November 15, 2008
Scales Reviews Abraham's "Liability Century"
Adam Scales (W&L) has posted his review of Kenneth Abraham's The Liability Century on SSRN. Here's a sample:
In this Book Review, I provide an overview of Abraham's major themes, comment on their persuasiveness, and offer some direction to readers for other sources they might wish to consider. As the passage above suggests, Abraham's thesis is that tort law and liability insurance enjoy a symbiotic relationship. Although tort law emerged first, and necessitated the development of insurance, each system has deeply influenced the other's path. Like the binary star, neither would be anything like its present self without the influence of the other.
Binary systems, however, form in nature. Abraham examines several instances in which the interaction of the very human institutions of tort and insurance law frustrated the hopes of their planners. The book is divided into eight chapters. Chapter One introduces the reader to the evolution of personal injury law and liability insurance. Chapters Two though Five each tackle discrete areas of reform throughout the modern history of liability law. Chapters Six and Eight further flesh out the major themes of the book, while Chapter Seven considers the legal response to mass disasters, including 9/11.
November 14, 2008
Personal Injury Roundup No. 15 (11/14/08)
It's been almost exactly a year since I started blogging here. I want to thank Bill and Sheila again for such a great opportunity. Now, on to torts...
Reform, Legislation, Policy
- Senate Finance Chair Max Baucus (D-MT) calls for legal reforms. (LegalNewsline)
- Classmates.com user sues; Alleges classmates weren't looking for him after all. (Wired)
- The brothers injured in the Christmas Day tiger attack at the San Francisco Zoo have filed suit. (Mercury News)
- Victims of Minnesota bridge collapse to bring suit. (CNN)
- Current and former high school students sue school district over sex story in newspaper. (The Seattle Times)
Sports and Torts
- A high school football coach is sued by his former player for assault and emotional distress. The coach allegedly made racially and ethnically charged remarks. The story is here.
- Man hit in the groin at a batting cage awarded $1.2 million. (Miami Herald)
Trials, Settlements & Other Ends
- Trial begins in suit attempting to bankrupt Klan group. (CNN)
- District court rejects challenge to Exxon Valdez payment plan. (Cal Punitive Damages)
- MO Court of Appeals allows punies 75X compensatory award. (Cal Punitive Damages)
- Study: Tax increase on alcohol saves lives. (CNN)
- Alternatives to the tort system: Med mal in Saudi Arabia--15 years in prison and 1,500 lashes (Overlawyered)
Thanks to Eric Turkewitz and Bill.
November 13, 2008
Baucus Plan Has Liability Changes
Max Baucus has introduced a health care reform proposal. Among its provisions is an attempt to encourage states to adopt early-offer reforms, as well as "health courts" (with experts evaluating claims for compensation). Our own Chris Robinette has a book largely relating to early offer reforms.
Parchomovsky & Stein on Torts and Innovation
Gideon Parchomovsky (Penn/Bar-Ilan) and Alex Stein (Cardozo) have published their essay Torts and Innovation in the Michigan Law Review. The pdf link, courtesy of Co-Op, is here.
November 12, 2008
9th Circuit Imposes 3 to 1 Ratio on Punitive Damages Award
On Friday, the Ninth Circuit issued its opinion in Southern Union v. Irvin (pdf). The court previously had vacated and remanded the original punitive award, which was 153 times the compensatories. On remand, the trial court reduced the punitive damages award to $4 million, and the defendant appealed again. Notably, this time, the Ninth Circuit wasn't messing around - no remand; it decided that 3 to 1 was the right ratio and reduced the punitive damages award to just over $1.8 million.
November 11, 2008
Brand Name Manufacturer Liable for Generics Made by Competitor
In a stunning decision last Friday, the California First District Court of Appeal held that drug manufacturers could be held liable for harm caused by a competitor's generic version of the same drug. In its opinion (pdf), the court wrote: "Wyeth owes a duty of care to those people it should reasonably foresee are likely to ingest metoclopramide in either the name-brand or generic versions when it is prescribed by their physicians in reliance on Wyeth's representations."
As the Beck & Herrmann opine, the decision "effectively stands product liability law on its head." More on the decision from The Recorder/law.com and Pharmalot. Bob Egelko also has a report in the San Fran Chronicle.
Safer Alternative Design Requirement in Florida
The Florida Supreme Court is considering whether "plaintiffs who sue companies over design defects in inherently dangerous products such as cigarettes must find a safer design option to prove liability." The Daily Business Review (via law.com) has a full report.
November 10, 2008
Obama to Hit "Undo"
The Washington Post has an AP story that the incoming administration intends to reverse by executive order dozens of Bush administration actions, ranging from stem cell research to climate change-related actions. Not mentioned are the many regulatory agency efforts to increase the preemptive effect of regulatory actions by the FDA and other federal agencies; the administration might, I suppose, be waiting the outcome of Levine. The NYT has a similar story, again not mentioning products stuff specifically. Update: I wrote this too quickly, and only referenced executive order actions. The coverage more generally (including the NYT piece) is not limited to executive order actions, and I didn't intend to focus exclusively on executive orders. The issue is more about early action by the administrative, whether through executive order, regulatory action, or legislation. Thanks to Mark Herrmann for pointing out my vagueness.
As an aside, given the likely legislative response if the Supreme Court does find for Wyeth: I did a piece in the now-gone Minnesota Intellectual Property Review when I first came on the market that suggested that FDA determinations be given roughly the same deference as the PTO -- i.e., that a jury be directed to presume that the decision is correct and that to find counter to the decision would require clear and convincing evidence. (This is, if memory serves, similar to a state-created structure in...Texas? I don't remember where offhand, and my reprints are in my office while I'm at home.)
Perhaps something along those lines could be a semi-middle-ground, giving some protection but not outright preemption?
November 9, 2008
Tort Law Changes at Top of Oklahoma GOP's List
Oklahoma Republicans gained solid control of both legislative branches in last week's election. The governor is still a Democrat, and one who vetoed liability changes last year, but legislators think they may now be able to get a veto-proof majorty.
The previous version of the bill included caps on noneconomic damages and a requirement for clear and convincing evidence of intentional conduct or gross negligence in order for punitive damages to be awarded.