THE LEGAL LANDSCAPE FOR PLAINTIFFS IN AN OBAMA ADMINISTRATION

Today, many of us are at work in the physical sense, but our minds are elsewhere. They are on the election for the next President of the United States. As we head into this hugely significant day (note that I resisted the use of the word “historic,” which has been used so much by journalists that it has lost its impact), it seems that the time is right to take a look at how plaintiffs stand to fare in an Obama administration, in case the oddsmakers are correct, and he wins.

As of October 30, 2008, things were looking pretty good. According to Vesna Jaksic in LAW.COM , the U.S. Department of Justice has completed a study showing that plaintiffs win state court civil trials more than half of the time .

If Obama is elected, how would it affect plaintiffs in this country? As I noted in an earlier posting, “ Oh Mama, Did I Hear Obama Right ,” Obama has voted in favor of tort reform, a movement that generally aims to restrict the rights of plaintiffs to seek financial redress in the state courts. He had mentioned it during the last presidential debate, in the context of legislation to force class action lawsuits into federal court–a venue traditionally tougher on plaintiffs. However, overall, as Dan Slater wrote in the Wall Street Journal Law Blog , many in the legal community see Obama as a leader who can be an effective advocate for the dowtrodden and disenfranchised, and that includes plaintiffs in civil lawsuits. As Mr. Slater points out, Obama “has offered support for tighter consumer-safety regulations and co-sponsored a bill in August to roll back mandatory arbitration for military service members and their employers.”

Let’s hope so, because there is a lot of room for improvement in those areas. For instance, did you know that if you are a soldier on active duty in the U.S. military, and a U.S. physician commits medical malpractice that results in your death, your family cannot sue for your personal injuries? This shocking truth was discussed recently in Trolman, Glaser & Lichtman, PC’s Law Blog , which informs us that because of the common law doctrine of sovereign immunity, as incorporated into our U.S. Supreme Court case law by Feres v. United States , 340 U.S. 135 (1950), service members cannot obtain damages for personal injury and/or death if the negligent medical care was committed by another individual in the armed forces. If you go to the blog, you will see a hyperlink for a CBS News story that documents the story of an active soldier whose malignant melanoma was ignored by a U.S. physician, which allowed for the metastasis and ultimate death of this brave young man who apparently dedicated his life to serving this country. It is heart breaking to watch, and I know our country can do better.