TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, May 3, 2008

Scheuerman on Punitive Damages and Class Actions

TortsProf's own Sheila Scheuerman has posted Two Worlds Collide:  How the Supreme Court's Recent Punitive Damages Decisions Affect Class Actions on SSRN.  Here's the abstract:

This article examines the intersection between two controversial areas of the law - punitive damages and class actions - and argues that the Supreme Court's recent jurisprudence clarifying the due process limits on punitive damages has broad implications on the procedural laws governing the types of cases that can properly be certified as a class action. Specifically, the article discusses the Supreme Court's evolving approach to punitive damages from one that considered the harm a defendant's conduct caused to society as a whole to one that now focuses almost exclusively on the harm to the specific individual bringing the lawsuit. This shift, which recently culminated in the Court's 2007 decision in Philip Morris USA v. Williams, constitutionally requires that the amount of a punitive damages award relate to the amount of harm suffered by the party bringing the suit. That requirement is at odds with class action practices that treat punitive damages as a common, class-wide issue and that have allowed juries to assess a punitive damages award before evaluating the harm to the individual class members. The article argues, therefore, that where injuries are not uniform among class members, punitive damages cannot be pursued as a class-wide remedy.

I read an earlier draft, and it's thorough and thoughtful.


May 3, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (2)

Friday, May 2, 2008

Bridge Collapse Deal Reached

Minnesota legislators reached a deal to settle with the victims of last year's bridge collapse, reports the Strib. The default payment cap is $400,000, but a second fund will provide compensation for "extraordinary" losses -- medical expenses above $400,000 and the like. Those accepting the payments will waive future claims. It appears that victims are supportive of the bill.


May 2, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Medical Malpractice: Actors, Flaws, and Reform (II)

Yesterday, I started this med mal series here.  I'll finish discussing the flaws next week.

II.          Flaws

               The first problem with medical malpractice litigation is uncertainty, both as to liability, and as to the proper amount to award for pain and suffering.  Uncertainty leads to two further problems:  delay and high transaction costs. 

          A.          Uncertainty

               In the medical context, the problem begins with the sheer number of potentially negligent defendants:  physicians, nurses, hospitals, equipment and drug manufacturers, etc.  Add to that the complexity of the evidence.  Any fault, whether multi or monocausal is difficult to prove due to the intricate nature of the human body.  That is especially true given that adverse consequences due to a physician’s negligence—if any—must be separated from preexisting conditions that simply further developed during the course of treatment.

               In attempting to single out the blame of these actors, the fault standard gives limited guidance.  The health care provider is supposed to act “reasonably,” with custom typically dispositive as to reasonableness.  However, in all but the clearest cases, there are medical experts who will opine both that there was and was not a breach of the standard of care.

               The problem of uncertainty is perhaps worse in determining the amount of a plaintiff’s pain and suffering damages.  There is, after all, no market by which to determine the amount of pain and suffering.  In comparing the vagueness of punitive damages (which are regulated by the Constitution) to the vagueness of pain and suffering damages (which are not), Professor Mark Geistfeld points to the California jury instructions.  Mark Geistfeld, Constitutional Tort Reform, 38 Loy. L.A. L. Rev. 1093, 1105-06 (2005) (quoting California Jury Instructions-Civil 14.13).  To say the standard for measuring pain and suffering is uncertain is merely to paraphrase the instruction itself:  “No definite standard [or method of calculation] is prescribed by law.”

               As a result of the uncertainty in assessing pain and suffering, legally irrelevant factors such as poverty, race, gender, and even whether judges are elected influence the amounts awarded by juries.  See, e.g., Eric Helland & Alexander Tabarrok, Judge and Jury:  American Tort Law on Trial (2006); Edie Greene & Brian H. Bornstein, Determining Damages:  The Psychology of Jury Awards 55-57 (2003).



May 2, 2008 | Permalink | Comments (1) | TrackBack (1)

Sebok on Nagareda's Mass Torts in a World of Settlement

Professor Anthony Sebok's book review, What Do We Talk About When We Talk About Mass Torts?, 106 Mich. L. Rev. 1213 (2008), is available here.  Sebok reviews Professor Richard Nagareda's Mass Torts in a World of Settlement (2007), available here.

Via Stier/Mass Tort Litigation Blog.


May 2, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2008

Medical Malpractice: Actors, Flaws, and Reform

          Today I'm beginning a multi-post series on medical malpractice litigation.  The posts are inspired by a book I'm publishing with Jeffrey O'Connell, A Recipe for Balanced Tort Reform.  It should be available in June.  Of course, all comments are welcome.

