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
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.
Friday, November 14, 2014
Thursday, November 13, 2014
Beau Baez (Charlotte) writes:
Here is my recurring problem around final exam time: how to explain to students when they need to discuss the unforeseeable plaintiff. In most cases, the plaintiff is foreseeable, so on the exam I really don't want students to waste time identifying and discussing a non-issue. A seasoned lawyer will "know it when they see it," but just as that was not satisfactory in the old obscenity cases it's not a great response in this context either. I am wondering how other torts professors explain this context within the essay exam context.
You can either respond in the comments or directly to Beau at: email@example.com.
Wednesday, November 12, 2014
James Hackney (Northeastern) has posted to SSRN Guido Calabresi and the Construction of Contemporary American Legal Theory. The abstract provides:
This article was written as a contribution to a symposium honoring Judge Guido Calabresi on the occasion of his 80th birthday, and recognizing his contributions to law and economics. It situates Judge Calabresi’s academic writings, starting with his initial contributions to law and neoclassical economics, against the broader backdrop of American legal theory. The article begins with a brief biographical sketch highlighting the author’s personal connection with Judge Calabresi. It then lays out the historical relationship between legal realism and law and neoclassical economics (commonly referred to as law and economics). This provides the background for Judge Calabresi’s initial major intervention — in the form of his historic book, The Costs of Accidents — into the discourse of American legal theory. The article then discusses what the author argues is a fundamental axis around which debates concerning the meaning of law revolve: the science-politics divide. This sets the groundwork for articulating the ways in which the three dominant strands of legal theory in the 1980s — law and economics, critical legal studies, and liberal-rights theory — were centered on the issue of whether law (and legal theory) was fundamentally a political or scientific enterprise. The article ends with an extended discussion of the ways in which Judge Calabresi’s post-The Costs of Accidents writings, too often overlooked, respond to the science-politics debate in a philosophically pragmatic way that reflects (and has paved the way for) the current state of American legal theory.
Tuesday, November 11, 2014
Claudia Haupt (Columbia) has posted to SSRN Professional Speech. The abstract provides:
Professionals speak in the course of exercising their profession. Yet, the State regulates the professions all the time. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical basis of professional speech and its application to controversial First Amendment questions.
First Amendment protection for professional speech rests on distinctive theoretical justifications and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.
Friday, November 7, 2014
Maya Steinitz (Iowa) has posted to SSRN The Case for an International Court of Civil Justice. The abstract provides:
This Essay aims to start a conversation on a novel institutional solution to the problem that de facto (not de jure) there is today no forum in which foreign plaintiffs can obtain enforceable judgments against American corporations that commit mass torts overseas. That solution is the establishment of an International Court of Civil Justice (ICCJ).
The Essay starts by describing what the author refers to as "the problem of the missing forum" – the global absence of an effective court for cross-border mass torts. It then provides a blueprint for an ICCJ. In so doing, it explains why an ICCJ is politically viable and may, specifically, appeal to rather than repel corporate America.
Wednesday, November 5, 2014
Tuesday, November 4, 2014
On October 23rd, Widener Law had the pleasure of hosting Benjamin Shmueli as he presented "Tort and Family Law: Civil Actions for Acts that are Valid According to Religious Family Law but Harm the Rights of Spouses." Shmueli is Senior Lecturer (Associate Professor) at Bar-Ilan University in Israel and, from 2013-2015, Senior Research Scholar at the Yale Law School.
Shmueli's engaging presentation focused on two case studies. Refusal to grant a get—a Jewish bill of
divorce—in Jewish law and divorcing a wife unilaterally and against her will in Shari'a law (talaq/ repudiation) are practices permitted—even if not desirable—by religious law. Shmueli argues that tort and contract law should be integrated, sensitively, with religious law. His justifications: a property rules/liability rules framework, legal pluralism, and justice-based considerations. I am looking forward to the full book. A short prospectus is here: Download Tort_and_Family_Law-Short_Prospectus (1)
Monday, November 3, 2014
In May v. Air & Liquid Systems Corp., the Court of Special Appeals of Maryland reaffirmed the rule that there is no duty to warn of asbestos-containing replacement parts that defendants did not manufacture or place in the stream of commerce.
JDSupra has coverage here.
Friday, October 31, 2014
Wei Zhang (Singapore Management University) has posted to SSRN two pieces that provide a primer to Chinese tort law. First up is The Evolution of the Law of Torts in China: The Growth of a Liability System. The abstract provides:
During the “Reform and Opening-up” years, tort disputes have become one of the main types of cases litigated in Chinese courts, and tort law has been playing a significant role in carving out the incentives of businesses and individuals in China. Since the formal legal rules on torts came into being in 1986, a large number of changes have occurred in the law of torts. The transformation of the rules, however, has eluded previous introductory works on Chinese tort law written in English. This paper is devoted to delineating these changes, which present the growth of a liability system moving predominantly in favor of tort victims. Unlike most existing English literature on Chinese tort law that survey primarily the major civil statutes, this paper places commensurate emphasis on the rules dealing with tort liabilities embedded in the administrative laws and regulations as well as the judicial interpretations. In addition, this paper also makes a rough assessment of the efficiency implications of the evolution of tort law in China. Given the exceptionally low point where the increment of victim protection in tort law started, the change of rules in China is, by and large, moving in the direction of cost internalization as required by efficiency. However, the potential improvement in efficiency is perhaps a byproduct of the development of tort law in China. The motivation behind the rule change is more likely to be loss redistribution rather than efficiency upgrade. In light of the policy-implementing orientation of the Chinese legal system and the collectivistic propensity rooted in the law of torts, political and institutional perspectives might bring us better insights into the driving force of change of law in China.
