Thursday, April 17, 2014
In 2002, then-Governor Jeb Bush appointed 5 members to a panel to advise about an alleged med mal crisis. The panel recommended med mal caps on non-economic damages. In 2003, the legislature passed a cap; the Florida Supreme Court invalidated that cap earlier this year. In the wake of that decision, the 5 members of the panel are urging a constitutional amendment to put the cap on firm legal ground. It is unlikely the legislature will take up such an amendment in this session. The Miami Herald has details.
Wednesday, April 16, 2014
Two weeks ago, I reported that a bill to remove the $50K minimum to request a jury trial had passed a key committee vote in the House. Today the full House voted the bill down 51-49, with 5 members not voting. Some members of the business committee blame high insurance rates on the high threshold, arguing that plaintiffs would claim, and businesses would pay, lower amounts if not aiming at a $50K minimum. Opponents reply that no evidence regarding lower insurance rates has been produced and lowering the threshold would potentially strain judicial resources.
Suja Thomas (Illinois) has posted to SSRN Blackstone's Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States. The abstract provides:
When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently — as an integral part of government in both England and the colonies. This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.
Tuesday, April 15, 2014
Friday, April 11, 2014
Thursday, April 10, 2014
Late last month, I reported that the Kansas legislature was going to conference committee to raise the med mal cap. Both the House and Senate adopted a gradual increase of the med mal cap on non-economic damages from $250K to $350K. The difference between the two was over the collateral source rule. The Senate version would have allowed jurors to hear testimony about whether a plaintiff's damages were covered by insurance; the House version did not alter the collateral source rule. The final version sent to Governor Brownback for his signature does not include collateral source reform. The history of SB 311 is here.
Wednesday, April 9, 2014
On Monday, a jury in Louisiana ordered Eli Lilly and Takeda, a Japanese pharmaceutical company, to pay $1.475M in compensatory damages and $9B in punies for concealing cancer risks in the diabetes drug Actos. Takeda has announced it will fight the $6B punies verdict against it. Because of the presumptive single-digit Due Process ratio, there is a strong possibility the punies will at least be reduced. Cathy Sharkey (NYU) provides commentary in this Reuters piece.
Do not pee in a co-worker's coffee urn. Compensatory damages were $1 and punies were $5,000. This case reminds me of the 1872 Illiniois case of Alcorn v. Mitchell, in which a jury awarded $1,000 to a plaintiff who was spat upon. Virginia Lawyers Weekly has details.
Friday, April 4, 2014
A med mal filing in California accuses a hospital of negligently placing a live patient in a morgue freezer and freezing her to death. Originally, the family sued for mishandling of a corpse, an exception to limitations on negligent infliction of emotional distress. New evidence, however, caused the family to sue for wrongful dealth. The case was originally dismissed, but was reinstated by an appellate court. The hospital expressed remorse, but does not comment on pending cases. CNN has the story (video).
Thursday, April 3, 2014
The topic of the 20th Annual Clifford Symposium on Tort Law and Social Policy at DePaul Law is "Judge Jack Weinstein's Impact on Civil Justice in America." The symposium is Friday, April 24th. As usual, there is a great lineup of speakers, including a videotape presentation by Justice Stephen Breyer. You can register online at http://law.depaul.edu/clifford or call (312) 362-5292.
Judge Jack Weinstein has led a remarkable life. He is the American dream personified; born in the heartland in Wichita, Kansas, raised in Brooklyn, a child who had to make his way in the Depression, a student who secured his first college degree in night school, a veteran of World War II. He has been a dock worker, a naval officer, a county attorney, a law professor and a federal judge. At the 20th annual Clifford Symposium, we gather to honor him. He has opened new vistas in the law of procedure, torts and evidence to name but three. More than that, he has set a towering example of judicial independence and social conscience. His work on Agent Orange and numerous mass torts that followed set American courts on a path that has expanded protection for defenseless victims and yielded a better society. To borrow from one of his lines, “every day [he has laid] down his professional life for justice.” It does us great honor to have this opportunity to celebrate his life and achievements.
