Looking for the Helpers: Understanding the Good Samaritan Law

Our news cycle has been filled with tragedies. Fires have been sweeping through California, hurricanes destroyed many homes in the U.S., and shocking instances of shootings have cropped up in many states. And yet, it is in these tragic moments that instances of tremendous courage and acts of heroism shine through. There are stories of firefighters working tirelessly to put out the raging fires of Northern California. There are stories of volunteers who braved the post-earthquake conditions of Florida, Texas and Puerto Rico to help the displaced and affected. There are stories of strangers picking up people off the ground and taking them to the hospital during the Las Vegas shooting.

Sometimes, however, in these efforts to help, the rescuee ends up getting hurt by the rescuer. It is an unfortunate occurrence, but not uncommon.

In fact, you’ve probably heard of the story of someone tried to help a guy who was choking by doing the Heimlich maneuver on him. Then the next thing he knows, he’s being sued by the person he helped. These types of stories float around like urban legends, but then may cause you to hesitate before helping someone out. And then, when these types of stories get widespread newspaper coverage, they may have the adverse effect of discouraging people from helping others in emergency situations.

good samaritan lawThankfully, legislators across the country recognize this as a problem and have enacted what are known as “Good Samaritan laws.” Good Samaritan laws can be used as a defense for rescuers who might have hurt another in their efforts to help. There are, of course, limitations. These limitations and the terms of the Good Samaritan law differ in every state. Consequently, in order to determine who is protected by these laws, in what circumstances, for what types of injuries, etc., it is important to note what state you are in.

Good Samaritan Laws Differ by State

All states have some form of a Good Samaritan law, but who and what it covers may vary in range depending on the laws of that particular state. Generally, most states’ Good Samaritan laws do not protect rescuers in situations where the rescuer acted in a negligent or reckless manner that resulted in harm to the rescuee. If the rescuer gave help according to a reasonable standard of care, the rescuer may be protected. However, the scope of the reasonable standard of care depends on whether the rescuer was a medical professional or otherwise certified to provide medical aid. The following include some criteria that may differ between states:

Type of Rescuer

  • Whether the rescuer was a member of medical personnel, emergency personnel or law enforcement at the time of the rescue;
    • Some states make a distinction between on-duty and off-duty personnel.
  • Whether the rescuer was certified to provide the type of care the rescuer provided; and/or
  • Whether the rescuer received compensation for the rescue.

Standard of Care

  • Whether the care was given in good faith;
  • Whether the care given was according to a reasonable standard of care; and/or
  • Whether the rescuer was negligent in the exercise of their care.

Types of Care Given

  • Whether first aid was given;
  • Whether a search and rescue effort was conducted by the rescuer;
  • Whether an AED (a.k.a. defibrillator) was used by the rescuer on the rescuee; or
  • Any other type of treatment/care given at the time of the rescue.

Please note that this is not an exhaustive list and further criteria may be required or observed by different states. Moreover, some of these criteria may not be required by the state that you are in.

What About the Duty to Rescue?

Another thing to note is that Good Samaritan laws are NOT the same thing as Duty to Rescue laws. Good Samaritan laws protect rescuers from being sued by the people they were trying to rescue. Duty to Rescue laws require people to call authorities or provide reasonable aid for strangers in peril. Moreover, only a handful of states have Duty to Rescue laws.

In short, in order to know what protections you have when rescuing another person, check the Good Samaritan law in your state. You never know when you will be called to be the next hero.

Narcos: Pablo Escobar’s Brother Threatening to Sue Netflix for $1B

The brother of infamous drug kingpin Pablo Escobar–the 71-year-old Roberto de Jesus Escobar–has been in an ongoing legal battle with Netflix for almost a year now. Roberto Escobar took issue with Netflix’s semi-biographical show about his brother’s operations Narcos and claimed unspecified intellectual property violations to the tune of an incredible $1B. What’s more, Mr. Escobar demanded that Netflix allow him to review all future episodes of Narcos for accuracy and give a yes or no on the episode. Since the initial demands, Mr. Escobar’s claims have been refined a bit to mostly cover copyright and trademark issues.

