January 26, 2008
Challenge to West Virginia Med Mal Reform
On Thursday, I posted about two states, Ohio and Texas, that passed significant medical malpractice reforms in 2003. Another state that did so was West Virginia. This week, the West Virginia Supreme Court heard arguments in a case challenging one of those reforms, the "certificate of merit" requirement in malpractice cases. The plaintiff claims the requirement is an undue burden; physicians will not sign the certificate because of an association with the defendant or they will charge exorbitant fees to do so. The plaintiff claimed the fee was "upwards of" $40,000.
The facts of this case are somewhat bizarre, and may make it difficult to focus on the underlying issues. The plaintiff himself is a physician, he was not represented by counsel for most of the litigation, and plaintiff's claims include a battery allegation in which he was held down by defendant's assistants and had a stent removed (despite his repeated demands to stop the procedure). The story is here.
January 25, 2008
One Month from Today...
...is the Crimtorts symposium at Widener.
Here's the lineup:
Punitive Damages Panel:
Some of the country's leading scholars will be addressing an interesting and innovative legal concept. Please come join us for what promises to be a fantastic event.
Viscusi on Hedonic Damages
Last week, Kip Viscusi posted on SSRN The Flawed Hedonic Damages Measure for Wrongful Death and Personal Injury Compensation. Here is the abstract:
The payment of hedonic damages based on the value of statistical life will lead to excessive insurance and excessive deterrence in personal injury cases. The value of statistical life can play a constructive role in assessing negligence and liability. The recent proposal that wrongful death victims be awarded hedonic damages in addition to both economic damages and noneconomic damages to compensate for the harm to survivors will produce rampant double counting and will transform wrongful death awards in a very inefficient and undesirable manner. Recent attempts to set compensation levels by chaining the value of statistical life with measures of happiness and disability reflect a fundamental misunderstanding of the value of statistical life literature.
January 24, 2008
"Traction Park," "Fracture Park": One Facility, Dozens of Hypotheticals
New Jersey's Action Park was an amusement facility open in various incarnations from 1978 to 1996. It was, in broad terms, designed to feature relatively extreme attractions with an unusual degree of patron control over their experiences. That combination resulted in a remarkable number of injuries and fatalities -- and all sorts of ideas for torts hypotheticals. The location now houses the much less extreme Mountain Creek Waterpark.
Among the injuries noted in various sources in its incarnation as Action Park are (a) an electrocution in a water ride; (b) head injuries (one fatal) and injuries on an alpine slide (where patrons control their speed going down a concrete trough); (c) drownings in the wave pool (nicknamed the "Grave Pool"); (d) various injuries from very fast go-karts (employees allegedly would bypass the speed governor); and (e) a variety of injuries from the park's most notorious ride, a looping waterslide. Yes, a looping waterslide:
The looping waterslide apparently almost never actually operated, though it was there for years. There have been various reports of another waterslide designer trying to make one less likely to injure.
If you're looking for examples of Bad Ideas™ combined with potential comparative fault and/or assumption of risk, some sources for you:
- The Wikipedia entry, while including a snippy note about it not complying with editorial guidelines, consolidates a lot of information from other sources. All reliable? Perhaps not, but filled with truthiness, and that's enough for exams, no?
- Weird NJ's page has some more details, including a scan of a newspaper article in which the park was sued for negligence when a lifeguard apparently hit a patron in the face with a life preserver when trying to toss the man the live preserver.
- The not-terribly-tasteful Domain of Death 3 has additional stories.
- Finally, former employees post entertaining stories at Center of the Action, a blog about their experiences.
And why not? An apparently-unavoidable-at-the-time ad that might be in the mix in any hypothetical suit:
Medical Malpractice Claims Decrease in Ohio
As part of a series of Ohio reforms, the Insurance Department was required to compile data on medical malpractice claims. The initial report was issued last year, making this the first year a comparison could be conducted. In 2005, there were 5,051 med mal claims filed in the state. In 2006, only 4,006 claims were filed, a decrease of approximately 20%.
The Insurance Department attributed the decrease to changes made by lawmakers five years ago. Those changes included caps for pain-and-suffering, and attempts to restrict "frivolous" claims against doctors. The story is here.
Because Texas seems to have had an influx of physicians following relatively similar tort reforms in 2003, I was curious whether Ohio had been likewise affected. The State Medical Board of Ohio has licensing statistics on its website, but only through 2005. I don't see any evidence that the reforms had a significant effect on licensing, but I didn't run statistical tests on the figures. Will more data show bigger changes? Will the Ohio Supreme Court's blessing of the tort reforms convince other doctors to come? Or is there something that separates Texas from Ohio? The weather? The lack of a state income tax?
January 23, 2008
Edwards on Clinton on Trial Lawyers
I'm on the John Edwards mailing list, having given a small contribution. Today, I got this:
Throughout this campaign, John Edwards has spoken with pride of his life as a lawyer, providing a voice for those who would otherwise be voiceless in our justice system.
But in Monday night's presidential debate, Hillary Clinton shared a different viewpoint. To her, trial lawyers are no more than another Washington special interest, focused only on selfishly influencing the outcome of this year's election.
