Friday, February 24, 2017
Saul Levmore & Frank Fagan have posted to SSRN Semi-Confidential Settlements in Civil, Criminal, and Sexual Assault Cases. The abstract provides:
Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence, and at much lower cost to the legal system. The argument does not transfer well to most criminal cases, where the defendant might pay not to avoid other claims but to avoid incarceration, which offers no direct benefit to the settling victim. It is further complicated in sexual assault cases, where the plaintiff might settle too quickly in order to protect her privacy. The discussion works toward the idea that in some settings semi-confidentiality – the disclosure of the substance of settlement but not the magnitude of monetary payments – is superior to both secrecy and transparency. The right amount of confidentiality is a function of the parties’ interest in privacy, the likelihood that the wrongdoing is part of a pattern unknown to the settling plaintiff, and the accuracy of the litigation process that settlement seeks to bypass. We are able to identify cases where law ought to allow (even) criminal cases to be settled privately and confidentially, and also cases where even sexual assault victims should be steered away from confidential settlement and toward translucency.
Wednesday, February 22, 2017
The jurisdictions wrestle with the line between battery and negligence, especially negligence based on informed consent. The Virginia Supreme Court just drew the line in a case in which a physician fused the wrong level on the patient's spine (C-6 and C-7 instead of C-5 and C-6). The court ruled this was an issue of negligence, not battery:
In the case of battery, there has been precedent that defines it as any unwanted bodily contact or the consent of the patient. Whereas the tort of negligence has been set up to ensure individuals act with reasonable care. As well, in battery there is the question of intent whereas intent is not a consideration in negligence.
“These considerations lead us to conclude that a physician is not liable for battery unless the plaintiff establishes a prima facie case that the physician performed an operation ‘against the patient’s will or substantially at variance with the consent given,’” according to the court's opinion.
The court also concluded that whether or not Mayr disclosed the risks involved with the surgery will also fall under the tort of negligence.
“When a patient has consented to surgery but complains that the physician has not disclosed certain risks, the dispositive question is whether the physician breached the standard of care by failing to disclose those risks. Breach of the standard of care falls within the realm of negligence and does not constitute an intentional tort,” the opinion states.
Forbes has the story.
Tuesday, February 21, 2017
The Southeast Missourian has a summary of all the reforms pushed in Missouri this year. Here is the bullet-point list:
Republicans this session have proposed dozens of bills under the tort-reform umbrella. Some of the proposals would:
* Add legal steps for people suing over asbestos exposure.
* Make it harder for employees to sue for discrimination in the workplace.
* Restrict injured or defrauded people from joining together in lawsuits against companies and clamp down on class-action lawsuits.
* Change the requirements used to determine whether a witness is an "expert" for non-jury civil cases.
* Allow juries to see only the out-of-pocket amount paid, not the price before insurance, for medical expenses in personal-injury cases.
Missouri already has passed laws supported by American Tort Reform Association in nine of 10 legal areas the group wants reformed, although the Supreme Court struck down some. Only Ohio, Texas and Colorado have done more, according to the association.
Monday, February 20, 2017
The Arkansas Senate voted 21-10 to send a proposed constitutional amendment involving damage caps to the House for further consideration. Given that 53 of the 100 members of the House are co-sponsors, it has a good chance of passing. If the House approves the proposal, it will be on the ballot in the 2018 general election. Arkansas Online has the story; more coverage at KARK.
Thursday, February 16, 2017
A bill to create med mal panels has, once again, been introduced in Kentucky:
The bill states that unless all parties involved agree to go directly to court, the complaint should be reviewed by an independent panel before it can move forward. The panel would consist of one attorney and three health care providers, with the attorney acting as the panel chairperson.
Once the panel is chosen, both parties may submit evidence to be reviewed. Two or more members of the panel must agree that evidence shows there was or was not malpractice.
The opinion will be issued within six months of the complaint being filed. That opinion can be used as evidence in the court if the case is able to move forward.
The bill passed the Senate in early January, but has made no progress in the House. Legal NewsLine has the story.
Wednesday, February 15, 2017
Tuesday, February 14, 2017
Monday, February 13, 2017
Does Evidence of Common Insurance of the Defendant and Defense Expert Demonstrate Expert Bias in Med Mal Cases?