Wednesday, April 2, 2014
Tuesday, April 1, 2014
U.S. Senator Barbara Boxer endorses a proposed ballot initiative to raise the MICRA cap. (Reuters)
Meanwhile, Iowa Governor Terry Branstad endorses "tort reform" broadly. (The Des Moines Register)
Monday, March 31, 2014
Adam Zimmerman (Loyola-LA) has posted two pieces to SSRN. First up is Presidential Settlements and the abstract provides:
Large groups repeatedly turn to the White House to collectively resolve complex disputes, much like a class action. Such presidential settlements go back at least as far as the early republic, as well as the Progressive Era, when Teddy Roosevelt famously brokered settlements among private groups following a rash of accidental injuries and deaths in mining, rail, and even, football. More modern variants include mass compensation schemes like the Holocaust Victim Settlement, Pan Am Flight 103 Settlement, and the BP Oil Spill Settlement brokered by Presidents Clinton, Bush and Obama. In each case, the President helped resolve a sprawling class action-like dispute among warring parties, while also advancing a broader executive agenda. Just as the President has extended power over the administrative state, presidential settlements demonstrate the growth of executive authority in mass dispute resolution to provide restitution for widespread harm.
But this use of executive power creates problems for victims purportedly served by presidential settlements. When the President settles massive private disputes, he resolves them like other forms of complex litigation, but without the judicial review, transparency, and participation thought necessary to resolve potential conflicts of interests among the victims. The Presidents’ other duties as the Chief Executive also aggravate conflicts with groups who may rely entirely on such settlements for relief.
This Article recommends that the President adopt complex litigation principles to reduce conflicts of interests, to increase transparency, and to improve public participation in White House driven settlements. Envisioning the President as the “Settler-In-Chief,” this Article also raises new questions about how the coordinate branches of government, as well as actors inside the White House, may regulate executive settlement practice consistent with the Separation of Powers.
Next is The Corporate Settlement Mill and the abstract provides:
From cases involving “robo-signed” mortgages to catastrophic oil spills, the United States legal system increasingly encourages corporate wrongdoers to design and implement their own high-volume settlement programs to compensate thousands of unrepresented victims. These private settlement systems rely on corporate economies of scale to resolve massive disputes as comprehensively as a class action, but entirely outside of the court system. We call these systems “corporate settlement mills.”
Like class action settlements and “no fault” insurance options, corporate settlement mills may ameliorate many of the most commonly criticized features of individualized litigation. They offer redress to people who often cannot afford counsel, handle large volumes of claims quickly and predictably, and reduce court congestion. For those reasons such programs are increasingly required by federal laws, regulatory bodies and as a matter of complex litigation practice.
But corporate settlement mills also have a dark side. When sophisticated corporate actors quietly settle large numbers of cases in assembly-line fashion, they threaten transparency, fair dealing, and the rule of law. We argue that this new category of dispute resolution is more dangerous than others because a single, self-interested party — the prospective defendant itself — designs and oversees the entire determination process. Corporate settlement mills thus raise fundamental questions about how far policymakers may go to privatize our public, and historically neutral, system of adjudication.
Drawing lessons from other movements to privatize government, we argue that corporate settlement mills can provide an appropriate alternative to public adjudication as long as they remain answerable to the regulators, courts, and claimants that rely on them. We therefore offer specific suggestions to make them more accountable — including targeted prospective regulation, judicial review, stakeholder participation, and ethical reform. In so doing, we broaden the debate over what constitutes mass litigation, in the hope that lawmakers realize the benefits of large private settlements, without frustrating administrative regulation or the judiciary’s authority to “say what the law is.”
Friday, March 28, 2014
Cathy Sharkey (NYU) has posted to SSRN State Farm 'with Teeth': Heightened Judicial Review in the Absence of Executive Oversight. The abstract provides:
While courts and commentators have considered the information-forcing role of executive oversight and/or judicial review of agency action, the dynamic relationship between the two has yet to be considered. This Article presents a novel justification for heightened judicial scrutiny in the absence of meaningful executive oversight. Agency cost-benefit analyses and agency conflict preemption determinations — two realms rarely if ever considered together — are compared in terms of their underlying reliance on factual predicates and contrasted in terms of the existing framework for executive oversight and judicial review of agency determinations.