Second, Understanding the Law of Torts in China: A Political Economy Perspective. The abstract provides:
In this paper, I tried to connect the text of the Chinese tort law with the institutional context of lawmaking in China from a political economy perspective. Two determinants, political influence and populist pressure, were identified for the tort law legislation in China, and a simple spatial model was presented to demonstrate the mechanism through which these determinants might have affected the text of the law. In particular, my research suggested that, when injurers’ political influence kept constant, the populist pressure on the injurer group tended to push the tort law rules toward the pro-victim end. On the contrary, with the similar populist pressure, the politically influential injurers could induce legal rules to their advantage. Even within a particular type of torts, the subgroup of injurers who were better organized to exert political influence would be rewarded with more favorable rules on torts than their fellow injurers, especially where populist pressure was moderate. Hopefully, this research will inspire more efforts among students of Chinese law to explore the operation of law at the microscopic level against the macroscopic institutional backdrops of this country.
Thursday, October 30, 2014
Nora Engstrom, Bob Rabin & Michelle Mello (Stanford) published an op-ed in Tuesday's LA Times entitled "What Prop 46 Would Fix." They respond to arguments against adjusting the med mal non-economic damages cap to reflect inflation since 1975, and then provide reasons in favor.
Wednesday, October 29, 2014
Tuesday, October 28, 2014
On October 6th in Buffalo, Ken Feinberg was the keynote speaker at a conference on cutting-edge tort issues. He both praises and damns tort law in his remarks to the Buffalo Law Journal.
Monday, October 27, 2014
Friday, October 24, 2014
Proposition 46 on California’s November ballot takes three steps to improve patient safety. While the doctors, hospitals and medical malpractice insurance companies that have spent tens of millions of dollars to oppose this initiative love to say it’s about making more money for trial lawyers, what it’s really about is the safety of all of us who live here. Because any of us could be killed, maimed or disfigured by medical negligence. Any of us could be harmed by a doctor impaired by drugs or alcohol. Any of us could have our lives turned upside down by the actions of a doctor-shopping prescription drug addict who received too many pills from too many doctors.
Of course no one thinks it will happen to them. I didn’t think it would happen to me. Until it did.
Both my elderly mother and my mentally retarded sister died from medical negligence at the same prestigious Los Angeles hospital where actor John Ritter died and his family sued/settled for millions of dollars. Actress Alicia Cole also went to this hospital for a routine surgery and ended up contracting “Flesh Eating Disease” there and almost died. After my sister’s horribly painful death, I turned to the legal system to hold those who treated her accountable and try to prevent other families from going through the same nightmare. You can see a bit about my sister’s story at http://goo.gl/sni513.
But attorney after attorney I approached told me they wouldn’t take the case, despite its merits. That’s because my sister, who was unable to work because of her disability, had no income. She never married and had no children. (I was her full-time caregiver.) And because she was dead, there were no ongoing medical bills to pay.
It wasn’t until I started trying to pursue justice in this case that I learned California has a law, enacted in 1975 and never changed since, that limits compensation for medical malpractice cases like hers to $250,000. And while that amount has been frozen for almost 40 years, the cost of taking a case to trial hasn’t – a good chunk of that cost being the enormous hourly fees paid to doctors as expert witnesses. So after the trial costs have been deducted from the $250,000, the victim’s attorney gets a percentage of the balance, a percentage that’s also limited on a sliding scale by state law. That amount is their compensation for what is often years of work on the case (these lawyers don’t receive hourly fees and don’t get a penny until their client wins an award).
Keep in mind the doctors and hospitals face no limits on what they can spend on their legal defense. In the face of that, most lawyers will look at the potential return on a case like mine where the damage award is capped and say it’s simply not worth it.
I don’t blame them. I blame the law that put them in that position in the first place.
Thursday, October 23, 2014
One of the biggest events in tort law this fall is Prop 46, the California ballot initiative over whether to raise the MICRA cap on non-economic damages in med mal cases (set in 1975 at $250,000 and not raised since). I have contacted both pro- and anti-Prop 46 spokespeople and asked them to write a post supporting their respective positions. Eric Andrist is a leading voice in the pro-Prop 46 movement. His post will appear tomorrow. I have reached out several times to the California Medical Association, and I am still hoping to receive a post from them.