This dispute has been catapulted back into the public eye in the last few weeks for two reasons. First, the lawyers for Narcos Productions, LLC–part of Netflix in charge of the show–have challenged a number of trademarks filed by Mr. Escobar on both “Narcos” and “Cartel Wars.” These challenges aren’t particularly surprising given the success of the show and the spin-off mobile game “Cartel Wars;” as well as how weak Mr. Escobar’s claims are. Second, the murder of a location scout for Narcos while in Mexico a few weeks back.

Escobar has been extremely critical of the Narcos show, saying that the show is apparently riddled with inaccuracies and lies. He expressed extreme anger over the show, saying “They are playing me without paying. I am not a monkey in a circus, I don’t work for pennies.” Since the murder of the Narco’s location scout Carlos Portal, Escobar has been coy about the topic. He described filming without authorization of Escobar, Inc. as “very dangerous…especially without our blessing. This is my country.” He has also said that he will “close their little show” if Netflix does not pay him the money he asked for. However, despite these veiled threats, when Escobar’s attorneys were asked about the situation they only said that they had no comment except “Escobar Inc. cooperates with all law enforcement.”

While Escobar’s approach to the situation might be a bit intimidating, it has not cause lawyers for Narcos Productions, LLC to back down much at all. After his initial $1B demands, Escobar went out and applied for trademarks on “Narcos” and “Cartel Wars” on a laundry list of goods and services. Downloadable ringtones, sunglasses, temporary tattoos, sheet music, sunglasses, yoyos, websites, video games (online and offline), board games, Christmas tree ornaments, snow globes, protective pads for skateboarding, basically everything under the sun. This list just scratches the surface of the immense list of uses Escobar claims to have made on the phrases “Narcos” and “Cartel Wars” prior to the show coming out. Netflix has responded in a letter and they are not impressed.

narcosA few months back, Netflix sent a letter to Escobar demanding that he cease use of and abandon his trademark applications for “Narcos” and “Cartel Wars.” This letter has been more recently accompanied by filing an objection to Escobar’s trademark applications a few weeks back, part of an official process of opposing trademark applications going through the U.S. Patent and Trademark Office. While the opposition is not currently readily available to read, one must imagine that it mirrors at least some of the objections they raised in their original letter to Escobar–primarily fraud. With so many goods and services claimed Netflix argues that many of them are simply untrue, fabrications by Escobar. For example, Escobar claims that he first began operating Narcos websites and offering online game services on January 31st of 1986–before the internet was readily available for consumer use and long before online gaming existed in any shape or form. The letter also points out that the specimen used in Escobar’s registration (a word used for the example of the mark provided with a trademark application) is nearly identical to the logo Netflix uses for its show–so much so as to imply copying.

Escobar himself seems to believe that he will still come out on top in his fight with Netflix. His attorneys have indicated that Netflix may be able to reach some settlement and Escobar himself has said that this means that they accept that he rightfully owns the trademarks he has filed for. This is simply not the case, settlements can come for any number of reasons, including simply avoiding the costs of challenging Escobar’s marks. This is especially true because almost no case in law is a guaranteed slam dunk victory. Let’s take a look at how copyright and trademark law would apply to Mr. Escobar’s claims and see just what kind of case he is likely to have against Netflix

Understanding Escobar’s Copyright and Trademark Cases

To start with, let’s look at the copyright claims here because they are by far the weaker of two weak cases. In order to be valid, a would-be copyright must be original and fixed in a tangible medium.  Originality is fairly low standard, requiring only minimum creativity.  For example, a creative arrangement of phone numbers in a telephone book would be enough to qualify. Fixation only requires you to store your work in a medium that can be perceived, reproduced, or otherwise communicated.

Today, copyright protection attaches as soon as you place an original work in a fixed medium—allowing you to stop people from using your work without permission and sue them for actual lost profits based on their actions. Registration provides you with a presumption of validity for your copyright and the ability to sue for statutory damages—which nearly always exceed your actual loss.  However, there is no copyright available for facts. This is for the obvious reason that it would be an absolute mess if one party could own the rights to publish the truth.

