Thursday, April 30, 2009
I've got a couple more days until the exams roll in for grading, so I'm off to Brooklyn for the weekend. Here's a look at some of what happened this week in tort law.
Reform, Legislation, Policy
- CEO of Universal Health Services, a hospital management company, thinks med mal liability reform should be on the table [CNBC]
- Developments in Oklahoma liability changes [Insurance Journal] (don't confuse this story with the much more entertaining story about Oklahoma naming the Flaming Lips' "Do You Realize" the official state rock song)
- Andrew Speaker of TB fame/infamy sues the CDC, who is no doubt not at all busy right now. [TortsProf]
- No suits yet (that I know of), but hotel lawyers are thinking about swine flu carefully. [Hotel Law Blog]
- Included only for the title: "Calzone Victim Files New Lawsuit." Yes, it really is about a calzone, the delicious cheesy foodstuff. [News-Journal Online]
Trials, Settlements & Other Ends
- Wyeth v. Levine decision breaks logjam; lots of pharma trials coming. [Bloomberg]
- Another trial starting in chicken litter cases in northwest Arkansas. [NWANews.com]
- Part of Arkansas tort reform measures struck down as unconstitutional. [Johnson v. Rockwell (PDF)]
- Suit over alleged overseas torture allowed to continue, rejecting "state secrets" defense. [Washington Post]
- Ron Miller asks for a link, I provide one. Plus, it's a good batch of links. [Maryland Lawyer Blog]
- Chris is looking for Prosser references in pop culture. I hope some hip hop artist somewhere has thrown in a Prosser line, perhaps rhyming with "bosser"? [TortsProf]
- Botox gets a black box in non-cosmetic use context, though patients getting the cosmetic use should be warned too (and, yes, there are Google ads for Botox Lawyer, and I bet this post will get some comment spam too). [WebMD]
Mark Geistfeld (NYU) has posted on SSRN Efficiency, Fairness, and the Economic Analysis of Tort Law. Here is the abstract:
Throughout its history, the economic analysis of tort law has been largely limited to one question: How should tort rules be formulated so as to minimize the social cost of accidents? Throughout its history, the economic analysis of tort law has also been controversial. The two phenomena are related. It is highly controversial whether tort law should minimize accident costs to the exclusion of fairness concerns, which in turn has fostered the belief that the economic analysis of tort law is controversial.
The most forceful critique has come from those who maintain that tort liability is best justified by the principle of corrective justice. This principle is based on an individual right that imposes an obligation or duty on another individual. A duty-holder who violates the correlative right has committed a wrong, creating a duty to repair or correct any wrongful losses suffered by the right-holder. This rights-based principle of justice purportedly rules out the economic analysis of tort law.
Such sweeping claims about the irrelevancy of economic analysis must be understood in context. If the appropriate rationale for tort liability is a rights-based principle such as corrective justice, then the justification for a liability rule does not depend on whether it is allocatively efficient. Economic analysis is “ruled out” for being irrelevant to the rights-based justification for tort liability.
Allocative efficiency does not need to be the norm of tort liability in order to make economic analysis relevant. Economic analysis is not limited to issues of allocative efficiency and cost minimization. It is an open question whether a rights-based tort system would employ economic analysis, and if so, how.
To address this question, I specify the substantive content of an autonomy-based, individual right that is both allocatively inefficient and fully compatible with the relevant requirements of welfare economics. As I have argued at length elsewhere, such a right also provides a good description of tort law. Thus, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of justice is mistaken. I conclude by arguing that economic analysis is integral to any plausible rights-based tort system.
Andrew Speaker, an Atlanta lawyer, has sued the CDC for privacy-related torts arising from the attention he received back in 2007 when the CDC publicized his international travel with what the CDC asserted was a dangerous form of TB. He contends that the publicity was unnecessary to achieve the CDC's public health goals and that it caused him harm (including ending his marriage).
We had several posts about the case at the time.
And now for something completely different. The end of classes finds me in a somewhat mellow mood, focusing on the lighter side of torts. In that vein, I'm curious about the number of references to Prosser on Torts in pop culture.
- In the 1991 movie "Doc Hollywood," Michael J. Fox's character encounters Julie Warner's character in a diner in fictional Grady, South Carolina. She is interested in eventually going to law school, and she's reading the famous tome.
- In Lisa Scottoline's 2006 novel, Dirty Blonde, on page 335, the main character is unpacking books in her judicial chambers. One of the books is, again, the famous tome. The heroine clearly had good taste in law classes: "Cate unpacked another book, Prosser on Torts. She had loved that class." (Thanks to my colleague Kathy Jones for the tip.)