A heightened judicial review standard — what I term “State Farm with teeth” — should guide courts’ evaluations of the cost-benefit analyses performed by independent agencies not subject to executive oversight. My Article is the first to draw the distinction between independent and executive agencies in the State Farm “hard look” context. It is also the first to explore the recent Business Roundtable decision by the D.C. Circuit through this analytical lens.
The stringent “State Farm with teeth” standard should likewise be applied to judicial review of agency determinations of conflict preemption. This Article’s discussion of recent developments involving the Office of Comptroller of the Currency’s assertion of preemption of state banking laws shows why. This Article also points to a potential new information-forcing role for Congress. Using the Dodd-Frank Act as an example, this Article further shows how Congress can set parameters for judicial review of the fact-based conflict preemption determination on the part of an agency.
Thursday, March 27, 2014
The Kansas Senate and House have passed similar bills to gradually raise the non-economic damages cap in personal injury cases from $250K to $350K. The major difference between the bills concerns the collateral source rule. The Senate version would allow jurors to hear testimony about whether a plaintiff's damages were covered by insurance; the House struck that provision. A conference committee has been selected. The Kansas Health Institute has coverage.
Tuesday, March 25, 2014
Aaron Twerski (Brooklyn) & James Henderson (Cornell) have posted to SSRN Fixing Failure to Warn. The abstract provides:
Failure to warn remains a doctrine in distress. More than two decades ago, the authors published an article identifying a number of problems with failure-to-warn doctrine in products liability law. In essence, the article criticizes the law traditionally governing products warnings for being little more than an “empty shell,” allowing claims that need only be asserted rhetorically to reach the jury. Afterwards the authors served as Reporters for the Restatement, Third, of Torts: Products Liability, helping to write black-letter rules covering product warnings and a number of other subjects. Working on the Restatement project involved coming to terms with the similarities and differences between defective design and failure to warn. One important difference relates to what a plaintiff must prove to establish a product defect. Regarding design-based liability, American courts generally require plaintiffs to prove that a specifically-identified reasonable alternative design (RAD) was available at the time of commercial distribution of the product. Regarding alleged failures to warn, many courts impose no similar burdens on the plaintiff. In those jurisdictions, the plaintiff need only assert in conclusory fashion that the defendant’s warnings of nonobvious product-related risks were inadequate, without specifying exactly what warning the defendant should have given or proving that a different warning would have done any good. The authors conclude that the same rigor necessary for a plaintiff to make out a prima facie design defect case should be required for alleged failures to warn. Plaintiffs asserting warning claims should be required to specify, by suggesting a reasonable alternative warning (RAW), exactly how the defendant should have effectively communicated product-related risks and to prove how the RAW would have prevented or reduced the plaintiff’s harm. From a broader perspective, too much has been made of the differences between design and warning and not enough has been made of their similarities. This essay aims to set things right.
Friday, March 21, 2014
Michael Frakes (Cornell) has posted to SSRN The Surprising Relevance of Medical Malpractice. The abstract provides:
The academic community has largely reached a consensus that medical malpractice reform is unlikely to be a meaningful source of health care cost containment. This Article suggests that one would be premature to take the evidence underlying this academic sentiment to conclude that physicians are universally insensitive to the parameters of medical malpractice law and that liability reform may have no role to play in the health care costs debate. On the contrary, this Article demonstrates that the medical liability system, under particular structures and/or under particular conditions, may have a meaningful connection indeed to health care spending patterns.
The shortcoming of the existing empirical literature that has likely contributed to this misconception is its failure to fully appreciate the structure of medical liability rules. By viewing the substantive dimension of malpractice law too abstractly, the literature has overlooked those features of the system, and of the environment in which it operates, that have likely led to the weak connection observed between medical liability forces and health care spending. This Article attempts to identify such features, theorizing that the limited empirical findings of the existing literature may, in part, be explained by the fact that the present liability system sets operable standards of care by deference to customary physician practices and that such customs are themselves shaped by financial and other influences that already encourage excessive spending. On the margin, financial motivations to provide unnecessary care may simply be crowding out the influence of the law.