Marc Ginsberg has posted to SSRN Does Evidence of Common Insurance Demonstrate Relevant Expert Witness Bias in Medical Negligence Litigation?. The abstract provides:
Does "common insurance" shared by the defendant-physician and the medical expert-witness establish an expert bias? In the past ten to fifteen years, the common insurance question has received attention by the state courts. It has been well understood that "evidence" of the presence or absence of liability insurance is simply inadmissible to prove fault pursuant to the Federal Rule of Evidence 411. Rule 411, however, is not a complete bar to admissibility and allows the trial court to admit evidence of liability insurance to prove a witness's bias or prejudice. This paper explores the various "models" of common insurance evidence, the theory of common insurance "bias" and the professional risk potentially assumed by expert witnesses who give false testimony.
Friday, February 10, 2017
A proposed amendment to the Arkansas Constitution filed last week in the Senate seeks to limit the amounts that can be awarded to claimants in civil actions, such as medical malpractice lawsuits. If Senate Joint Resolution 8 is approved by the General Assembly — and with a long list of co-sponsors, it seems likely to pass — it would appear before voters on the 2018 ballot. Sen. Missy Irvin (R-Mountain View) is the lead sponsor.
Like the so-called "tort reform" measure on the 2016 ballot (which was disqualified by the state Supreme Court not long before the election), SJR 8 would place a cap of $250,000 on noneconomic damages, meaning compensation for hard-to-quantify personal losses such as pain and suffering. The proposed amendment also places a cap on punitive damages, though that ceiling is more flexible. But SJR 8 also would give the legislature control over the rules of pleading, practice and procedure in the judicial branch, thus taking power away from Arkansas courts and giving it to the General Assembly.
Thursday, February 9, 2017
At JD Supra Business Advisor, Eric Wolff reviews a potential Justice Gorsuch's effect on products cases.
Tuesday, February 7, 2017
Mike Wells has posted to SSRN Harmonizing European Tort Law and the Comparative Method: Basic Questions of Tort Law from a Comparative Perspective. The abstract provides:
This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.
This review focuses on Professor Koziol’s ultimate aim of harmonization, and on the contribution of these essays to that project. Harmonization of tort law across the member states is not just a matter of working out answers to such questions as the content of the liability rule or whether non-pecuniary harm should be recoverable. Harmonization raises an issue of European Union federalism. That question is not explicitly addressed in either volume, yet the value of the project, and prospects for its success, turn on the answer to it. I argue that Professor Koziol has not made a convincing case for EU displacement of member state tort law.
Monday, February 6, 2017
According to this article in The Missouri Times, the collateral source and Daubert bills I reported on earlier are going to pass the state House. The next reform bills will focus on venue and joinder, and are aimed at restricting out-of-state plaintiffs from Missouri.
Thursday, February 2, 2017
Wednesday, February 1, 2017
At Singularity Hub, Ryan Abbott, professor of law and medicine, discusses coming changes in technology and how they might affect tort law:
Abbott appears to be the first to suggest in a soon-to-be-published paper that tort law treat AI machines like people when it comes to liability issues. And, perhaps more radically, he suggests people be judged against the competency of a computer when AI proves to be consistently safer than a human being.
Safety is also the big reason why Abbott argues that in the not-too-distant future, human error in tort law will be measured against the unerring competency of machines.
“This means that defendants would no longer have their liability based on what a hypothetical, reasonable person would have done in their situation, but what a computer would have done,” Abbott writes. “While this will mean that the average person’s best efforts will no longer be sufficient to avoid liability, the rule would benefit the general welfare.”
The full article is here.
Updated: Alberto Bernabe comments at Torts Blog.
