Saturday, December 8, 2007
The Insurance Journal has an interesting article that features two claims I have not yet heard regarding the Texas reforms. First, the number of cases has decreased to the point that judges are trying cases that otherwise would have gone to mediation. Second, businesses are becoming so unconcerned about liability that they are self-insuring. The evidence is anecdotal, so I'm curious to see if there will be more formal follow-up studies. And, of course, there's always the normative question: is this a good thing?
Friday, December 7, 2007
As I noted in a previous post, one of my former students loaned me his grandfather's Torts notebook from academic calendar year 1938-39 at the University of Minnesota. The professor was William Prosser. My student's grandfather is Leroy S. Merrifield, who went on to be a law professor (and teach Torts) at GW.
I was curious to see what subjects Prosser covered, and in what order, so I went through the notebook and reconstructed his "syllabus." I suspect it will be very familiar to many of you. It very closely resembles what I teach in a five-credit course.
First, Prosser distinguished between torts and crimes. Then he distinguished between intentional torts and negligence. At that point, he taught the intentional torts. He started with the general topic of intent, and then covered battery, assault, IIED (which he called "intentional infliction of mental suffering," then in its development phase), and false imprisonment. He followed up with the defenses to intentional torts: consent, self defense, defense of property, and necessity.
At that point in the semester, Prosser switched over to negligence. He started with duty, and then worked his way through standard, negligence per se, res ipsa, causation, liability for joint tortfeasors and apportionment, liability for mental disturbance, duty of occupiers and owners of land, and duty of employers to employees. Next he covered the defenses to negligence: assumption of risk and contributory negligence. The final topic in the negligence portion of the course was imputed negligence.
Prosser transitioned to strict liability. As part of this discussion, he covered trespass. He concluded the course with deceit and defamation (then, of course, prior to it being constitutionalized).
Several times a year, my colleagues and I like to have lunch at the Eagle Hotel in nearby Linglestown. During my last visit, I was intrigued to see on the menu that anyone ordering "suicide hot wings" had to sign a "disclaimer." I asked the waitress for a copy of the disclaimer, and she brought me a document that reads:
WARNING, SUDDEN DEATH sauce is extremely spicy. I, __________, agree to hold the Eagle Hotel harmless.
I am purchasing Sudden death sauce at my own risk. I further agree not to hold the Eagle Hotel liable for any adverse effects it may cause.
_________________________ (Signature) ____/_____/_____ (Date)
Apparently, the wait staff really does require a signature before the wings are put on the table. The waitress told me that the use of the disclaimer began as a joke. However, she said, they soon felt more comfortable about serving the wings.
I am sure there are dozens or more of sites and posts offering tips on first-year exams. But I suspect that none, save the one I wrote a few years ago for Legal Underground, includes a suggestion as to what kind of exam would have been turned in by Faulkner on methamphetamine:
Annie Operator muttered (‘Oh, Andy, Andy, you’ve fallen. Andy!’) and she stood there just as she had for thirty-five years or perhaps three months and she thought, the straight line he traveled seemed quick and harmless but then the straight line intersected the uttermost curved wall and the lines were no longer far apart but together, too together. Annie, brooding, musing, drooling, thinking, feeling, knew she had duty and breach (‘After all, the burden was less than the expected value, but those are just words that sing in our ears.’) and damages and causation but was it both factual and legal? She did not know and she was afraid she had been tricked by words, words full of agony and song again. Now, where can I score some crank? That gackle-a fackle-a shit Howard Hawks got me was great.
Thursday, December 6, 2007
Rep. Markey's effort to bring fixed-site amusement park rides within the CPSC's jurisdiction has apparently died again, as it has for a number of years.
Last week, I posted about the Crimtorts symposium on February 25, 2008 at the Widener University School of Law. I said I would post the brochure when it was available, and it is here. The symposium is hosted by the Widener Law Journal, and they are doing a great job preparing for this event. Again, the speakers are: Martha Chamallas (Ohio State), Mark Geistfeld (NYU), Keith Hylton (Boston University), Mary Kate Kearney (Widener), Tom Koenig (Northeastern Sociology), Jeffrey O'Connell (Virginia), Mike Rustad (Suffolk), Sheila Scheuerman (Charleston), Tony Sebok (Cardozo), Cathy Sharkey (NYU), Ken Simons (Boston University), and Byron Stier (Southwestern). We hope you can join us.
Wednesday, December 5, 2007
Linda Greenhouse at the New York Times reports on the oral arguments yesterday in Riegel. In Greenhouse's view, Ted Olson (representing Medtronic) seemed to sway some Justices including Justice Scalia; Justices Kennedy, Souter and Stevens, however, appeared concerned "about shielding manufacturers during a regulatory 'hiatus,' after a manufacturer had discovered a problem with an approved device but before the F.D.A. had learned of it or taken action."
Beck & Hermann over at Drug & Device Law Blog also have a report from the oral argument by their friend Tom Parker. Beck & Hermann are "cautiously optimistic that there will be a pro-preemption ruling in Riegel."
James Pethokoukis at U.S. News & World Report has an interview with Mitt Romney on the Capital Commerce Blog. In it, Romney opines on the need for tort reform:
Romney: "I think there are a number of things we need to do to make ourselves more competitive. One, lower the corporate tax rate. As you know, we and Japan have the highest corporate taxes in the world. Two, provide regulatory relief. Regulations grow like weeds, so you got to get a weed whacker and regularly pull them out. We need national tort reform. Last year American corporations spent more money on tort claims than they spent on R&D, and that is unacceptable."
Tuesday, December 4, 2007
Actor Dennis Quaid has sued Baxter Healthcare, TMZ.com reports. His twin babies were given massive overdoses of Baxter's heparin, an anticoagulant. Rather than suing the hospital or personnel who gave the babies the overdose, he's going after Baxter, alleging that the labeling of the high dose container was too similar to the low dose container.
Relevant (but not admissible, presumably, as subsequent remedial measures), Baxter announced new labeling for heparin, presumably making them more immediately readable.
The Arizona Supreme Court on Monday upheld a state law eliminating joint and several liability as it applies to strict products liability. The opinion is here. The law was the legislature's 1987 amendment to UCATA, which responded to the deep pocket problem by eliminating joint and several liability in most cases (an earlier case allowed it in cases of indivisible injuries and such).
Joseph Goldstein at the New York Sun has an interesting article on how cases get assigned to Judge Jack B. Weinstein, the Eastern District of New York judge at the center of numerous mass tort cases including Agent Orange, asbestos, tobacco and guns, to name a few. The cases typically land before Judge Weinstein based on the "related case rule," whereby "plaintiffs can indicate that their case is "related" to another case already in the court," and "[t]he new case is then automatically assigned to that judge."
On Thursday, the issue will come again to a head when a lawyer who has long represented the firearm industry, John Renzulli, will ask Judge Weinstein to recuse himself from a high-profile gun suit. The case was brought by New York City against out-of-state gun dealers who have sold handguns later recovered at crime scenes in the city.
It isn't the first time Mr. Renzulli has made this sort of motion — that was back in 1996. In the meantime, Judge Weinstein's docket has drawn increasing scrutiny. There's even a judge on the 2nd Circuit, Jose Cabranes, who makes a habit of quizzing lawyers about the matter when Judge Weinstein's rulings come up on appeal. "Is there a rule or practice in the Eastern District of New York that Judge Weinstein is assigned to all mega-cases?" the Judge Cabranes asked several years ago. The comments came during oral arguments reviewing Judge Weinstein's decision to try a case brought by Blue Cross and Blue Shield against the tobacco industry. The question has stuck with Judge Cabranes over the years. This September, he asked why the city's lawyers had taken a suit against firearm manufacturers "across the Brooklyn Bridge" to where Judge Weinstein sits, when the court in Manhattan was nearer to the city's law offices.
An interesting read.
Ah, well, in the world of plaintiffs' lawyers, apparently a good group name is hard to find. Last year, the American Trial Lawyer's Association did indeed change its name to the American Association for Justice. Around the same time, a group of plaintiffs' lawyers decided to form a competing organization and opted for the name "The American Trial Lawyers Association," or "TheATLA." (Be sure to capitalize the "The" so you can tell the difference...)
"The name defines who we are and what we do," said J. Keith Givens, TheATLA's main founder and a senior partner in the national law firm founded by the late Johnnie Cochran, of O.J. Simpson fame. Givens, a well-known Alabama plaintiff's lawyer, asserted that AAJ abandoned the name ATLA last year, freeing up its use. Besides, he said, his group is TheATLA, which is different.
AAJ disagrees. Two weeks ago, it filed suit in federal court in Minneapolis to force TheATLA to drop the name, contending it was confusing AAJ members and infringing a trademark AAJ has held since 1976 on the acronym ATLA. In typical trial lawyer fashion, the suit also demands that AAJ get any profits that TheATLA collects, as well as damages, "trebled where permissible," and attorneys' fees.
The Washington Post has a lengthy story about the proposalto put fixed-site amusement parks under the CPSC's regulatory authority. (The agency presently has oversight of traveling rides but not fixed-site rides.) Other than the title (which is a somewhat silly "On Thrill Rides, Safety is Optional"), it's a good exploration of the issue's status.
I wrote more about the proposal and my views of it here.
Update: Chad Emerson (Faulkner) is unimpressed by the article. I think his concerns with the Post's characterization of states' regulatory schemes is partially semantic (what counts as scattershot? should insurance requirements count as regulation? what about reporting requirements?), but he's right that the article doesn't do a great job of explaining what regulations do exist.
As for the assertion that Rep. Markey is attempting to federalize the regulation of fixed-site rides, I've noted before that nothing in the legislation would preempt state regulation. The primary thing that the CPSC does with traveling rides is investigate accidents after accidents; that's the same thing that would happen under this legislation with fixed-site rides. The inspection and certification process would remain, if anywhere, with states.
Monday, December 3, 2007
We got our first significant snow here in western Massachusetts last night. By morning, it was clear and pretty easy driving, so I drove our kids to school, only to find it darkened and closed. WNEC, however, was open (rather than "Western New England College," some of my colleagues suggest that it stands for "We Never Ever close"), so I brought my kids with me.
During class, our wonderful admissions staff watched the kids and even gave them lollipops. When I went down to pick them up, I heard that my daughter (who's 8) explained to the administrative assistant that if she scratched the inside of her mouth with the lollipop, "that would be a tort."
(And, yes, I did tell her that as a general matter there's no lawsuit without a defect of some sort, and she even knew to say that if she'd been using it wrong, she shouldn't be able to get money.)
There's a ton out there already about Riegel v. Medtronic, the case addressing the impact of the medical device amendments' express preemption provisions on state law claims. If you're looking for a primer, though, you could do a lot worse than the ScotusWiki entry here.
Sunday, December 2, 2007
In expectation of a possible (probable?) Democratic administration, the NYT reports that many business organizations are increasing their efforts to get favorable regulations now, or to prepare for what they perceive to be a less friendly future administration. Relevant to tort law,
[a]t the Transportation Department, trucking companies are trying to get final approval for a rule increasing the maximum number of hours commercial truck drivers can work. And automakers are trying to persuade officials to set new standards for the strength of car roofs — standards far less stringent than what consumer advocates say is needed to protect riders in a rollover.
The story also notes work relating to emissions from chicken plants and efforts by pharma companies.
So reports a South Carolina paper. Quoting McCain:
“Because of the need for health care reform, medical malpractice reform is at least my second highest priority.”
“Every time there is new technology, doctors perform defensive medicine. I can’t tell you the number of tests that all of us in this room have taken just to so that doctors won’t be sued for malpractice. That is one reason costs go up.”
Concluding on this subject to an enormous round of applause, McCain said, “In a perfect world, the loser [in a medical malpractice lawsuit] would pay [legal and trial costs]. It would have an incredible effect.”