Wednesday, June 22, 2016
Back in March, I posted about a grand jury report detailing the sexual molestation of children in the Altoona-Johnstown Diocese. Now two women have filed lawsuits alleging that a priest from the parish abused them in the 1970s. The grand jury report led to a debate in the legislature about extending the statute of limitations and possibly including a window in which expired cases could be filed. The state House passed a bill that would retroactively extend the civil statute of limitations (from age 30 to age 50). The state Senate Judiciary Committee held a meeting last week and heard from five experts on the constitutionality of retroactively altering the statute of limitations. The Pennsylvania Constitution has arguably been interpreted as more restrictive than the United States Constitution on the issue. Four of the five experts opined that the bill was unconstitutional. The women's lawsuits appear to make a case for extending the statute based on the alleged concealment of the cover-up by the diocese extending through last year.
Tuesday, June 21, 2016
Fredrick Vars (Alabama) has posted his poem to SSRN. The link contains footnotes.
Tort law asks juries to ignore what they know
And give plaintiffs relief only if they show
That the defendant should have foreseen the harm
As likely enough to raise an alarm.
At that we do poorly, especially so
When the chance of the harm is markedly low.
For here people err in a damaging way:
“Those small odds are bigger,” they typically say.
These defects in reason, if left unchecked,
Could mean an award for every sore neck.
But tort law gives judges an unnoticed trump
To counter the bias as would a good ump.
No recovery lies for events too rare.
It’s as if the injury just isn’t there.
With caution this doctrine should judges apply,
Though after this rhyme at least they’ll know why.
Monday, June 20, 2016
Last month, I reported on a bill to adopt the discovery rule for med mal cases in New York. The bill would toll the (2 1/2 year) statute of limitations until the plaintiff discovered the alleged malpractice. New York is one of only six states that does not follow the discovery rule in this context. The bill died over the weekend. New York Daily News has the story.
Wednesday, June 15, 2016
I'm teaching Products Liability this summer. It's a fun course to teach, and I have a sense of relief about many of the products defects we no longer have to deal with on a regular basis. For example, last night in class we covered a case in which a wheel flew off a car and injured a child. That seemed to me an antiquated problem. Yet today one of my students sent me this article about a 2013 Tesla Model S electric car having the same issue. Moreover, the company sometimes proffers consumers waivers and nondisclosure agreements as part of the repair process. Nondisclosure agreements are common in lawsuit settlements, but this seems unusual.
Tuesday, June 14, 2016
Aaron Twerski & Nina Farber have posted to SSRN Extending Comparative Fault. The abstract provides:
This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative fault principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This article focuses on well-known cases and situations where both parties likely contributed to a misunderstanding as to whether the plaintiff consented to the defendant’s conduct and suggests that, in such cases, comparative fault provides a modality for assessing damages. In many cases, the binary approach to consent is justified. When a court finds that both parties contributed to the misunderstanding, however, they should apply comparative fault to reflect that reality.
Monday, June 13, 2016
National and international marketing of defective, toxic or otherwise hazardous products has engendered large-scale mass tort litigations. Unified administration of mass torts in centralized venues serves numerous functional, fairness, efficiency and consistency objectives. Requisite is the forum court’s exercise of personal jurisdiction over the parties. Recently, the Supreme Court has undertaken to reformulate the constitutional parameters of general and specific jurisdiction, in opinions authored by Justice Ruth Bader Ginsburg. Those opinions, culminating in Daimler, self-consciously apply Arthur von Mehren and Donald Trautman’s scholarship set forth in their 1966 Harvard Law Review article “Jurisdiction to Adjudicate.” Neither Daimler nor Justice Ginsburg’s other jurisdictional opinions address mass torts, and Daimler is vulnerable to misinterpretation if applied in the mass tort context without reference to Jurisdiction to Adjudicate and related scholarship. Von Mehren and Trautman endorsed the turn to a functional and fairness approach responsive to the “practical necessities” of the modern litigation scene, and thereby promoted the “unified administration” of multistate actions capable of responding to “the situation as a whole.” Daimler’s theoretical underpinnings demonstrate that the ruling accommodates personal jurisdiction over multistate entities in mass tort litigations.
Friday, June 10, 2016
Over at JOTWELL, Keith Hylton reviews James Hackney's Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History.
Thursday, June 9, 2016
The Pittsburgh Post-Gazette has a Pennsylvania-focused story on 3-D printing. The disruptive nature of the technology for products liability has been obvious for several years. There are very few cases, but attorneys have started to ponder the issues. The story has several takeaway points. First, attorneys expect the early cases to focus on medical and auto parts. Second, the role of computer-aided design (CAD) software as a blueprint for designs will be important:
Products liability attorney Mihai M. Vrasmasu of Shook, Hardy & Bacon said that, when dealing with companies that use 3-D printing, liability issues can generally be broken down to three categories: when a manufacturer buys or licenses a design that is used to print the product, when a manufacturer modifies that file before printing the product, and when a manufacturer designs the file.
Finally, especially in the early period of uncertainty, it is crucial to use contracts to manage liability.
Wednesday, June 8, 2016
Tuesday, June 7, 2016
For several years, I have reported the decline in med mal claims in Pennsylvania from the base rate of 2000-2003. Once again, a new low has been set. In Allegheny County, of which Pittsburgh is the county seat, cases have fallen from 49 per year in 2000-2003 to 10 in 2015. The Pittsburgh Business Times has the story.
The family of a 6-year-old girl who is allergic to peanuts is suing Panera Bread for negligence, based on an incident in which the restaurant added peanut butter to a grilled cheese sandwich despite a warning the girl had a peanut allergy. The restaurant blamed the incident on a language issue. The family heard of a similar incident in a Panera Bread not far from them. The Boston Globe has the story.
Monday, June 6, 2016
On April 3, an Amtrak train traveling from New York to Savannah collided with a backhoe in Chester, PA. The man operating the backhoe, 61-year-old Joseph Carter, was killed. Kline & Specter's Tom Kline has filed suit on behalf of Carter's adult children. The Delaware County Daily Times has the story.
Friday, June 3, 2016
Malaysia's Federal Court introduced the tort of harassment, covering sexual harassment, into the legal system this week:
“After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it,” the apex court bench led by Chief Judge of Malaya, Tan Sri Zulkefli Ahmad Makinudin said in the judgement.
MalayMailOnline has the story.
Tuesday, May 31, 2016
In the Claims Journal, Gary Wickert discusses potential changes to auto accident litigation due to the transition to autonomous vehicles. He notes the 2017 Mercedes E-Class Sedan will offer the following features:
- Drive Pilot‘s adaptive cruise control (Distronic) and Steering Pilot (lane keep assist) track the car in front at speeds up to 130 mph (210 kph) and can stay lane-centered at up to 81 mph (130 kph). It tracks nearby vehicles and senses highway lane markings.
- Active Lane Change Assist is a radar- and camera-based system that semi-automates lane changes. Flip the directional signal and the car waits two seconds and then changes lanes on its own.
- Active Brake Assist with cross-traffic function similarly has “extended speed thresholds” for detecting cars and pedestrians. The car brakes if it detects crossing traffic that you aren’t slowing for and will initiate advance braking if it senses you’ve come upon the tail end of traffic jam, where there’s no room to maneuver.
- Evasive Steering Assist works with pedestrian detection to help the driver steer around a pedestrian and then apply steering wheel torque (force) to recover and get the straightened out afterwards.
- Active Blind Spot Assist (blind spot detection), in addition to highway speed warning, can warn of possible city-speed lateral (side) collisions.
- Pre-Safe Sound emits a sharp “interference signal” through the sound system if it detects an impending collision. It triggers a biological reflex in the human ear that prepares the occupants for the sound of the collision if it happens.
- Remote Parking Pilot pulls the car out of a garage or parking space using a smartphone app, with the driver outside. This lets big cars park in narrow spaces and tiny garages.
- Car-to-X communication is the first car with integral car-to-X, meaning car-to-anything communications where a connected car ahead helps cars behind “see” around corners or through obstacles.
As noted elsewhere, the most significant potential change appears to be a migration from negligence to products liability for auto accidents.
Monday, May 30, 2016
Friday, May 27, 2016
A recent conference at the James Humphreys Center for Complex Litigation at George Washington addressed the complex issue of liens for medical expenses and subrogation. The conference chairs, Alan Morrison and Roger Trangsgrud, issued a report entitled "Subrogation of Medical-Expense Claims: A Proposal for Future Study", available here: Download GW Law Roundtable Subrogation Proposal Final Thanks to Michael Kaplen for the tip.
Thursday, May 26, 2016
Yesterday I posted about New York's sexual assault statute of limitations. Another bill in front of the legislature involves the med mal statute of limitations, specifically whether the discovery rule should be adopted. Currently, New York's 2 1/2-year statute begins to run when the negligence is committed. The bill, named Lavern's Law after a woman who died in 2013, would toll the statute until discovery, but leave the length at 2 1/2 years. New York is 1 of only 6 states without the discovery rule for med mal cases. The New York Daily News has the story, focusing on a tragic case.
Wednesday, May 25, 2016
Last month, I reported that Pennsylvania was debating bills to remove or extend the statute of limitations for sexual assault cases. The same is occurring in New York, where current law requires a lawsuit to be filed by the time an alleged victim reaches the age of 23. On Monday, the state senate voted down (30-29) an amendment that would have forced a vote on eliminating the statute of limitations for sexual assault cases going forward and creating a 1-year window in which to bring expired claims. It sounds as though other bills may be considered this session. Syracuse.com has the story.
Tuesday, May 24, 2016
Over at Torts Today, George Conk is reporting that compensation in China for governmental rights violations has increased. Unlike the U.S., which has fairly strong doctrines of governmental immunity, China allows the government to be held liable with fewer formal obstacles.