Thursday, December 18, 2014
Back in July, I posted about a case in front of the Pennsylvania Supreme Court over whether the statutory component of bad faith is assignable. The issue, specifically, was whether the statutory bad faith remedies, sounding in tort, are, like the common law bad faith contract action, assignable. On Monday, the court answered in the affirmative. The court stated:
We recognize that the policy considerations (which are ably developed in the
arguments of the litigants and their amici) are mixed in character. On balance,
however, we find that consideration of the occasion and necessity for Section 8371, the
object to be attained, the previous legal landscape, as well as the consequences of our
interpretation, favor Wolfe’s position. Centrally, we simply do not believe the General
Assembly contemplated that the supplementation of the redress available for bad faith
on the part of insurance carriers in relation to their insureds would result either in a
curtailment of assignments of pre-existing causes of action in connection with
settlements or the splitting of actions. Certainly, if we are incorrect in our assessment in
this regard, the General Assembly may seek to implement curative measures pertaining
to future cases, subject to constitutional limitations.
Widener alumnus Scott Cooper co-authored an amicus brief, cited in the opinion, on behalf of the Pennsylvania Association for Justice.
Wednesday, December 17, 2014
Like many jurisdictions, Indiana has a tort claims act. Pursuant to Indiana's version, the maximum total payout to victims for any single event is $5M. In 2011, a stage at the Indiana State Fair collapsed; 62 victims have been paid damages from the incident. One of the injured, 10-years-old at the time, opted to sue the state. On Monday, an appellate court heard arguments that the cap is unconstitutional. In a filing, plaintiff's lawyers stated:
“The $5 million cap, both on its face and as applied, violates Plaintiff’s constitutional rights, which provides in relevant part [that] all courts shall be open, and every person for injury done to him and his person, property or reputation, shall have remedy by due course of law."
WISHTV.com has the story.
Tuesday, December 16, 2014
The Harvard Law School Program on Private Law is seeking applicants for a post-doctoral fellowship. Information is here: Download PostdoctoralFellowshipinPrivateLawCallforApps
Monday, December 15, 2014
A California appellate court has concluded there is no duty on the part of a premises owner to warn of take-home asbestos dangers. The court was concerned about "limitless liability." A dissenter argued the Rowland factors establish a duty. Legal Newsline has the story.
Wednesday, December 10, 2014
Deborah Brake (Pittsburgh) has posted to SSRN Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation. The abstract provides:
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation to establish causation in fact. In doing so, the Court extended its turn to tort law in deciding statutory employment discrimination cases into the field of retaliation. The Court’s tort analogy in Nassar seemingly invites courts to explore additional tort-inspired limits on recovery. Even before Nassar, however, lower courts had crafted doctrines sounding in tort to limit what counts as protected activity under the statute. Two of these doctrines bear a strong resemblance to tort law. First, the Title VII reasonable belief doctrine draws on tort-inspired concepts of plaintiff fault to limit recovery for retaliation. Second, lower courts have recently restricted the class of persons protected by the retaliation claim, effectively injecting a tort-like no-duty rule into the employer’s obligation toward employees who have internal anti-discrimination responsibilities. This Article uses the lens of tort law to explain and critique these retaliation doctrines, with an eye toward pressing the tort analogy in a new direction, one that is more deeply grounded in employer fault.
Tuesday, December 9, 2014
Michael Stein (W&M), Christopher Guzelian (Thomas Jefferson) & Kristina Guzelian (Thomas Jefferson) have posted to SSRN Expert Testimony in Nineteenth Century Malapraxis Actions. The abstract provides:
Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.
Monday, December 8, 2014
A family with a 5-year-old son was staying in a second-floor room at a hotel in La Jolla. The mother had asked for a ground-floor room, but none were available. The family opened the window to hear the ocean. While they were distracted, their son pushed through the screen, fell to the ground, and suffered serious injuries. The hotel had safety bars in many of the windows, including other windows in the same room, but not at the particular window through which the child fell.
The parents filed suit alleging premises liability. The hotel filed a motion for summary judgment and the trial court granted it. The Court of Appeal, Fourth Appellate District reversed. The court held the hotel had failed to carry the burden on summary judgment that it had no duty. The court found such an incident was reasonably foreseeable and, in the process, indicated that compliance with building codes was essentially irrelevant. The opinion is here. JD Supra comments here.
Thursday, December 4, 2014
The Ohio General Assembly is considering a bill to expand the state's apology immunity statute in med mal cases to include admissions of fault. The bill passed the state House last week and is expected to get hearings in the Senate prior to the end of the lame-duck session this month. The Akron Beacon Journal has the story.
Wednesday, December 3, 2014
If you have 7 or fewer years of teaching experience, you are eligible for the Yale/Stanford/Harvard Junior Faculty Forum, this year including Torts as a subject matter. The deadline is March 1, 2015. Details are here: Download JFF final call for submissions
Tuesday, December 2, 2014
Monday, December 1, 2014
As part of the overhaul at the VA, a website is being created so veterans can check if their doctors have ever been sued for malpractice and found at fault. CBS Los Angeles has the story, including data that is not surprising given this story from last year.
