TortsProf Blog

Personal Injury Roundup No. 56 (10/30/2009)

Happy Halloween!  In our house, we'll have Susan B. Anthony and a drowned sailor.  Yours?

Reform, Legislation, Policy

• Did you see the guest post on tort law and climate change?  You should.  (TortsProf) 
• Alien Tort Claims Act claims continue and expand (Consumer Class Actions & Mass Torts)

New Lawsuits

• Injured by a stripper pole, sues (Above the Law)
• Actress sues social worker for son's death, alleging advice to stop seizure meds was negligent (PostChronicle.com)
• Allegedly defective underwear suit (Above the Law) 
• New suit in bridge closing during Katrina aftermath (Nola.com) 
• Sports commentator Sean Salisbury sues Deadspin.com for defamation (Dallas Observer, Deadspin's gallery, e-mails from Salisbury to Deadspin's editor)

Trials, Settlements and Other Ends

• No verdict as of this writing (Thursday midday) in the "Hold Your Wee for a Wii" case, but the jury did ask for a 10-digit adding machine, which can't make the defense feel real good (Sacramento Bee)  Update: The jury awarded $16.6 million in damages (Radio-Online.com)
• Punitive damage award in PremPro case remains secret (Bloomberg) 
• Butler University drops defamation student against student who blogged anonymously (Inside Higher Ed)
• Bat maker liable for ball player's death (Overlawyered)

Appeals

• Nevada considers pharmacy liability for harm caused by customers (WSJ Law Blog)
• That reminds me of the Massachusetts case from last year on doctor liability for patients driving negligently while under treatment; here's a good look at that (NEJM)

Miscellaneous

• Priest's file remains sealed despite his conduct being the subject of a new abuse lawsuit (First Amendment Center) 
• How to avoid a Halloween lawsuit (Article Alley)

--BC

Aluminum Bat Verdict: $850,000

A jury in Montana found the manufacturer of Louisville Slugger aluminum bats liable for failure to warn adequately in the death of an 18-year-old. (NYT) (Maryland Injury Lawyer Blog)

--CJR

Top 10 Recent SSRN Torts & Products Liability Downloads

Here are the top torts and products liability papers announced on SSRN within the last 60 days:

Rank	Downloads	Paper Title
1	71	Structured Settlements and Single-Claimant Qualified Settlement Funds: Regulating in Accordance with Structured Settlement History Jeremy Babener, New York University School of Law, Date posted to database: September 19, 2009
2	54	Clarifying Causation in Tort Erik S. Knutsen, Queen's University Faculty of Law, Date posted to database: August 15, 2009
3	53	Malpractice Standards of Care and Regional Variations in Physician Practice Styles Michael Frakes, Harvard Law School, Petrie-Flom Center, Date posted to database: October 20, 2009 Last Revised: October 20, 2009
4	50	The Impact of Tort Reform on Employer-Sponsored Health Insurance Premiums Ronen Avraham, Leemore S. Dafny, Max M. Schanzenbach, University of Texas at Austin - School of Law, Northwestern University - Department of Management & Strategy, Northwestern University - School of Law, Date posted to database: August 2, 2009
5	46	Symposium: Third Restatement of Torts: 'Expanding Liability for Negligence Per-Se' Ariel Porat, Tel Aviv University, Date posted to database: July 25, 2009
6	46	A New Conflicts Restatement: Why Not? Symeon C. Symeonides, Willamette University - College of Law, Date posted to database: August 6, 2009
7	36	Agency and Luck Joseph Raz, Joseph Raz, University of Oxford - Faculty of Law, Columbia Law School, Date posted to database: October 13, 2009
8	34	The Impact of Tort Reform on Intensity of Treatment: Evidence from the Heart Patients Ronen Avraham, Max M. Schanzenbach, University of Texas at Austin - School of Law, Northwestern University - School of Law, Date posted to database: August 2, 2009
9	34	The Common Core Sound. Short Notes on Themes, Harmonies and Disharmonies of European Tort Law Marta Infantino, Mauro Bussani, Franz Werro, University of Trieste School of Law, University of Trieste School of Law, Georgetown University - Law Center, Date posted to database: August 15, 2009
10	32	The Effect of Universal Health Insurance on Malpractice Claims: The Japanese Experience J. Mark Ramseyer, Harvard University - Harvard Law School, Date posted to database: September 30, 2009 --CJR

Frakes on the Incentive Effects of Medical Malpractice Standards of Care

Michael Frakes (Harvard) has posted to SSRN Malpractice Standards of Care and Regional Variations in Physician Practice Styles.  Here is the abstract:

Physician practices vary in a striking and persistent manner across different regions of the United States. In this paper, I explore the association between regional variations in physician behavior and the geographical scope of the standards of care to which physicians are held in malpractice actions. Malpractice laws that require physicians to comply with the standards set by local physicians may help to perpetuate divergent practice patterns. The adoption of laws requiring physicians to comply with national standards of care, on the other hand, may lessen regional disparities by inducing physicians to practice closer to the national mean. Over time, most states have come to modify their malpractice laws in this latter direction. Drawing on this rich set of legal variations and using data on physician behavior from the 1977-2005 National Hospital Discharge Surveys, I test for evidence of convergence in state utilization rates towards national rates as states abandon the use of “locality” rules in favor of national standard-of-care laws. Focusing on obstetric practices, I document robust evidence of convergence in cesarean section utilization, whereby as much as 40-60% of the gap between state and national cesarean rates is closed upon the adoption of a national-standard rule.

