Friday, March 24, 2017
Jill Wieber Lens has posted to SSRN Defective Punitive Damage Awards. The abstract provides:
Private redress theories of punitive damages recognize an individual victim’s right to be punitive. That right exists because the defendant knew its conduct would probably cause the victim a severe injury, yet the defendant still acted, willfully injuring the victim. The injured victim can seek and obtain punitive damages to punish the defendant for disrespecting her rights.
This Article is the first to apply private redress theories of punitive damages to claims involving a defective product. This application is unexpectedly difficult because of the importance of evidence of harm to nonparties in establishing defect, and because the defendant’s knowledge of the probable injury was not specific to the injured victim but instead general to all potential victims.
Absent special circumstances, the manufacturer disrespected each of the injured victims in the same way. Consistent with private redress theories, each injured plaintiff can seek punishment for that disrespect. But the disrespect is not unique and each injured plaintiff should receive an identical punitive damage award.
Thursday, March 23, 2017
A Georgia sperm bank is facing numerous suits based on a donor who was touted as a Ph.D. in neuroscience with an IQ of 160 when he was, in fact, a college dropout with a criminal record and a diagnosis of schizophrenia. The suits, however, have run afoul of a distinction in Georgia law between wrongful birth and wrongful conception. Wrongful birth claims normally arise when the parents contend they would have aborted the child if they had been fully aware of the child's condition. By contrast, wrongful conception claims generally arise when a sterilization or abortion procedure goes wrong and a live birth unintentionally results, allowing a plaintiff to recover for medical expenses, pain and suffering and other claims. Georgia courts recognize the latter, but not the former; courts are finding the claims to be of the disfavored wrongful birth variety.
The judge dismissing the most-recent claims stated: "The reason why Georgia courts have looked on wrongful birth claims with disfavor is not because of the timing of the tort or the causal link between the defendant and the harm. The true difference between the two torts is the measure of damages. Wrongful birth claims are disfavored because they require the court to decide between the value of a life with disabilities and the value of no life at all."
The National Law Journal has the story.
In related news, the Texas Senate has voted 21-9 to abolish that state's wrongful birth cause of action. Thanks to Jill Lens for the tip.
Wednesday, March 22, 2017
The Iowa Senate passed a tort reform bill in an attempt to attract more physicians to the state:
Senate File 465 includes provisions governing doctor-patient communications after adverse medical incidents; capping limits on non-economic damages, such as pain and suffering, at $250,000; requiring a "certificate of merit" to screen out frivolous litigation; and establishing standards for expert witnesses. The Des Moines Register has this story.
These reforms, including the cap, are unlikely to significantly affect physician supply in Iowa, as I stated back in 2014.
Tuesday, March 21, 2017
Monday, March 20, 2017
The AALS Torts & Compensation Systems Section announces its new mentoring program. The Torts Section may be able to help if you are a professor who:
- is starting a career in torts or shifting to torts from another subject area, and
- lacks a torts colleague to discuss scholarship and teaching.
The Executive Committee and the Section at large have numerous professors happy to work with you. The goal is to match mentors and mentees based on specific areas of interest. To start the process, please contact the Chair of the Torts Section, currently Chris Robinette (firstname.lastname@example.org or 717-541-3993).
Friday, March 17, 2017
Thursday, March 16, 2017
Hart Publishing announces the second edition of Jane Wright's "Tort Law and Human Rights". The blurb provides:
This is a completely revised and expanded second edition, building on the first edition with two principal aims: to elucidate the role that domestic tort principles play in securing to citizens the human rights standards laid down in the European Convention on Human Rights, including the new 'remedy' under the Human Rights Act 1998; and to evaluate tort principles for compliance with those standards. The first edition was written when the Human Rights Act 1998 was newly enacted and many questions existed as to its potential impact on tort law. Answers to many of the questions, which were raised at that time, are only now emerging. Therefore, the text has been updated to reflect these developments. Whether it is appropriate to attribute particular goals and functions to tort law is highly contested and the analysis begins by locating the discussion within these contemporary debates. The author goes on to examine the extent to which the action against public authorities under section 7 of the Act has impacted on the development of common law principles, as well as the issue of horizontal effect of the Act between non-state actors. New chapters include: 'A Human Rights Based Approach to Tort Law' and 'Public Authority Liability and Privacy – From Misuse of Private Information to Autonomy.'
