boss of their loyalty; unfortunately a sizable number of hacks did also.

Closing the Book on Reading?

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An article in the latest issue of the Chronicle of Higher Education (Americans Are Closing the Book on Reading, Study Finds, v. LIV, no. 14, Nov. 30, 2007, p. A12) reports that the National Endowment of the Arts conducted a study that determined that literacy is declining in America. The NEA issued a report that indicates that 15- to 24-year-olds spent just seven minutes per weekday on voluntary reading in 2006. "[P]eople between the ages of 35 and 44 devoted only 12 minutes a day to reading." The article says that it's not just books that people are failing to read, but that as a nation we're reading "less and less of everything, in any medium." The article points to the obvious impact declining literacy has on our workforce. Just as obvious is the fact that this will adversely affect the quality and preparedness of students to succeed in graduate study.

Samuel Steinfeld and the Old Partisan Kentucky Judiciary

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This week saw the passing of a very distinguished Kentucky jurist, Samuel Steinfeld. Judge Steinfeld was a member of the Court of Appeals from 1966 to 1975, back when it was Kentucky's highest court. He was a strong supporter of the 1975 constitutional amendment that redrew Kentucky's judicial system, recasting the Court of Appeals as an intermediate appellate court, creating the Supreme Court, and instituting a uniform system of trial courts.

The old system allowed judges to run on the slates of political parties and Judge Steinfeld saw no conflict between being a scrupulously fair judge and an enthusiastic member of the Jefferson County Republican Party. It was a balancing act that others may not have handled as deftly and Kentucky historians can point out examples of cases where the desire to remain slated by a city boss or court house gang may have tilted a case one way or another. Steinfeld avoided these conflicts and was well-regarded by Democrats as well as Republicans.

For fans of political memorabilia, here is a favorite piece from my collection:

 

Facilitating Species Migration: Adaption to Climate Change & Biodiversity Benefits

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The recently completed IPCC Fourth Assessment Report paints a grim picture of climate change impacts (the summary of the synthesis report is available here). 

 IPCC Working Group II’s contribution estimates: “on average 20% to 30% of species assessed are likely to be at increasingly high risk of extinction from climate change impacts possibly within this century as global mean temperatures exceed 2°C to 3°C relative to pre-industrial levels.” With a rise of 4°C or more above pre-industrial levels, models suggest 40-70% extinction rates.  Popular media, such as Scientific American, also highlight the biodiversity impacts of climate change. 

 

Hopefully, the completion of the IPCC report will spur significant advances in the international legal response to climate change, as previous reports have.  Because existing mechanisms for combating biodiversity loss have proven largely ineffective, the climate change regime presents one of the best hopes for near-term action to stem global biodiversity loss from both climate and non-climate causes. 

 

Without intervention, climate change will enhance other factors driving biodiversity loss.  For example, climate change in fragmented ecosystems will likely favor those species that move with relative ease – the same weedy species that are already speeding the depletion of biodiversity. 

 

One element of adaption to climate change must be combating habitat fragmentation to allow species to respond through migration, or range shifts, as has occurred in previous periods of climatic change (discussed here and here).  In general, this requires a reassessment of protected area priorities to combat fragmentation and ensure that as species find current ecosystems uninhabitable, they will have somewhere to run.

Focus on improving protected areas in a climate regime is a sensible response to climatic impacts on biodiversity.  It also provides a route to combat habitat destruction – currently the primary driver of species loss. 

 

 At the domestic level, preserving habitat for migration might be integrated into Endangered Species Act implementation through critical habitat determinations, as J.B. Ruhl notes in an article on FWS’ options for responding to climate change.  At the international level, providing migration options could be combined with efforts to preserve or reinvigorate forests as a means of storing or sinking carbon dioxide. 

 

Channeling some of the funds and initiatives aimed at climate change toward activities benefiting biodiversity can create incentives for developing countries that will seek compensation for loss of development opportunities (as Indonesia and Ecuador plan to do, for example).  This might be achieved through more directly valuing biodiversity benefits in CDM projects that facilitate sustainable development.  Likewise, carbon credits with enhanced value for projects providing biodiversity benefits would allow industrialized countries to benefit from investing in projects that foster species adaption while reducing greenhouse gas emissions.   

Even with increased legal and policy support for preserving habitat to facilitate migration, several scientific limitations complicate prediction of migration options for species threatened by climate change.  First, substantial uncertainty remains in identification of areas that can provide future range to species requiring migration to survive climate changes.  Second, some recent scientific literature suggests that current species richness is strongly correlated with historic climactic conditions, particularly for species with limited range. If so, a significant proportion of species may be unable to migrate to more suitable conditions as the climate changes.  Accordingly, assisted migration options should be developed to sustain such species.

 

Despite these limitations, working fragmentation concerns into the climate change regime offers a way to foster natural species adaption, preserve options for assisted migration and address other root causes of biodiversity loss.  It can be factored into the value of credits for CDM projects or carbon storage in forests, or other compensation provided for forgoing deforestation. In this way, the momentum on climate change can be harnessed to jumpstart international biodiversity preservation.

 

 

 

Editing Tips for the Busy Attorney

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You can find my piece Editing Tips for the Busy Attorney, Ky. Bench & B. Nov. 2007, at 31 at the following link, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1031740.