--CJR

Food Industry Drops "Smart Choices" Labeling

On the heels of the FDA's letter to industry noted in Friday's Round-Up, food companies have halted the "Smart Choices" labeling program, which puts a green check mark on the front of packages to indicate that the product is a "smart choice."

The New York Times and Reuters both have more.  UPI also has coverage. 

- SBS

South Carolina Settles Zyprexa Off-Label Marketing Case for $45 Million

Sometimes it is better to wait on the sidelines... South Carolina did not participate in the collective suit by 32 states against Pfizer for its off-label marketing of the anti-psychotic drug, Zyprexa.   If South Carolina has joined that suit, it would have received around $4.5 million.   Instead, it brought its own lawsuit and now reports a $45 million settlement with Pfizer.  The Post and Courier has more. 

As of September 30th, Legal Newsline reportedthree additional Zyprexa cases remained pending:  Mississippi before Judge Weinstein; Arkansas and Pennsylvania in state court. 

- SBS

Guest Blogger Adam Scales: Tort Law and Climate Change

I have always been a little uncomfortable with the purported distinction between "public" and "private" law, as applied to Torts.  By the second half of the 20th Century, the aspirations of tort law were certainly public-regarding, aimed not just at righting fractures among a small set of individuals, but laying guidelines for proper conduct in a society that, as the California Supreme Court dystopically suggested in Tarasoff, had become "crowded[,] computerized" and "risk-infested".

Yet, reading a recent decision of the Fifth Circuit prompts one to think carefully about the private/public border in tort cases.  The decision is Comer v. Murphy Oil, et al., decided two weeks ago.  The case was filed by property owners living along the Mississippi Gulf Coast who suffered losses as a result of Hurricane Katrina.  Those losses, they allege, are traceable to the tortious conduct of domestic U.S. energy and chemicals firms that emit greenhouse gases.  By contributing to global warming, this conduct worsened the severity of Hurricane Katrina, and exacerbated (or perhaps caused entirely) plaintiffs'  property damage.  The plaintiffs seek class action status.

The Fifth Circuit overturned a District Judge who found that the plaintiffs lacked standing, and were further barred by the political question doctrine.  In language that would be familiar to students of Boomer v. Atlantic Cement, or a number of products liability cases and analyses over the years, the District Judge viewed the litigation as "a 'debate' about global warming", and regarded the requisite technical and political judgments needed to settle the respective rights of emitters (and facilitators of emissions), and property owners (undoubtedly themselves emitters as well)  as lying beyond the remit of the judiciary.

The opinion is only about tort law in a literal sense: standing and justiciability concerns supply the frame for a portrait of alleged intentional and negligent invasions that remains to be drawn. Distinguishing between claims to prevent future harm, and claims - as presented in Comer - to redress past injury, the Fifth Circuit characterized the action as a common-law action asserting private rights, which does not ordinarily trigger standing concerns.  To the extent that standing nonetheless requires that the alleged harm be "fairly traceable" to the challenged conduct, that was met by the essential story described above:  Defendants' emissions cause global warming, which leads to higher sea levels and increased hurricane activity, culminating in plaintiffs' injuries.  Though the court was careful to observe that this alleged causal chain might not suffice to establish proximate causation on the merits, the merits of the case were not before it.  Judge Davis concurred, suggesting that he would have dismissed the case on proximate cause grounds.   The defendants made this traditional, tort-based argument for dismissal at the trial level, but the Fifth Circuit left that to be developed after remand.

Like Judge Davis, I wish they had taken this issue up (though perhaps certification to the Mississippi Supreme Court, rather than an unadorned Erieguess, is the best outcome procedurally).  I have profound reservations about the claim, implicit in nominally private climate change litigation, that the tort system is capable of specifying rights and responsibilities on the subject of global warming.  I like to tell my students that we have a tort system designed for horse-and-buggy accidents.  In fact, this is unduly generous.  The tort system cannot even handle simple car accident cases without tremendous delay and inefficiency - and this is with the assistance of a claims-settling insurance bureaucracy that pre-determines the vast majority of outcomes.  

As tort law's scope expanded during the 20th Century, the nature and complexity of tort claims changed.  Now, it is not unusual for claims to involve precise questions of epidemiology (toxic torts), and polycentric interests (competing claims for product warnings, for example).  The tort system is not designed for, and probably will never handle well, these sorts of injuries.  The system is necessarily biased toward discrete and limited injuries; in even the simplest cases, it of necessity excludes from consideration large swathes of stakeholders in the name of - to borrow a term - justiciability.  Structurally, it is not ideal, and is in fact quite ill-suited, for adjudicating entitlements among many parties offering competing claims for the mantle of "the public interest". If I were writing these words in 1975, they would be just as true.