This flyer includes a 20% discount: Download Wright
Wednesday, March 15, 2017
Monday, March 13, 2017
Riaz Tejani (Illinois-Springfield Department of Legal Studies) has posted to SSRN Efficiency Unbound: Processual Deterrence for a New Legal Realism. The abstract provides:
Optimal deterrence theory seeks to promote resource maximization by identifying the most economically useful occasions and magnitudes for legal liability. But liability is only the final outcome of a burdensome process made more onerous for many today by widening inequalities in wealth and access to justice. Omission of this may reflect a preoccupation among tort theorists with large corporate actors and a drift further from the dilemmas of individual and social justice. Select lessons from American Legal Realism prompt us to go beyond liability to think about the deterrent function of legal process itself. These lessons challenge us to consider the interpretive dimension of human behavior in its response to not only norm enforcement but also threats thereof. Taking up that challenge, this Article suggests that considerations of optimal deterrence should account for the behavioral impact of what it terms the “specter of process,” in other words the fear of litigation itself, and that doing so requires a stronger bridge between economic and interpretive empirical studies of law. The revised theory may be said to include processual deterrence, the degree to which the behavior of legal subjects is shaped ex ante by fears of being implicated in the burdens of litigation.
Friday, March 10, 2017
Bruce Kaufman at Bloomberg has this piece: House Approves Sweeping Class Action Overhaul Legislation.
Tuesday, March 7, 2017
Monday, March 6, 2017
Both the House and Senate have passed a med mal review panel bill, and it is on its way to Governor Matt Bevin. The gist:
The proposed law would require plaintiffs to submit medical malpractice claims for review to an advisory panel that would review the case and determine whether it has merit or is frivolous before issuing a nonbinding opinion as to whether the case should proceed.
Trial judges would decide the admissibility of the panel's finding.
When our firm represented med mal plaintiffs in Virginia, a review panel law was in place. We routinely declined to participate in the process. When the results were provided to the jury our non-participation in the panel procedure was noted. The panels are a waste of time. A better way to reduce suspect lawsuits is to use a certificate of merit procedure. It is not perfect, but it accomplishes the goal of reducing frivolous suits more directly, and without an impact on plaintiffs whose suits are meritorious. Needless to say, it is far superior to caps for the same reason.
The National Law Review has the story.
Attorneys representing the families of the children slain at Sandy Hook attempted to fit their allegations within an the negligent entrustment exception to the 2005 Protection of Lawful Commerce in Arms Act. Their case was dismissed, and now they are appealing to the state supreme court. The attorneys rely on a 1977 Michigan case:
The families attorneys are hoping a case involving a slingshot injury in Michigan will help them prove that one of the largest gun manufacturers in the world negligently entrusted the AR-15 to Lanza even though he didn't actually purchase it and help them overcome PLCAA's strict language favoring the gun manufacturers.
The case in Michigan was a 1977 lawsuit by the family of a 12-year-old against a company that manufactured slingshots. The boy was injured when he was struck in the eye by a pellet fired from a slingshot that richocheted off a tree.
The court allowed the case to go before a jury ruling that the company entrusted the slingshot to a class of people, in this case younger children, that made the ultimate accident foreseeable.
In this case, Koskoff argued instead of a slingshot Remington used marketing and product placement to purposefully target a "younger demographic of users" interested in the most dangerous and lethal use of their weapon.
The Hartford Courant has the story.
Friday, March 3, 2017
The third of three in Bruce Kaufman's series on federal tort reform is here:
The House Judiciary Committee, by an 18-17 margin, approved legislation capping damages in medical malpractice cases. The federal legislation would cover individuals who are insured under Medicare, Medicaid, veterans or military health plans, and the Affordable Care Act, and could also impact people covered under COBRA or health savings plans. The vote surprised opponents of caps, who expected a vote in conjunction with the ACA replacement. STAT has the story.
Thursday, March 2, 2017
Last month, the New York Court of Appeals ruled that a substance abuse treatment facility was not responsible for an assault perpetrated by one of its former residents, shortly after he left the facility:
According to the court’s written opinion, penned by Justice Sheila Abdus-Salaam, the appellate court found that “JCAP had some control or authority over its residents while they remained participants of the program. But JCAP residents could leave the facility and terminate their participation in the program against medical advice… In the absence of the authority to prevent a participant from leaving, it follows that, when a participant is discharged from JCAP for violating facility rules, or withdraws from the program, he or she is no longer under the facility’s control.”
Legal NewsLine has the story.
Wednesday, March 1, 2017
Bruce Kaufman at Bloomberg has a 3-part series on federal litigation reform 2017. The first 2 pieces are available:
Tuesday, February 28, 2017
By a 66-30 vote, the House passed an amended proposal to put on the ballot a state constitutional amendment to cap non-economic and punitive damages in some lawsuits. It now goes back to the Senate, which had passed the proposal with smaller caps. McClatchy DC Bureau has the story.