Friday, April 24, 2015
In 2012, the Missouri Supreme Court struck down that state's med mal damage cap. The legislature has passed a replacement, and it is now awaiting Governor Jay Nixon's decision whether to sign it. In sum:
The bill, if signed into law, would place a $400,000 cap on noneconomic damage awards in medical malpractice cases. The cap would be raised to $700,000 for catastrophic and wrongful death cases. Both caps would then increase by 1.7 percent each year.
There is a catch to the law. A jury would still be able to award an amount greater than the allowed caps. If a motion is then made contesting the award, the trial court will determine whether the limitations apply in that case.
The St. Louis Business Journal has the story.
Thursday, April 23, 2015
Scott DeVito (Florida Coastal) & Andrew Jurs (Drake) have posted to SSRN An Overreaction to a Nonexistent Problem: Empirical Analysis of Tort Reform from the 1980s to 2000s. The abstract provides:
Proponents of tort reform have suggested it is a necessary response to rising personal injury litigation and skyrocketing insurance premiums. Yet the research into the issue has mixed results, and the necessity of tort reform has remained unproven.
We decided to research an underdeveloped area by empirically testing the real world effects of noneconomic damages caps. To do so, we assembled a database of nearly fourteen million actual cases filed between 1985 and 2009 and then measured how damages caps affect filing rates for torts. Not only could we analyze the change in filings after adoption of a cap but we could also measure the effect of elimination of a cap as well. When we did, we found something unique in the literature.
We found first that when a state adopts a noneconomic damages cap, there is a statistically significant drop in filings of all torts and for medical malpractice torts. We also found that in both the 1990’s and 2000’s, the rate of filings dropped consistently as well – both in states with tort reform but also in states without it. Therefore, our finding of a statistically significant reduction in filings in response to damages caps demonstrates a “doubling-down” effect: there is one drop in filings due to the damages cap, but there is another drop based on larger background forces.
Next, when assessing the change in filings after elimination of a damages cap, we found something initially counterintuitive but also new to the literature. While one might expect a sharp increase in filings when a cap disappears, our analysis could find no statistically significant change in the filing rate for all torts after elimination, while medical malpractice filings continued to decline overall. We believe that this finding demonstrates and quantifies, for the first time, the non-legal effect of tort reform measures discussed by commentators like Stephen Daniels and Joanne Martin.
We believe the combination of the “doubling down” on plaintiffs as well as the quantifiable non-legal changes in response to damages caps significantly modifies the cost-benefit analysis of tort reform. In Trammel v. United States, the Supreme Court stated: “we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change.” Based on our empirical assessment, we conclude that tort reform has reached that point and call upon state legislators to reconsider these measures.
Tuesday, April 21, 2015
A woman tripped on an uneven area of sidewalk and was injured. She settled with the owner of the commercial property and then sued one of the tenants. The Colorado Supreme Court rejected the contention that the tenant in this case was also the landlord:
“The clinic was not in possession of the sidewalk because it had only a right of non-exclusive use and the landlord retained responsibility for maintaining that area,” the ruling said. “Second, the court concludes that, under the terms of the lease and the facts of this case, the clinic was not legally responsible for the condition of the sidewalk or for the activities conducted or circumstances existing there. It therefore holds that the clinic is not a landowner within the meaning of the Premises Liability Act.”
The Denver Business Journal has the story.
Monday, April 20, 2015
The current cap in place for Maryland's municipalities is $200,000 per claim/$500,000 per incident. The House passed an increase to $300,000/$600,000 and the Senate passed an increase to $500,000/$1,000,000. Perhaps not surprisingly, a conference committee approved $400,000/$800,000 and that passed 89-45 in the House and 33-14 in the Senate. The bill also extends the filing period from 6 months to 1 year. HB 113 awaits the governor's signature. MarylandReporter.com has the story.
Thursday, April 16, 2015
Elizabeth Katz (Harvard-History) has posted to SSRN Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative. The abstract provides:
According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.
Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.
Wednesday, April 15, 2015
Late last month, the Maryland Court of Appeals upheld the cap on damages for claims against local governments. The current cap is $200,000 per claim, with a maximum of $500,000 for any number of claims stemming from a single incident. The House passed a bill raising those limits to $300,000 and $600,000. Last week a Senate committee proposed raising the limits to $500,000 and $1,000,000. The full Senate will vote on Friday. Cecil Whig has the story.
Tuesday, April 14, 2015
Richard Epstein & Ryan Abbott have posted to SSRN FDA Involvement in Off-Label Use: Debate between Richard Epstein and Ryan Abbott. The abstract provides:
Before a drug can be sold legally in the United States, the Food and Drug Administration (FDA) must approve it as safe and effective for a particular indication or use — the use then appears on the drug's label. Federal law, however, allows doctors to prescribe drugs that the FDA has approved for one indication for any other indication, even though the FDA never evaluated the safety or efficacy of the drug for that use.
Off-label prescribing is an integral part of modern-day medicine. Patients may benefit when they receive drugs or devices in contexts not approved by the FDA. In fact, in some instances an off-label use may be the standard of care for a particular health problem. However, off-label prescribing can also harm patients, especially when an off-label use lacks a solid evidentiary basis.
For this reason, the FDA forbids drug companies from promoting their own products for off-label use, except for certain activities such as disseminating research literature and sponsoring educational programs. In recent years, civil and criminal actions against drug companies for illegal promotion for off-label use have proliferated, leading to many large settlements. For example, in July 2012, GlaxoSmithKline pled guilty and paid $3 billion to resolve criminal and civil liability arising from the company's unlawful prescription drug promotion, failure to report safety data, and false price reporting practices.
As a result of this recent litigation, many have questioned the FDA's current role in regulation of off-label use and whether more or less intervention is needed. This debate sought to address these very issues.
Monday, April 13, 2015
On Thursday, Arizona Governor Ducey signed into law a bill requiring plaintiffs to disclose asbestos claims they have filed or intend to file. The legislation, referred to as a transparency law, is justified as necessary to keep plaintiffs from double-dipping from asbestos trusts. Today's News-Herald has the story.
In other asbestos news, the California Supreme Court will hear an appeal regarding the status of "take home" asbestos claims. The lower appellate court denied the claim. The Pacific Legal Foundation provides information on the case and argues against such claims here.
Thursday, April 9, 2015
Plaintiff was injured while watching her daughter play soccer. She sued the owner of the facility; the owner defended by asserting the recreational use statute. The Texas Supreme Court held that watching soccer is not a recreational use within the statute.
Iowa State's CALT has details.
Wednesday, April 8, 2015
In 2005, two siblings were shot to death in their Florida apartment. The Florida Supreme Court recently upheld a $4.5M premises liability verdict against the owner of the apartment complex, based on the failure of the owner to repair a security gate at the gated complex. The criminal case is still unsolved. LawyersandSettlement.com has the story.
Tuesday, April 7, 2015
On March 25, the United States District Court for the District of Massachusetts decided Hochendoner v. Genzyme Corp., 2015 WL 1333271. Plaintiffs suffered from Fabry disease; defendant manufactured a drug used to treat the disease. Plaintiffs alleged that defendant negligently contaminated the medicine, causing a reduced supply and harming plaintiffs. The court dismissed the case, holding defendant had no duty to provide the medicine.
Thanks to Bob Bohrer (Cal Western) for the tip.
Monday, April 6, 2015
The focus of the trial was a rear-mounted gas tank. The verdict comes nearly two years after Chrysler agreed to a scaled-back recall of some older-model Jeeps with rear-mounted tanks. The New York Times has the story.
Thanks to Susan Raeker-Jordan (Widener) for the tip.
Friday, April 3, 2015
Thursday, April 2, 2015
On Monday, the Maryland Court of Appeals upheld a cap on damages against local governments. A jury awarded $11.5M to the family of a man shot to death by police, and the family argued the cap was unconstitutional. The court rejected the challenge; the family will receive $400,000. The Baltimore Sun has the story.
Tuesday, March 31, 2015
I have posted to SSRN The Prosser Letters: 1919-1948. The abstract provides:
William Prosser was one of the most accomplished and influential scholars of the twentieth century. He molded the development of tort doctrine, especially in the areas of products liability, privacy, and the intentional infliction of emotional distress. In spite of his numerous achievements, there is no full-length biography of Prosser. A major reason no one has written such a volume is the lack of Prosser’s papers. Based on information from a Berkeley Law librarian, it appears Prosser destroyed most of his papers in 1963. Recently, however, prominent academics have both written shorter biographical pieces on Prosser and called for further research on his life.
Progress is possible thanks to the serendipitous discovery of a pile of Prosser’s old letters at a garage sale in the Berkeley area. The letters begin when the twenty-one-year-old Prosser is in Europe after fighting in World War I and continue through Prosser’s role as a visiting professor at Harvard Law School in 1948. They provide a first-hand account from Prosser during crucial periods of his life.
