TortsProf Blog

Editor: Christopher J. Robinette
Widener Univ. School of Law

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Tuesday, August 4, 2015

WI: Bill to Allow Patients to Have Surgeries Recorded

A lawmaker in Wisconsin has introduced a bill that would allow patients to have their surgeries videotaped.  The purpose is to preserve data that could later shed light if a patient had a poor outcome.  The application to med mal is obvious.  The National Law Review has the story.

August 4, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, August 3, 2015

JOTWELL Torts: Chamallas on Priaulx

Martha Chamallas reviews Nicky Priaulx's Injuries That Matter:  Manufacturing Damage in Negligence at JOTWELL.

August 3, 2015 in Scholarship, Weblogs | Permalink | Comments (0)

Friday, July 31, 2015

Fruehwald's Torts Exercises

Just in time for fall classes, E. Scott Fruehwald has published A Companion to Torts:  How to Think Like a Torts Lawyers.  The blurb:

This book takes a new approach to learning torts law: its goal is to teach law students to think like torts lawyers.  Thinking like a lawyer means solving a problem to produce a legal solution.  This process involves using several types of reasoning in combination, including synthesis, rule-based reasoning, analogical reasoning, distinguishing cases, policy-based reasoning, and creativity.  A torts lawyer uses these reasoning methods to solve torts problems.  This book will include a variety of torts exercises on the different types of legal reasoning to achieve the goal of teaching students to think like torts lawyers.  This book is a supplement to torts casebooks and textbooks.  Its main audience is first-year law students who are taking torts.  It may be required by a professor, or students may use it as a supplement to the class to improve their torts skills and general legal reasoning skills.  This book will also be useful for incoming law students who want to develop their torts and legal reasoning skills before they attend law school.  Law school begins quickly on the first day, and it is better to be ahead than behind.  Finally, this book will also help law graduates who are preparing for the bar, academic support staff who want to help students improve their legal reasoning skills, and practitioners who want to refine their legal reasoning skills.

July 31, 2015 in Teaching Torts | Permalink | Comments (0)

Thursday, July 30, 2015

Rabin on Weinstein

Bob Rabin has posted to SSRN Judge Jack Weinstein and the World of Tort:  Institutional and Historical Perspectives.  The abstract provides:

In this Article, I offer four representative illustrations of Judge Jack Weinstein’s creative efforts to recast traditional tort concepts in a fashion responsive, by his lights, to accident law claims that pressed against the boundaries of the conventional interpersonal tort law process.  In the first of these cases, dealing with a cluster of blasting cap injuries to minors, Judge Weinstein addressed the puzzle of the indeterminate defendant. In the second, war veterans’ claims from Agent Orange exposure in Vietnam, he wrestled with indeterminacy of both defendants and plaintiffs. In the third, the handgun cases, the mass claims dimension so evident in Agent Orange was less salient than the public safety perspective that animated his doctrinal creativity. And finally, in the tobacco punitive damages class action, he returned to a concern for reaching closure in a seemingly intractable public health controversy that served as an underlying theme in Agent Orange, as well. Each of these cases, in its own way, served as a vehicle for Judge Weinstein to realign enterprise liability theory to give priority to risk spreading over risk allocation as an expression of his distinctive commitment to redress of injury victims. In a final section of this Article, I discuss how these judicial strategies mesh with Judge Weinstein’s published efforts in the academic sphere to articulate his vision of the role of tort law.

July 30, 2015 in Scholarship | Permalink | Comments (0)

Wednesday, July 29, 2015

NYU Law's Civil Jury Project

NYU Law has just announced its new Civil Jury Project, with directors Sam Issacharoff and Cathy Sharkey.  Its first conference, on Friday, September 11th, will be "The State and Future of Civil Jury Trials."  Register here.

July 29, 2015 in Conferences | Permalink | Comments (0)

Tuesday, July 28, 2015

IA: Med Mal Early Resolution Program

In Iowa, the reform I reported on here has become law.  It has similarities to a program at the University of Michigan, which has also inspired laws in Massachusetts and Oregon.  Readers of the blog know I am a big fan of programs that aim to more swiftly and certainly resolve disputes without litigation, especially in med mal cases. 

The CANDOR law is reviewed at JD Supra.

July 28, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, July 27, 2015

Survey on the Use of Pop Culture in the Classroom

From Cynthia Bond:

Greetings Law Teacher Colleagues:

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).

To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:

https://www.surveymonkey.com/s/QH3GBZK

Thanks in advance for your time and have a wonderful rest of summer!

Cynthia Bond

The John Marshall Law School

Chicago, IL

July 27, 2015 in Teaching Torts | Permalink | Comments (0)

Friday, July 24, 2015

GA: Non-Parties May Be Apportioned Fault

At JD Supra, Vonnetta Benjamin & Michael Sullivan of Womble Carlyle address a recent Georgia Supreme Court case:

The Georgia law regarding apportionment of liability in tort cases became more clear this month with the Georgia Supreme Court’s decision in Zaldivar v. Prickett, et al.  Before the Court was the question of whether a non-party which is not “liable” to the plaintiff as a matter of law could be considered by the trier of fact as a non-party responsible, in whole or in part, for the “fault” which caused the underlying injury thus reducing the liability of the defendant by the percentage of that fault under O.C.G.A. § 51-12-33, commonly known as the Georgia Apportionment Statute.  The Court’s answer was “Yes”.

The rest of the column is here.

July 24, 2015 in Current Affairs | Permalink | Comments (0)

Thursday, July 23, 2015

American Museum of Tort Law to Open in September

Renovations are complete and the countdown to opening Ralph Nader's project in Winsted, Connecticut continues.  The Litchfield County Times has the story.

July 23, 2015 in Current Affairs, Travel | Permalink | Comments (0)

Wednesday, July 22, 2015

FL: Intermediate Appellate Court Upholds Ex Parte Communications Med Mal Reform

In 2013, the Florida legislature passed a med mal reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:

In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.

In October of 2014, the Eleventh Circuit held that the reform did not violate HIPAA. 

Now the 1st District Court of Appeal has upheld the constitutionality of the reform from challenges that it violates the right to privacy and separation of powers. CBS Miami has the story

July 22, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, July 21, 2015

Dernbach on the Netherlands Climate Change Case

John Dernbach is blogging at the American College of Environmental Lawyers about last month's case from The Hague District Court requiring the Netherlands to reduce carbon emissions by 25% below 1990 levels by 2020.

July 21, 2015 in Current Affairs, Weblogs | Permalink | Comments (0)

Monday, July 20, 2015

Teaching Advanced Torts

What do you teach in your advanced torts class (not the second semester of first-year Torts, but a torts class for 2L's and 3L's)?  I teach an upper-level class of Products Liability (and also Insurance), but I don't teach "Advanced Torts."  My sense is that people tend to teach defamation and the economic torts.  A TortsProf has asked that I solicit syllabi to help in planning such a course.  Because our comments feature does not allow attachments, if you are willing to send a syllabus to help, please e-mail me at cjrobinette@widener.edu and I will pass it on.  Thank you.

July 20, 2015 in Teaching Torts | Permalink | Comments (2)

Saturday, July 18, 2015

Rutgers Insurance Workshop

Jay Feinman sends the following:

The Rutgers Center for Risk and Responsibility is holding its fourth annual insurance workshop on Friday, October 2, 2015. This is a day-long event on the Camden campus with an opportunity to present and receive comments on drafts or less fully formed works-in-progress on topics related to insurance law or other aspect of managing or regulating risk. For more information, contact Professor Rick Swedloff, swedloff@camden.rutgers.edu

July 18, 2015 in Conferences | Permalink | Comments (0)

Friday, July 17, 2015

Jane Stapleton Elected to British Academy

Brian Leiter is reporting that Jane Stapleton has been elected a Corresponding Fellow of the British Academy.  Congratulations to Jane!

July 17, 2015 in TortsProfs | Permalink | Comments (0)

Thursday, July 16, 2015

Hylton on the Hand Test and Causation

Keith Hylton has posted to SSRN Information and Causation in Tort Law:  Generalizing the Learned Hand Test for Causation Cases.  The abstract provides:

This paper discusses the economics of causation in tort law, describing precise implications for precautionary incentives when courts are and are not perfectly informed. With precautionary incentives identified, we can ask whether the causation inquiry enhances welfare, and if so under what conditions. Perhaps the most important innovation applies to the Hand Formula. When causation is an issue, the probability of causal intervention should be part of the Hand test, and the generalized Hand test offers a method of distinguishing significant classes of causation cases. I close with implications for the moral significance of causation and for economic analysis of tort law.

