Monday, November 30, 2009
Thanksgiving, Football and Torts
If you're a real Torts person -- not someone who just happens to teach the class, take it as a first-year student, or practice in the area -- you see the world as one big kaleidoscope of ever-shifting opportunities for tort claims. Our recent holiday of Thanksgiving and its football tradition is no exception.
Let's start with the recreational. One of my favorite cases is Knight v. Jewett, a 1992 CA Supreme Court case on the difficult issue of how assumption of risk fits into a comparative negligence regime. It arises out of a touch-football game with a group of friends, the kind of game that might happen on Thanksgiving (though this one was at halftime of the Super Bowl). The game was co-ed, and I never know with whom to be more annoyed: the defendant Michael Jewett, who appears to have taken the game a bit too seriously; or plaintiff Kendra Knight, for seeking legal recourse after a touch football injury.
Another big Thanksgiving football tradition now is the televised professional games that offer a great escape at family gatherings. And the major pro football case in torts (in coursebooks at least) is Hackbart v.
The main pro football player I think of these days, though, when I think about torts is Ben Roethlisberger, the defending champion Pittsburgh Steelers’ quarterback. Before the start of this season, Roethlisberger was accused of rape by a hotel employee in
This raises an interesting issue on the boundary of crime and tort, which is: why do these Jane Does get to bring tort suits? If the victim declines to complain to the police, or even if she had and the prosecutor declined to bring the case, shouldn’t that be the end of the matter? Is this the torts system run amok again, with a young woman seeing some deep pockets to go after?
Ellen Bublick has documented the growth in civil suits by sexual assault victims, and offers some thoughts on the advantages and disadvantages of bringing such claims, in an interesting piece available here. From a policy perspective, though, why even allow such suits? I suppose one can tell a typical compensation/deterrence story: because the “reasonable doubt” burden is so high in criminal proceedings, we need an extra measure of deterrence, and because compensation is not generally available in criminal proceedings, tort fills a gap there as well.
I find neither rationale very compelling. We could make any number of changes to the criminal justice system itself to increase deterrence -- changes to the substantive elements of the crime, the severity of the sentence, enforcement resources -- without deploying a separate legal regime. And the increased prevalence of victim compensation funds in criminal justice means that this remedy can be pursued by prosecutors as well.
A more appealing explanation lies in the civil-recourse theory developed initially by Ben Zipursky, and elaborated on in work co-authored with John Goldberg and by Goldberg himself. If tort provides the means for individuals to act against those who have wronged them, as recourse theory tells us, we can see why we might provide such a right of action: so the hotel employee need not depend on prosecutorial discretion to be able to hold her wrongdoer accountable.
To be sure, we can’t make it too easy to bring these lawsuits, or else people might be held accountable, or forced to settle accounts, when they have not behaved wrongfully towards anyone. Indeed, Roethlisberger’s lawyer would say that is exactly what happened here, and has produced emails which, if legitimate, serve to undermine the plaintiff’s account. But those who say the hotel employee was just out to “extort” the wealthy athlete need to explain why her lawyer offered to settle with an apology and donation to charity from Roethlisberger.
What purpose do such lawsuits serve? Assume the hotel employee was indeed raped. A tort claim allows her to stand up to the wealthy, physically imposing man who might have said “Do you know who I am?” or “Who’s going to believe you?” in response to the threat of complaint. Giving Jane Doe recourse here reinforces a norm of social equality, and her own moral worth. It allows her to say to Roethlisberger: “You can’t do that to me,” and for the statement to have real force to it.
This view of tort is less safety net, and more slingshot. Individuals who have been pushed back or thrown down can come right back at their wrongdoer, with the help of an advocate. Many will no doubt see this as an overly romanticized view of tort law and one at odds with much of contemporary practice. But I’d welcome your thoughts, either on the specific sexual assault context or the broader theoretical account of tort, discussed a bit more here.
Assistant Professor of Law
University of Georgia School of Law
Saturday, November 28, 2009
I am delighted to have had responses from several thoughtful commentators, including well known voices in products liability law – Restatement Reporter Michael Green, Mark Herrmann and Jim Beck of the Drug and Device Law Blog, and my own colleague, George Conk, who has long been a leading commentator from the plaintiffs’ side in drug-and-device law.
I briefly responded to Mike Green and George Conk in a prior comment; their principal point was that Riegel was not really justifiable; Mike strikingly pointed out that the FDA is not even required to opine on device safety, making the device preemption argument even weaker, in some ways. I agree that Riegel was wrongly decided, in part for the reasons they put forward, but most notably because I do not think it is really justifiable as an express preemption case, because I do not think a verdict in a products liability action counts as state law that is a requirement, and I do not think any of the Court’s precedents necessitated this otherwise unjustifiable analysis.
A different question, of course, is whether the Court’s precedents prior to Riegel permitted it to reach this result on express preemption, without any implausible stretches in the precedent. The answer is yes; Cipollone and Geier actually paved the way for Justices who wanted to reach this conclusion. That does not mean that I believe the conclusion was correct as a matter of statutory interpretation or mandated by those precedents. I do not. Indeed, although I happen to be quite fond of Justice Scalia’s textualism in a number of settings, I do not think a textualist reading justified where he took the case, except when parts of the text were twisted by precedents there was no compulsion to follow.
The larger challenge is from Jim Beck and Mark Herrmann, on the Drug and Device Law Blog (“DD”, for short). The exceptionally informative response on the blog corrected my off-the-cuff statement that most device cases are design defect; my gratitude for that. As DD suspected, my main point was that design defect does not play a big role any longer in drug cases, but – if Riegel was in any way representative – continues to do so in device cases.
DD’s larger points were these:
1. There might have been perfectly good reasons to think that the Medical Devices Amendments should be read as preempting state tort liability, quite apart from reasons for thinking there should be preemption for drugs too (which DD also believes). One is historical (states were regulating more in the 70s, when the devices amendments came through); a second is that the generally smaller nature of device companies counts in favor of thinking they need greater protection; a third is that the shorter active life of a device type (relative to a particular prescription drug) also means that such companies will need greater protection.
2. The “warning defect v. design defect” distinction does not work to explain the distinction between Levine and Riegel, and in any event there is no reason to speculate on why the cases were decided differently given that the Court actually provided its reasons, and there is no reason to take what the Court said at face value (unless one is an academic who has too much time to spend on rank speculation).
As to DD’s first point, I find the historical background quite illuminating. Of course, this is just the kind of speculation about legislative thinking that Justice Scalia bridles at, and it is unsurprising that we see little of this. In any event, it all goes to the question of why they might have wanted preemption of state requirements, and my whole point is that a verdict in a case involving the product, where a jury has decided this is hardly a requirement. It is true that I closed my blog post by asking why Congress might have drawn a distinction on preemption of requirements, and I am grateful for the historical analysis. But this does not take us anywhere on the issue of preemption of tort liability.
As to the second point, I think it is fair enough to ask what my problem was, and criticize me for, in effect, fabricating a problem. There is no question that Riegel’s holding is not about design defect theories, and that it sweeps in failure-to-warn. And there is no question that the Court did not purport to distinguish Levine in anything like the way my analysis suggested. Moreover, I could not agree with DD more that lawyers and law professors alike should listen to what courts actually say, rather than making things up and speculating. And I agree that the plaintiff in Levine had virtually nothing useful to say on what the warning should have been, and why that would have made a difference (although I think Levine was correctly decided by the United States Supreme Court on preemption, I think it was wrongly decided by the Vermont trial judge who denied Wyeth’s motions for judgment as a matter of law; these were not before the U.S. Supreme Court, of course).
Finally, even if I were interested in the speculation about judicial psychology, the broad and squishy distinction between design and warning cases is not where I would go. Although I, as a torts professor who worries a lot about causation, perceived the fact pattern of Diana Levine’s case as one that was really strong for Wyeth, I think I am quite peculiar. Some of the Justices probably felt a lot like the jurors and the majority of the Vermont Supreme Court; they felt bad for a healthy, appealing Vermont guitarist whose migraine led to gangrene because of Wyeth’s drug (on a fairly easy to present version of “because of”). There was a major publicity campaign for Levine. Plus, several of the Justices were in an anti-Bush mood, and the FDA Preamble argument bit back, evidently enraging some of the Justices. Riegel was easy to explain because it fit nicely into the trend of cases the Court had been deciding, where the presence of a statutory preemption clause provided a skeleton onto which they could place a tort preemption argument that they believed was sound as a matter of policy. Levine was the odd case, from a predictive point of view, but the powerful facts and the anti-Bush sentiment seemed to play a significant role. In any event, that would be my speculation. And it is sort of interesting, but it is not the issue I tried to raise.
The issue I was trying to raise is not about speculation. It is an effort to understand the legal scheme we now have. I would have thought that practicing lawyers would have a better sense than I of just how odd this scheme might look to business people, consumers, and lower court judges. I think it is good for law professors to step back and try to get a picture of what the system would look like to those who are not caught up in its details and the adventures of those who are trying to push it in one direction or another; perhaps there are certain domains where law professors might even have an edge in doing so (I kind of doubt it).
When one stands back and looks, there is a pretty dramatic difference right now between devices and drugs. Clearly, the way to explain it historically is by looking at the different statutes. DD’s background on why the device statute might have turned out more protective (at least expressly) is helpful. But I think a rationalizing instinct is often a good one try to exercise, and that is what I was trying to do.
My current thinking on that front is that my suggestion of “design defect versus warning defect” is inadequate to rationalize the distinction. However, I continue to believe one part of what I was saying was along the right track. No doubt, having common law causes of action around for products that also need FDA approval is socially a very expensive thing to do (not just in money, but in reduced availability of new products, etcetera). Of the many reasons for doing it, one is the idea that the tort system might provide findings of dangerousness and corporate conduct that present substantial threats to individuals and the public, where regulators perceive the same fact pattern quite differently, and that on some of these occasions, the regulators are in the wrong and the jury is onto something important.
I continue to think that the Justices – and many parts of our legal system – have a certain picture in their mind of what this “the jury gets it right and saves millions of future lives in the long run” picture is about. It is a case with a drug that is widely used notwithstanding the manufacturer’s knowledge of hazards, which have never been properly disclosed. My suggestion would be that the conviction that juries might be onto something in some cases like this traces in part to the idea that juries can be quite good at saying when
information was really something doctors and patients should have been told – at judgments about informational wrongdoing.
Our system is evidently not willing to give up on this part of our tort law. Relative to this commitment, a case like Riegel does not seem too threatening, but a case like Levine (rightly or wrongly) does seem
- Ben Zipursky
Fordham University School of Law
Thursday, November 26, 2009
Wednesday, November 25, 2009
Jason M. Solomon is Assistant Professor of Law at the University of Georgia School of Law. His writing focuses on the theory and practice of civil justice, and his research interests also include regulatory theory and policy, the law of the workplace, and legal education. Since entering the legal academy, Solomon's scholarship has been published in the Northwestern, Vanderbilt and Texas law reviews.
Prior to joining the Georgia Law faculty, he was chief of staff and counselor to the president of Harvard University. He previously served as a judicial law clerk to Judge Chester J. Straub of the U.S. Court of Appeals for the 2nd Circuit and Judge John Gleeson of the U.S. District Court in Brooklyn. Before entering the law, he worked in the White House and the U.S. Treasury Department.
Solomon earned his bachelor's degree magna cum laude from Harvard University and his Juris Doctor from Columbia University, where he served as notes editor of the Columbia Law Review and was a James Kent Scholar.
Tuesday, November 24, 2009
It's that time of year - time for family, time for turkey, and time to select your casebook for your spring courses. A reader wonders what case book to use for a Products Liability course.
Do you use -- Henderson & Twerski's Products Liability Problems and Process? - Fisher, Green, Powers & Sanders's Cases and Materials on Products Liability? - Phillips, Terry, Vandall & Wertheimer's Products Liability: Cases, Materials, Problems? - Owen, Montgomery & Davis's Products Liability and Safety, Cases and Materials? - Another book?
Please share your input in the comments.
Monday, November 23, 2009
Guest Blogger Ben Zipursky on "The Differential Treatment of Medical Devices and Drugs in Preemption Doctrine: A Justified Distinction?"
One year ago, many tort scholars and securities analysts believed that a major shift was about to occur in products liability law: our nation’s highest court was about to declare that claims against pharmaceutical manufacturers were preempted. We all know that this did not occur, that in the much-awaited decision of Wyeth v. Levine, six members of the Court decided to leave state tort law for prescription drugs alone, at least for the moment. Although I believe that the case was correctly decided, I am happy to admit that the decision came as something of a surprise. Part of the reason for that surprise was the Court’s lopsided decision in favor of preemption just one year earlier, in Riegel v. Medtronic. There, eight members of the Court voted in favor of a broad preemption doctrine in medical device cases. Five of the Justices who voted for preemption in Riegel – Stevens, Kennedy, Thomas, Souter, and Breyer – voted against preemption in Wyeth.