- During the 2008 campaign, Prosser on Torts made an appearance on the website Things Younger than John McCain here.
Am I missing any?
Wednesday, April 29, 2009
Mark Behrens (SHB) has a new article coming out this week in the Texas Review of Litigation, "What's New in Asbestos Litigation?" published at 28 Rev. Litig. 500 (2009). Download What's New in Asbestos Litigation (pdf). The abstract provides:
Asbestos litigation is the "longest-running mass tort" in U.S. history. Since asbestos litigation emerged over three decades ago, lawyers who bring asbestos cases have kept the litigation going by adapting to changing conditions. Now, the litigation appears to be evolving once again. In the earlier years of asbestos litigation, most cases were filed by people with cancer and other serious conditions. From the late 1990s until recently, the vast majority of claimants were not sick. The mass recruitment of non-malignant claims has ceased, and the litigation is re-focused on people with mesothelioma (a type of cancer) and other serious conditions. The target defendants have changed too. First, the litigation was focused on companies that made asbestos-containing products. Then, when most of those companies went bankrupt, the litigation spread to premises owners in claims brought by independent contractors. Now, new companies and industries are being targeted, and new theories are being raised. New forums are also emerging. Plaintiffs’ lawyers are actively seeking out new jurisdictions in which to file their claims, largely driven by the desire to avoid reforms adopted in states that were once favored jurisdictions, such as Texas. The article discusses these trends and forecasts the types of claimants, places, and theories that are likely to dominate the civil court asbestos litigation landscape for the next several years.
Admittedly, this is not Torts-related, but I am so proud of my students that I ask your indulgence this one time.
In yesterday's ruling in FCC v. Fox Television Stations, et al., Justice Thomas cited an article in the Charleston Law Review's annual Supreme Court Preview. Specifically, Justice Thomas 's concurring opinion cited Charting a New Constitutional Jurisprudence for the Digital Age by Randolph J. May.
So, consider submitting an article to the Supreme Court Preview volume! The law review welcomes articles or essays addressing a case before the Court in its October 2009 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court. The Supreme Court Preview is published to coincide with the opening of the October Term, and the editors will begin reviewing submissions for next year's volume beginning July 1, 2009. Work must be submitted no later than August 1, 2009, and submissions are reviewed on a rolling basis. Please direct submissions and any questions about the Supreme Court Preview to Ben Garner, Editor in Chief, via email at bgarner [at] charlestonlaw.edu or via telephone at (434) 941-9831.
Tuesday, April 28, 2009
Monday, April 27, 2009
Prof. Ben-Shahar argues that those needs are all at least overstated. Audio and video at the link.
Saturday, April 25, 2009
Friday, April 24, 2009
On Thursday, PA Governor Ed Rendell cited statistics that med mal cases have declined 41% since early in the decade, and claimed that the changes are attributable to legal reforms. In 2002, PA instituted venue restrictions and required a certificate of merit prior to filing suit. The number of companies offering malpractice insurance in PA has climbed from 3 in 2002 to 57 today. Because of the changes, Rendell will not renew MCARE, the state-funded insurance subsidy program for physicians. The legislative counsel for the PA Association for Justice, which represents trial lawyers, said his members were satisfied with the changes because there were no longer calls for caps on damages. The Philadelphia Inquirer has the story.
As the semester winds down, tort law rolls on...
Reform, Legislation, Policy
- Nevada Supreme Court, citing a large backlog, arranges for retired judges to help settle med mal cases. (Las Vegas Business Press)
- Provisions of a Colorado bill that would have eased caps on med mal damages are removed. (Denver Business Journal)
- Nevada Assembly passes bill that would lift the cap for non-economic damages in med mal cases for gross negligence. (Las Vegas Sun)
- Public Citizen releases report ranking how state medical boards discipline physicians. (Public Citizen, via The Pop Tort)
- Tennessee bill to cap damages in nursing home cases appears dead. (The Pop Tort)
Trials, Settlements & Other Ends
- Trial judge upholds $416,500 jury award to former model in med mal case against her former doctor, who was treating her for depression when the two engaged in a sexual relationship. The jury found plaintiff-former model to be 25% at fault. (New York Law Journal, Newsday)
- Libel suit against Sasha Baron Cohen and Da Ali G Show dismissed. (The AmLaw Daily)
- Can podiatrists testify about causation for foot injuries? The Virginia Supreme Court decided to hear the appeal this week. (VLW Blog)
- Beck & Hermann thoroughly analyze the trend in PA law regarding the divide between negligence and strict liability. (Drug & Device Law)
Thanks to Sheila for content this week.