Writing them in 2009 raises as well an entirely different objection to the use of tort law here.  Tort law has been in retreat for decades.  Courts are not fashioning new duties at the heady clip seen in the 1960s and 70s.  Rather than dramatically rewrite tort law, which is rather difficult to do, courts have recoiled from its earlier excesses by trimming doctrine at the margins.  A question of proximate cause, which once may have served as an open-ended invitation to search for a just outcome, is more likely today to be used restrictively to deny claims, thus nudging future potential parties towards private or political resolutions of their disputes.  Today's tort system, to anthropomorphize a bit, no longer sees itself as wide-ranging arbiter of social conduct, faithful only to its own ideas about justice.  Of course, in main operation, the tort system never quite looked that way, but there was a time when its broadest aspirations reached far beyond the quotidian categories of harm that had long been uncontroversially settled.

It is thus a little surprising to see climate change activists so hopeful about reliance on today's tort law, as opposed to the tort law of a few years ago.  Tort law tends to rise and fall with the political winds; perhaps climate change action will strike judges (who shrink from charges of judicial activism), juries (decreasingly sympathetic to plaintiffs, and fed a diet of "crazy tort stories" in the media) and legislators (who have not been shy in recent years about pre-termitting disfavored tort claims on behalf of important economic interests) as so urgent that it will constitute an exception in this era of retrenchment.  I don't think that is likely, and I hope it doesn't happen.  It is questionable whether any political system is capable of marshaling the extravagantly complex and overdetermined series of relationships that drive global emissions into an effective consensus for change.  I am fairly certain, however, that the small, inwardly-focused, intuitive, largely undemocratic cross-section of the political system that is tort law is not up to the task.

 

--Adam Scales

Associate Professor of Law

Washington & Lee University School of Law

 

 

 

Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz

2009 Kansas Law Review Symposium
Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz

October 30, 2009
Green Hall, 1535 West 15th Street, Lawrence, Kansas 66045

This Symposium explores the state of aggregate justice one decade after the Supreme Court issued guidance on the boundaries and meaning of the federal class action rule in Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).  While the complexities of mass litigation and the demand for aggregate solutions persist, the world hardly has remained static since those decisions:   Federal Rule 23 itself has been amended, Congress has enacted the Class Action Fairness Act and, most recently, the American Law Institute has promulgated its Principles of Aggregate Litigation.  And beyond those obvious game-changers lie more subtle trends and complications. 

The renowned set of speakers participating in the Symposium will reflect on the lingering impact of Amchem and Ortiz.  They will address timely and intriguing topics such as the ethical challenges inherent in mass settlements, the enduring vitality of the punitive damages class action, the empirical evidence of a shift from federal mass tort class actions to multidistrict litigation, the availability of collateral attack based on the adequacy of class representation, the impact of CAFA on state class actions, the disparities between federal and state class actions, and the very nature of cohesiveness in litigation.

Speakers

Elizabeth Chamblee Burch, Assistant Professor of Law, Florida State University College of Law:  “Aggregation, Community, and the Line Between”

   

Howard M. Erichson, Professor of Law, Fordham University School of Law: “The Trouble with Defendants’ Insistence on Comprehensive Settlements”

     

Steven S. Gensler, Welcome D. and W. DeVier Pierson Professor of Law, University of Oklahoma College of Law: “The Other CAFA Effect: State-Court Class Actions after the Resettlement Plan”

 

Laura J. Hines, Professor of Law, University of Kansas School of Law: “The State of State Class Actions”

 

Linda S. Mullenix, Rita and Morris Atlas Chair in Advocacy, University of Texas School of Law:  “Nine Lives: The Punitive Damage Class”

 

Tom Willging, Senior Researcher, Federal Judicial Center: “From Classes to Multidistrict Consolidations: Documenting Some Shifts in Aggregate Mass Tort Litigation after Ortiz”

 

Patrick Woolley, Beck, Redden & Secrest Professor, University of Texas School of Law: "The ALI and the Adequate Representation Requirement”

Attendance is free and no reservations are required. CLE credit will be offered at this event pending approval.

For more information, please contact Symposium Editor Shane McCall: shane@ku.edu.

You also can download a copy of the symposium brochure for more info.

 

- SBS  

Personal Injury Roundup No. 55 (10/23/09)

Happy Fall to all our readers. . . here's what happened this lovely fall week in the world of torts. 

Reform, Legislation, Policy

• FDA issues a "letter to industry" that the agency will take enforcement action aginst false or misleading package information (such as implied nutrient claims).  (Food Law Prof, FDA Law Blog, ABC News, WaPo) 
• Committee action on OSHA nominee postponed.  (Point of Law)
• GAO finds FDA slow in banning researchers convicted of fraud.  (NY Times, Pharmalot)
• Bi-partisan support for bill that would give FDA new powers over food supply.  (LA Times)
• Senators introduce Dairy Country of Origin Labeling Act.  (Supermarket News)

New Lawsuits

• MDL created for Zicam lawsuits.  (Mass Tort Defense)
• 200 patients sue Cedar Sinai over excessive radiation exposure.  (Daily Breeze, About Lawsuits)

Trials, Settlements and Other Ends

• California federal district court dimisses putative consumer fraud class action concerning defective Sears washing machines.  (Mass Tort Defense)
• Jury awards $105 million to NYC in Exxon MTBE case.  (Point of Law, About Lawsuits)
• Defamation suit against alleged Autoadmit harassers settles.  (Brian Leiter, ABA Journal)
• Defamation suit against Target settles.  (Turkewitz)

Appeals

• Alabama Supreme Court reverses multi-million dollar fraud judgment against drug companies.  (TortsProf)
• Massachusetts Supreme Court recognizes medical monitoring cuase of action. (TortsProf, Drug & Device, Point of Law)
• Maryland Court of Appeals bars expert testimony in med-mal case because expert spent more than 20% of his time just testifying.  (Bernabe)
• Fifth Circuit allows suit by Katrina victims alleging the defendant oil and coal companies created greenhouse gasses, which caused global warming, which then caused a rise in sea levels, adding to Hurricane Katrina’s ferocity. (WSJ Law Blog, Russell Jackson, ABA Journal)

Miscellaneous

• First ever contest at Consumer Class Actions and Mass Torts Blog - there's even a prize. 

--SBS

Monday's Guest Blogger: Adam Scales

Adam F. Scales is an Associate Professor of Law at Washington & Lee University School of Law.  He graduated, Phi Beta Kappa, with a B.A. from the University of Massachusetts in 1991 and received his J.D. from the University of Michigan in 1993.  Professor Scales was admitted to practice in Minnesota; he served as an associate at Faegre & Benson in Minneapolis during 1994-95.  He was a law clerk to Judge Michael J. Davis and Judge David S. Doty at the U.S. District Court for the District of Minnesota in 1996.  In 1996-97, he clerked for Judge Robert G. Renner, Senior U.S. District Judge for the District of Minnesota. Professor Scales began his career in the academy as Assistant Professor of Law, Washington & Lee University in 1997, a position he held until he was promoted to Associate Professor in 2003.  He has served as Visiting Professor of Law at the University of Connecticut School of Law, as well as Chair of the Association of American Law Schools Section on Insurance Law.

Professor Scales's scholarship focuses on insurance law.  He has been a national commentator on topics such as a market in tort claims, insurance litigation in the wake of Hurricane Katrina, the settlement of the Virginia Tech massacre claims, and the crash of AIG.

--CJR

AL: Pharmaceutical Companies Did NOT Cause State to Over-Reimburse

On Friday, the Alabama Supreme Court reversed multi-million dollar trial-court judgments against pharmaceutical companies that had allegedly caused the state to over-reimburse pharmacies and physicians for the medicines they provided to Medicaid patients.  Even though the pharmaceutical companies were not directly reimbursed, it was alleged that they received indirect benefits by boosting their market share.  The court concluded:

The State failed to produce substantial evidence that it reasonably relied on the misrepresentations and/or fraudulent suppression it alleged AstraZeneca, GSK, and Novartis engaged in in these cases.

A copy of the opinion (pdf) is here:  Download GSK Full Opinion[1].  

This is another case in which a state AG used outside counsel to sue an industry for a violation based in tort law.  This decision comes as the National Association of Attorneys General is considering whether to place limits on the ability of a state AG to hire outside counsel in search of funds for the state.

Thanks to Mark Behrens for the tip.

--CJR 

Massachusetts Recognizes Medical Monitoring Cause of Action

On Monday, the Supreme Judicial Court of Massachusetts recognized medical monitoring as a viable cause of action in the Commonwealth of Massachusetts.  The SoL is governed by the discovery rule.  The opinion in Donovan v. Philip Morris USA [pdf] is here:  Download Donovan Decision[1]. 

Beck & Herrmann analyze the decision here.

--CJR 

Guest Blogger Victor Schwartz on "A Government Appointed Independent Commission on Judicial Reform Is Considering Establishing a Right of Appeal in West Virginia: It Should Be Done"

Today, we have a special guest blogger, Victor Schwartz, who, among other notable accomplishments, is one of the authors of the widely-used torts casebook, Prosser, Wade & Schwartz's Torts.

* * *

Recently, I responded affirmatively to the very gracious invitation of Carte Goodwin, Chairman of West Virginia Governor Joe Manchin’s newly created Independent Commission on Judicial Reform, to testify about the need for an intermediate appellate court in the state of West Virginia.

We had written about the need for such a court in a West Virginia Law Review article, West Virginia As A Judicial Hellhole™: Why Businesses Fear Litigating In State Courts, 111 West Virginia Law Review 757 (2009).

