Thursday, February 22, 2007
There's an interesting Note in a recent Virginia Law Review issue challenging part of the fundamental idea of the per diem approach to future pain and suffering. The summary:
Outside the legal academy, the debate over tort reform rages on. In the political arena, advocates on both sides of the aisle often use empty rhetoric in an attempt to persuade voters that tort reform as a whole is “good” or “bad.” Of course, this over-simplistic view of tort reform does not take into account the multifaceted nature of tort law. This Note examines one method of calculating noneconomic damages and attempts to provide a theoretical justification for why a plaintiff’s use of the per diem (or time-unit) method to compute future pain and suffering damages cannot be justified under any reasonable theory. The debate over the per diem method to calculate these damages has largely stagnated in the past forty years. During this same time period, nothing less than a revolution has occurred in the understanding of pain and pain management therapy in medical and psychological fields. However, these advances have not been incorporated into the per diem discussion. This Note analyzes and introduces the “cognitive-behavioral treatment” (CBT) model of pain to the legal literature with the hope of supplying a theoretical foundation for why the per diem argument should be impermissible in the many jurisdictions that allow such a method. The basic flaw of the time-unit perspective is that it improperly assumes a constant dollar unit for future pain and suffering without discounting for either future advances in pain management therapy or an individual’s future and likely ability to psychologically and physically cope with chronic pain.
The full PDF is here.
Wednesday, February 21, 2007
Surprise! Insurers like restrictions on punitives.
So here's my question. Would this jury instruction pass muster?
[Members of the jury, e]vidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible. . . . [But you] may not go further than this and use a punitive damages verdict to punish [the] defendant directly on account of harms it is alleged to have visited on nonparties.
Maybe it's not so confusing as I thought on first reading and as I wrote yesterday. Chant the magic language (taken, as you presumably recognize, directly from the opinion), and you're golden. This is despite the fact that I would wager it will make exactly zero difference in the outcome. Go back in time (you can make your own Wayne's World sound effect), tell the jury hearing the story of Jesse Williams's death that language above, and I betcha we'd be back in the same case with the same 100-to-1 ratio. And obviously others disagree, but I think the Oregon court did a pretty good job of at least saying the right words to make that ratio fit within the State Farm guideposts, including the 9-to-1 ratio.
I'm not as skeptical as some about a jury's ability to follow instructions. I think they try. But this case has the apparent result that harm to others will generally be admissible. And so the jury will hear about the harm to other smokers (or patients or residents or whatever) and then they'll be told that they are only to use that evidence of the fact of reprehensibility, not as a basis for calculating harm.
Uh-huh. Good luck with that. State Farm, I'm fairly certain, has had an actual effect (whether good or ill - I'm not a fan, but that's for a different day). This seems to me more likely to create some short-term litigation over what magic phrase works to inform the jury -- I see no reason why the one above won't work just fine, but I'm open to hearing differently -- and then it's just a check-box when drafting jury instructions.
Tuesday, February 20, 2007
Fortune's Legal Pad has a good look at it. The lede:
Whenever the U.S. Supreme Court sets aside a punitive damages award on constitutional grounds, I suppose it must be seen as a victory for business. Still, while the Court's 5-4 ruling today in Philip Morris v. Williams definitely qualifies--the Court set aside a $79.5 million punitive damage award that an Oregon state jury had tried to award the widow of one individual smoker--it's a narrow ruling and, frankly, a confusing one.
I've read it another couple of times since this morning and continue to find it similarly confusing. Or maybe "confusing" isn't the right word -- how about "prone to causing confusion and difficult to imagine trial courts finding helpful"? That's not bad, though it doesn't have much rhythm to it.
In a Breyer opinion, the Supreme Court vacated a $79.5 million punitive damage award. Key points at first reading:
- Punishing defendants for harm to nonparties is a due process violation. Evidence of harm to nonparties can be relevant to determine reprehensibility, but not as a basis for a punishment increase.
- Let me say that again: harm to others cannot be a basis for punishment. This is new, and a big deal.
- So if a state is going to allow harm to others into evidence, it also has to create procedures to ensure that it only goes to determining the risk of harm to others (= reprehensibility), but not to the amount of damages awarded.
- Because the remand on this issue will probably result in a different award, the Court doesn't deal with whether the amount is unconstitutionally excessive.
Stevens, Thomas, Ginsburg, and Scalia dissented in a total of three opinions.
The Vanderbilt Law Review published last year an interesting piece, "What Are We Reforming?:
Tort Theory’s Place in Debates over Malpractice Reform," by John C. P. Goldberg (Vanderbilt) about the role of theory in malpractice reform debates. The abstract:
This Essay explains why lawyers, policy-makers and scholars interested in medical malpractice reform and tort reform more generally must attend to tort theory. Theory does not provide answers to policy questions. Rather, it frames and guides analysis. The Essay uses two examples to make its point.
The first concerns the phenomenon of “underlitigation,” which is typically treated by commentators as a symptom of tort law’s deficiencies as a scheme for deterring undesirable behavior and/or compensating injury victims. This evaluation presupposes, of course, that tort law is properly theorized as a scheme for deterring and/or compensating. An alternative and more satisfactory conception of tort treats it as a law that empowers victims of wrongs to respond to those wrongs by seeking redress from their wrongdoers. Given this alternative conception, we will want to know much more about why malpractice victims tend not to sue. For if they are knowingly and voluntary choosing not to pursue claims that the law has made available to them, then, on a wrongs-and-redress theory, there is nothing at all wrong with the tort system.
The second example concerns the constitutionality of reform measures that cut back on malpractice liability in the name of making medical services more readily available or cheaper. If tort law is conceived as public regulation of bad medical practices -- i.e., enforcement actions brought by plaintiffs playing the role of private attorneys general -- then courts probably should assess the constitutionality of malpractice reform measures under toothless rational basis analysis. If, by contrast, tort is understood as a law for the redress of wrongs, courts will be entitled to deploy a more robust form of judicial review.
The SSRN version is here.
Monday, February 19, 2007
Today is the anniversary of the fire at the Station Nightclub in Warwick, Rhode Island, that killed 100 people attending a Great White concert. Civil litigation remains pending, after criminal pleas were entered last fall. A couple of weeks back, the Rhode Island attorney general, in response to press requests, released thousands of pages of more documents and is in the process of releasing some audio and video. The AG's page is here.
The Globe has this twenty-minute video of the destruction: