November 10, 2007
Tort Reform in the ER
In Arizona, Sen. Carolyn Allen, R-Scottsdale, the head of the Senate Health Committee, has introduced a bill to raise the burden of proof from a preponderance to "clear and convincing" evidence in emergency medicine malpractice cases. The goal is to expand the supply of ER physicians in Arizona. In 2006, a similar bill passed the legislature, but was vetoed by Democratic Gov. Janet Napolitano. At the time of the veto, Gov. Napolitano stated she saw no evidence that raising the burden of proof would increase the number of physicians willing to work in Arizona emergency rooms. AZ Central.com has the full story.
The first problem with the bill, as Gov. Napolitano noted in 2006, is the lack of evidence that raising the burden of proof will increase the supply of ER physicians. However, the Governor is said to be weighing a compromise on the issue. If so, she would do well to ameliorate the one-sided nature of the reform. One of the problems with the vast majority of tort reforms is that they reflect the self-interest of one group or another. A better solution, a possible compromise, would be Jeffrey O'Connell's proposed "early offers." Under early offers, physicians would receive the benefit of an increased burden of proof, but only after offering to pay the economic losses of the claimant.
Under early offers, an ER physician would have a given number of days in which to offer to pay a claimant for their economic losses (but not pain and suffering). The physician must also pay the claimant's reasonable attorney's fees (10% of the recovery, which reflects the reduced amount of work necessary in the shortened process). If no offer is made, traditional common law principles apply. If an offer is made and accepted, a settlement has been reached quickly and the claimant's basic economic losses have been restored. If an offer is made and rejected, the burden of proof increases (to either "clear and convincing" or even "beyond a reasonable doubt") and the physician's standard of care decreases to gross negligence. This obviously provides the claimant with strong incentives to accept an early offer. The financial savings are enormous, as the article at the last link demonstrates. Furthermore, the physicians get a higher burden of proof, but only after they have offered to pay the claimant's economic losses. Both parties receive a benefit. Under early offers, unlike Sen. Allen's bill, the entire burden of tort reform does not fall on those injured in the emergency room.
November 9, 2007
Bindeez Recall: More Information
Sure enough, as my dad suspected, the ingredient that metabolized into GHB has been confirmed as 1,4-butanediol. But other mysteries are presenting themselves:
How the precursor got into the beads is a mystery. "It's not in the list of ingredients," Gunja [deputy medical director of Australia's Poisons Information Center] says. "It wasn't meant to be in there."
Carpenter [the Australian research who first figured out the problem] says one of the chemicals on the list of ingredients he received from the supplier was 1,5-pentanediol. He says there's speculation that 1,4-butanediol may have been substituted for 1,5-pentanediol.
According to the NYT, Merck has agreed to a $4.85 billion settlement for 27,000 Vioxx lawsuits. Byron Stier has a thoughtful post on the settlement over at Mass Tort Litigation Blog. For a more thorough analysis of Byron's approach to mass torts, see Byron G. Stier, Resolving the Class Action Crisis: Mass Tort Litigation as Network, 2005 Utah L. Rev. 863.
Attorney Seeks to Restrict Image, Video Access
A few months ago, I posted about the tragic death of a teenage girl at a festival in Wisconsin. The girl fell from an "Air Glory" ride. Now, the girl's family's attorney (who has filed suit on their behalf against the ride owner/operator and the festival) is seeking to restrict access to images and video of the accident and its aftermath. Seems perhaps a bit late, though a quick set of searches don't reveal any images or video available today online.
To begin, I would like to thank Bill and Sheila for the opportunity of posting here. I've been a regular reader of this blog for some time, and I'm excited about contributing to it. I plan to provide updates on torts scholarship and current events, but I also intend to focus on several specific areas. One of my interests is the connection between torts scholarship and torts cases. Therefore, I hope to write about torts cases that discuss tort theory. These are cases that go back to first principles and actually articulate the theoretical underpinnings of a holding (compensation, deterrence, corrective justice, etc.). Similarly, I want to cover cases that cite tort scholars in support of the result. If you are aware of recent cases (within the last year) that fall into either of those categories, please let me know (firstname.lastname@example.org). Finally, I am going to blog about an interesting artifact from torts history. I look forward to your feedback!
November 8, 2007
Anatomy of a Recall
The NYT has a fascinating story about how an Australian physician figured out the problem with "Bindeez" beads -- a toy that, when ingested, metabolizes to GHB (the banned date rape drug). As Consumerist puts it, the story reads like an episode of House.
(My dad, a retired electrochemist, suggests that the problem is likely the "diphthalate ester of the butanediol" -- i.e., related to phtalates, a plasticizer used ubiquitously. He continues: "I suspect the same enzyme system that converts ethanol to acetate would convert the butanediol to [GHB].")
Foreseeable? Should've tested?
And the Winner By A Nose...Race Horse Curlin And The Fen-Phen Plaintiffs
As reported on FindLaw (via AP), 418 former Fen-Phen plaintiffs can now claim a 20% ownership stake in Curlin, the 2007 winner of both the Breeder's Cup Classic and the Preakness. As noted previously, the former Fen-Phen plaintiffs won a $62 million judgment in their fraud suit against their former lawyers. Two of those lawyers - Shirley Cunningham Jr. and William Gallion - owned a 20% stake in Curlin. Curlin is presently for sale, which is what prompted plaintiffs' attorney Angela Ford to file the assets claim. The judge's order also permits the plaintiffs to collect any racing purses (such as the $2.7 million Breeder's Cup) that have not yet been paid out. No word on when Curlin will be sold.
Litigation-Driven Science, Nth Part
Environmental Health & Perspectives has posted the current drafts of a number of articles addressing litigation-driven scholarship. If you find the pieces interesting, feel free to get in touch for a reprint of my Nebraska piece covering many of the same issues from a bit more of a litigation perspective. I end up in roughly the same place as most of the writers there seem to -- that is, there's nothing specifically about litigation-driven work that should scare us any more than other science with potential biases.
November 7, 2007
Colbert Interviews Center for Consumer Freedom Head
Berman's site is here.
(Via Consumerist, where there's some lively discussion too.)
Another Welcome to Chris Robinette!
I join Bill in welcoming Chris Robinette, who will be joining us for the month of November. An Associate Professor of Law at Widener's Harrisburg campus, Chris has written extensively on tort theory. His most recent article, "Torts Rationales, Pluralism and Isiah Berlin," "argue[s] that the value pluralism of Sir Isaiah Berlin, the late English philosopher, provides the framework in which the torts rationales interact." An earlier piece, "Can There Be A Unified Theory of Torts: A Pluralist Suggestion From History and Doctrine," contends that "the attempt to unify all of torts is futile," and urges torts scholars to explore the pluralist nature of torts.
Sebok on Alien Tort Claims Act (Part II)
In his latest FindLaw column, Tony Sebok continues his two-part series on the recent Second Circuit opinions on the Alien Tort Claims Act. The lawsuits allege that the defendant-banks and corproations "aided and abetted" the apartheid system in South Africa by providing loans and goods. The Second Circuit held that "aiding and abetting" was an actionable cause of action under the ATCA, but the two judges in the majority disagreed over the standard for "aiding and abetting."
Judge Hall cited American tort law, namely the Restatement (Second) of Torts §876(b), which provides that one is liable for aiding and abetting the tortious conduct of another "if he . . . knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other." This test simply requires that the plaintiffs prove that the multinationals were substantially certain that one consequence of their business activities was to support the human rights violations caused by the apartheid government.
In contrast, Judge Katzmann looked to international law, relying on the test based in international human rights law that is set out in the Rome Statute of the International Criminal Court: One is guilty of aiding and abetting a crime if one renders aid to someone who commits a crime, and does so "[f]or the purpose of facilitating the commission of such a crime."
Sebok analyzes which test the district court should adopt, and ultimately leaves the question unanswered, stating "I think that the right answer depends on an interpretation of the purpose of the statute, not an empirical inquiry into what human rights tribunals think aiding and abetting means."
Dole & Dow Liable to Some Workers for Continued Use of Discontinued Pesticide
...and a jury is considering punitive damages, too.
Dole Food Co. deliberately exposed unwitting Nicaraguan field hands to a pesticide that made them sterile so the company could boost profits on its banana plantations, a lawyer for the workers argued this morning.
But lawyers for Dole said the firm acted responsibly in continuing to use the pesticide after production was stopped in 1977 by Dow Chemical Co. because of concerns about its impact on reproductive health.
Six workers won the suit, while six lost; compensatory damages were set at $3.2 million.
Evidence focused on Dole's continued use of the pesticide even after Dow ceased production due to concerns about reproductive health, and on whether Dole gave workers the appropriate instructions to avoid harm.
The LA Times has an investigative piece about the suit's development.
November 6, 2007
Whoa: Keanu Reeves Sued
MSNBC has the details on the (I assume) battery suit brought against the monosyllabic actor by a paparazzo who alleges that Reeves hit him with his Porsche. Reeves's attorney says that any collision was not hard enough to cause injuries, which of course doesn't preclude a battery claim.
Alienation of A Child's Affection: A New Tort?
The New Jersey Law Journal (via law.com) reports on a suit filed last week in the Law Division by a non-custodial parent against the child's mother (and custodial parent) for "alienation of affection." Following a 2001 separation, the suit alleges that the children's relationship with their father was "damaged," "that he no longer has the relationship with his children he had previously." The suit is based on negligence and intentional infliction of emotional distress theories, and seeks both compensatory and punitive damages.
New Jersey courts abolished alienation of affection as a cause of action between spouses on June 27, 1935, and other states have also abolished the action.
However, at least one court seems to have allowed a claim like Segal's to go forward. In Raftery v. Scott, 756 F.2d 335 (4th Cir., 1985), a federal appeals court applying Virginia law affirmed an award of $40,000 in compensatory and $10,000 in punitive damages in an emotional distress suit by a New York man who alleged it took a year to find his child after his former wife absconded to Virginia while the divorce decree was pending. By the time he was able to see his child, the ex-wife had allegedly turned the child against him, he alleged.
But a Wisconsin court went the other way in 1987, refusing, in Gleiss v. Newman, 415 N.W.2d 845 (Wis. Ct. App. 1987), to allow a noncustodial parent to sue the custodial parent and his new wife for emotional distress and alienation of affection.
Journal of Tort Law - Newest Issue
The Berkeley Electronic Press, together with editors Jules Coleman (Yale), Mark Geistfeld (NYU), John Goldberg (Vanderbilt), Ronen Perry (University of Haifa), Catherine Sharkey (Columbia), John Witt (Columbia) and Benjamin Zipursky (Fordham), is pleased to announce a new issue of the Journal of Tort Law (JTL), http://www.bepress.com/jtl.
(Note: Your school must have a subscription to BePress to gain full text access to these articles. However, you can receive immediate guest access by filling out a guest access form and giving BePress permission to contact your librarian).
ABSTRACTS & CITATIONS OF NEWLY PUBLISHED ARTICLES:
Guido Calabresi (2006) "Toward a Unified Theory of Torts", Journal of Tort Law: Vol. 1: No. 3, Article 1.
For at least the last 50 years two ways of looking at tort law have struggled for dominance. One characterized by system-builders, as Izhak Englard so felicitously termed us; the other by those who have seen in tort law the highest manifestation of the common law tradition of responding to breaches in non-criminal, often non-contractual interpersonal relationships. In this paper, I would like to explore the relationship between these two approaches, which I will suggest, find their common law antecedents, where else but, in the forms of actions, from which so much of modern Anglo-American private law derives. I will suggest that both approaches have always been there and that they have affected and shaped each other over the centuries and continue to do so today.
Eric Helland and Jonathan Klick (2006) "The Tradeoffs between Regulation and Litigation: Evidence from Insurance Class Actions", Journal of Tort Law: Vol. 1: No. 3, Article 2.
Law and economics scholars generally view regulation and litigation as substitutes in the task of deterring potentially harmful conduct. Existing normative models suggest that the desirable mix of regulation and litigation will depend on a number of variables, but all largely agree that, on the margin, optimality requires that as public regulation increases, private litigation should decline and vice versa. To investigate whether this condition holds, we examine the factors that affect plaintiffs attorneys' decisions about where and when to file class actions using a unique dataset covering the class action experience of 130 insurance companies during the period 1992 to 2002. We find no evidence to support the proposition that public regulation and private litigation function as substitute channels to deter harmful behavior. In fact, we find some evidence that litigation and regulation tend to piggy-back on each other at least in the insurance industry. More important in the attorneys' filing decisions is whether or not cases regarding the same general allegation and cases filed in the same state have been successful in the past.
Herbert M. Kritzer (2006) "Defending Torts: What Should We Know?", Journal of Tort Law: Vol. 1: No. 3, Article 3.
This paper considers the state of our knowledge about the process of defending tort claims. A variety of specific topics are covered including relationships among the key actors on the defense side (alleged tortfeasor, insurer, and defense lawyer); the incentives faced by these actors; the resolutions of issues of liability, causation, and damages; different types of claimants; variations among tortfeasors and their insurers; conflicts on the defense side; staff lawyers and in-house counsel; the problem of defending sure losers; and the use of experts by the defense. A brief appendix presents some data on the sociology of defense practice (i.e., the characteristics of lawyers who describe themselves as specialists in personal injury defense).
Tom Baker (2006) "Qualitative and Quantitative Research on Tort Law Topics: A Comment on Helland & Klick and Kritzer", Journal of Tort Law: Vol. 1: No. 3, Article 4.
Although Helland & Klick and Kritzer employ very different research methods, the two papers are alike in demonstrating the complementary nature of qualitative and quantitative empirical research. Using quantitative methods, Helland & Klick find an interesting positive relationship between the intensity of insurance market regulation and the likelihood of an insurer facing a class action in a given state. Future qualitative research will be necessary to adequately interpret this finding. Based on preliminary qualitative research Kritzer explores a variety of issues relating to defense practice that, as he acknowledges, will require additional qualitative and quantitative research to develop. For tort scholars, the papers present a useful snapshot of empirical research in the early stages of developing a new subfield in the study of tort law in action.
Helmut Koziol (2006) "Comparative Law – A Must in the European Union: Demonstrated by Tort Law as an Example", Journal of Tort Law: Vol. 1: No. 3, Article 5.
The European Union advances the unification or at least harmonization of the legal systems of its Member States. How and to what extent should effective unification take place? To date, selective harmonization in the form of directives and regulations, evidently the work of compromise and political steer, have highlighted the want of a consistent concept of harmonization. This inconsistency is further reinforced by the decisions of the European Court of Justice. Notwithstanding the difficulties necessarily inherent in the embarkment of harmonization, later on coherent harmonization, this article advocates the exploit of comparative law, and its intrinsic rewards, to achieve these ends. Thus, a comparative approach was pivotal to the European Group on Tort Law in its drafting of the Principles of European Tort Law with the aim of creating overarching tort concepts on the European level. Much of the article is dedicated to illustrating the benefits of comparative law in the area of tort law, with a particular emphasis on wrongfulness and causation. Comparative law facilitates an in-depth inquiry into the historical development of the relevant field of interest, differences and similarities across Member States in their approach to that field and how it fits into the wider legal mosaic in each State. Such an approach thus guarantees a more consistent and coherent approach to the harmonization or unification of Member State laws.
Jane Stapleton (2006) "Benefits of Comparative Tort Reasoning: Lost in Translation", Journal of Tort Law: Vol. 1: No. 3, Article 6.
In this article I argue that the noble cause of comparative law as an intellectual activity is undermined by those who focus on its forensic utility. Specifically, I examine the practical value to practitioners and judges in the court of final appeal in an English-speaking jurisdiction of paying attention to how tort issues are analysed in a different jurisdiction when the subject matter of the domestic case at hand does not positively require it. Part I argues that the benefits of resorting to "comparative tort reasoning" vary greatly according to the focus of the legal analysis in issue: outcomes, arguments, principle, or conceptual arrangement; and that by far the potential for enrichment is greatest in the context of comparative tort argumentation. Part II addresses the study of law across not just jurisdictional but language barriers: "comparative foreign-language law." My argument here is that the practitioner and judge in an English-speaking jurisdiction should exercise extreme caution in using comparative materials from foreign language systems. Part III considers "coordinated" tort materials: materials that seek to expound tort law across multiple intra-national tort jurisdictions, such as restatements of law by the American Law Institute, or across multiple national tort jurisdictions such as Helmut Koziol's "Principles of European Tort Law" published in 2005.
November 5, 2007
Factcheck.org Addresses Florida GOP Debate, Tort Reform
The posting is here and addresses (among other things) the spat between Fred Thompson and Rudy Giuliani about the former's support, or blocking, of various measures that would modify liability rules. According to the site, everyone's right, and everyone's wrong, except when Giuliani described Thompson as the "single biggest" obstacle to tort reform in the senate.
FDA Announces Risk Communication Committee
Pharmalot has details, including a discussion of members with industry ties.
Looking for Conferences, Calls for Papers, and the Like?
Look no further; the nice folks at Pitt and Washington have you covered with their new blog aggregating all such information.
November 4, 2007
Federal Med Mal Proposal
Rep. Michael Burgess (R-TX) has introduced a bill modeled on Texas's medical malpractice liability modifications -- caps, tweaks on expert testimony, and the like -- to be implemented nationally. Its odds of passage are, of course, vanishingly small.