The combination of preemption in Riegel and no-preemption in Wyeth does not present any truly sharp inconsistencies or paradoxes, but it nevertheless merits exploration. There is no actual contradiction between the cases for many reasons. Most notably, the two cases presented questions of statutory interpretation, but did not involve the same statute. To get right to the point, Riegel applied a statute that actually contained an express preemption clause, while Wyeth applied a statute that lacked such a clause. From this point of view, one could have known everything one needed to know about Wyeth by looking at Justice Stevens’ concurring opinion in Riegel, which essentially announced: “Make no mistake about it; I am voting for preemption here only because there is a preemption clause in the text of this statute.”
Nevertheless, it is quite unsatisfying to explain away the distinction between these cases simply by reference to the textual difference. To begin with, if we are candid we must admit that there was virtually no federal preemption in any cases involving FDA approved products a couple of decades ago; there has been a strong, industry-based push to create preemption doctrine, and it has been quite successful. Where it matters most, however – the Supreme Court – there is a striking discrepancy. There is a clear acceptance for (a large class of) medical devices and a clear rejection (so far) for drugs. Yet the policy motivation is exactly the same – it makes sense to defer to federal agency expertise, and to forestall the costly state-by-state variations, especially given the relatively low probativeness of jury decisions on safety.
Second, notwithstanding the eight votes for Medtronic in Riegel, the statutory interpretation argument in that case is far weaker than the Court admitted. The Court has been fooling around with the concept of a “requirement” in express preemption clauses. There is no evidence that Congress was conceiving of state tort liability as a form of legal requirement and, if there is any straightforward reading of the text, it does not cut in favor of preemption. Obviously, there was already good precedent for Justice Scalia to build upon (Cippollone and Geier) to make this argument. But those arguments were far from unassailable, both because each came with a fractured Court whose members wrote highly nuanced analyses, and because each of those products (cigarettes, airbags) was plainly unique in a way that mattered to the significance of agency decisionmaking. More importantly, the precedents themselves reflected that many of the Justices were engaged by pro-preemption motivations.
The other side of the puzzle is that, while nothing in the text of the statute applicable in Wyeth permitted an easy, across-the-board express preemption argument there, plenty of opportunities to rule for Wyeth presented themselves. Quite apart from the opportunities for deference to the FDA, which had taken a strong pro-preemption position, there were quite powerful implied preemption arguments made. And the analogy to Geier, although imperfect, was quite strong. Moreover, as Justice Alito’s quite fact-based and careful dissent illustrates, there was a fairly persuasive argument for Wyeth on the facts.
And now, let’s admit that part of the point of preemption doctrine is that the Court gets to play the role of rationalizing the big picture scheme of the law. If two aspects of the law – state and federal – are too badly out of whack with one another, then the Court will exercise its power to create a smoothing-out of the law. It is odd, then, that the Court seems happily to countenance a stark difference in treatment between device law and drug law. The discussion above is merely meant to remind us that there was nothing inevitable about this. Finally, even if one were to take the view that statutory differences fully warranted the discrepancy, one would want to ask why medical device makers were given so much more protection against state tort liability.
This is all by way of a lengthy lead up to a tentative suggestion, one that is truly meant to invite discussion. Riegel – like most medical device cases (I believe … but would be happy to be corrected) – is a design defect case. Wyeth – like most prescription drug cases – is a failure-to-warn case. That means that, at a gestalt level (and, to some extent, at a practical level), the Court was deciding in Riegel whether juries would be allowed to displace FDA decisions on medical device design, while the Court in Wyeth was deciding whether juries would be allowed to displace FDA decisions on what information drug companies must convey to prescribing healthcare providers. Is it possible that the difference between displacing design decisions and displacing informational decisions is part of what led us to where we are now? If so, would this be a rational line to draw? Does the difference between the two types of questions shed any light on why medical devices and drugs might be drawn differently? (Is this distinction overdrawn?) If so why?
When I put this question to myself, my mind tracked over to the somewhat analogous field of medical malpractice. As torts professors and medical malpractice lawyers know, courts and legislatures do not look kindly on juries second-guessing experts on technical and scientific questions regarding the standard-of-care in medical malpractice cases. It is black-letter law that juries cannot second-guess the standard-of-care accepted by experts in the field; T.J. Hooper does not apply to medical malpractice. However, in a large number of jurisdictions today, informed consent cases work differently: jurors may second-guess what experts have decided is the right level of information disclosure. That is, in part, because courts are willing to empower juries to second-guess experts on normative decisions about how much safety information should be disclosed. This is the so-called “patient rule” rather than the “physician rule.”