With this in mind, Escobar has very nearly no claim for copyright. Not only has he presented absolutely no work which Narcos might have infringed. Narcos is ostensibly a biopic based on the factual life of Pablo Escobar.

Escobar’s trademark claims have slightly more potential. Trademark law is designed to protect the public from confusion as to the source of a good by providing a protected indicator of the source of a good. While trademarking the name of a show with only a few seasons based only on the show is often not available, you better believe merchandise and paraphernalia can be protected by trademark. Generally, trademark protection is gained through registration. However, if somebody used a mark in commerce before you registered your mark, they’ll still have superior rights to yours in the geographic locations they can prove they used their mark prior to you. This will also be limited to the types of goods and services they actually used in commerce prior to your registration. Damages in a trademark infringement case can include profits attributable to infringement (in particularly bad cases of infringement), actual loss of sales or goodwill due to the infringement, and the reasonable rate for a license to the plaintiffs trademark (calculated via the value of the mark when infringement began and presuming both parties agreed the defendant was infringing). These damages can be tripled in cases of willful infringement-situations where the infringer knew of the mark and still violated it.

It’s unlikely Escobar has really used the phrase in all the ways he says he has. However, if he has used them and can establish that use he will have some rights as a prior user–rights he could assert against Netflix.

What are Escobar’s Chances?

Is Escobar going to get a billion dollars from Netflix? No, he’s not, that’s silly. Frankly the number seems pulled from the air and has essentially no basis besides being a nice round number. However, a settlement is far from out of the question. It’s very common for companies to cheaply settle a lawsuit that has even a small chance of success instead of dealing with the risk and expense of pursuing the suit to its completion. However, it might be a little early to expect a settlement at this point.

While Escobar’s trademark applications are still live for now, Netflix is still in the process of an initial challenge to the marks. The opposition itself is quite recent and is unlikely to be resolved for a month or two at the least and a year or more at the most. Until this gets resolved, it seems unlikely there will be a settlement unless it is quite favorable to Netflix. Any copyright claim from Escobar is essentially D.O.A. and even his trademark applications, while not completely without potential, seem riddled with issues that would prevent his registration.

While it hasn’t been brought up by either side, if brought in the right place a right of publicity claim may have some traction for Mr. Escobar if brought on behalf of his brother’s estate. Right of publicity is the right to your own name and image. However, it would have to be the right place because almost everywhere except for California offers no right of publicity after death.

No matter the cause of action, Escobar’s claims here are very thin despite his threats and bravado. While Netflix may yet settle, it won’t be because Escobar has a strong chance of winning any lawsuit against them.

Big Pharma Penalized, U.S. District Courts Rules in Favor of Maryland’s Price-Gouging Law

Pharmaceuticals have not been enjoying the greatest couple years when it comes to the court of public opinion. From Martin Shkreli’s infamous price jacking to recent price fixing convictions against Heritage Pharamaceuticals CEO Jeffrey Glazer, the hits have kept on coming as pharmaceutical scandals come out of the woodwork. Now, pharmaceutical companies have taken a hit in District Court as a judge has handed the first round victory to an anti-price gouging law out of Maryland targeting generic pharmaceuticals.

Despite the many instances of abuses on the part of pharmaceutical companies in the last few years, Congress has been slow to take any meaningful action on the issue. This has left the states to take action on their own and Maryland’s law–taking effect on October 1st just a few weeks back–is the first successful law of its kind.  However, pharmaceutical interests were very keen to see that was not the case. After the law was passed back in May, the Association for Accessible Medicines (AAM)–a group of generic pharmaceutical companies–quickly challenged the law as unconstitutional and sought a preliminary injunction to prevent the law from taking effect while their lawsuit was ongoing.

While the recent district court ruling shot down the potential of an injunction, the lawsuit is still far from over. Let’s take a look at the details of the statute out of Maryland, the AAM’s challenges to the law, the ruling of the court, and the trends of similar laws across the country.

big pharmaUnderstanding the Maryland’s Statute

The price gouging law, passed with a substantial bipartisan majority, is focused exclusively on off-patent and generic medications. It does not apply whatsoever to name brand drugs under patent protection.

