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Spurred on by the current economic downturn, the use and acceptance of deepening insolvency as a cause of action in the bankruptcy arena continues to become more established and recognized. The Third Circuit already aided this development by recognizing deepening insolvency as a cause of action under Pennsylvania law in <i>Official Committee of Unsecured Creditors v. R.F. Lafferty & Co., Inc.</i>, 267 F.3d 340 (3d Cir. 2001). Now, the Delaware Bankruptcy Court in <i>In re Exide Technologies, Inc.</i>, 2003 WL 22079513 (August 21, 2003) has recognized deepening insolvency — this time as a valid cause of action under Delaware law — in a lawsuit by an unsecured creditors committee against lenders of a bankrupt company.
A hallmark of United States bankruptcy law has been the principle that a debtor should be provided with an opportunity to use the bankruptcy to get a "fresh start." That principle, initially applicable to individuals, was carried forward as an underlying premise of business reorganizations and coupled with the belief that reorganizations preserved going concern values. The value of reorganization as compared with liquidation in cases of major business failures was first realized in connection with the reorganization of railroads during the latter part of the 19th century that continued into the 20th century. In the context of the current economic environment, the underlying premise of railroad reorganizations of preserving going concern value may no longer be viable.
The legislative package of the American Medical Association aimed at limiting suits against doctors and hospitals has been unusually successful this year.…
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National news of interest to the medical malpractice community.
Physical unavailability of evidence can influence litigation, but for various reasons, the courts will not always draw an adverse inference against the party that has lost or destroyed such evidence. One of these reasons is simple relevance. A case in point is <i>Kanyi v. United States</i>, 2001 U.S. Dist LEXIS 19814, in which the plaintiff appealed a Magistrate Judge's order denying a motion for an adverse inference charge against defendants. The court found that even though defendants had destroyed evidence, their actions were at most merely negligent, and besides, the evidence in question was immaterial to the case.
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Congress has enacted several federal statutes to protect and advance the interests of those with mental illness or developmental disabilities, and of other mentally handicapped persons who do not meet the statutory criteria for being either mentally ill or developmentally disabled. These statutes were enacted partly in response to concerns about the mistreatment of the mentally handicapped in institutions, including both public and private hospitals, nursing homes, and correctional facilities. Not surprisingly, therefore, the agencies constituted to enforce these laws have been granted broad powers to monitor and investigate conditions in facilities that provide treatment and care for the mentally handicapped. In recent years, there has been significant litigation concerning the degree to which that investigatory authority includes a right of access to institutions' peer review and quality assurance records, which otherwise would be protected by state privilege statutes.
Faced with hefty legal bills, damage awards, or settlements as a result of discrimination or harassment claims, employers have attempted to recover costs from third parties whom they perceive as causing or sharing responsibility for the problem. To this end, employers have sued unions and even their own employees in an effort to spread the financial responsibility. The theories behind such suits, and their results, have been mixed.
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