The question raised is thus: does the Riegel/Wyeth dichotomy derive from a distinction similar to the medical malpractice/informed consent distinction? Are the five justices who voted for Medtronic and against Wyeth preserving juror power to second-guess experts on informational decisions? If so, is this a justifiable position to take?
N.B. This contribution is written in the spirit of conversation, not scholarship. Many of the suggestions thrown out are off the cuff – some, perhaps, are demonstrably false. Feel free to point this out, if so.
- Professor Benjamin C. Zipursky
Fordham University School of Law
Saturday, November 21, 2009
Tonight at 8:00 p.m, the Senate will vote on cloture for the health care bill. In other words, the Senate will decide whether to begin debating it. It appears Democrats have 58 of the necessary 60 votes to survive the first hurdle. CNN has the story. In a related (torts) issue, a group of medical malpractice victims held a press conference in Richmond, VA yesterday to urge Virginia's Senators not to include med mal reform in the bill. (PR Newswire)
Friday, November 20, 2009
I hope your last week before Thanksgiving was a good one!
Reform, Legislation, Policy
- Tim Lytton's guest post attracts attention. (Frank/Point of Law) (Lahav/Mass Tort Profs)
- Law Profs Max Mehlman & Dale Nance (Case Western) argue med mal tort reform reduces important safety incentives. (Cleveland Plain Dealer via Injury Board.com)
- CA: Group pushes for $1 tobacco tax increase to fund cancer research (LegalNewsline)
- All-asbestos roundup at Point of Law. (Twu/Point of Law)
- TX: State AG urges Texas Supreme Court to uphold constitutionality of statute of repose. (LegalNewsline)
- Courtney Love sued for libel by tweet. (CNN)
- ID: Man tased in buttocks sues City of Boise. (IdahoStateman.com)
- NE: State med mal damages cap challenged as unconstitutional. (North Platte Bulletin)
Trials, Settlements and Other Ends
- SC: Med mal suit settled prior to rare med mal punies determination by jury. (AboutLawsuits.com)
- NY: Med Mal pain-and-suffering verdict reduced by over $1M without explanation (New York Injury Cases Blog)
- IL: No experts needed in NIED cases (Via Bernabe)
- PA: Harrisburg mayor-elect alleges in a civil suit that faulty gas pump sprayed her with gas, ruining her clothes and leaving her unable to pump her own gas. (PennLive.com via Olson/Overlawyered)
- Med Mal on SNL (Via The Pop Tort)
- NY: CT fertility doctor loses NY license after inseminating a patient with the wrong sperm. (New York Injury News.com)
- Eric Turkewitz guest blogs at Kevin, M.D. (Via New York Personal Injury Law Blog)
Thursday, November 19, 2009
Monday's Guest Blogger is Ben Zipursky. Zipursky is currently the James H. Quinn '49 Chair in Legal Ethics and Professor of Law at Fordham Law School, where he teaches Torts, Law & Philosophy, Advanced Torts ‑ Defamation & Privacy, Tort Theory, and Jurisprudence. He also served as Associate Dean at Fordham from 2001-2003.
Professor Zipursky is a leading scholar in torts, tort theory and jurisprudence, and has published more than forty articles and chapters on subjects ranging from punitive damages and duty in tort law to the varieties of pragmatism within legal philosophy. Zipursky is also a co-author of Tort Law: Responsibilities and Redress (Aspen Publishers, 2004) (with fall Guest Bloggers Tony Sebok and John Goldberg), and also Torts: A Short Introduction (Oxford University Press forthcoming 2010) (with John Goldberg).
In addition to his law degree, Zipursky holds a Ph.D. in philosophy from the University of Pittsburgh. Before joining academia, Zipursky clerked for the Honorable Kimba M. Wood (S.D.N.Y), and practiced as a litigation associate at Arnold & Porter (New York). He has taught as a Visiting Professor at Columbia Law School, Vanderbilt Law School, and Harvard Law School.
Wednesday, November 18, 2009
Last week, the Iowa Supreme Court decided Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009), and adopted the Restatement (Third) of Torts approach to both duty and causation. The plaintiffs lost control of their car on a rural road because a trampoline had been blown onto the road from an adjacent home. Plaintiffs filed suit against the owners of the trampoline, alleging defendants had a duty to keep it out of the road. Both the district and intermediate appellate courts found no duty and no causation as a matter of law. The Iowa Supreme Court reversed and remanded. In so doing, it adopted R3's positions on both duty and causation. Specifically, the court found that foreseeability should not be considered part of the duty analysis, but is instead for the jury to decide under breach. As to causation, the court adopted R3's "scope of liability" (as opposed to "proximate cause") analysis.