I.         Actors

          There is considerable antagonism among the actors involved in the medical malpractice litigation system:  lawyers, health care providers, and liability insurers.  In particular, there is enmity between plaintiffs’ lawyers and insurers (with health care providers generally aligned with insurers).  The sides each blame the other for perceived problems in the system.  The vilification is unfortunate, but perhaps understandable.


          It seems to me that each group of actors is simply responding to incentives.  In other words, to the extent there are problems with medical malpractice law, it is not generally due to the illicit conduct of either the plaintiffs’ bar or insurers (and certainly not health care providers).  They are behaving largely as one would expect, given the adversary system in which they operate.  Insurers are in business to make a profit.  They want to maximize the amount of premiums collected and minimize the amount of settlements and judgments paid out.  Plaintiffs’ attorneys are also in business to make a profit.  The contingent fee provides their incentives.  The more claims they can settle or win, and the higher the value of those claims, the better.


        Although that sounds stark (perhaps even critical), it’s not meant to be.  All of the actors in this system have positive roles to play.  We want them to play their roles, and there is a good reason for the incentives.  The benefits we receive from health care providers are too obvious to require elaboration.  Medical liability insurers are necessary because health care providers are necessary.  Insurers allow health care providers to spread the risk of liability.  Many med mal judgments are so large they would financially crush even the wealthiest health care provider.  Even if there is a defense verdict, the costs of defense are often steep as well.  Few people considering a medical education would invest the necessary money, only to risk a reasonable possibility of financial ruin through liability.


          Finally, plaintiffs’ lawyers have a positive role to play.  As valuable as health care providers may be, they are only human.  They make mistakes, and, because of the nature of their work, those mistakes can have serious consequences.  Plaintiffs’ lawyers bring lawsuits that can:  1. correct the wrong of an injury, 2. compensate the victim, and 3. provide cost-internalization.


        The problems lays not so much with the actors in the malpractice system, but in the content of the rules that goven it.



May 1, 2008 | Permalink | Comments (4) | TrackBack (1)

Wednesday, April 30, 2008

Top 10 Torts Downloads on SSRN

Listed below are the top 10 downloads for papers posted on SSRN from March 1, 2008 to April 30, 2008 in the Journal of Torts & Products Liability Law:

1 161 The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons
Symeon C. Symeonides,
Willamette University - College of Law,
Date posted to database: March 9, 2008
Last Revised: March 9, 2008
2 109 Fault in Contract Law
Eric A. Posner,
University of Chicago - Law School,
Date posted to database: March 17, 2008
Last Revised: March 17, 2008
3 96 Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights
Eric Claeys,
George Mason University School of Law,
Date posted to database: April 9, 2008
Last Revised: April 22, 2008
4 75 The Original Sense of the (Equal) Protection Clause: Pre-Enactment History
Christopher R. Green,
University of Mississippi - School of Law,
Date posted to database: March 4, 2008
Last Revised: April 18, 2008
5 75 The Wreckage of Recklessness
Geoffrey Christopher Rapp,
University of Toledo - College of Law,
Date posted to database: March 13, 2008
Last Revised: March 21, 2008
6 73 Tort Negligence, Cost-Benefit Analysis and Tradeoffs: A Closer Look at the Controversy
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: April 11, 2008
Last Revised: April 16, 2008
7 68 The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application
Christopher R. Green,
University of Mississippi - School of Law,
Date posted to database: March 5, 2008
Last Revised: April 18, 2008
8 66 An Article III Defense of Merits-First Decisionmaking in Civil Rights Litigation: The Continued Viability of Saucier v. Katz
Sam Kamin,
University of Denver Sturm College of Law,
Date posted to database: March 10, 2008
Last Revised: April 25, 2008
9 60 Tort Damages
Louis T. Visscher,
Erasmus University Rotterdam (EUR) - Erasmus School of Law,
Date posted to database: March 19, 2008
Last Revised: March 19, 2008
10 58

Privacy, Ethics, and the Meaning of News
Amy Gajda,
University of Illinois College of Law,
Date posted to database: March 10, 2008
Last Revised: March 26, 2008


April 30, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Second Circuit Weighs In on NYC Menu-Calorie-Regulation

As noted yesterday, a federal district judge has upheld the NYC regulation requiring chain restaurants to post calorie information.   The United States Court of Appeals for the Second Circuit has now lifted a stay, allowing the law to go into effect.  The city, however, has agreed to delay issuing any fines under the new law until July 18th.   As WNBC reports, yesterday's oral argument on the stay might have foretold at least one Judge's position on the merits:

In arguments earlier Tuesday, [Restaurant Association lawyer Kent] Yalowitz said restaurants believe federal laws pre-empted local efforts to try to regulate how restaurants describe the contents of their food. He said the First Amendment rights of restaurants protected them as well.