Trial judges’ decisions in West Virginia are highly unlikely to be subject to appellate court review.  There is no intermediate court of appeals.  The states highest court, the Supreme Court of Appeals, requires that three of its five Justices agree for the Court to take a case.  In most cases, the Court declines to do so.  West Virginia is the only state where this is true.  Judges are human beings, like the rest of us.  We all can benefit from having someone review our work.  I know that I do so in my practice.

The Independent Commission’s members who are considering whether some form of appellate review should be established in West Virginia are highly respected persons within the West Virginia legal community and include the Dean of West Virginia Law School, Joyce McConnell.

In my judgment, the Commission is fair and balanced.

Most witnesses who testified before the Independent Commission were local practitioners.  A very effective witness who testified in favor of establishing an intermediate appellate court was an attorney named Mark Sadd with the firm Louis Glasser Kayce and Rowans.  He proposed a single intermediate court of appeals with nine judges that would preside in rotating panels of three.  Mr. Sadd testified that such a court should grant a right of first appeal in most cases.  Mr. Sadd indicated that the creation of such a court would bring about both the reality and perception of justice in the state.  He submitted an extensive paper on the topic derived from his book chapter in The Rule of Law: Perspectives on Legal and Judicial Reform in West Virginia.

Also testifying was Jack Rogers, Executive Director of the Public Defender Unit in this state.  He stressed the need for intermediate appellate court review in criminal cases.  He said that the state’s highest court denied appeal in almost five out of six cases.  His office had data showing that in 75% of life in prison cases, an appeal was denied.

The only other “out of state witness” other than myself who testified was Michael D. Evans, the Oklahoma Administrative Director of the Courts.  Mr. Evans described the Oklahoma system of appellate review and how it had worked effectively in his state.

A local West Virginia Worker Compensation Board of Review Official, Rita Helmick, testified that the state’s Supreme Court of Appeals is overwhelmed with worker compensation cases and they would be better handled by a specialized court.

The witness for the state’s Association of Justice (plaintiffs’ lawyers) testified that the West Virginia trial judges rendered justice, and if they did not, such action was corrected by the state’s higher court.  My testimony gave examples that suggested that this was an overly optimistic assessment of West Virginia jurisprudence.

One of the practical issues that stand in the way of establishing broad appellate review of trial court decisions in West Virginia is cost.  In that regard, Mike McKowen, the Director of Revenue of the state, estimated that the creation of an intermediate court of appeal would have an annual cost of approximately $7.8 million.  This would include salaries, rent, and all related expenses.  He proposed alternative ways this revenue could be created, including filing fees, or additional tax on cigarettes.  Clients with whom I have worked would be glad to pay a filing fee if there were an appeal as a right in West Virginia.  If a party were successful on appeal, basic fairness suggests that the cost of the fee should be shifted to the losing party.

In my testimony, I showed why:

• West Virginia’s lack of appellate is a major concern for those who might consider establishing a place of business in the state;
• The absence of review has clearly resulted in the denial of justice to defendants.  Specifics were provided, some included: 

o    A $405 million verdict, including $270 million in punitive damages, that found two major natural gas suppliers – Chesapeake Energy and NiSource, Inc. – liable for underpaying landowners under a royalties contract.  No appellate review.

o    A $100 million punitive damages award against Massey Energy for a coal shipment dispute with Wheeling-Pittsburg Steel.  No appellate review.

• The denial of appellate review of punitive damages raises serious issues under the Constitution of the United States;
• West Virginia is the only state in the United States where there is no right to appeal on the merits of a case;
• The need for an intermediate appellate court is even greater now than in 1998 when an earlier Commission recommended an intermediate court of appeals.  Specifics were provided to the Commission.

The Commissioners asked constructive and helpful questions.  Some individual members asked additional questions after the formal portion was over.

A right of appeal could be established by requiring the Supreme Judicial Court of Appeals to hear all cases on the merits, but the Court would be overwhelmed by such a requirement.  Additional “judge power” is needed.  I am hopeful that the Independent Commission will seek justice and recommend to the Governor and legislature that the state establishes an intermediate court of appeals.

In informal discussions with some of the trial judges who were present, they suggested that an automatic right of appeal in all cases might be too costly and unmanageable.  They may be right.  Certainly, an appeal should be a right in civil cases where the amounts of damages are more than $100,000 and in any case, where punitive damages are awarded.

The right to appeal a trial court decision is a fundamental part of our system of justice.  Governor Manchin is to be commended for establishing a mechanism, The Independent Judicial Reform Commission, as an excellent vehicle to establish this basic right in West Virginia.

- Victor E. Schwartz
Chair, Public Policy Group 
Shook Hardy & Bacon, L.L.P.

Guest Blogger Martha Chamallas: Critical Torts Theory and the Measure of Injury

If you are not a torts professor, you might think it odd that the two approaches that currently dominate tort theory are “law and economics” and “corrective justice.”  Although there are major differences in the two approaches -- with “law and economics” fixed on efficiency and deterrence, while “corrective justice” is more concerned with fairness to the parties – they certainly don’t represent opposite ends of the political spectrum. Instead, the L&E movement is still heavily dominated by conservative thinkers, while corrective justice has no discernible political orientation. What is striking about this state of affairs is the seeming absence of critical theory, the other intellectual powerhouse that is now so firmly established outside the legal academy.