Monday, January 30, 2017
The Journal of Tort Law is the only peer-reviewed journal devoted to tort law in the United States. It offers several advantages to those submitting scholarship. First, your work will be reviewed by peers. This is particularly important for more technical pieces. Second, there is no submission cycle. Articles can be submitted at any time. Third, the Journal routinely publishes high-quality articles. The two issues to be published in 2017 are great examples. Volume 10, Issue 1 will publish articles from the Torts and Compensation Systems Section's panel at the AALS Annual Meeting. Covering "Gun Regulation and Private Law," authors include Leslie Kendrick (UVa), Adam Scales (Rutgers), and Steve Sugarman (Berkeley). The issue will also contain an article by Greg Keating (USC). Volume 10, Issue 2 will feature a symposium on the Restatement of the Law Third: Intentional Torts to Persons. Reporters Ken Simons (UC Irvine) and Jonathan Cardi (Wake Forest) will respond to commentary from Anita Bernstein (Brooklyn), Ellie Bublick (Arizona), Martha Chamallas (Ohio State), Mark Geistfeld (NYU), Mike Green & Bill Powers (Wake Forest/Texas), Nancy Moore (Boston University), Tony Sebok (Cardozo), Cathy Sharkey (NYU), Steve Sugarman (Berkeley), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham).
Submission information is available here. The Journal has adopted a policy that authors will have either a decision or an update within 45 days of submission.
Sunday, January 29, 2017
Lauren Sterrett has posted to SSRN Products Liability: Advancements in European Union Product Liability Law and a Comparison between the EU and U.S. Regime. The abstract provides:
In recent years, the product safety regime in the European Union (“EU”) has been amended to provide increased stability for producers and more protection for consumers. The framework seeks to balance the interest of consumers in having access to safe products with the interest of producers in avoiding costly litigation due to differing national standards. There are currently three prominent EU directives designed to protect the health and safety of consumers. These three directives are the Product Liability Directive (the “Directive”), the European General Product Safety Directive (the “GPSD”), and the Product Warranty Directive.1 This paper will focus on the impact of the Directive and the GPSD in the EU and will compare these two directives with product liability law in the United States (“U.S.”). This paper will also explore the newly proposed Product Safety and Market Surveillance Package (the “Package”), expected to replace the GPSD as soon as 2015, and the impact that the Package will have on product liability law in the EU.
The combination of the Directive and the GPSD provide a comprehensive scheme for product liability law in the EU. When compared with U.S. product liability law, these two directives achieve greater harmonization across member states than the current U.S. product liability regime. Although both the EU and the U.S. have similar product liability laws, the current EU regime often affords consumers greater access to redress and maintains strict requirements in regards to product labeling. The proposed Package will introduce even more harmonization into the EU, making it harder on economic operators who sell or produce defective products to escape liability. However, the EU product liability regime is not without problems and there are multiple areas in which the U.S. product liability framework offers better alternatives and provides less confusion for manufacturers and consumers.
Friday, January 27, 2017
The University of Arkansas School of Law, Fayetteville, has a current opening for a tenure track Associate or Full Professor of Law. The law school is focused on hiring an individual with experience teaching first-year Torts and associated upper level classes. Other duties will include scholarly research and service activities for the School of Law. Minimum qualifications include a JD degree or international law degree, tenure track teaching experience, and a distinguished academic record. Preferred qualifications include holding a law license and having two years of practical legal experience. The law school is hoping to find a candidate to begin either in the Fall of 2017 or Spring of 2018.
A complete position announcement may be viewed at the University Human Resources' job portal: http://jobs.uark.edu/postings/18286
The University of Arkansas-Fayetteville, located in the northwest corner of the state, is the flagship campus of the University of Arkansas. The University of Arkansas is an equal opportunity, affirmative action institution. The University welcomes applications without regard to age, race/color, gender (including pregnancy), national origin, disability, religion, marital or parental status, protected veteran status, military service, genetic information, sexual orientation or gender identity. Persons must have proof of legal authority to work in the United States on the first day of employment. All applicant information is subject to public disclosure under the Arkansas Freedom of Information Act
Applicants with questions may contact Professor Steve Clowney, Chair, Faculty Appointments Committee, at firstname.lastname@example.org.
Thursday, January 26, 2017
At Coverage Opinions, Randy Maniloff interviews Garold Heslinga, the lawyer for Marvin Katko, the thief in Katko v. Briney. The 93-year-old just retired after 66 years of practice. His reaction when Katko came to him with the case: "Damn, this will be fun."
Wednesday, January 25, 2017
Scott Hershovitz has posted to SSRN The Search for a Grand Unified Theory of Tort Law. The abstract provides: