Saturday, March 3, 2007
Apologies for the slightly below-average post counts lately -- I'm presenting at this DRI conference next week and it's taking some of my time that I might otherwise be doing this. (Especially since I'm immediately after lunch on the second day of the conference. I might be well-served by using actual fireworks to keep folks awake.)
Speaking of that, though, (a) if any readers will be there and want to say howdy, please do (or send me an e-mail), and (b) if any readers have good recent examples of (1) litigation-driven scholarship or (2) discovery into the peer review process, I'd love to hear about those too. I have good ones, but it's always nice to have the most recent ones. I'm also considering including some discussion about the expansion of the scope of what gets deemed expert testimony -- e.g., historians testifying as to a chronology of events (which sounds more like closing argument to me), so if anyone has a good recent example of that at hand, send it along.
Friday, March 2, 2007
Thursday, March 1, 2007
If you teach a longish Torts class (say, more than four credit hours), you may get to some immunity doctrines. Me, I'm happy to get through intentional and negligent torts and a decent sampler of defenses. In any event, if you happen to get to diplomatic immunity (here I'm thinking you'd need thirteen credit hours or so), you might find this Morning Edition story of interest. The lede:
Three former servants are suing a Kuwaiti diplomat, alleging that he treated them like slaves in his suburban home in Washington, D.C. The workers are poor women from India, and they say the diplomat worked them for more than 15 hours a day. They also claim his wife beat one of them repeatedly.
But even if the women can to prove their charges, they will have a difficult time winning their case: The Kuwaitis deny the accusations and say they have diplomatic immunity.
Wednesday, February 28, 2007
Tony Sebok has a Writ piece on the Williams case that makes close to the same argument I made ("I would wager it will make exactly zero difference in the outcome.") -- that is, that the result of Williams may be minimal, and certainly far less important than the more problematic hard cap. As he puts it:
In the future, when issues of punitive damages return to the Court, a lot will depend on whether the "nuance" identified by Breyer is real or illusory. The Court sent Philip Morris back to the Oregon Supreme Court for further proceedings consistent with its decision. As noted above, a new trial for damages seems overwhelmingly likely, if settlement is not reached. The question at that next trial will be whether it will make a practical difference to the jurors whether they are asked to assess punitive damages against Philip Morris based on the reprehensibility of the firm's defrauding an unknown number of Oregon smokers, and being asked to punish Philip Morris for defrauding an unknown number of Oregon smokers.
It is easy to see, then, why corporate America is nervous about the victory it achieved in Philip Morris. Granted, it is theoretically possible to imagine that a jury that returned $80 million in order to punish would return less than that in order to measure the reprehensibility of the same corporate act. Still, I doubt that many defense lawyers for the automobile and pharmaceutical industries want to be the guinea pigs to find out whether this possibility might also be a practical reality.
That's what Beck & Herrmann think, due to the Williams case. The basic jump they propose -- and it has some appeal -- is that if you can't get punitives for people who really aren't before the court, you shouldn't be able to get punitives for people who for all realistic purposes aren't before the court.
Of course, we at least pretend in class litigation that the class members are represented and thus, in some sense, present. That makes to me a shift to the outright end of punitives in class action to be more of a leap than they would suggest.
B&H also note the potential problem -- now Constitutional -- of being precluded from presenting all possible defenses, and its special applicability in bifurcated class actions (where individualized issues are left to a secondary phase).
I think they may put a bit more weight than warranted on a particular "first" -- so long as final judgment comes after an opportunity to present defenses, my guess is that it's okay -- but it's an interesting argument, especially if there's a case where the first phase of the trial doesn't just consider the availability of punitive damages but also the amount of them.
Both arguments (and others they note) will certainly be popping up and may have some traction.
Tuesday, February 27, 2007
Marlynn Wei (a joint degree student at Yale Law & Yale Medicine) examines the variety of apology bills that have been proposed at the federal and state level in a forthcoming Journal of Health Law article up on SSRN. The abstract:
This article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians' reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients' families, and even other physicians. Some states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This piece examines potential barriers to physicians' disclosure of medical mistakes and demonstrates how the underlying problem may actually be rooted in professional norms - norms that will remain outside the scope of law's influence. The article also considers other legal and policy changes that could help to encourage disclosure.
Monday, February 26, 2007
Story here, quoting me. The quotes are accurate; I'm not positive I said what I meant very precisely, but so it goes sometimes. Certainly the key idea -- that I'm not altogether comfortable with the use of nuisance law on these facts -- is stated accurately. I could likely have been clearer that the court (and jury) presumably found some level of fault by the defendants; my efforts to emphasize my lack of knowledge of the facts obscured that point.
That's pretty bold.
The state Supreme Court is being asked to decide whether hundreds of doctors are immune from negligence suits in the care they provide at Virginia's three teaching hospitals.
At issue is the largely abandoned, decades-old protection of charitable immunity, remnants of which are being used by tax-exempt foundations and the doctors they employ to plead immunity from malpractice suits. Lower courts across the state have issued opposite opinions on the defense.
Sunday, February 25, 2007
The practice of using punitive damages to punish a tort defendant, in a single case brought by a single one of many victims, for the full scope of societal harm caused by its entire course of wrongful conduct has become increasingly common in modern tort cases. This practice presents the troubling possibility that more than one victim will recover punitive damages awards that were each designed to punish the defendant fully for the same course of wrongful conduct, resulting in unjustly severe cumulative punishment. Many courts and commentators have responded to this “multiple punishment” problem with complex and far-reaching proposals designed to protect against it. This Article argues that these observers have been asking the wrong question. The proper question is not whether awarding these “total harm” punitive damages to more than one victim can sometimes lead to unconstitutional results, but rather whether awarding these damages to even a single victim is itself unconstitutional. This Article argues that it is.
These “total harm” punitive damages awards are a product of the modern conception of punitive damages, which imagines them as punishment for public, societal wrongs. This Article challenges the historical accuracy of this modern theoretical account, and reveals that historically, punitive damages were considered to be punishment only for the distinct, private legal wrong done to the individual victim. When the same conduct harmed more than one victim, the courts limited each plaintiff's recovery of punitive damages to the amount necessary to punish the defendant only for the private wrong done to the individual plaintiff. This Article argues that both historically and presently, the constitutionality of punitive damages is dependant [sic] upon their existence as punishment for individual, private wrongs, rather than public, societal wrongs. Thus, the revolutionary proposals offered by commentators seeking to solve the multiple punishment problem go both too far (by declaring that the Constitution requires radical alterations to traditional punitive damages practice) and not far enough (by assuming that the constitutional infirmity of “total harm” punitive damages lies only in multiple awards of them). This Article argues that the constitutional concerns are best addressed by returning to the roots of punitive damages doctrine and re-implementing the historical conception of punitive damages as punishment for the private wrong done to the individual plaintiff.