This essay is based on a review of those letters. It accomplishes three main things. First, it fills in considerable details of Prosser’s life, including the resolution of several contested issues, such as where Prosser spent his childhood and when he matriculated as a 1L at Harvard Law School. Second, the essay provides a first-hand account of Prosser’s pedagogical experience in law school and how that affected his teaching, his struggle with the decision to become an academic, and his candid appraisal of the academy. Third, the essay reveals Prosser’s assessment of his own honesty, which is especially provocative in light of the controversy surrounding his methods for influencing the law.
Andrew McClurg (Memphis) has posted to SSRN The Second Amendment Right to Be Negligent. The abstract provides:
Only two constitutional rights — the First and Second Amendments — have the capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech. This Article asserts that through both common and statutory law the United States has enshrined a de facto Second Amendment right to be negligent in many aspects of making, distributing, and possessing firearms, the only legal product designed to inflict what the tort system is designed to prevent.
Explaining that it is a microcosm of a much larger issue, the Article focuses on one area: allowing access to guns by criminals through theft. Hundreds of thousands of guns are stolen each year from individuals and commercial sellers. By definition, they all go directly to criminals. A substantial percentage of guns used in crime were previously stolen. Nevertheless, the common law has conferred near complete immunity on gun owners and sellers who fail to secure guns from theft when they are subsequently used to cause harm. This occurs despite frequent judicial pronouncements that the risk of firearms demands the highest degree of care in their use and keeping. To accomplish this result, courts ignore or mischaracterize fundamental scope of liability principles, rarely even reaching the question of whether reasonable care was exercised.
On the statutory front, not only have Congress and most states failed to mandate firearms security measures, Congress has — in the name of the Second Amendment — given express protection of the right to be negligent, most prominently in the form of the Protection of Lawful Commerce in Arms Act. The Act immunizes manufacturers and sellers of guns from most tort claims, including claims against commercial firearms licensees for negligent security leading to theft.
The Article argues that this government-endorsed lack of responsibility results in the under-deterrence of risky conduct that, with reasonable alterations, could avoid substantial intentional and accidental injury costs.
Monday, March 30, 2015
Last week, Florida adopted new model jury instructions for products cases. On design defects, there is a split in Florida circuits between the consumer expectations and risk-utility tests; the instructions do not resolve the split. Newsome Melton's website has more details here.
Friday, March 27, 2015
Back in November, I reported that the Pennsylvania Supreme Court was deciding whether to become the eighth state to completely ban informed consent evidence from a traditional med mal trial. The plaintiff's lawyer argued that the informed consent could be used in a prejudicial way to insinuate that consent to the procedure amounted to consent to risks of negligence. The court declined to adopt a bright-line rule excluding informed consent evidence and overruled a contrary Superior Court ruling. The court, however, through Chief Justice Saylor, emphasized that informed consent and traditional med mal cases are very different:
The fact that a patient may have agreed to a procedure knowing its risks does not speak to whether the doctor fell below the standard of care in performing that procedure, Saylor said.
"Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care," Saylor said. "The patient's actual, affirmative consent, therefore, is irrelevant to the question of negligence."
So, like with Brady's complaint, when a malpractice complaint only asserts negligence, and not a lack of informed consent, evidence of informed consent should be excluded, Saylor said.
Saylor noted that a jury could be confused by informed consent and conclude the plaintiff consented to the injury.
The court thus held that evidence of informed consent is "generally irrelevant to a cause of action sounding in medical negligence."
The court was unwilling to take the next step and hold evidence of informed consent is never admissible in a traditional med mal case. The Legal Intelligencer has the story.
Wednesday, March 25, 2015
Greetings! In my capacity as Secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
1. Torts and Compensation Section Newsletter
As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at email@example.com. The deadline for inclusion is August 17, 2015.
2. 2016 William L. Prosser Award
This is the first call for nominations for the 2016 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in January 2016.
Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 13, 2015. Email submissions to firstname.lastname@example.org are preferred. If you would rather mail hard copies of nomination materials, please mail to: Chris Robinette, Widener University School of Law, 3800 Vartan Way, P.O. Box 69380, Harrisburg, PA 17106-9380.
Our committee will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach. In the meantime, feel free to contact me if you have any questions.
CA: Failing to Pay Prevailing Wages May Be Intentional Interference with Prospective Economic Advantage
A California Court of Appeal has held that a second-place bidder on a public works contract may sue the first-place bidder for failure to pay prevailing wages pursuant to the business tort of intentional interference with prospective economic advantage. Garret Murai at JD Supra has the details.