Thursday, November 27, 2014
Less than a month after voters rejected raising the $250,000 med mal damage cap in California, the state's high court is going to review whether the cap is constitutional. Insurancenewsnet.com has the story.
Wednesday, November 26, 2014
Automobile insurance is more expensive in Ontario than anywhere else in Canada. Last week, in an attempt to reduce costs, the Ontario Government passed "Bill 15," which will:
- Reduce extraordinarily expensive vehicle storage costs that some facilities and towing companies charge when they know drivers have no other option;
- Create a new and more efficient system to expedite the hearing of disputes, thereby preventing backlogs and helping reach decisions in a timely manner;
- Align pre-judgment interest rates on pecuniary and non-pecuniary damages (pain and suffering) to today's market rates.
Apparently more will need to be done to reduce claim costs, which consume 65 cents of every dollar paid in premiums. CNW has the story.
Tuesday, November 25, 2014
Over at Mass Tort Profs, Howie Erichson (Fordham) analyzes the NFL concussion settlement. He's not in favor:
We have grown so accustomed to "settlement class actions" that we have lost sight of what is strange and troubling about them. Class actions serve an essential function in our legal system by empowering claimants in mass disputes, and I reject the knee-jerk criticisms of class actions that I hear too often. But when the class action tool is exploited by defendants to buy peace on the cheap, and when class members are harmed by the alignment of interests between defendants and class counsel, I feel the need to speak up.
Read the full piece here.
Monday, November 24, 2014
Hanoch Dagan & Avi Dorfman (Tel Aviv) have posted to SSRN The Justice of Private Law. The abstract provides:
Private law is traditionally conceptualized around a commitment to formal freedom and equality, whereas critics of the public/private distinction (including lawyer-economists) construe it as merely one form of regulation. We criticize the traditional position as conceptually misguided and normatively disappointing. But we also reject the conventional criticism, which confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus threatening to deny private law’s inherent value.
This Article seeks to break the impasse between these two positions by offering an innovative account of the justice that should, and to some extent already does, underlie the law of interpersonal interactions among private individuals in a liberal state. Rather than succumbing to the unappealing adherence to formal freedom and equality, private law should openly embrace the liberal commitments to self-determination and substantive equality. A liberal private law — our private law — establishes frameworks of respectful interaction conducive to self-determining individuals, which are indispensable for a society where individuals recognize each other as genuinely free and equal agents.
Thursday, November 20, 2014
On Wednesday, the Pennsylvania Supreme Court, 4-2, decided to continue using the Restatement (Second) of Torts for products liability cases. Some highlights:
Having considered the common law of Pennsylvania, the provenance of the strict product liability cause of action, the interests and the policy which the strict liability cause of action vindicates, and alternative standards of proof utilized in sister jurisdictions, we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a preponderance of the evidence.
Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue. Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties.
To the extent relevant here, we decline to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq.,albeit appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the post-Azzarello paradigm.
Majority Opinion (Castille): Download DC-_604793-v1-Pa__Supreme_Court_Tincher_majority_opinion
Concurring and Dissenting Opinion (Saylor): Download DC-_604794-v1-Pa__Supreme_Court_concurring_and_dissenting_opinion_pdf
Updated: Law 360: Pa. Tort Revamp Gets High Marks From Both Sides
Liberty Blog: Tort law remains a mess in Pennsylvania
On Tuesday in Harrisburg, the justices heard arguments over whether informed consent forms should ever be admissible in strict med mal cases (those without allegations of informed consent violations). Plaintiff's lawyer argued the forms could be used in a prejudicial way to insinuate that consent for the procedure included consent to risks caused by negligence. Defense lawyer responded that the form could be relevant depending on the facts of the case. Chief Justice Castille indicated that, for him, the case came down to the fact that a patient cannot consent to negligence. Seven jurisdictions have adopted a blanket ban of informed consent forms in strict med mal cases; Pennsylvania will decide whether to become the eighth. The Legal Intelligencer has the story.
Wednesday, November 19, 2014
Omari Scott Simmons (Wake Forest) has posted to SSRN Muted Deterrence: The Enhanced Attribution of Tort Liability to U.S. Higher Education Institutions for Student Safety. The abstract provides:
A key challenge facing modern universities is ensuring student safety. This task inevitably involves deterring risky behavior. The existing law on campus safety, however, inadequately addresses this challenge. This essay argues that an overemphasis on tort litigation fails to (i) adequately deter risky individual and institutional behaviors; (ii) provide incentives to higher education institutions to create safe campuses; and (iii) provide higher education institutions with the resources, know-how, and overall capacity to improve campus safety. Recognising the limitations of adversarial tort litigation in the student safety context, this essay, proposes a more collaborative, less adversarial, regulatory framework for making US campuses safer learning environments.
Tuesday, November 18, 2014
I'm in the middle of teaching damages, and that reminded me of an excellent resource. If you have never checked out John Hochfelder's New York Injury Cases Blog, it's worth your time. John's entire focus is on covering pain and suffering verdicts in significant detail. He examines not only the legal angles, but the medical issues as well.
Monday, November 17, 2014
The LA Times has a postmortem on Prop 46, which was defeated by over 2/3 of the vote and in every single California county. The piece examines the politics of raising the med mal cap in a blue state.