Wednesday, January 18, 2017
Monday, January 16, 2017
In late December, the Connecticut Supreme Court reaffirmed its commitment to 402(A), but also modified existing doctrine. Jennifer Brooks Crozier and Adam Masin explain at JD Supra Business Advisor. The gist:
In arguably the most important Connecticut tort-law decision in decades, the Connecticut Supreme Court in Bifolck v. Philip Morris, Inc., --- A.3d ---, 2016 WL 7509118 (Conn. Dec. 29, 2016), declined to adopt the approach of the Restatement (Third) to product liability design-defect claims and “reaffirm[ed] its allegiance” to a “true strict liability” standard under § 402A of the Restatement (Second). The Court also made a number of “modest refinements” to the Court’s existing interpretation of § 402A. Most importantly, the Court held that every product liability design-defect claim must allege that the product was “unreasonably dangerous,” but declined to box plaintiffs into one definition of that term for purposes of stating a claim. The Court also refused to limit punitive damages under the Connecticut Product Liability Act (“CPLA”) to the “litigation expenses less costs” limit under the common-law rule set forth in Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 477 A.2d 988 (1984). Given the Court’s cautious approach to remaking the state’s tort law, Bifolck is in practice a reaffirmation of the status quo in Connecticut—at least for now. The Court did leave open the possibility that it might adopt the Restatement (Third) at some point in the future should its standards under § 402A prove “unworkable.”
Friday, January 13, 2017
Becker's Hospital Review provides a state-by-state comparison of malpractice suits and costs per 100,000 residents, in order from the largest amount (Louisiana at 44.1 suits per 100,000 residents) to the smallest (Hawaii at 4.9). The list is here.
Thursday, January 12, 2017
Tentative Draft No. 1 of the Restatement of Intentional Torts includes Section 104 on the Purposeful Infliction of Bodily Harm:
§ 104. Purposeful Infliction of Bodily Harm
An actor is subject to liability to another for purposeful infliction of bodily harm if:
(a) the actor purposely causes bodily harm to the other, either by the actor’s affirmative conduct or by the actor’s failure to prevent bodily harm when the actor has a duty to prevent such harm …
Wednesday, January 11, 2017
In the National Law Review, Walter Latimer has a column about a recent Eleventh Circuit products case upholding the economic loss rule:
The Economic Loss Rule is a doctrine of law that prohibits a product liability claim being brought against a manufacturer for a defective product that only destroys itself, without harm to other property or to a person. In those instances where the product fails but only damages itself and nothing else, the plaintiff’s only remedy is to sue for breach of contract against the manufacturer of the product. The plaintiff cannot seek recovery from the manufacturer under product liability causes of action. The Economic Loss Rule has historically served as the boundary between tort and contract law. Despite the fact it is part of the basic fabric that makes up tort law, it is still challenged by plaintiffs in product liability actions.
In Eiber v. Toshiba Americas Medical Systems, the plaintiff radiologist tried to sue an international electronics manufacturer for failing to maintain an MRI scanner that was out of date. The manufacturer advised the radiologist that the scanner had reached the end of its useful life, and the manufacturer would no longer provide service to it under contract. The aging scanner eventually stopped working, which the plaintiff claimed was due to negligent repairs rather than a failure of the scanner.
The Eleventh Circuit affirmed the district court's dismissal on the basis of the economic loss rule.
Tuesday, January 10, 2017
It has been an honor to serve on the AALS Torts & Compensation Systems Section's Executive Committee since January 2012. I rotated into the Chair position last Friday. I enjoy history, and began to think about the history of the Section. The Section was created around 1973; prior to that, AALS organized in "roundtables," which I take to have been less permanent entities. The AALS has a list of all Section chairs since 1980, which I reproduce below. The term is now one year, but it appears a two-year term was used during the mid-1990s. If anyone has further information about the Section's history and would like to share it, please comment on the blog (comments are not immediate) or email me.
|Dominick Vetri||University of Oregon School of Law||1/1/1980|
|Thomas C. Cady||West Virginia University College of Law||1/1/1982|
|Jean C. Love||Santa Clara University School of Law||1/1/1983|
|Harvey S. Perlman||University of Nebraska College of Law||1/1/1984|
|James A. Henderson, Jr.||Cornell Law School||1/1/1986|
|Jean C. Love||Santa Clara University School of Law||1/1/1987|
|David G. Owen||University of South Carolina School of Law||1/1/1988|
|Walter Probert||University of Florida Fredric G. Levin College of Law||1/1/1989|
|Lucinda M. Finley||University at Buffalo School of Law, The State University of New York||1/1/1990|
|Aaron D. Twerski||Brooklyn Law School||1/1/1991|
|Oscar S. Gray||University of Maryland Francis King Carey School of Law||1/1/1992|
|Diane C. Maleson||Temple University, James E. Beasley School of Law||1/1/1993|
|Jennifer H. Arlen||New York University School of Law||1/1/1995|
|Richard W. Wright||Chicago-Kent College of Law, Illinois Institute of Technology||1/1/1997|
|Mark F. Grady||University of California, Los Angeles School of Law||1/1/1999|
|Catharine Wells||Boston College Law School||1/1/2000|
|Stephen G. Gilles||Quinnipiac University School of Law||1/1/2001|
|Keith Norman Hylton||Boston University School of Law||1/1/2002|
|Anita Bernstein||Brooklyn Law School||1/1/2003|
|Kenneth W. Simons||University of California, Irvine School of Law||1/1/2004|
|Peter A. Bell||Syracuse University College of Law||1/1/2005|
|Richard L. Cupp, Jr.||Pepperdine University School of Law||1/1/2006|
|James R. Hackney, Jr.||Northeastern University School of Law||1/1/2007|
|Ellen Michelle Bublick||The University of Arizona James E. Rogers College of Law||1/1/2008|
|John C.P. Goldberg||Harvard Law School||1/1/2009|
|Catherine M. Sharkey||New York University School of Law||1/10/2010|
|Michael L. Rustad||Suffolk University Law School||1/8/2011|
|John Valery White||University of Nevada, Las Vegas, William S. Boyd School of Law||1/8/2012|
|Jennifer Wriggins||University of Maine School of Law||2/14/2013|
|Andrew R. Klein||Indiana University Robert H. McKinney School of Law||2/14/2014|
|Anthony J. Sebok||Benjamin N. Cardozo School of Law||2/14/2015|
|Leslie Kendrick||University of Virginia School of Law||2/14/2016|
Monday, January 9, 2017
John Goldberg & Ben Zipursky have posted to SSRN Hohfeldian Analysis and the Separation of Rights and Powers. The abstract provides:
At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III.
Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.
(Via Solum/LTB, where it is the Download of the Week)
Friday, January 6, 2017
Wednesday, January 4, 2017
The AALS Section on Torts and Compensation Systems panel information:
Tuesday, January 3, 2017
Ariel Porat has posted to SSRN The Future of Law and Economics and the Calabresian External Moral Costs. The abstract provides:
This short essay is a contribution to a symposium held at the Hebrew University of Jerusalem on Professor Calabresi's "The Future of Law and Economics." It focuses on Calabresi's arguments that tort law facilitates a modified market for merit goods, and that external moral costs should be seriously taken into account by the state and the law in making and implementing difficult social choices. The essay points out two categories of situations where tort law fails to facilitate modified markets for merit goods, and highlights the hurdles in considering external moral costs at least in some cases.
Friday, December 30, 2016
The New Mexico legislature is considering a law that would extend the prohibition on asking job applicants whether they have criminal convictions to the private sector. Currently, governmental units are prohibited from asking the question at the screening phase. The goal is to allow people with convictions to more easily reintegrate into society. The rub, however, is that New Mexico recognizes the torts of negligent hiring and retention. An employer who hires or retains an employee who commits a tort when the employer knew or should have known of the risk posed by the employee could be liable. In his column, Joel Jacobsen calls for protections for employers as part of the new law. Of course, employers can still ask the question in subsequent phases of the hiring process.
Wednesday, December 28, 2016
NJ: Federal Law Does Not Preempt Claims of Failure by a Generic Drug Manufacturer to Update Warnings in a Timely Manner
The National Law Review analyzes New Jersey's ruling that "federal law does not pre-empt state law claims alleging that a generic drug manufacturer failed to timely update the warnings for its product to match those of the brand-name counterpart."
Monday, December 26, 2016
The Courier-Journal compares Indiana and Kentucky on medical malpractice tort reforms, insurance premiums, and medical costs. The gist:
Indiana is only one of six states that cap damages of all kinds – including lost wages and the cost of medical treatment – to victims of medical malpractice.
Though the figures are scheduled to rise over the next three years, for now, individual doctors and hospitals are only on the hook for $250,000, and the total award to plaintiffs is limited to $1.25 million.
Patients also must submit their claims to medical malpractice review panels, before they can sue and go to court. And punitive damages are limited to three times the actual damages to the plaintiff.
The result is cheaper medical malpractice insurance premiums for doctors in Indiana, which Michael Rinebold, director of government relations for the Indiana State Medical Association, said encourages doctors to locate there.
Figures collected from malpractice insurance brokers show that doctors pay about 25 percent less for insurance in Indiana than Kentucky.
But doctors in Kentucky pay out only slightly more in average claims per year than their counterparts in Indiana, according to the National Practitioner Data Bank. And consumers in the two states pay virtually the same amount per person on doctors and hospitals, according to the most recent data available.
Thursday, December 22, 2016
The families of three toddlers killed by Ikea dressers tipping over on top of them have settled with Ikea for $50 million. It is believed to be one of the highest payouts for the death of children in U.S. history. The money will be split equally among the three families, with an undisclosed amount paid in attorneys' fees. Philly.com has the story.
Thanks to David Raeker-Jordan for the tip.
In July, the Michigan Supreme Court ruled that state law in med mal cases allowed plaintiffs to recover the gross amount of medical bills charged by providers. Because insurers, Medicare, and Medicaid have provider rates substantially less than the charged rates, plaintiffs were able to recover more than the amount paid. The Michigan Senate has passed a bill restricting the amount of compensation in med mal cases to the amount paid, regardless of the amount charged. The bill is on its way to the governor for his signature. The Daily Reporter has the story.
Wednesday, December 21, 2016
The editorial board of The Columbus Dispatch has weighed in on the noneconomic damages cap upheld last week by the Ohio Supreme Court. It urges the General Assembly to amend the law next session to enact an exclusion for sexual-assault victims. It's a sound idea. Even if you support caps on noneconomic damages, caps that cover intentional acts are very rare.
Monday, December 19, 2016
The Supreme Court of Ohio has ruled, again, that a cap on noneconomic damages is constitutional. The suit involved a 15-year-old girl who was raped by her senior pastor during a counseling session in his office. The girl and her father sued the pastor and several other defendants and obtained a $3.6M verdict. After the cap was applied, the judgment was trimmed to $500,000. Marianna Brown Bettman (Emeritus, Cincinnati) has a detailed post at her blog, "Legally Speaking Ohio".
Friday, December 16, 2016
Eli Ball has published Enrichment at the Claimant's Expense with Hart Publishing. The blurb provides:
This book presents an account of attribution in unjust enrichment. Attribution refers to how and when two parties – a claimant and a defendant – are relevantly connected to each other for unjust enrichment purposes. It is reflected in the familiar expression that a defendant be 'enriched at the claimant's expense'. This book presents a structured account of attribution, consisting of two requirements: first, the identification of an enrichment to the defendant and a loss to the claimant; and, secondly, the identification of a connection between that enrichment and that loss. These two requirements must be kept separate from other considerations often subsumed within the expression 'enrichment at the claimant's expense' which in truth have nothing to do with attribution, and which instead qualify unjust enrichment liability for reasons that should be analysed in their own terms. The structure of attribution so presented fits a normative account of unjust enrichment based upon each party's exchange capacities. A defendant is enriched when he receives something that he has not paid for under prevailing market conditions, while a claimant suffers a loss when he loses the opportunity to charge for something under the same conditions. A counterfactual test – asking whether enrichment and loss arise 'but for' each other – provides the best generalisation for testing whether enrichment and loss are connected, thereby satisfying the requirements of attribution in unjust enrichment.
Thursday, December 15, 2016
Sean Woods, the basketball coach at Morehead State, has been accused of battering two players during a game last month. One player said the coach backhanded him in the chest in the locker room at halftime and another player said the coach shoved him during a timeout and in the locker room. Woods has been suspended, and criminal battery charges have been filed. The Lexington Herald Leader has the story. Thanks to David Raeker-Jordan for the tip.