For her, the individual contributions made by attorneys to John's campaign equate to the hundreds of thousands of dollars she has received from lobbyists and public action committees. John has never taken a dime from special interests or PACs -- and Hillary Clinton is wrong to make the comparison.
I was proud of the way in which John came back forcefully and spoke passionately of the difference lawyers make every day for American families who have been victimized by negligent acts of large companies.
Take a look at the debate exchange on trial lawyers between John Edwards and Hillary Clinton for yourself.
You decide for yourself who truly understands the legal community and the importance of lawyers: Hillary Clinton or John Edwards?
Please support John as he campaigns across America to provide a voice for those who have no voice, speaking out with no fear or favor.
National Campaign Manager, John Edwards for President
January 23, 2008
Calorie Counting in New York City
The New York Times reports that New York City once again is going to require restaurants to post calorie content on menu boards. The Board of Health revised the regulations following a decision last September by U.S. District Judge Richard J. Holwell striking down the original regs. (In an interesting note given the buzz on preemption these days, Judge Holwell found that the original regs were preempted by the federal Nutrition Labeling and Education Act of 1990).
Under the revised regs, "any chain that operates at least 15 outlets nationwide would have to display calorie content on their menu boards, menus or food tags — essentially wherever the restaurant lists the information that customers use to make their choices." The regulations are scheduled to take effect March 31st, but the New York State Restaurant Association is considering a lawsuit.
Vladeck on Preemption
In The Emerging Threat of Regulatory Preemption, Georgetown University Law Center Professor David C. Vladeck examines how, in his view, regulatory agencies have attempted to insulate regulated industries from state tort law claims by slipping preemption language into regulatory preambles. Professor Vladeck traces this “preemption by preamble” campaign in several key agencies, such as the Food and Drug Administration, and highlights the serious procedural and substantive issues involved. Procedurally, making preemption determinations in a regulation’s preamble (the introductory language that often precedes the actual regulation) is setting policy in a way that is “neither transparent nor democratic,” insulating it from the political process and formal notice-and-comment procedures. Substantively, permitting such preemption raises separation of powers concerns, as it could be viewed as an “effort by the Executive Branch to arrogate power that properly belongs to Congress.” Professor Vladeck argues that decisions “on whether to displace state law to achieve federal objectives are quintessentially legislative judgments that Article I, Section I of the Constitution entrusts to Congress.” Historically, state tort and damages law have served important and complementary roles to federal regulation, and tampering with that balance should not be undertaken lightly. Professor Vladeck concludes by cautioning that “[w]hile the public watches the Supreme Court wrestle with the preemption questions presented in Riegel v. Medtronic, and perhaps in Wyeth v. Levine, the more troubling action is taking place out of public view,” a quiet erosion of tort law remedies and the health and safety benefits they entail.
January 22, 2008
Lawyers Ready? Gladiators Ready?
(Welcome, AboveTheLaw readers.)
I admit to some hesitation in acknowledging watching American Gladiators, which is not by any rational measure a particularly good show. And yet there it sits on our TiVo, and yet we watch it. Such is the mystery of life, no?
But today, I get to tie it in both to my law school and to Torts.
Last night (watch the full episode here) one of the contestants, Jennifer Blum, was identified as a New Jersey lawyer and a professional football player (she plays for the New York Sharks and is their all-time leading scorer). A quick search of our alumni database reveals that she's a 2002 graduate of Western New England College School of Law! Sources vary; I thought they said on the show that she's a criminal defense lawyer, but other sites indicate that she's a civil litigator. Maybe she reads this blog! (Sadly, 2002 was before I joined the faculty, so I don't know her.)
Blum won the competition last night, but her time on the Eliminator was insufficient to get into the final 8 (who have a chance at $100,000 and joining as a gladiator).
So, what did she have to agree to for her appearance? Let's look at the casting process.
In addition to attending one of several open casting calls (or submitting a videotape), applicants have to fill out a form [28-page PDF]. After getting through many questions (e.g., "If you had Aladdin’s lamp and 3 wishes, what would you wish for? (Rule: you can’t wish for money or more wishes)."), a bunch of required disclosures (ever been arrested? sued? in porn?), and extensive IP releases, we get to the waiver section. Some excerpts:
I AM AWARE THAT THE ACTIVITIES IN WHICH I MAY PARTICIPATE IN
CONNECTION WITH THE SERIES (INCLUDING WITHOUT LIMITATION, THE
CONTESTANT SELECTION PROCESS) MAY BE STRENUOUS AND/OR
DANGEROUS PHYSICAL AND/OR MENTAL ACTIVITIES, AND I AM
VOLUNTARILY PARTICIPATING IN THE SERIES AND RELATED ACTIVITIES
WITH FULL KNOWLEDGE, APPRECIATION AND UNDERSTANDING OF THE
DANGERS AND PERSONAL RISKS INVOLVED AND HEREBY AGREE TO
ACCEPT ANY AND ALL RISKS OF PARTICIPATING IN CONTESTANT
SELECTION AND/OR IN THE SERIES, INCLUDING BUT NOT LIMITED TO,
ILLNESS, SERIOUS PERSONAL INJURY, DEATH AND/OR PROPERTY LOSS.
