TortsProf Blog

NY: Gov. Paterson Suspends Increases in Med Mal Premiums

From the Kaiser Network:

New York: Gov. David Paterson (D) on Friday enacted a one-year moratorium on medical malpractice insurance rate increases, the New York Post reports. The moratorium, which will last until June 2009, could halt increases of up to 30% according to the state Insurance Department. According to the Post, New York physicians currently have the highest malpractice premiums in the U.S. Donna Montalto, executive director of New York's American College of Obstetricians and Gynecologists said, "We've been lobbying for years and years to get doctors some kind of reform. This year, because doctors are leaving the state because it's getting out of hand, they addressed it." According to Montalto, premiums result in the loss of about 30 obstetricians annually. The Post reports that obstetricians, who pay some of the highest premiums, have rates in New York City ranging from $129,851 to $154,027 annually. Michael Rosenberg, president of the Medical Society of the State of New York said, "The imposition of a premium increase at this time could have destabilized our health care delivery system to the serious detriment of our patients" (Bennett, New York Post, 8/23).

--CJR

Personal Injury Roundup No. 5 (8/29/2008)

Labor Day weekend marks the unofficial end of summer.    Down here in the south, we are keeping an eye on Gustav and Hannah as we prepare for our end-of-season cookouts.   

Reform, Legislation, Policy

• NAM reviews Senator Biden's voting record on reform issues. [Point of Law]
• The FDA has scheduled an Oct. 2d hearing on its plans to revise standards for OTC childrens' cough and cold meds. [WaPo]
• EU considers limits on civil liability of auditors. [Financial Week]
• FDA considers food allergy warnings; public hearing on Sept. 16th.  [WaPo, MassTortsProfs]
• Everyone takes a look at Senator Biden's ties to asbestos litigation.  [TortsProf, Law & More, USA Today, AmLaw/law.com, Overlawyered and again at Overlawyered]

New Lawsuits

• Extras seek $11 million from Tom Cruise for alleged injuries during the filming of Valkyrie.  [E! Online]
• Families of bicyclists killed by Santa Clara County sheriff's deputy file wrongful death suit against county.  [SF Gate]
• Seven current and former NFL players sue Swiss bank UBS for fraud.  [Am Law Daily]
• Malpractice action filed against Phillips & Cohen based on alleged failure to pursue a whistle-blower case.  [ABA Journal]
• Families of Nepalese workers killed in Iraq sue military contractor KRB under Alien Tort Claims Act.  [Reuters, BBC]
• New suit challenges South Dakota's law capping non-economic damages in med-mal cases.  [Capital Journal]

Trials, Settlements & Other Ends

• NY state judge declined to dismiss defamation suit against criminal defense lawyer.  [NY Law Journal/law.com]
• Vermont judge denied RJ Reynold's request to dismiss lawsuit by VT Attorney General (on behalf of VT and 35 other states) that challenges RJR's claim that its Eclipse cigarette "may produce less risk of cancer" than other cigarettes.  [BusWeek]
• Parties reach partial settlement in Exxon Shipping v. Baker (on remand from the Supreme Court's reduction of the punitive damages award this past summer).  [Cal Punitive Damages,  How Appealing]
• In the Vioxx settlement, Judge Fallon caps plaintiffs' counsels' fees at 32%. [AP/law.com, Overlawyered, Pharmalot, WSJ Law Blog]
• Nearly 6,000 claims have been filed in last year's pet food settlement class, but the number is expected to rise before the fairness hearing in October.  [PopTort]

Appeals

• New Jersey appellate court hold state Consumer Fraud Act applies where bank employee failed to to invest a client's money in a mutual fund as promised.  [NJ Law Journal/law.com]
• Eleventh Circuit upholds Graves Amendment, which prevents families of people injured or killed by the driver of a rental car from suing rental car companies for damages.  [Court's opinion, NY Personal Injury]
• Eleventh Circuit affirms trial judge's grant of summary judgment and exclusion of evidence allegedly linking Accutane to inflammatory bowel disease.  [Drug & Device]

Damages

• New Jersey appellate court finds $100k pain and suffering award "too low," and orders a new trial in med-mal case.  [NJ Law Journal/law.com]
• Ninth Circuit concludes restitution award can't serve as predicate for punitive damages under California law (and affirms vacatur of jury's $700 million punitives where $0 compensatory damages were awarded).  [Court's opinion, Cal Punitive Damages, AP/law.com]

Miscellaneous

• If you are interested in the Dickie Scruggs saga, you should check out Roger Parloff's seven-part series.  [Fortune]
• Beck & Herrmann analyze the decision (and provide a link to the court's opinion) in Gunvalson v. PTC Therapeutics, Inc., in which Judge William J. Martini of the District of New Jersey ordered the defendant pharmaceutical company to provide the terminally ill plaintiff with an unapproved, experimental drug.  [Drug & Device]

Goofy Stuff

• Court TV judge appointed to Supreme Court?  No, just the latest book from Christopher Buckley.  [WaPo Book Review]

Shameless Self-Promotion (favorite posts of this week)

• Sheila:  Big Caffeine?
• Bill: Gotta go with Tom Cruise getting sued, but at the same time note that his performance in Tropic Thunder is insanely great.

