Friday, November 24, 2017
PA: Federal Judge Issues Preliminary Injunction to Prevent State from Dissolving Med Mal Insurer and Taking its Money
Two weeks ago, I reported that the Commonwealth of Pennsylvania was attempting to use surplus funds from a med mal insurer that was created by state law, but was not a part of state government. Pennsylvania, trying to balance its budget, passed a law requiring the Pennsylvania Professional Liability Joint Underwriting Association (JUA) to turn over $200M of a $268M surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. Now Judge Christopher Conner has issued a preliminary injunction barring the state from carrying out that action. The judge's order puts the issue on hold until a federal trial can be held. PennLive has the story.
Monday, November 20, 2017
Chad Marzen has posted to SSRN The Pollution Exclusion and Carbon Monoxide. The abstract provides:
Approximately 400 individuals die each year and an additional 4,000 individuals are hospitalized annually in the United States due to unintentional carbon monoxide exposure. For the past several decades, insurance policies have generally included a pollution exclusion. This article is intended to contribute to the literature by examining pollution exclusion cases that involved carbon monoxide exposure.
A majority of courts uphold the validity of the pollution exclusion in insurance policies to bar coverage for personal injuries resulting from carbon monoxide. The first part of this article discusses the majority rule and the various arguments courts have utilized to uphold the exclusion. A minority rule has also emerged that the pollution exclusion does not apply to cases involving carbon monoxide. The second part of this article examines the arguments courts have utilized in ruling that carbon monoxide is not a “pollutant.”
In the wake of conflicting guidance from the courts on the applicability of the pollution exclusion in cases of carbon monoxide exposure, the final part of this article proposes that as a matter of public policy states amend their respective insurance codes to require that insurance policies specifically provide coverage for personal injuries involving carbon monoxide exposure.
Friday, November 17, 2017
PA: State Senator Introduces Bill Banning Non-disclosure Agreements in Sexual Assault and Harassment Cases
Sen. Judy Schwank introduced a bill in the Pennsylvania Senate designed to prevent sexual offenders from settling cases without exposure:
Schwank's proposal, rolled out at a Capitol press conference Wednesday, would bar any contract or out-of-court settlement from containing provisions that:
* Prohibit disclosure of the name of any person suspected of sexual misconduct or any information relevant to a claim.
* Would block reports of such claims to an "appropriate person."
* Requires the destruction or expungement of related evidence.
The bill would, however, grant a shield of confidentiality to victims making allegations of abuse, giving them rights similar to juveniles in a child welfare case who can have cases brought through their initials or other identifiers.
California is the only state with such a law. Opponents argue the bill would discourage defendants from settling these cases.
Pennlive has details.
Thursday, November 16, 2017
One woman from Florida and one from California filed suit against Uber on Tuesday in federal court in San Francisco. The women alleged they were sexually assaulted by Uber drivers and the cause was inadequate background screening and monitoring by Uber. The suit seeks class action status, and:
It asks the court for unspecified damages to compensate the women, and also seeks court-ordered safety measures including fingerprint background checks for drivers and a panic button on the Uber app that would alert the company and authorities to safety problems.
The lawsuit was filed by the New York firm Wigdor LLP, which is suing Uber in a separate case on behalf of a woman who was raped by an Uber driver in India. The firm also is suing Fox News on behalf of employees who allege race discrimination and sexual harassment.
The New York Post has the story.
Wednesday, November 15, 2017
Jeffrey Abramson has posted to SSRN Full Court Press: Drawing in Media Defenses in Libel and Privacy Cases. The abstract provides:
Recent jury verdicts against Rolling Stone Magazine and Gawker Media raise fundamental issues in defamation and privacy lawsuits, including who is a public figure, what counts as newsworthiness, and whether truth is always a defense under the First Amendment. Using those verdicts as a starting point, I reexamine the democratic arguments the Supreme Court relied on to protect free speech and the press in New York Times v. Sullivan. I conclude that subsequent cases overextended the New York Times rule in ways that weakened its democratic foundation. I suggest three reforms. Regarding the public figure doctrine, courts should enforce the oft-quoted, but frequently ignored, requirement that private individuals morph into public figures only to the extent that they voluntarily thrust themselves into a public controversy. In regard to privacy torts, truth should not be an absolute defense, no matter how uncomfortable such a conclusion is to one reading of the First Amendment. Judges and juries will have to continue to struggle over norms of newsworthiness when truth and privacy collide. Finally, media attention to the private lives of public officials, however justified on occasion, has become so routine as to defeat what New York Times v. Sullivan promised—a press focused on the investigation and criticism of official acts.
Monday, November 13, 2017
Almost two weeks ago, I reported that a Kentucky judge held unconstitutional the state's 2017 law requiring med mal cases to be reviewed by a panel of doctors prior to proceeding to trial. On Friday, the Kentucky Court of Appeals issued a stay of the order. The 89 current cases will proceed and prospective cases will have to proceed through the panel process. The stay is in effect until further notice. The Northern Kentucky Tribune has details.
Friday, November 10, 2017
The Pennsylvania Professional Liability Joint Underwriting Association (JUA) was created by state law in 1975, but the entity is not a part of state government. The JUA was founded as a last-ditch insurer for doctors at a time when malpractice insurance was in the first of several cyclical crises. It has a surplus of $268M. Pennsylvania, trying to balance its budget, passed a law requiring the JUA to turn over $200M of the surplus by December 1. If it fails to comply, the law abolishes the JUA and transfers its money to the Department of Insurance. The JUA has sued Governor Tom Wolf in federal court, asserting the seizure is an unconstitutional deprivation of property without due process of law. The Inquirer has details.
Thursday, November 9, 2017
At Politico, John Culhane analyzes the potential case against the federal government for the failure to enter the shooter's domestic violence conviction in a national database that would have prevented him from legally purchasing a gun.
Wednesday, November 8, 2017
Bob Rabin has posted to SSRN Pathways to Auto Safety: Assessing the Role of the National Highway Traffic Safety Administration. The abstract provides:
The Motor Vehicle Safety Act directs the National Highway Traffic Safety Administration (NHTSA) to promulgate and enforce vehicle safety regulations, issue vehicle and component recalls, and conduct research and gather data to support its safety mission. Published twenty-five years ago, Jerry Mashaw & David Harfst’s study, The Struggle for Auto Safety, offered a comprehensive critique of the agency’s performance through its early decades. The authors concluded that after an initial flurry of important rulemaking activity, extending through 1974, NHTSA’s record on the rulemaking front was marked by failed opportunities. Essentially, they concluded that the agency abandoned meaningful rulemaking after its early years and took a path of lesser resistance — resistance, in particular, from Congress, the courts and the auto industry — relying on inefficacious recalls, rather than rulemaking, as its principal regulatory strategy.
In this chapter of a collection of essays celebrating the career of Prof. Mashaw, I reassess their critique twenty-five years later. Reviewing NHTSA’s rulemaking and recall activities since 1990, I conclude that Mashaw and Harfst’s criticisms of NHTSA’s rulemaking performance remain largely valid. I am somewhat more optimistic, however, with regard to the potential for a robust recall program to improve auto safety—despite the agency’s substandard response, discussed in detail in my essay, to the GM ignition switch engine shutdown cases.
I surmise that if NHTSA were to receive adequate resources, adopt the necessary political will, and work towards a culture of “skeptical receptiveness” in its approach to the auto industry — undeniably big ifs — its recall program could become a vital and effective regulatory tool. To provide context, I also discuss the complementary roles that tort and no-fault liability might play.
Tuesday, November 7, 2017
Friday, November 3, 2017
Ellen Wertheimer & Mark Rahdert have posted to SSRN The Force Awakens: Tincher, Section 402A and the Third Restatement in Pennsylvania. The abstract provides:
In Tincher v. Omega Flex (2014), the Pennsylvania Supreme Court reached two important decisions regarding Pennsylvania product liability law. First, it overruled an earlier decision, Azzarello v. Black Brothers, Inc., which had mandated a bifurcated process for assessing product defects that required trial judges first to assess whether a product was potentially unreasonably dangerous before submitting the question of whether it was defective to the jury. Second, it rejected efforts by some Justices, federal courts and the defense bar to have the Court adopt the negligence-oriented principles of the American Law Institute’s Third Restatement of Torts: Product Liability. Instead, the Court reaffirmed Pennsylvania’s commitment to the strict product liability principles set in Restatement (Second) Section 402A. This article assesses the implications of the Tincher decision for the future development of product liability law in Pennsylvania and elsewhere. It explains the foundational principles of strict product liability that the decision affirms, discusses the Court’s establishment of a composite consumer expectation and risk-utility test for determining defects in product design, defends the Court’s commitment to modest and incremental common-law adjudication, and discusses the development of jury charges that are faithful to Tincher’s approach. The article also takes issue with attempts by the product liability defense bar to push post-Tincher adjudication toward a negligence-based framework that is inconsistent with the Court’s reaffirmation in Tincher of a doctrine of strict product liability.
This article will be published in Volume 27 of the Widener Law Journal. It is currently in draft form and should not be quoted without the permission of its authors.
Wednesday, November 1, 2017
Earlier this year, the Kentucky legislature passed a law requiring med mal cases to go through a panel of doctors prior to going to trial. A state judge ruled Monday the law was unconstitutional and issued an order banning the state from enforcing the law. The state has announced it will appeal the ruling.
WKMS has details.
Tuesday, October 31, 2017
Keith Hylton has posted to SSRN Deterrence and Aggregate Litigation. The abstract provides:
This paper examines the deterrence properties of aggregate litigation and class actions, with an emphasis on positive value claims. In the multiple victim scenario with positive value claims, in the absence of the class action device, the probability that an individual victim will bring suit falls toward zero with geometric decay as the number of victims increases. The reason is that the incentive to free ride increases with the number of victims. Deterrence does not collapse but is degraded. Undercompliance is observed, which worsens as the number of victims increases. Compliance is never socially optimal, and the shortfall from optimality increases with the number of victims. These results, which continue to hold even if victims anticipate being joined in a single forum, suggest a more nuanced and potentially more robust justification for the class action than has hitherto been provided. Implications for collusive settlements of class action litigation are discussed.
