A Florida maritime law firm has filed a class-action lawsuit on behalf of passengers aboard the ill-fated Carnival Triumph.The federal lawsuit, filed Monday in Florida, says that Carnival Corp. was negligent for allowing Triumph to embark on the failed cruise when the company was aware the ship was prone to mechanical and or engine issues.
Litigation
new york contractors pushing for repeal of unique scaffold law
New York has an old and somewhat unique law that holds a variety of parties responsible whenever anyone is injured on a scaffold. Not surprisingly, contractors want it repealed:
Mike Elmendorf, president of the state Association of General Contractors, says more than 150 people from across New York will be at the state Capitol Tuesday to advocate for reforming the 19th-century law that holds property owners, employers and contractors responsible for all damages in elevation-related injuries that occur at job sites, even if the worker is found to be at fault.
Class action lawsuit over questionable charges for medical record retrieval
One of the little frustrations that pop up in every product liability lawsuit is ordering medical records. Ordering medical records is always complicated, expensive, and takes too long. What should be a relatively simple process can turn into a multiple-month ordeal in which the medical provider has to be contacted multiple times.
While this lawsuit won’t make ordering medical records any quicker, it may make it just a little cheaper:
LITTLE ROCK — A class-action lawsuit alleges a Georgia company has been illegally overcharging Arkansas medical patients who request copies of their medical records.
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The bill includes a “basic fee,” a retrieval fee, a copying fee, a fee for shipping and handling and a “sales tax” of $1.71.
Source: Class-action lawsuit alleges Arkansans overcharged for medical records | Arkansas News
Are Twombly and Iqbal Up For Review?
The Forbes law blog thinks they might be:
The Supreme Court may announce as early as Monday that it plans to revisit the controversial issue of pleadings standards under Rule 8 of the Federal Rules of Civil Procedure.
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Critics of Iqbal respond that unless they can get past the pleadings stage and engage in discovery, they have no way of proving that senior officials were directly involved.
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If the Court takes any action on Ashcroft’s petition at Friday’s conference, it will announce its decision on Monday.
Source: Terror-Related Case Has Supreme Court Poised To Revisit Pleading Standards Controversy - On the Docket - Inside the courtroom - Forbes
I'm not hopeful that the current makeup of the Court will overrule Twombly and Iqbal. Nor am I hopeful that any court can give an objective test to determine whether an allegation is "plausible" or not. Several years ago, an allegation that Bernie Madoff was running a multibillion-dollar Ponzi scheme wasn't plausible, but it was factually true.
Twombly and Iqbal Are Being Applied To Affirmative Defenses
You can probably guess that I'm not a fan of Twombly and Iqbal, which I see as creations of an activist Supreme Court. However, the silver lining to the decisions is that they're at least being used to get rid of some of the ridiculous affirmative defenses being used by defendants:
The fallout from the [Twombly and Iqbal] decisions has been significant: multiple bills have been proposed to reverse the holdings, which have been cited thousands of times by federal courts as defendants successfully move to have suits dismissed based on the heightened pleading requirements.
But now some defendants are feeling the sting, because a growing number of federal courts are applying the reasoning of Twombly-Iqbal to affirmative defenses.
“What’s good for the goose is good for the gander,” said Tim Schulte, a partner at Shelley & Schulte in Richmond, Va. who recently won a motion applying Twombly-Iqbal to the defendant’s affirmative defenses.
Source: Wisconsin Law Journal » Blog Archive » Courts split on affirmative defenses
I'm hoping one of the bills to overturn Twombly and Iqbal make it through Congress, but I doubt they will.