 

It’s not that there isn’t a body of critical torts scholarship. Since Richard Delgado first published Words that Wound: A Tort Action for Racial Insults, Epithets and Name Calling in 1982, there has been a steady stream of torts pieces inspired by feminism, critical race theory and postmodernism. Often, however, this work gets coded only as “critical theory” or “feminism” and does not seem to make a dent in what is regarded as tort theory. I was disappointed to see that John Goldberg simply left out critical theory altogether in his formidable article on Twentieth-Century Tort Theory (2003), stating in a footnote this was not a “judgment of the merits of the omitted scholarship,” but simply reflected his decision “to focus on theories that have set the terms of ‘mainstream’ debate among tort scholars.” John also devoted only 3 out of 64 pages to what he called “social justice theory” where he discussed writings by Richard Abel, Anita Bernstein, Carl Bogus, Thomas Koenig, and Michael Rustad.  Is that really a full description of the contemporary progressive voice in American torts scholarship? (As you can guess, I don’t think so.)

 

This skewing of tort theory to the Right has had consequences. The dominant tort theories pay virtually no attention to race or gender or other dimensions of personal identity, while those topics are highly developed in critical theory, as evidenced by the proliferation of critical approaches that emphasize one or more “outsider” identity, such as critical race theory, Lat Crit theory or queer theory. In our new book, The Measure of Injury: Race, Gender and Tort Law, Jennifer Wriggins and I have tried to connect critical theory more closely to tort law by exploring how race and gender have shaped contemporary U.S. tort law – from the types of injuries recognized, to judgments about causation, to the valuation of injuries. (the book is scheduled for publication in May 2010 from NYU Press)

 

Our book is organized like a conventional torts treatise, with chapters on intentional torts, negligence, causation and damages, framed by chapters on tort theory and tort history. It is not your grandmother’s treatise, however, because we concentrate on those areas of tort law in which considerations of gender and race have been most salient, such as intentional tort claims for workplace harassment and domestic violence, negligence claims for emotional distress, lead paint and wrongful birth litigation, and the calculation of economic damages. We also theorize about the various ways that considerations of gender and race find their way into tort law, even though tort doctrine is facially gender and race-neutral. The main ingredients of our critical approach come from feminism, critical theory, and cognitive psychology. But like all good torts professors, our point of departure is the new Restatement (Third) of Torts because that endeavor still represents the mainstream “torts establishment.”  (and btw, it is a very impressive and useful document)

 

We noticed that the Torts Restatements have evolved, if ever so slowly. In the beginning, the individual of tort law was an abstraction, disembodied, with no race or gender, who seemed to live outside of society. This creature had no name and appeared in the examples of the First and Second Restatement of Torts as simply A, B, or C. Today, however, most courts and torts scholars acknowledge that tort law is not autonomous or self-contained and they realize that tort doctrines are not simply abstract principles, but rules that operate in social context. Perhaps in recognition of this shift, the Third Restatement now provides first names for the hypothetical individuals used in its examples of black letter rules, subtly introducing gender into some scenarios.  And sometimes the gendered nature of the tort appears quite prominently, even if the Reporters may not have been fully aware of this feature of the doctrine. For example, by my count, 10 of the 13 illustrations in the commentary to Section 45 dealing with the tort of intentional infliction of emotional distress deal with misconduct implicating sexual or reproductive behavior, ranging from a stepfather who sexually abuses his stepdaughter, to the inappropriate touching of preschooler, to a police officer who stalks a woman with whom he is obsessed. And in “direct victim” negligent infliction of emotional distress cases under Section 46, there is a similar preoccupation with sexual exploitation and reproduction, including claims against doctors for having sex with their patients under the guise of therapy and scores of cases brought by women who suffer emotional distress from stillbirths, miscarriages, and sterilizations caused by physician negligence.

 

So how has tort law dealt with these and other gender-related claims? How should it? One major theme of our book is the degree to which courts have allowed principles and norms from constitutional law and statutory civil rights law to migrate into torts. Currently, the case law is marked by ambivalence and lack of uniformity.

Many states, for example, are very reluctant to declare that workplace sexual or racial harassment is “outrageous” conduct and virtually rule out recovery for intentional infliction of emotional distress in such cases. A minority of states, however, have imported concepts from Title VII hostile environment law to provide a basis for tort recovery and treat the racial or sexual character of the harasser’s conduct as a marker of “outrageousness.”  Likewise, several states still refuse to allow a claim for negligent infliction absent proof of a “physical manifestation” of the injury. Other courts, however, have cited statutes against sexual exploitation and constitutional rulings protecting a women’s right to procreative choice as a reason for imposing a duty a due care when a defendant’s conduct impairs a plaintiff’s interest in sexual autonomy or reproduction. And most directly, many states still allow experts and juries to calculate a victim’s loss of future earnings potential on the basis of gender or race-based tables that dramatically lower awards for women and minority men. In the recent Staten Island ferry crash case, however, Judge Weinstein held that the use of race-based tables to calculate tort damages was unconstitutional on equal protection and due process grounds. (McMillian v. City of New York, 253 F. R. D. 247 (E.D.N.Y. 2008). His ruling went a step further than Kenneth Feinberg who had earlier rejected the use of female-only tables on public policy grounds in administering the September 11 Victim Compensation Fund. 