* * *
I irrevocably authorize Am Glad Productions (“PRODUCER”) to conduct physical and
psychological examinations of me in connection with its selection of contestants in the
Series. I understand and acknowledge that I am solely responsible for determining
whether I am physically and mentally able to participate in the Series, and that the
opinion of medical personnel contracted by Producer to conduct physical and mental
examinations of me regarding my fitness to participate in the Series is not a substitute for
my own judgment or that of my own physician.
* * *
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE RELEASING PARTIES
AND WE HEREBY RELEASE THE RELEASED PARTIES, AND EACH OF THEM,
FROM ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LOSSES,
COSTS AND EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS’ FEES) ARISING OUT OF, RESULTING FROM, OR BY REASON OF
MY PARTICIPATION ON OR IN CONNECTION WITH THE SERIES, OR MY
APPEARANCE ON THE SERIES, THE FAILURE OF PRODUCER TO SELECT ME
AS A CONTESTANT, THE CANCELLATION OF THE SERIES, OR THE EXERCISE
BY PRODUCER OR ANYONE ELSE OF ANY RIGHTS GRANTED BY ME UNDER
THIS AGREEMENT. THE RELEASED CLAIMS SPECIFICALLY INCLUDE, ANY
CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES
OF ANY KIND RESULTING FROM THE ACTIONS OF ANOTHER CONTESTANT
OR ANY OTHER THIRD PARTY AT ANY TIME, OR FROM ANY DEFECT IN OR
FAILURE OF EQUIPMENT, WARNINGS OR INSTRUCTIONS, OR MY
APPLICATION OR PREPARATION FOR, PARTICIPATION OR APPEARANCE IN
OR ELIMINATION FROM THE SERIES, OR ACTIVITIES ASSOCIATED WITH
THE SERIES, WHETHER OCCURRING BEFORE, DURING OR AFTER MY
ACTUAL PARTICIPATION IN THE SERIES, AND WHETHER OR NOT CAUSED
BY OR ARISING OUT OF THE NEGLIGENCE OR GROSS NEGLIGENCE OF ANY
OF THE RELEASED PARTIES.
Minnesota Bridge Victims Take Steps To Sue
WCCO in Minneapolis (via AP) reports that at least 73 victims from last summer's bridge collapse have filed notices of potential legal claims with the State. As Bill noted in October, the State is considering a victims' compensation fund:
Bridge victims don't stand to get much from the state because of a law limiting the government's liability to $1 million per incident. But lawmakers are considering a compensation fund that would offer more to those who gave up the right to sue the state. A joint House-Senate panel takes up the proposal [today].
MDL Symposium at Tulane
Tulane Law Review is hosting a symposium on "The Problem of Multidistrict Litigation" on February 15th to 16th. Panels will discuss:
- The Workings of the Federal MDL Panel and the Selection of the Transferee Court
- Attorney Strategies and Ethical Considerations in MDL Practice
- Multidistrict Litigation: The New Solution to a Post-Class-Action Era?
- The State of State MDLs and State/Federal Coordination
- Bellwether Trials and Settlement Devices
- Practicalities of Multidistrict Litigation
- Ad Hoc District-wide MDLs / MMTJA
Speakers include Judge Lee Rosenthal (Chair of the U.S. Judicial Conference Committee on Rules Practice and Procedure), Judge Eldon Fallon (Vioxx), Richard Marcus (Hastings), Alexandra Lahav (Connecticut), Francis McGovern (Duke), as well as Dickie Scruggs (The Scruggs Law Firm) and Mark Herrmann (Jones Day, Drug & Device Law Blog).
January 21, 2008
Science News Online has an overview of some recent work on the subject of litigation-driven science that was presented at a 2006 Coronado Conference (presented by SKAPP at George Washington) and recently published. Many of the conclusions echo mine in this piece published in the Nebraska Law Review.
Torts and Race
I believe I linked to this before, but it's worth another mention on MLK day -- Jennifer Wriggins (Maine) has an SSRN posting entitled "Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949." The abstract:
The essay explores the relationships between U.S. tort law, race, and legal culture in the first half of the twentieth century. The essay begins by highlighting two ways in which tort law and legal culture were glaringly white. First, whiteness was the default in the sense that litigants and witnesses were presumed to be white unless otherwise identified, and second, African-American people were excluded from decision-making roles in the tort system. Despite the whiteness of the civil justice system, black plaintiffs brought and won tort cases in all regions during this period. The tort system's institutional commitment to private enforcement and individualized resolution of claims resulted in significant access to the civil justice system for black plaintiffs. However, that same commitment to individualized resolution of tort claims allowed bias and inequality to devalue black plaintiffs' claims at every stage of tort litigation, in ways that were impossible to challenge. Despite the racist exclusions of the legal system and wider culture during this period, a theoretical commitment to equal treatment of tort victims persisted as an undercurrent in legal culture. Judges and others used a variety of attempted justifications, different in content but similar in structure, to rationalize their unequal treatment of black tort plaintiffs.