Nonetheless, the theoretical framework set forth in this Article identifies various scenarios in which health care spending may exhibit greater sensitivity to liability pressures. First, despite any present crowd-out of liability forces by financial motivations, this model suggests that defensive medicine may become a more noticeable phenomenon should other delivery system reforms succeed in curbing pernicious financial incentives to over-treat patients. Second, this framework predicts that spending patterns have the potential to diminish considerably upon the adoption of more structural reforms to the liability system and to the nature in which liability standards are set, as distinct from the remedy-focused reforms — e.g., damage caps — implemented by legislatures to date. Finally, this Article supports the various predictions of this model through the presentation of a range of empirical findings. Much of this supporting evidence comes from various facets of the existing literature, including recent papers by this Author. However, this Article builds on this empirical precedent by providing new evidence of the sensitivity of defensive medicine to the prevalence of financial motivations to provide excessive care, drawing upon previously unavailable data on health care costs and implementing a sophisticated natural-experiment design.
Thursday, March 20, 2014
Edmund Ursin (San Diego) has posted to SSRN Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability. The abstract provides:
Enterprise liability is a term associated with the tort lawmaking of the liberal “Traynor era” California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This manuscript examines the evolution of each of these theoretical movements from Holmes’s great 1897 essay, “The Path of the Law,” to the present day. Its focus is on the great judges and scholars whose views have shaped our own: Holmes, Cardozo, the Legal Realists Leon Green and Karl Llewellyn, Traynor, and Posner.
Stated simply, the shared jurisprudential view of these great judges and scholars is that in our system judges are legislators as well as adjudicators — and policy plays a role in their lawmaking. In the common law subjects, in fact, judges are the primacy lawmakers. In constitutional adjudication they are also lawmakers but lawmakers aware of the general need for deference to other branches. No fancy formulas such as “neutral principle “or “original meaning” can capture this role. Indeed, the leading academic theorists of the past century — and today — have been out of touch with the reality of judicial lawmaking as it has been expressly articulated by these great judge. We also see in the works of these judges and scholars the origins of the enterprise liability doctrines that the pragmatic Traynor era court of the 1960s and 1970s, would adopt, including the doctrine of strict products liability and expansive developments within the negligence system.
Tuesday, March 18, 2014
Many of you know that Carolina Academic Press launched the Context and Practice Series as a way for law profs to implement the ideas in the Carnegie Report and Best Practices. I've used Michael Hunter Schwartz's and Denise Riebe's Contracts casebook and found it very student-friendly. Now Alex Long (Tennessee) and Meredith Duncan (Houston) are publishing Advanced Torts in that series. From the CAP blurb:
Advanced Torts: A Context and Practice Casebook
by Alex B. Long, Meredith J. Duncan
Advanced Torts focuses primarily on tort theories that are not covered in significant detail in the standard first-semester Torts course. However, the book explores these topics with a particular emphasis on how they apply to lawyers engaged in the practice of law. Thus, students learn about defamation, interference with contractual relations, etc. while reading cases and working through problems that frequently involve lawyers as litigants. Given the reality that a lawyer is more likely to be sued for malpractice or some related theory during the lawyer’s career than it is the lawyer will face professional discipline, the subject matter of the book should resonate with students in a way that most Advanced Torts books do not.
The book covers the theories of liability often addressed in Advanced Torts courses, and some of the cases do not involve lawyers as parties. In this sense, the book is general enough that it can be used in any Advanced Torts class. However, it also includes material that should be of special concern for lawyers, including several chapters devoted to legal malpractice. Thus, it could be used in an Advanced Torts class as well as a stand-alone class devoted to legal malpractice and related theories of liability. Throughout the book, the authors make a conscious effort to help aspiring lawyers develop their professional identities as they learn the doctrine.