Judge Rosemary Pooler noted that cigarette packages contain health warnings. "If we were to adopt your view, no warnings would ever appear on anything," she said.   


April 30, 2008 in Current Affairs, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2008

Would You Like to Supersize?

On April 16th, U.S. District Judge Richard J. Holwell upheld New York City's revised Regulation 81.50, which require restaurants to post calorie information on menus.  As previously reported, Judge Holwell struck down the original regulation last September.  The original regulations only applied to restaurants that already had voluntarily disclosed nutrition information to their customers.  Judge Holwell concluded that the original regs were preempted by the federal Nutrition Labeling and Education Act of 1990 because the NLEA regulated voluntary disclosure of nutrition information by restaurants.   

In his latest opinion, however, Judge Holwell found that the revised regulation "is not preempted by NLEA because that statute explicitly leaves to state and local governments the power to impose mandatory nutrition labeling by restaurants."    Judge Holwell also rejected a First Amendment challenge by the Restaurant Association.  The New York Law Journal (via has a full report on the decision. 

The new regulations took effect on Monday, April 21st, and only apply to chain restaurants with at least 15 outlets across the country.  WNBC reports that the Health Department will not start fining restaurants until June 1st. 


April 29, 2008 in Current Affairs, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

Utah AG Calls for Punitive Damages Cap

On Monday, Utah Attorney General Mark Shurtleff stated that he is open to a cap on punitive damages awards. 

To help improve the state's legal climate, Shurtleff said caps on punitive damage awards would, among other things, help prevent physicians from being driven from Utah by skyrocketing medical malpractice premiums, as has happened in Nevada.

"A lot of times those punitive damages awards are outrageous, and the cumulative effect, particularly when it comes to medical malpractice litigation, can create a situation like they have in Nevada," Shurtleff said.

Doctors are just leaving the Silver State because they can't afford their insurance premiums anymore, "and a big part of that is because of these horrific damage awards that are being awarded in some of these cases," he said.

Via Legal Newsline.


April 29, 2008 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, April 28, 2008


That's me on the right; on the left is my friend and colleague Sam Charron, assistant director of career services and public interest coordinator at the School of Law:


(Why, you ask, am I wearing a bathrobe?  Good question.  Read on...)

Our school's chapter of Equal Justice Works was the beneficiary of the spring auction this year.  As I have with past auctions, I donated a "Tortious Tour of Six Flags," where I'll take students to Six Flags New England and discuss various incidents there as well as the safety record of the amusement industry generally (both our local park and the industry are quite good overall).  A couple of my evening students went together and donated $100 for that.

But this year Sam and I also said that if students bid at least $500, we'd shave our heads in a dignified public ceremony (straight razors were expressly prohibited).

Well, they made it (actually exceeded it, raising nearly $600 on that item):


My kids are used to it and enjoy rubbing my head for luck.  My wife...well, no doubt she'll look at me again someday.

The auction as a whole raised nearly $5,000 to go towards public interest stipends.  That's in addition to the law school's public interest scholars' program.


April 28, 2008 | Permalink | Comments (0) | TrackBack (0)

Obama & Liability Reforms

On his much-hyped Fox News appearance, Barack Obama cited his support of tort reform (presumably CAFA) as evidence of independence.  Point of Law is underwhelmed.


April 28, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Sunday, April 27, 2008

That's Rather More Warnings Than I'm Used to Seeing on Soda Bottles

My daughter went out for sushi the other night with a friend's family (at age 9, she's more adventurous, food-wise, than I was by 25).  She came home with a bottle of Ramune, a Japanese soft drink.  I will try to get a picture of the bottle up later, but for now, check out Wikipedia's.  What's hard to see in photos is that the bottle contains a marble, which is used to seal the bottle (the carbonation holds it in place).  Before drinking, the user pushes the marble into the bottle by way of a supplied plunger; the marble then hangs out in an upper part of the bottle where one challenge is to drink the soda without the marble re-sealing the bottle.  (The bottle has a little notch in the upper part that helps the user with that.)

Anyway, it struck me mostly because of all of the warnings:


  • DO NOT SWALLOW THE PLUNGER.  Throw it away immediately after opening.
  • Adults should open the bottle for small children and supervise drinking.
  • Do not try to remove the marble from the bottle to avoid injury. 
  • Do not freeze the bottle or store it in direct sunlight.
  • Do not consume if the marble is broken, missing, or descended before opening.

I've already written my products exam this term, but there's all sorts of fun possibilities here...


April 27, 2008 in Products Liability | Permalink | Comments (0) | TrackBack (0)