TortsProf Blog

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Tuesday, October 21, 2014

GA: Parents May Be Liable for Negligent Supervision in Failure to Have Child Take Down Fake Facebook Page

On October 10, the Court of Appeals of Georgia allowed a claim to go forward against the parents of a middle-school-aged child who created a fake Facebook page for a classmate and posted defamatory statements.  In Georgia, parents have a duty to supervise their children with regard to conduct that poses an unreasonable risk of harming others.  The court's decision was based on the fact that the parents did not compel their child to take down the fake Facebook page after they became aware of it.  The page remained up for approximately 11 months after the parents learned of its existence.  The case is Boston v. Athearn

Thanks to Mark Weber for the tip.

October 21, 2014 in Current Affairs, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, October 20, 2014

Parisi et al. on Deterrence in Ancient Law

Francesco Parisi, Daniel Pi, Barbara Luppi, and Iole Fargnoli have posted to SSRN Deterrence of Wrongdoing in Ancient Law.  The abstract provides:

Ancient laws addressed all types of wrongdoing with a single set of remedies that over time pursued a changing mix of retaliatory, punitive and compensatory objectives. In this paper, we consider the historical transition from retaliatory to punitive justice, and the subsequent transition from punitive to compensatory justice. This paper shows how the optimal level of enforcement varies under the three corrective regimes. Crimes that create a larger net social loss require lower levels of enforcement under retaliatory regimes. The optimal level of enforcement is instead independent of the degree of inefficiency of the crime when punitive and compensatory remedies are utilized. The paper provides several historical illustrations and sheds light on some of the legal paradoxes of ancient law.

October 20, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, October 17, 2014

Another Study Undermines Claims of Defensive Medicine

A new study by the RAND Corporation has failed to find evidence of widespread defensive medicine.  The study covers three states that raised the malpractice standard in ER cases:  Texas, South Carolina, and Georgia.  Reforms in Texas and South Carolina had no effect on the use of expensive imaging and a reform in Georgia generated only a small reduction in ER charges.  Coverage is here:  Forbes; WaPo.

October 17, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, October 16, 2014

SC: $97M Verdict in Officer Shooting Death Case

Yesterday, a federal court in Charleston awarded the family of the former mayor of Cottageville, SC $97M for his shooting death at the hands of a police officer.  The award includes $7.5M in compensatory damages, $60M in punies against the town, and $30M in punies against the officer.  The State has the story

Thanks to Susan Raeker-Jordan for the tip.

October 16, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

NPR Coverage of Prop 46

In its "Shots" section, NPR has covered Prop 46, including the tragic story of Troy and Alana Pack.  The article explains all 3 sections of the proposition:  (1) requiring doctors to check a prescription database to detect prescription drug abusers; (2) lifting the $250,000 cap on non-economic damages in med mal cases, and (3) mandatory drug and alcohol testing for doctors.

October 16, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Med Mal Insurance Premiums Fall Again

For the seventh straight year, med mal insurance premiums have dropped for 3 bellwether specialties:  ob/gyn, internists, and general surgeons.  Rates dropped by approximately 1.5% for the specialties combined.  Since 2008, rates for the 3 specialties have fallen by approximately 13%.  The survey found that internists in 8 states can obtain insurance for less than $5,000.  On the other end of the spectrum, ob/gyns in Nassau and Suffolk Counties in New York must pay $214,999 for a policy.  One reason for the premium decline is the decline in claims per physician, regardless of outcome.  Moreover the amount of awards and settlements has remained flat.  Medscape has the story.

October 15, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Hylton on Nuisance

Keith Hylton (Boston University) has posted to SSRN Nuisance.  The abstract provides:

This essay sets out the law and the economic theory of nuisance.  Nuisance law serves a regulatory function: it induces actors to choose the socially preferred level of an activity by imposing liability when the externalized costs of the activity are substantially greater than the externalized benefits or not reciprocal to other background external costs.  Proximate cause doctrine plays a role in supplementing nuisance law.

October 14, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 13, 2014

11th Cir. Upholds Part of FL Med Mal Reform

In 2013, the Florida legislature passed a reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:

In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.

Last year, a federal judge held the law violated HIPAA, which sets limits on disclosure of personal medical information.  On Friday, the Eleventh Circuit upheld the law, stating patients have a choice whether to file suit and, thus, HIPAA is not violated.  TheLedger.com has the story

October 13, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

TX: Ebola Lawsuit Unlikely

Thomas Eric Duncan died of Ebola in Texas on Wednesday.  Several news stories have discussed the possibility of success of a hypothetical med mal suit in the case.  Experts consider it unlikely.  Texas has a "willful and wanton" standard for liability in emergency medicine cases; it also has a cap on non-economic damages.  As a result, a case is not likely attractive to plaintiffs' lawyers.  This would be especially true given the difficulty of proving causation:  Ebola has no known cure.  Stories are here:  NBC News (quoting Charles Silver and Seth Chandler); EaglefordTexas.com (quoting Joanne Doroshow, Silver and Dallas plaintiffs' lawyer, Les Weisbrod).

October 10, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2014

WI: Judge Holds Med Mal Cap Does Not Apply to $25.3M Verdict

A Milwaukee County circuit judge held the state's $750,000 cap on pain and suffering did not apply to a $25.3M verdict, including $15M of pain and suffering to her and $1.5M to her husband, for a woman who lost all 4 limbs due to septic infection.  The court did not find the cap unconstitutional, but held there was no rational basis to apply it to this case.  An appeal is expected.  A Journal Times editorial in support of the judge's ruling is here.

 

October 9, 2014 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

NJ: Non-Customer of Bank Cannot Bring Negligence Claim for Improper Transfer

In a matter of first impression, the New Jersey Supreme Court held that a non-customer of a bank can't bring a common law negligence claim for an improper money transfer made by over the Internet.  The court held the legislature intended New Jersey's version of UCC 4A to create the exclusive remedy for an alleged breach of duty when a bank makes an electronic funds transfer.

(Via JDSupra)

October 8, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Geistfeld on Risk Distribution and Tort Law

Mark Geistfeld (NYU) has posted to SSRN Risk Distribution and the Law of Torts:  Carrying Calabresi Further The abstract provides:

In a seminal article written almost 50 years ago, Guido Calabresi explained that risk distribution is an ambiguous concept that can refer to the manner in which tort liability affects the allocation of scarce resources, the spreading of losses across society, or the attainment of normatively desirable distributive outcomes. The first two conceptions are combined in the (now) conventional economic analysis of tort law, a methodological approach that is routinely associated with Calabresi. In contrast, the remaining conception of risk distribution that Calabresi identified — the attainment of normatively desirable distributive outcomes — is not ordinarily associated with the economic analysis of tort law, and yet this conception is the one that Calabresi has repeatedly invoked as being of decisive importance. In doing so, Calabresi has described how economic analysis can inform distributive questions within tort law, although he never fully developed this approach.

In this article, I try to carry Calabresi further by more rigorously showing how distributive economic analysis can be relevant to the normative evaluation of tort law. In contrast to Calabresi’s conclusion about the “pointlessness of Pareto,” I first argue that the Pareto principle embodies an autonomy-based compensatory norm that tort law can rely on to implement corrective justice under nonideal conditions that foreclose fully consensual compensatory exchanges. Within the context of these forced exchanges, a compensatory payment satisfies a compensatory obligation, which in turn is defined by the correlative compensatory right. Consequently, I next identify the substantive properties of a compensatory tort right and show how the right holder’s compensatory demands can be fully satisfied by the duty holder’s exercise of reasonable care in a wide range of cases. A compensatory norm can be fully implemented by the distribution of risk without an entitlement to compensatory damages in the event of injury, a conclusion that sheds new light on Calabresi’s original insight about the varied meanings of risk distribution within tort law.

Finally, I employ distributive economic analysis to show how the tort system can be conceptualized as a compensatory mechanism. Tort compensation is not merely a form of accident insurance as assumed by the conventional economic analysis of tort law; it fits readily into Calabresi’s taxonomy of desirable legal innovations that shift the Pareto frontier outwards. By expanding the feasible set of fully compensatory outcomes that can be attained under existing social conditions, the tort system enables individuals to engage in new risky activities while adequately compensating those who are disadvantaged by the risky behavior. The tort system has a normative dimension that is brought into sharp relief by the type of distributive economic analysis that has been championed by Calabresi but neglected by the conventional economic analysis of tort law.

October 7, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

CT: Malfunction Theory Must Be Pled or Can't Be Used in Opposition to Summary Judgment Motion

The Connecticut Supreme Court has clarified procedural requirements for the malfunction doctrine in products cases.  If the plaintiff only pleads specific defects in a product, the malfunction doctrine can't be used as an alternative way to defeat a motion for summary judgment because there was no notice to the defendants and the court. The decision is White v. Mazda Motor of America, Inc., 2014 WL 4548058 (Conn. 2014).

October 6, 2014 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, October 3, 2014

Med Mal Suit Against Sperm Bank: Sperm Sent Was of the Wrong Race

An Ohio woman is suing an Illinois sperm bank for sending sperm from a black donor, when she asked for sperm from a white donor.  She is seeking $50,000 in damages and insists that the suit is not about her disappointment with her daughter's race.  Instead she wanted her daughter to resemble her partner and she plans to use the money to move to a less prejudiced area.  Coverage:  NBC News; Today Health

October 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 30, 2014

Drones and Tort Law

A recent Volokh Conspiracy column analyzed the applicability of various existing laws to the increasing use of drones.  Discussed are:  intrusion upon seclusion, publication of private facts, battery, assault, negligence, trespass, and nuisance.

September 30, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

PA: No Manufacturing Defect/Implied Warranty Claims Against Pharmaceutical/Medical Device Companies

In Pennsylvania, a federal split is resolved:  manufacturing defect and implied warranty claims are not viable against pharmaceutical and medical device companies.  It was already clear that design and warning defect claims were not viable.  Thus, under current Pennsylvania law, negligence is the only cause of action plaintiffs have against pharmaceutical and medical device companies.  The Legal Intelligencer has the story

September 30, 2014 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2014

"The New Doctrinalism" at Penn Law

...includes a paper presentation by Ben Zipursky ("Reasonableness in and out of Negligence Law") and Greg Keating as a panelist.  The symposium is October 24th and 25th.  The program is here and you can RSVP.  Thanks to Karen Wong of the University of Pennsylvania Law Review for the tip.

September 29, 2014 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

PA: AG's Office Invokes Victim Fault in Rape Suit

A 24-year-old typist at a prison in Bellefonte, PA was brutally raped last year by one of the inmates.  The inmate had been convicted three times previously of sex-related crimes and then transferred from a different prison for assaulting a female employee there.  Despite this, the inmate had access to the typist's office, even after she states she complained to her bosses about the inmate's behavior toward her.  The victim filed suit in federal court against the state Department of Corrections and several individual employees.  The AG's office, charged with defending the lawsuit, included in the answer the allegation that the woman "acted in a manner which in whole or in part contributed to the events."  In essence, the AG's office was pleading comparative fault, resulting in a political firestorm.  The issue was covered on CNN and the Attorney General herself felt compelled to address the filing

The best defense of the allegation is that it was necessary to preserve a defense of comparative fault for trial.  A lawyer has to defend his or her client and FRCP 8 requires the pleading of, among other things, contributory negligence.  It seems to me, however, that this should have been handled differently.  Given:  (1) the sensitive nature of the plaintiff's complaint; (2) the fact that Rule 15 allows liberal amendments; and (3) the fact that the DA in the county fully supported the typist and successfully prosecuted the inmate for rape, apparently without uncovering any evidence that the she contributed to the attack on herself, this allegation should not have been included in the answer. 

September 26, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2014

MS: Case to Determine Constitutionality of Non-Economic Damages Cap Settles

As I reported here, yesterday the Mississippi Supreme Court was supposed to hear oral arguments on the constitutionality of the state's $1M non-economic damages cap.  Instead the parties filed a joint motion on September 17th representing they have settled the case.  The court canceled oral arguments and gave the parties 90 days to finalize the settlement.  The Jackson Free Press has the story

September 25, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

PA: General Liability Coverage Providers Must Defend Products Claims

Last week, the Pennsylvania Supreme Court refused to hear an appeal from a Superior Court ruling, leaving in place a holding that general liability coverage providers are required to defend products claims brought against their policyholders.  In a series of cases filed against door and window manufacturers, the Superior Court held that because the company's allegedly defective products allegedly led to other damaged property as well as personal injuries, there were "occurrences" under the policy:

In issuing its opinion, the Superior Court specifically rejected the application of the “gist of action” theory to bar tort claims in insurance coverage disputes. In Pennsylvania law, the doctrine serves to prevent plaintiffs from reshaping breach of contract claims into tort claims.

“Ultimately, because the gist of the action doctrine has never been adopted by our Supreme Court in an insurance coverage context, we are convinced that, at this juncture of a duty to defend claim, applying the gist of the action doctrine is inappropriate,” Judge Shogan said.

Law 360 has the story.

September 24, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)