It’s primary provision allows for Maryland to look into claims of unconscionable increases in the prices of generic medication. Where such an increase is found by the attorney general of Maryland, a fine of up to $10,000 can be levied against the manufacturer or distributor for each violation. The attorney general can also require companies to return money to consumers lost as a result of price gouging, order a stop to price gouging activities, an require a drug manufacturer to make a drug available to Medicaid participants at the pre-gouging price for up to a year.

In pursuing these investigations, the law allows the attorney general to require the accused company to produce records and justify their price changes. An opportunity to explain their increases is generally required under the law before levying fines. The information given in these explanations is held confidential by the attorney general where necessary.

The exact amount or percentage increase that would constitute “unconscionable” is not precisely defined in the law. However, “unconscionable” is far from a new legal concept and is often brought  up in the context of contract law as a situation where terms are so egregiously unjust in the favor of a party with greater bargaining power that a reasonable person would never agree to them. For example, where a life saving medicine is made incredibly expensive-beyond all market forces-but a purchaser has an option of either paying that price or suffering extreme consequences. This ambiguity when it came to the term unconscionable was central to AAM’s challenge to the law.

What are the AAM’s Arguments for Unconstitutionality?

AAM, as generic drug manufacturers, obviously didn’t care much for the law. Their challenges, however, were not frivolous attempts to slow down its progress. They made two primary arguments. First, the law overreached Maryland’s bounds by effecting potential pricing in states beyond just Maryland. Second, that the law itself was unconstitutionally vague.

The first argument hinged on a fairly uncommon argument in this day and age-the dormant commerce clause. The commerce clause is the power of the federal government to regulate commerce involving multiple states. However, in its current interpretation, the dormant commerce clause is a product of this power which prevents states from passing legislation which favors one state over the other. The dormant commerce clause also requires a balancing test where a law places a burden on commerce between states. However, it is exceedingly rare to see a law struck down on this basis in recent history. What’s more, merely burdening interstate commerce faces a much less rigorous test for constitutionality than favoring one state over another in a law.

The second argument, that the law was void for vagueness, pointed at the lack of concrete definition to the term “unconscionable” and said that the law was unconstitutional because manufacturers couldn’t know when they were violating it. In general, a law is unconstitutional were it doesn’t give the public notice of when they are violating it, impinging on their constitutional due process rights.

What was the District Court Ruling?

In deciding on the case, the District Court did several things which amount to handing a rousing victory to Maryland. First, it denied all injunctions and allowed the law to go forward as planned. Preliminary injunctions require, among other things, a showing that the plaintiff is particularly likely to succeed. The court just didn’t think that likelihood was here for AAM.

Second, the court outright dismissed AAM’s claims regarding the dormant commerce clause. They ruled that the law applies neutrally to all interstate commerce and thus the argument held no weight.

However, it wasn’t a clean sweep for Maryland here. The court didn’t rule in favor of AAM’s vagueness argument, but they did allow litigation on the issue to go forward. The judge felt the arguments were reasonable enough to bear fully exploring. Even then, the judge went out of his way in his ruling to note he didn’t think the arguments were necessarily winning ones.

This case is far from over. Even with the vagueness argument making its way through the ruling, AAM have already made it clear that they look to appeal and believe their case will succeed in the higher courts. For now though, it’s a victory for Maryland and the price gouging law will continue as planned.

Good News: Maryland’s Law is a Growing Trend

Maryland’s price gouging law may be the first to be passed, but it looks to be part of a concerted effort by the states to address this issue where the federal government has not. 36 states have introduced, if not passed, nearly 200 bills related to pharmaceutical pricing in the last year. Nevada passed a law in June, a month after Maryland, which requires drug manufacturers to release price and profits on insulin every year. Ohio has an upcoming vote on a law which would make it illegal for the state and its agents to buy drugs at a higher price than the U.S. Department of Veteran Affairs.

At least for Maryland’s law, AAM and a few others have criticized it for targeting generic drugs. They say that generic drugs are driving down medical costs and going them doesn’t make sense. However, this argument is a bit tone deaf in the of the off-patent Daraprim being the very drug at the center of Martin Shkreli’s infamous price hikes.

Regardless of how you feel about Maryland’s law, there’s little question that price gouging on necessary medications is an issue to be addressed. Living with an illness such as diabetes in difficult enough without wondering whether your insulin may suddenly skyrocket in price. For now, Maryland has won this round. However, this is a trend to keep an eye on–both out of the states and the federal government.

Preventing Rapists from Obtaining Child Custody

Many child custody cases are heart-breaking, but the most horrific cases involve children who were forcibly conceived. The law struggles with what appears to be the easiest of questions: do rapists have child custody rights?

The Horrific Case of Tiffany and Christopher Mirasolo

In September 2008, 12 year old Tiffany and her sister slipped out at night to meet a boy. The boy’s older friend, 18 year old Christopher Mirasolo, offered to take the girls on a car ride. Instead, Mirasolo held them captive in a vacant house for two days. After raping Tiffany, he released the girls, but threatened to kill them if the girls reported him.

When Tiffany became pregnant, Mirasolo was arrested. He was sentenced to a year in county jail, but only served half a year, to look after his sick mother. Mirasolo was arrested for a second sex assault on a teenage victim two years later. He only served 4 years in prison.

Meanwhile, Tiffany struggled to support the son she gave birth to as a pre-teen. She skipped high school and went straight to work to support her boy. Unfortunately, Tiffany did not make enough money to support her child, so she applied for welfare. Shockingly, state welfare services would not help her unless she named who the father was. When Tiffany named Christopher Mirasolo as the father, state support service filed a support claim on Tiffany’s behalf. The support claim resulted in Tiffany sharing joint child custody with her rapist.

child custodyWhy Would the Judge Grant Joint Legal Custody?

Many states have guidelines and/or laws limiting how welfare is distributed. When Tiffany applied for welfare as a single mother, the state likely has an automatic process whereby it attempts to obtain child support from the father before providing welfare. The goal of course is to save taxpayer money and to transfer the obligation of supporting the child to the responsible party, the other parent.

In order for the state to order a man to pay child support, he must be proven to be the father of the child. Ordinarily, this would be a reasonable policy. The state cannot force people to be couples, but it can try to force people to be responsible for the offspring they create. However, all these reasonable policies and assumptions break down when it is obvious that the mother and father should not be in the same room. Judges have discretion to determine custody arrangements, but judges are bound by state law. Unless there is a statute that prohibits a judge from granting joint custody, most judges will err on the side of joint custody.

However, states vary in how they approach rape and child custody. In 20 states and the District of Columbia, a rape conviction is required before termination of parental rights is allowed.  Five states, Wyoming, North Dakota, Minnesota, Alabama and Maryland, do not have any laws prohibiting rapists from obtaining child custody. Since criminals are primarily state laws, the most the federal government can do is encourage states to enact laws barring child custody to rapists. The Rape Survivor Child Custody Act, signed by President Obama in 2015, gives states funds for passing laws that prevent convicted rapists from obtaining child custody. That’s the extent of the federal government’s involvement in custody and criminal cases though.

How Can We Change Course?

According to the American Journal of Obstetrics and Gynecology, about 5% of rape victims become pregnant as a result of rape; that’s about 32, 101 pregnancies per year. In percentages, the number is not high. However, each pregnancy because of rape brings out legal and ethical issues that impact both the mother and the child.

First, raising a child together is arguably a more intimate relationship than sex itself.  I have sat through custody hearings where the judge reminds young parents that “you will likely see each other at your child’s teacher-parent meeting, soccer games, college admission tours, wedding, and the birth of your grandchildren. The commitment you made when you decided to have a child together is not a commitment that ends in 18 years; it is a lifetime commitment.” Normally these are words of wisdom. Forcing a rape victim to forge this daily and emotional relationship with the rapist would only lead to more traumas and would likely reduce the victim’s ability to take care of herself, let alone her child.

