February 16, 2008
McCain's Position on Tort Reform
Rush Limbaugh--no fan of John McCain--was asked by a caller to his show yesterday about McCain's position on tort reform. Limbaugh referred the caller to an assessment by The Club for Growth, an economically conservative interest group. Their summary is interesting, and certainly more relevant now than when it was released about a year ago:
Senator McCain's record on tort reform is generally positive. These votes include:
- Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys' fees in non-cash settlements
- Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms
- Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists
- Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits
This generally positive record, however, is tarnished by Senator McCain's sponsoring of and outspoken support for the Patients' Bill of Rights, which encouraged an increase in the number of frivolous lawsuits filed against healthcare providers. He also voted against the Litigation Uniform Standards Act, which limited the conduct of securities class actions under state law.
The full report, here (you'll have to scroll down to find "Tort Reform"), includes citations to the votes.
February 15, 2008
Vermont Seeking a Torts Visitor
Vermont Law School may need a visitor to teach Torts in fall semester 2008. This is a one-semester, four-credit class. If you are interested, please contact Vice Dean Stephanie J. Willbanks.
Stephanie J. Willbanks
Vice Dean for Academic Affairs and
Professor of Law
Vermont Law School
PO Box 96, Chelsea Street
South Royalton VT 05068
Solomon on "Judging Plaintiffs"
With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.
In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral theorists: Why do we judge plaintiffs - their conduct, state of mind and other factors - to determine liability in tort law? This Article attempts to answer that question, and in doing so, shed light on contemporary theoretical, doctrinal, and practical debates about tort law.
To do so, I first recast a variety of disparate doctrines in tort law as instances of a singular phenomenon "judging-plaintiffs law" and argue that existing explanations of this phenomenon fall short. Next, I suggest that judging-plaintiffs law can be explained and unified through a principle of self-help. Then, I argue that a new moral theory of tort law, civil recourse theory, is uniquely well positioned to explain why plaintiff's capacity for self-help ought to lead to a judgment of no liability.
Finally, I suggest that my interpretation of judging-plaintiffs law lends support to a more robust "right of action" concept in civil recourse theory, and I describe the doctrinal and practical payoff of such an analytic move. I aim to help move the debate over tort theory and doctrine forward by placing civil recourse theory at the center of the discussion.
Turner Apologizes to Cage
On Wednesday, Sheila posted that Nicholas Cage was suing Kathleen Turner for defamation in London's High Court based on a few sentences Turner wrote in her autobiography. Sheila also reported that, according to the New York Daily News, "If [Cage] doesn't get an apology and a retraction, he intends to go full speed ahead with litigation in the U.S." Apparently Turner has apologized for "causing distress." However, it appears she did not retract her statements. According to the San Francisco Chronicle, Turner said, "This is what I remember, these are my thoughts and (they were) certainly not intended to damage anyone else." It almost sounds like that's an attempt to place her statements in the "opinion" category. However, her statements about Cage--he was allegedly arrested twice for DUI and, possibly, once for stealing a dog-- are factual.
February 14, 2008
A Sizzler Lawsuit in Arkansas
On Easter Sunday of last year, a seven-year-old boy was thrown from a Sizzler in Arkansas and died. His parents and estate have filed suit, with the amended complaint alleging negligence by the ride operators and manufacturer. The focus appears to be on the ride lacking seatbelts -- it has only a lap bar, which does not do much to prevent riders (especially young and small riders) from getting out of position.
The defendants deny liability and assert, among other defenses, comparative fault and assumption of risk, so far as I can tell from the article.
Arbitration Agreements a "Trend" in Health Care
My former hometown newspaper, the Philadelphia Inquirer, published an article over the weekend about a growing trend in the medical profession: the use of arbitration agreements. According to the article:
Legal experts say such attempts to channel potentially unhappy patients away from the court system and into arbitration are becoming increasingly common in health care. Agreements to settle future disputes with binding arbitration, in which an appointed individual or small panel decides the case instead of a judge or jury, are now pervasive in contracts involving many other things we buy, including credit cards, cell phones and cars.
Temple's Bill Woodward is quoted as saying the the growth of a private judicial system "is a pretty nasty legal development" that is "just crying out for correction from Congress."
Winkler Testifies in Ritter Med Mal Trial
In keeping with Sheila's torts-and-pop-culture vein (see yesterday's "Peggy Sue Got Sued"), this post is about two of the biggest stars of 1970's sitcoms: Henry Winkler ("Happy Days") and John Ritter ("Three's Company"). Yesterday, Winkler testified in the medical malpractice suit brought by the family of the late John Ritter. Winkler was a combination fact and damage witness, in that he was a long-time friend of Ritter's and was on the set of "Eight Simple Rules for Dating My Teenage Daughter" on the day Ritter died. I'm a little chagrined to say this, but E!Online has the details.
February 13, 2008
Peggy Sue Got Sued
BBC News reports that Nicholas Cage has filed suit against Kathleen Turner in London's High Court for "defamation, libel and slander" based on a few sentences in her forthcoming autobiography. The pair starred together in "Peggy Sue Got Married" back in 1986. According to the New York Daily News, "If [Cage] doesn't get an apology and a retraction, he intends to go full speed ahead with litigation in the U.S."
(If you'd like to see the allegedly defamatory paragraph, visit US Magazine.)
Don't Like Web Content? Try Suing Google
Techdirt reports that two Australian real estate agents are suing Google for linking to an allegedly defamatory article about them. The suit has been filed in Australia and appears to bring common law defamation claims against Google. (Via WSJ BizTech Blog).
February 12, 2008
Record-Setting $28 Billion Punitive Damages Award Reversed Under Williams
The California Court of Appeals recently issued its decision in Bullock v. Philip Morris USA, where the jury originally awarded a land-mark $28 billion (yes - billion with a "B") punitive damages award against Philip Morris. The trial court reduced the award to $28 million, and the case has gone up and down the California appellate system in light of State Farm and now Williams.
In the latest opinion [pdf], the California Court of Appeals reversed the punitive damages judgment based on the trial court's refusal to give the company's proposed instructions. The first instruction stated "You are not to impose punishment for harms suffered by persons other than the plaintiff before you." The second instruction stated "You are not to punish defendant for the impact of its conduct on individuals in other states or other countries." The court noted that "Philip Morris had no duty to qualify its proposed instruction in order to encompass a rule of law favorable to [plaintiff] concerning the permissible use of evidence of harm caused to others." The court has ordered a new trial on the amount of punitive damages.
"The Pop Tort"
Eric Turkewitz alerts us to a new blog, The Pop Tort. The Pop Tort is run by staffers at the Center for Justice & Democracy, which in turn is a non-profit "consumer organization...working round-the-clock to fight [the tort reform] movement."
February 11, 2008
Hilden Addresses Reputational Harm Online
Julie Hilden's Writ column (up now) addresses eBay's recent decision to disable sellers' comments on buyers, and starts a two-part discussion of reputational harm and remedies in the online context.
That Didn't Take Long
A couple of weeks ago, I noted some mutterings about Botox fatalities, mostly (if not exclusively) in the non-cosmetic use, where it's used for certain palsies. At the time, there were no AdSense ads, and indeed the Google results for relevant terms were not directed to client recruitment.
Not any more.
After a lot more coverage (including a post at Point of Law that suggests, I think incorrectly*, that it could become a significant mass tort), the ads and well-placed sites have started to pop up. Behold:
Not just paid spots, either, you'll note - Kline & Specter (which I think must have a New Tort Mad-Lib Web Generator, along with Mark & Associates, which has the paid spot) has the top spot in the unpaid results.
*Why I think it's incorrect, at least for now, to predict Botox as a significant mass tort: when the Bad Thing happens, it's very bad but very rare. I haven't seen any coverage that suggests that there are any lesser-included-Bad-Things to even credibly allege. No doubt some (most? all?) of the people who suffer the worst side effect will bring suit, but it appears to be a very small number. (There was a high-profile suit in 2004 about "life-altering headaches" but that appears to have been a one-off.) It's clearly not impossible for it to turn into a big claim -- it'd be a dream case for many reasons -- but for now, I don't think there's enough to make that prediction.
February 10, 2008
Bashman on Williams
Howard Bashman has a Law.com column about the Oregon Supreme Court's affirmance of the $79.5 million punitive damages award against Philip Morris. He ends with some advice (directed at junior associates, but it's likely as well directed to senior folks too):
It is worth emphasizing, in closing, that the reason Philip Morris failed to benefit from the U.S. Supreme Court's punitive damages ruling in its favor in this very case is that the trial lawyers for Philip Morris tried to slant their proposed punitive damages instruction too far in the defendant's favor. Had the company's proposed punitive damages instruction faithfully tracked the applicable Oregon statute, the Supreme Court of Oregon's ruling would have likely set aside the jury's punitive damages award and granted a new trial. The next time young litigation associates are pondering how far to twist the law in the client's favor in proposed jury instructions, it's best if they remember: Attempting to gain your client some subtle, modest advantage could backfire and eventually cause your client to lose its ability to overturn a nearly $80 million punitive damages award.