 

Our book makes the case for increasing and accelerating the migration of civil rights and constitutional principles into tort law in a self-conscious effort to weave gender and race equality into basic tort principles. We argue that the tort concept of “outrageousness” ought to be expanded to cover discriminatory harassment and that courts should change the dominant (but outmoded) view of what is regarded as an actionable affront to dignity. With respect to negligent infliction claims, we propose that courts impose a duty of due care to protect against emotional distress in cases that implicate a plaintiff’s interest in sexual integrity or reproductive rights. Our justification for giving priority to such claims is that they affect fundamental constitutional rights and important norms of liberty and equality. And we push for the rejection of gender and race-based tables to calculate damages – and for the adoption of blended tables -- noting that the Constitution prohibits the use of explicit gender and race-based classifications which serve to reinforce historic patterns of social inequality.    

 

These proposals have gained some sustenance from developments outside the U.S. In 2005, for example, the Israeli Supreme Court relied on considerations of equality and social justice to reject the use of gender and ethnic-based statistics to calculate a damages award for an Arab girl from a poor village who was injured in a road accident when she was five months old. The defendant in that case contended that women living in the child’s village generally were not employed outside the home and sought to lower damages based on these local conditions. The Israeli Supreme Court disagreed and concluded that the appropriate method for computing future loss of earnings should be based on tables for the average wage throughout the country. The Court made the significant determination that an award of tort damages should not simply return the tort victim to the status quo ante, but to a “just and fair” status that does not reproduce past inequalities among social groups. (Migdal Ins. v. Rim Abu Hanna – I hope my translation of the opinion is correct! The Israeli Supreme Court does not translate its opinions into English.)

 

Early on in the project, we realized that our critical approach to tort law was not a unified theory of torts. And it is worth mentioning that our racial and gender lens on tort law does not mean that we believe that gender and race equity should be the only goal of tort law or even the most important goal of tort law in every context. In the end, we were happy to align ourselves with Chris Robinette and other “pluralists” who think that tort law can best be understood as furthering a variety of objectives, including compensation, deterrence, and the promotion of important social policies such as gender and race equity. But we do insist that there is room in tort law for social equality and critical theory and have hopes that our book will alter the mainstream vision of the field.

 

I welcome your comments. 

 

Martha Chamallas

Robert J. Lynn Chair in Law

The Ohio State University Moritz College of Law

 

 

 

Hersch, O'Connell, & Viscusi Reply to Black, Hyman, & Silver on Early Offers Med Mal Savings

Joni Hersch (Vanderbilt), Jeffrey O'Connell (Virginia), and Kip Viscusi (Vanderbilt) have posted to SSRN Reply to the Effects of "Early Offers" in Medical Malpractice Cases:  Evidence from Texas.  Here is the abstract:

This article is a Reply to the critique by Black, Hyman, and Silver (BHS) of our 2007 Journal of Legal Studies article, “An Empirical Assessment of Early Offer Reform for Medical Malpractice.” The early offer reform gives insurers the option of making an early offer that will expedite payment of claimants’ economic losses and reasonable attorney fees. Using data on closed medical malpractice claims from the Texas Department of Insurance (TDI), our 2007 article estimates the financial impact of this proposal by comparing the expected payments to claimants under the early offer reform to the payments under current tort rules. A central component of our calculation of expected payments is unique information on insurers’ reserves associated with the claim; actual payments are reported in the TDI data for all litigated and settled cases involving payments of at least $10,000. The BHS article misrepresents fundamental aspects of our empirical analysis, including the following. BHS set out to correct our purported “false assumption” that all claims have a 1.0 probability of success, which is a problem that arises because BHS omit the probability of claimant success from the formula that is presented in our paper. BHS’s error is compounded as their discussion of our paper fails to recognize that our use of reserve amounts in the analysis incorporates the insurers’ estimates of the likelihood of claimant success, Indeed, they neither acknowledge our use of the insurer reserve data, nor do they use the insurer reserve information in their paper. BHS claim incorrectly that our analysis does not discount deferred payments whereas in fact it does. Our early offer analysis uses data for both litigated and settled claims, avoiding the selection bias and measurement error problems associated with BHS’s extrapolation from the 2% of paid claims that are litigated to the universe of all settled and litigated claims. In addition to these and other errors in their characterization of our empirical analysis, the BHS article reflects a misunderstanding of the operation of the early offer reform, which leads them to erroneous statements regarding how the parties would behave if the early offer reform were implemented. We also provide a brief critique of the BHS two-sided version of the early offer proposal, which would not be workable and would not reduce litigation costs significantly.