Thanks to:  Ted Frank and Anthony Franze for material. 

Have a happy Labor Day weekend!
- SBS

Stier on Issue Preclusion in Mass Torts

Our Mass Tort Lit Blog colleague, Byron Stier, has posted on Bepress Another Jackpot (In)Justice:  Verdict Variability and Issue Preclusion in Mass Torts.  The piece is essentially part II to Stier's similarly titled article on mass tort class actions.  Here is the abstract:

If there are no prior inconsistent verdicts, non-mutual offensive issue preclusion generally allows a finding by a single jury to bar relitigation, in future cases, of the issue by the defendant who lost in the prior case. This approach, however, ignores the possibility that the first verdict delivered may have been an outlier if further verdicts were permitted to be delivered. In mass tort litigation, such a flawed approach may result in critical issues such as defect or negligence being resolved by only six jurors, whose potentially outlier verdict is then applied to resolve the cases of thousands, perhaps bankrupting a company or an industry when most juries would not so hold. Focusing on mass tort litigation, this article presents the growing empirical evidence of verdict variability and then critiques the use of issue preclusion, whose downside is applied only against defendants, not plaintiffs, because only defendants were parties to the prior action. As a result, the article argues that courts should exercise their discretion to deny issue preclusion in mass tort litigation. Instead, courts should join the emerging consensus of mass tort management that ultimately better serves the goals of efficiency and public respect supposedly underlying issue preclusion: allow multiple verdicts to unfold a more balanced view of liability that will frequently be used for well-informed and far-reaching settlements.

--CJR

Sebok on Loser Pays

Tony Sebok participated in last week's NewTalk discussion of loser-pays rules.  He's now posted a Writ column about both NewTalk and the subject.

--BC

Biden & Asbestos

Sen. Joe Biden's connections to asbestos plaintiffs' lawyers has gotten a fair bit of attention.  Go here to find links to a pretty good sampling of the coverage.

--BC

Symeonides on Products Liability Conflicts

Symeon C. Symeonides (Williamette) has posted his 2004 Tulane article, "Choice of Law for Products Liability: The 1990s and Beyond," on SSRN.  The abstract provides:

This Article provides a comprehensive review of product-liability conflicts cases decided by American courts between 1989 and 2004 and involving significant choice-of-law questions.

Among the Article's findings are that choice-of-law methodology plays a less significant role in the courts' choice of the governing law than do other factors, such as the number and pertinence of factual contacts with a given state. For example, regardless of methodology, in 79% of the cases in which the product's acquisition and the victim's domicile and injury were in the same state, the courts applied that state's law, regardless of whether it favored the plaintiff or the defendant and regardless of whether that state was also the forum. Among the Article's unexpected findings are that, contrary to prevailing perceptions, forum-shopping is not as common or rewarding as critics assume, and that courts do not unduly favor plaintiffs as a class nor the law or the domiciliaries of the forum state.

The Article concludes that an all-inclusive review of the cases reveals that, on the whole, the record of American courts in resolving these most intractable of conflicts is much better than one might assume from a selective reading of a few cases. However, because this record entails a heavy cost in time and resources for courts and litigants, the Article proposes a new choice-of-law rule that would produce mostly the same results as the decided cases, but much more quickly and at a lower cost.

The proposed rule differentiates between liability and damages and, within certain narrow parameters, allows plaintiffs and secondarily defendants to choose the state whose law will determine liability. Surprisingly, this rule will not favor plaintiffs more than the decided cases, but it should increase the incentive for early negotiations with regard to damages and encourage settlements without resort to litigation.

- SBS

You Think Your Family Has Issues?

The WSJ Law Blog reports on a civil suit filed by Blackstone executive David Blitzer against his father-in-law Stuart Ross.   According to the Law Blog, "[i]n the civil suit filed Friday ... Blitzer accuses Ross of stealing $195,000 from him. The suit reportedly details Ross’s estranged relationship with his daughter, Allison Blitzer." 

The Law Blog also details criminal charges filed against Ross and his lawyer for trying to extort Blizter.

- SBS

Big Caffeine?

Is "big caffeine" the next "big tobacco"?    Timothy Sandefur of Pacific Legal Foundation thinks it is possible, while James Speta (Northwestern) disagrees.   LegalNewsline reports. 

- SBS

The FDA's New CBE Rule

The FDA issued a new final rule [PDF] relating to "changes being effected" -- i.e., changes that a drug manufacturer can make to its label without advance permission.  The focus of the changes is on emphasizing that it relates to new risk information, and that the CBE process isn't appropriate for tweaks to old risk information.  It also reiterates the FDA's position that compliance with its regulations results in preemption of state tort claims.

The Drug & Device Law Blog has more, following up on their first look back in January.  No surprise that they like the rule, but even if you disagree on the value of it, their analysis of its mechanics is worth reading.

--BC