Monday, October 30, 2017
Nancy Moore has posted to SSRN her contribution to the JTL symposium on the Restatement of Intentional Torts to Persons. Entitled Restating Intentional Torts: Problems of Process and Substance in the ALI's Third Restatement of Torts, the abstract provides:
The American Law Institute’s Third Restatement of Torts was initially conceived as a series of separate projects, each with its own Reporters. From 1998 through 2010, the ALI completed and published three different segments: Products Liability, Apportionment of Liability, and Liability for Physical and Emotional Harm. Initially, the ALI did not intend to restate the intentional torts, believing that the Second Restatement’s treatment of these torts was clear and largely authoritative. It was ultimately persuaded that there were numerous unresolved issues that needed to be addressed. As a result, it authorized a new project on Intentional Torts---a project that is currently ongoing. Rather than applaud or critique the specific choice the Reporters are making, I have chosen to discuss two broader concerns regarding the project. The first concern is that the piecemeal nature of assembling all the separate projects of the Third Restatement of Torts (including the review and adoption of different sections within Intentional Torts) has made the Intentional Torts Reporters’ task more difficult than it should have been and may contribute to an overall product that is flawed in important respects, primarily because of inconsistencies that cannot easily be corrected. The second concern is that the Intentional Torts Reporters have too often lost sight of the conceptual distinctions between intentional and nonintentional torts. Although I agree that these conceptual distinctions should not have driven the basic organization of the project, as was once suggested, I argue that the Reporters are making doctrinal decisions that further blur, rather than clarify, the boundaries between the intentional torts and other torts, primarily negligence.
Friday, October 27, 2017
The Oklahoma Supreme Court has ruled the state's med mal certificate of merit requirement unconstitutional. This is the third time the court has rejected a certificate of merit requirement, striking down laws in 2006 and 2013.
The court says the statute created "a costly, meaningless and arbitrary barrier to court access" and infringed on the district court's authority.
U.S. News has the story.
Thursday, October 26, 2017
John Oberdiek has posted to SSRN the Introduction to Imposing Risk: A Normative Framework. The abstract provides:
This is the Introduction to Imposing Risk: A Normative Framework (Oxford University Press, 2017).
Human life has always been shadowed by risks like disease and natural disaster, but modern life is distinctively risky. In the first instance, today, risk utterly permeates life. The sheer variety and scope of risks that attend industrialized and industrializing societies are unique to them. Our agrarian and geographically dispersed ancestors did not face the risks that accompany the use of automobiles and high-speed transit, the mass production of goods and widespread use of chemicals, vast construction and public works projects, or the countless other risks to which we are exposed in our everyday lives. In light of the fact that risk is ubiquitous in modern life, it should be no surprise that sociologists have called ours a “risk society,” focused on containing the risks that modernization itself has created. This sociological fact implies a normative one that, in conjunction with the pervasiveness of risk, explains why modern life is distinctively risky: the risks we now face are morally cognizable. For they are, in the main, subject to our control – indeed, they are typically our creation. The risks that define modern life are therefore our responsibility. As they are largely imposed by people on people, they call for moral assessment. This book addresses some of the central questions stimulated by our contemporary practices of imposing risk.
Wednesday, October 25, 2017
Bob Rabin has posted to SSRN Dov Fox on Reproductive Negligence: A Commentary. The abstract provides:
This commentary offers three basic observations about Professor Dov Fox’s novel and illuminating conception of a new tort of reproductive negligence. In Reproductive Negligence, Professor Fox identifies three scenarios, categorically: imposition of unwanted parenthood, deprivation of wanted parenthood, and confounding of efforts to have expected traits. Drawing on these circumstances, Fox argues the case for a newly recognized tort of reproductive negligence that embraces all of these categories.
My commentary proceeds as follows. From a historical perspective, Part I attempts to locate his claim for recognition of a more expansive version of recovery for stand-alone intangible harm in currently accepted tort duties. From a liability perspective, while finding much to be admired in this proposed new theory of recovery, Part II questions whether it is workable to view reproductive negligence as a single pathway rather than three distinct routes to recognizing new tort rights. And finally, from a damages perspective, Part III draws on expansive themes in other areas of recovery for intangible harm to suggest additional foundational support for Fox’s effort to push the frontier of recovery for intangible harm into new territory.
Tuesday, October 24, 2017
Scott Hershovitz has posted to SSRN Treating Wrongs as Wrongs: An Expressive Argument for Tort Law. The abstract provides:
The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law.
In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.
I'm happy to say the piece will be published in issue 2017:2 of the Journal of Tort Law.
Monday, October 23, 2017