My post on the Black, Hyman, & Silver article (with a link to it) is here.

--CJR

Personal Injury Roundup No. 54 (10/16/09)

Reform, Legislation, Policy

• U.S. Supreme Court dictum on constitutional implications of class action procedure (Drug & Device Law)
• The Pop Tort on the Texas med mal system (The Pop Tort)
• Ralph Nader on the CBO's report that tort reform would save $54 B over 10 years (Counter Punch)

New Lawsuits

• Malpractice alleged in death of H1N1 patient in Spain. (Typically Spanish)

Trials, Settlements and Other Ends

• PA:  Jury awards $2.36 M to a boy kicked by a horse during a charitable program.  Walter Olson is concerned about the effects on the charity, Work to Ride Inc.  (Olson/Overlawyered)
• Woman sues physician and loses med mal case; then woman sues her attorneys and loses legal malpractice case.  Finally, she wins in dispute that $6K of legal costs were frivolous.  (ABA Journal)
• GlaxoSmithKline loses Paxil suit (Krauss/Point of Law) 

Appeals

• NY:  Pain-and-suffering verdict in traumatic brain injury of $1.9 M affirmed on appeal for 79-year-old woman struck by bus.  (Hochfelder)
• In 1975, NH set up a fund to fill a gap in med mal liability insurance.  Now it argues the fund has a $110 M surplus and claims it is entitled to the money.  The state supreme court gets the case this week.  (Forbes)

Miscellaneous

• Peter Strauss on Geier v. Honda (SSRN)
• Joseph Raz on Agency and Luck (SSRN)

--CJR

 

Monday's Guest Blogger: Martha Chamallas

 

Martha Chamallas is the Robert J. Lynn Chair in Law at The Ohio State University's Moritz College of Law. She is a leading scholar in a number of fields, including torts, employment discrimination law, and legal issues affecting women. Professor Chamallas is the author of two books and more than 40 articles and essays in law journals such as the Michigan Law Review, the University of Pennsylvania Law Review, the University of Chicago Law Review, UCLA Law Review and the Southern California Law Review. She is a member of the American Law Institute, Torts Consultative Group and has participated on Gender and Race Bias Task Forces for the states of Iowa and Pennsylvania.

Following graduation from law school, Professor Chamallas clerked for the Honorable Charles Clark of the U.S. Court of Appeals for the Fifth Circuit and served as an attorney for the U.S. Department of Labor, Office of the Solicitor, Civil Rights Division.

Prior to joining Moritz College of Law in 2002, Professor Chamallas served on the faculties of the University of Pittsburgh School of Law, the Louisiana State University Law Center and the University of Iowa College of Law. She has held distinguished visiting positions at the Washington University School of Law, Richmond School of Law, the University of Ghent and Suffolk University School of Law. She also served as the Chair of the Women's Studies Program at the University of Iowa.

Professor Chamallas was the recipient of Ohio State's University Distinguished Lecturer Award in 2006.

--CJR

"Hold Your Wee for a Wii" Closing Arguments

Coverage is here.  The plaintiffs' attorney asked for $24 to $34 million, about $2 million of which is based on economic harm, the balance in emotional harm.

O'Connell & Born on Early Offer Savings for Products Liability

Jeffrey O'Connell (Virginia) and Patricia Born (Florida State Business) have posted to SSRN The Similar Cost and Other Advantages of an Early Offer Reform for Products Liability Claims for Personal Injury Compared to General Liability Claims Therefor.  Here is the abstract:

An “early offers” program in which product liability lawsuits could be quickly settled would improve a tort system that is often slow, expensive and unfair.

Under the authors’ early offer reform, a defendant facing a personal injury claim is given the option within 180 days after a claim is filed of offering to guarantee periodic payments for a claimant’s medical expenses and wage loss beyond any other applicable coverage, plus 10 percent for attorneys’ fees. There would be no compensation for pain and suffering. The claimant in return agrees to foreclose further pursuit of a normal tort claim for both economic and non-economic losses.

Offers could be turned down by claimants, but only in cases where the defendant’s injurious acts were the result of gross misconduct provable beyond a reasonable doubt.

The early offers plan would reduce the time it takes to pay losses by at least two years, and also greatly reduce the costs of such claims. Claims for product liability, would be cut by an average of approximately $129,105 per claim and by $563,000 per claim for severe injuries. The early offers plan is projected to save an average of approximately $33,000 in legal expenses in all such cases and about $207,000 in cases of severe injury.

The savings come mainly from eliminating pain and suffering damages and reducing legal fees.

--CJR

CBO: Med Mal Tort Reform Would Save $54 B Over Ten Years

The Congressional Budget Office estimated that a $500,000 cap on punitive damages and a $250,000 cap on pain-and-suffering damages would save $54 billion over ten years and lower liability insurance premiums by 10%.  (CNN)  The Center for Justice & Democracy is not impressed.  (The Pop Tort)

--CJR