July 16, 2015 in Scholarship | Permalink | Comments (0)

Wednesday, July 15, 2015

CCR Interview with Valerie Hans

Corporate Crime Reporter has an interview with Cornell tortsprof Valerie Hans, who discusses the book she and Jennifer Robbennolt are writing, The Psychology of Tort Law.  A sample:

How does looking at tort law from a psychology lens differ from looking at it through an economic lens?

“We look at human beings as they actually are, not as hypothetical economic humans,” Hans told Corporate Crime Reporter in an interview last week. “We are human. We have foibles. We take short cuts in our decision making. We rely on heuristics. We pay more attention to the here and now as opposed to what might happen in the future. We commingle things that should be separate. We are decent decision makers but we are fallible decision makers. Psychology brings to tort law the ways in which actual real world decision making affects the operation of tort law.”

July 15, 2015 in Books, Science | Permalink | Comments (0)

Tuesday, July 14, 2015

Liability Considerations for Driverless Cars

At JD Supra, Chris Jones of Sands Anderson in Virginia discusses some of the considerations, which include the expansion of products liability into automobile accident cases and the potential need for a post-sale duty to warn in jurisdictions that have not adopted it.

July 14, 2015 in Products Liability, Web/Tech | Permalink | Comments (0)

Monday, July 13, 2015

WI: Lowest Med Mal Claim Payments in the U.S.

...according to this story in the Milwaukee Journal Sentinel.

July 13, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, July 10, 2015

Kritzer & Vidmar on Legal Malpractice

Herb Kritzer & Neil Vidmar have posted to SSRN When the Lawyer Screws Up:  A Portrait of Legal Malpractice Claims and Their Resolution.  The abstract provides:

All professionals make mistakes and sometimes those mistakes harm the clients or patients. What happens when this occurs and the professional involved is a lawyer? Surprisingly, there is virtually no empirical research on legal malpractice. In contrast, there is an extensive empirical  literature on medical malpractice and the legal handling of legal malpractice claims. This literature examines the frequency of medical malpractice claims, how they are handled, how they are resolved, and their impact on access to and cost of medical care. The absence of a similar literature concerning legal malpractice is at least somewhat surprising given that there are roughly equal numbers of private practice lawyers and patient care physicians in the United States.

In this paper we provide an empirical portrait of legal malpractice claims and their resolution. We draw on a wide range of data sources including reports published by the American Bar Association, reports from individual insurers, and data sets obtained from insurance regulators in Florida and Missouri. We examine a wide range of questions including the areas of practice producing large numbers of claims, the types of errors alleged in the claims, the practice settings and experience of the lawyers subject to the claims, the likelihood that claims are successful and the amounts paid in damages in successful claims and how the outcomes vary depending on factors such as the area of practice and the size of firm, and the frequency and outcomes of trials of legal malpractice cases including some comparisons to trials involving other types of professional malpractice.

A central finding of our analysis is that there are essentially two hemispheres of legal malpractice paralleling the two hemispheres of the bar identified by Heinz and Laumann in their study of the Chicago bar. In the personal services sector one finds mostly relatively small stakes cases often involving plaintiffs’ personal injury, real estate, family law, and collections and bankruptcy; much of the insurance coverage is provided by mutual insurers started by and/or affiliated with state bars. In the corporate sector stakes tend to be very large, and cases involve corporate matters, corporate litigation, and high stakes areas such as intellectual property and securities; insurance is provided by either by specialized insurers or through brokers who put assemble a group of insurers to cover a large law firm.

This is a related piece to work the pair released earlier this year.

July 10, 2015 in Scholarship | Permalink | Comments (0)

Thursday, July 9, 2015

FL: Intermediate Appellate Court Rules Med Mal Cap Unconstitutional

Relying on the Florida Supreme Court's ruling that a cap on emotional distress damages in wrongful death cases is unconstitutional, an intermediate appellate court (the Fourth District Court of Appeal) ruled the state's med mal cap on noneconomic damages violates the equal protection clause of the Florida Constitution.  Courthouse News Service has the story.

July 9, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0)