International Criminal Court Lacks Authority to Proceed Against Israel

SAMUEL ESTREICHER, GEORGE BOGDEN

NYU law professor Samuel Estreicher and JD candidate George Bogden, PhD, comment on a recent filing by the Prosecutor of the International Criminal Court (ICC) asking the court to exercise jurisdiction and grant permission to pursue an investigation of alleged war crimes in the West Bank and the Gaza Strip. Estreicher and Bogden argue that because Israel is not a state party to the action and Palestine is not a state recognized by international law, the ICC lacks territorial jurisdiction under the Rome Statute.

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John v. Faitak

Court: Arkansas Supreme Court

Citation: 2020 Ark. 105

Opinion Date: March 12, 2020

Judge: Josephine L. Hart

Areas of Law: Medical Malpractice, Personal Injury

The Supreme Court reversed the circuit court's decision granting summary judgment for Dr. Martin T. Faitak and dismissing J. David John's complaint alleging claims of medical negligence and other torts, holding that Faitak was not entitled to quasi-judicial immunity in this case. John's claims concerned psychological and counseling treatment Faitak provided to John and Megan Bolinder, who were parties in a custody case involving John and Megan's child. The circuit court concluded that Faitak was entitled to quasi-judicial immunity. The Supreme Court reversed, holding that quasi-judicial immunity did not apply to the alleged acts upon which John's claims were based.

Phillips v. Eastern ID Health Svcs

Court: Idaho Supreme Court - Civil

Docket: 45890

Opinion Date: March 11, 2020

Judge: Stegner

Areas of Law: Civil Procedure, Medical Malpractice

Penny Phillips, her son, and daughter, brought a medical malpractice suit against various Idaho Falls health care providers. Phillips and her children alleged the health care providers were negligent in the care they provided to Phillips’ husband, Scott Phillips, immediately prior to his death by suicide. The district court rejected the Phillipses’ claims by granting summary judgment in favor of the health care providers. The Phillipses appealed several adverse rulings by the district court. The health care providers cross-appealed, contending the district court abused its discretion in amending the scheduling order to allow the Phillipses to name a rebuttal expert. The Idaho Supreme Court determined summary judgment was improvidently granted: it was an abuse of the trial court's discretion in: (1) granting the providers' motion for a protective order preventing the Phillipses from conducting a I.R.C.P. 30(b)(6) deposition regarding the community standard of care; (2) in allowing depositions of local familiarization experts because it did not apply the correct standard; and (3) striking an expert's testimony because that expert demonstrated the requisite actual knowledge of the local standard of care. The court did not abuse its discretion in granting the Phillipses' motion to amend the scheduling order. Therefore, the trial court's judgment was reversed and the matter remanded for further proceedings.

Susie v. Family Health Care of Siouxland, P.L.C.

Court: Iowa Supreme Court

Docket: 17-0908

Opinion Date: March 12, 2020

Judge: Christensen

Areas of Law: Health Law, Medical Malpractice, Personal Injury

The Supreme Court affirmed the judgment of the district court granting summary judgment for Defendants on Plaintiffs' medical malpractice claims, holding that Plaintiffs failed to set forth specific facts showing a prima facie case of causation and lost chance of survival. Sharon Susie lost her right arm and eight of her toes due to a disorder known as necrotizing fasciitis. Sharon and her husband (together, Plaintiffs) filed a negligence claim against Defendants seeking damages for the amputation of Sharon's arm and other injuries. Plaintiffs alleged that Defendants were negligent because Sharon's condition was not properly diagnosed and treatment was not timely commenced and that Defendants' actions resulted in the lost chance to save Sharon's arm and toes from amputation. The district court granted summary judgment for Defendants. The Supreme Court affirmed, holding that summary judgment was properly granted because Plaintiffs failed to set forth specific facts showing a prima facie case of causation and lost chance of survival.

Ethier v. Fairfield Memorial

Court: South Carolina Supreme Court

Docket: 27953

Opinion Date: March 11, 2020

Judge: Kaye Gorenflo Hearn

Areas of Law: Civil Procedure, Medical Malpractice

Petitioners Phillip and Jeanne Ethier appealed a verdict in favor of Respondent Dr. Guy Bibeau, who misdiagnosed a popliteal aneurysm as a probable spider bite. During voir dire, the court asked prospective jurors whether they ever had a "close social or a personal relationship" with either the Ethiers or Dr. Bibeau. After no one indicated they did, the court asked the same question about the list of potential witnesses, which included Jerilyn Wadford and Rhonda Gwynn, two nurses who examined Ethier, and the CEO of Fairfield Memorial, Mike Williams. To this question, juror Teresa Killian informed the court, "I used to work at Fairfield Memorial Hospital with Mike Williams." Killian never disclosed that she also worked with Bibeau or the two nurses. After trial, the Ethiers' counsel learned Killian previously worked with Bibeau and the nurses, and that Killian had discussed her knowledge of them with other jurors. One of the jurors, Sandra Carmichael, attested Killian stated she knew the nurses as well as Bibeau. Carmichael also noted that during jury breaks, Killian repeatedly discussed Bibeau's skills as a doctor. Four jurors said Killian vouched for the skill, proficiency, and truthfulness of all three during jury breaks. Carmichael testified that Killian's statements affected her vote, as she initially believed Bibeau was more negligent. Nevertheless, while the trial court found Killian had engaged in premature deliberations, it found no prejudice. The court also believed Killian did not intentionally conceal that she knew Bibeau and the three nurses through her previous employment, contending the question was ambiguous because it only addressed "close personal or social relationships." Accordingly, the trial court denied the Ethiers' motion for a new trial. Petitioners contended the court of appeals erred in affirming the trial court's decision to deny granting a new trial based on intentional juror concealment and premature deliberations. The South Carolina Supreme Court concluded Killian's intentional disregard of the trial court's repeated instructions not to engage in premature deliberations directly affected the verdict. "Killian discussed matters that were not introduced as evidence, and bolstered other evidence that had been admitted. Further, Killian's conduct is egregious, as she repeatedly discussed the case after being instructed not to do so." Judgment was reversed and the matter remanded for a new trial.