Second, forcing the child to spend time with the rapist/father would endanger the child. If someone like Mirasolo was willing to kidnap and rape a 12 year old, there is no guarantee that he would not rape his child. Although the child in the Michigan case is a boy, rape is about power. Endangering the child’s life or threatening to do so would allow someone like Mirasolo to further control his victim. Even if professional supervised visitation is an option, it would not prevent the “father” from using the legal system to further exploit his control over the victim and the child.

If the father is convicted of raping the mother in a criminal court, it is imperative that the law extinguish the father’s custody rights. The risk to both mother and child are too great. Arguably, it might be in the best interests of the child to know where he or she came from. However, if the child wants to undertake that journey, they can do so when they are an older and independent adult, able to understand what rape is and why the man who conceived his or her existence is not a good person. If the judge does believe the child might have an interest in being raised by both the victim and the rapist, the judge should at least appoint an independent counsel for the child so that rapist’s arguments do not just outweigh the victim’s interests.

Attorney General Sessions Argues Civils Rights Act Doesn’t Bar Discrimination against Transgender Persons

Earlier this October, Attorney General Jefferson Beauregard Sessions III ordered the Justice Department to argue in court that transgender people are not protected by the Civil Rights Act. The Civil Rights Act protects employees from discrimination based on gender. The Obama Administration had argued, often successfully, that “gender” included gender identity. Under Sessions, “sex” and “gender” would mean biological sex and gender only.

Session’s new policy faces an uphill battle, and potentially a losing war. The Equal Employment Opportunity Commission (EEOC) has continued to support transgender employees, as recently as this summer. Additionally, there are a number of cases where the courts have ruled in favor of the Obama Administration’s position. Court precedents stretching back to the 1980’s support the argument that illegal discrimination against gender can include discrimination against gender stereotypes.

What is the Difference Between Gender Stereotypes and Gender Identity?

The greatest challenge Jeff Sessions will have is explaining how gender stereotypes and gender identity are different. If discrimination based on gender stereotypes is illegal, how is discrimination based on gender identity legal?

Under judicial precedent, employers cannot punish female employees for not being feminine enough. Employers cannot demand individual women to speak or dress more femininely to succeed in the business world. The general idea is that punishing a person for not conforming to a gender stereotype would mean penalizing a person for being the “right kind” of woman.

Session’s new policy will have to untie the Gordian knot that gender stereotypes are linked with gender identity. If a man behaves more femininely or if a woman is more masculine than her co-workers, employers have no right to punish that employee for not conforming to what the employer believes to be appropriate gender boundaries.

transgenderOf course, feminine men or masculine women are not always transgender. Transgender persons might not see themselves as feminine men or masculine women. However, employers and laypeople might see transgender men as masculine women or transgender women as feminine men. The two are inseparable and enforcing a policy that allows for discrimination against transgender while the law prohibits gender stereotyping will be virtually impossible.

Comparable Evils

Jeff Sessions’s biggest defense for his reversal in transgender protections is that he is merely enforcing the law. It was the Obama administration that violated the Civil Rights Act by expanding the meaning of “gender” beyond what Congress intended.

There are two problems with this argument. First, Congress has never stated that gender only means biological sex of the person. Congress has largely been silent on the matter. Republicans have had control of Congress for the last several years and have yet to even hold hearings on the interpretation of gender in the Civil Rights Act (in contrast with 56+ attempts to repeal Obamacare while President Obama was in office). If Congress really had an issue with the President Obama’s interpretation of gender, one assumes Congress would have at least passed a bill objecting to it.

Second, the Supreme Court has ruled on whether the Civil Rights Act can be interpreted beyond the original intent of Congress. In 1998, the late Justice Scalia wrote, in a unanimous ruling about male and male sexual harassment:

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

When even the father of Originalism says that the Civil Rights can reach beyond the original understanding of the Congress that enacted it, Attorney General Sessions is clearly in the wrong.

Alternative Means

Of course, it is unlikely that Jeff Sessions will change his mind. It might be best for transgender persons to use other legal provisions to protect themselves from discrimination. This might require some creative lawyering:

These arguments are probably trending on thin ice. With an administration that seems hell-bent on demolishing LGBT protections though, desperate times might require creative measures.