Thursday, April 23, 2009
Alan Brownstein (UC Davis) has posted to SSRN The Constitutionalization of Self-Defense in Tort and Criminal Law, Grammatically Correct Originalism, and Other Second Amendment Musings. Here is the abstract:
This article considers several issues raised by the Supreme Court’s opinion in District of Columbia v. Heller. One question is whether Heller requires the constitutionalization of self-defense decisions in tort and criminal law. If the Second Amendment protects the right to keep and bear arms for immediate self-defense purposes, as Heller holds, it arguably also protects the right to use firearms for self defense purposes. Put simply, does it make sense to interpret the Second Amendment to protect to the means to exercise self-defense without extending some level of protection to the act of self-defense itself?
Answering this question in the affirmative leads to other issues. The privilege or excuse of self-defense is grounded on an ad hoc evaluation by juries of the reasonableness of the defendant’s conduct. That analysis may be appropriate for tort or criminal law purposes, but it is arguably much more problematic as a constitutional standard. There is also the question of whether a constitutionally required determination as to the reasonableness of defendant’s conduct must be independently reviewed by appellate courts.
Heller may influence tort law in another way. Gun owners are often held liable for negligence if they store a firearm in a location where a child gains access to it and injures themselves or others with the weapon. The same safeguards that prevent a child from obtaining a firearm, however, such as storing it in a locked drawer, may make the weapon less available for immediate self-defense. Thus, state courts may need constitutional guidance as to how these negligence lawsuits should be resolved in order to avoid the substantial burdening of a gun owner’s Second Amendment rights.
The article addresses other issues as well, such as the role of so-called prefatory clauses in developing doctrine for the protection of enumerated rights.
Via Solum/Legal Theory Blog
Keith Hylton (Boston) has posted on SSRN Intent in Tort Law. Here is the abstract:
This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of tort liability rules. Intent rules serve a regulatory function by internalizing costs optimally. The intent standard for battery internalizes costs in a manner that discourages socially harmful acts and at the same time avoids discouraging socially beneficial activity. The intent standard for assault is more difficult to satisfy than that for battery because it is designed to provide a subsidy of a sort to the speech that is often intermixed with potentially threatening conduct. In addition to the optimal internalization goal, transaction costs play a role in the specification of intent requirements. The subtle difference between the intent requirements for trespass and battery can be explained on the basis of transaction costs.
Wednesday, April 22, 2009
Dallas Morning News columnist Jim Landers takes a look at the impact of caps on medical malpractice awards in Texas, concluding that (based on varioust data), at least as yet, the reduced malpractice insurance rates have not translated into lower health care costs for Texans.
Congress returned from its recess on Monday and has to decide whether to prioritize health care reform or climate change. The Wall Street Journal reports that Congressional Democrats are leaning towards health care reform. Reed Smith's Health Industry Washington Watch reprints a letter from Senators Max Baucus and Ted Kennedy promising a mark-up of health reform legislation by June.
Tuesday, April 21, 2009
As the New York Times reports, the Katrina lawsuit against the Army Corps of Engineers began yesterday in the United States District Court for the Eastern District of Louisiana. Judge Stanwood R. Duval is hearing the case without a jury. Plaintiffs claim that the poor design of the Mississippi River Gulf Outlet, a 76 mile channel from New Orleans to the Gulf of Mexico, amplified the hurricane's damage. In March, Judge Duval rejected the government's immunity defense because the MR-GO was not a flood control measure, but rather a navigation channel. The trial is expected to last a month.
Update (from BC): A comment below notes the Slabbed blog, which is providing extensive coverage of the trial.
Yesterday, the New York Times had an interesting article on how states handle food safety reports. Thankfully for the rest of us, Minnesota is a very diligent state, "safeguarding not only Minnesotans but much of the rest of the country, as well."
If not for the Minnesota Department of Health, the Peanut Corporation of America might still be selling salmonella--laced peanuts, Dole might still be selling contaminated lettuce, and ConAgra might still be selling dangerous Banquet brand pot pies — sickening hundreds or thousands more people.
In these and other cases, epidemiologists from Minnesota pinpointed the causes of food scares while officials in other states were barely aware that their residents were getting sick. From 1990 to 2006, Minnesota health officials uncovered 548 food-related illness outbreaks, while those in Kentucky found 18, according to an analysis of health records.