Thanks to Mike Green for the tip.
In Tedrick v. Community Resources Center, Inc., Nos. 104861, 104876 (Ill. Sept. 24, 2009), the Supreme Court of Illinois explicitly rejected Tarasoff. Earlier opinions cast doubt on the acceptance of the famous California case in Illinois, but Tedrick made it official. The opinion (pdf) is here.
Thanks to DePaul's Mark Weber for the tip.
Tuesday, November 17, 2009
Torts professors frequently become connoisseurs, or at least aficionados, of warning labels. Knowing this, a colleague brought me the warning label in his copy of Walther P-38 Pistol by Major George C. Nonte. The book was published in 1975 by Desert Publications.
The Publisher (Desert Publications) produces this book for informational and entertainment purposes and under no circumstances advises, encourages or approves of use of this material in any manner.
It's sad that the publisher can't even "approve of," never mind "advise" or "encourage," the "use of" the material "in any manner." The informational and entertainment values of certain portions of the book, such as chapter 3 on "Care and Maintenance" or chapter 4 on "Stripping and Servicing," seem limited.
The New York Times reports that lobbyists working for Genentech, one of the world's largest bio-tech companies, authored statements on the health care debate for over 40 House members:
The lobbyists, employed by Genentech and by two Washington law firms, were remarkably successful in getting the statements printed in the Congressional Record under the names of different members of Congress.
Genentech, a subsidiary of the Swiss drug giant Roche, estimates that 42 House members picked up some of its talking points — 22 Republicans and 20 Democrats, an unusual bipartisan coup for lobbyists.
In an interview, Representative Bill Pascrell Jr., Democrat of New Jersey, said: “I regret that the language was the same. I did not know it was.” He said he got his statement from his staff and “did not know where they got the information from.”
Members of Congress submit statements for publication in the Congressional Record all the time, often with a decorous request to “revise and extend my remarks.” It is unusual for so many revisions and extensions to match up word for word. It is even more unusual to find clear evidence that the statements originated with lobbyists.
As we struggle to come up with final exam ideas, TMZ brings us an interesting proximate cause issue.
DJ AM (aka Adam Goldstein) died back in August from a drug overdose (according to the medical examiner). His estate, however, has filed a wrongful death claim against various defendants involved in an airline crash back in September 2008. His estate alleges that "the crash ultimately caused Adam Goldstein's death" because he was forced to take various drugs to treat the burns he suffered in the crash as well as the emotional distress caused by the crash. TMZ has more.
Notably, TMZ also reports that the family of the co-pilot killed in the crash recently settled a claim against the owner and operator of the airplane for $500,000.
Thanks to Meredith Miller for the tip.
Monday, November 16, 2009
The tort system is frequently described by critics as a “litigation lottery.” For example, in their best-selling book Nudge, Richard Thaler and Cass Sunstein compare medical malpractice litigation to a lottery based on the assertion that many plaintiffs who suffer no harm or have not been treated negligently nonetheless receive compensation. They point to the variability in pain and suffering and punitive damages awards as further support for the comparison. According to this view, even if erroneous findings of liability and high awards are rare (as the weight of empirical evidence seems to suggest), they nevertheless make litigation into a game of chance. As leading tort reform advocate Ted Frank explains on PointofLaw.com, “[t]he nature of a litigation lottery is that the availability of potentially huge damages justify bringing a meritless claim, so long as there is some small chance that the combination of an outlier judge and an outlier jury will produce a jackpot that compensates for the risk that the judge/jury combination will get it right.”
Yet the possibility of erroneous outcomes and variable awards does not make tort litigation a lottery. Indeed, the very possibility of identifying some outcomes as erroneous fundamentally distinguishes litigation from a lottery. Winners in litigation are determined not by chance but by applying the law to the facts of a case. Of course, there is always the possibility of an erroneous outcome when a judge misapplies the law or the jury misconstrues the facts. But this is quite different from the process of random selection whereby lottery winners are selected. It makes no sense to argue that a randomly selected lottery winner should not have won. In contrast, it is certainly possible to criticize litigation outcomes as erroneous—to argue that the prevailing party should not have won—precisely because litigation, unlike a lottery, is governed by the rule of law. Suggesting that the error rate of a decision procedure makes it a lottery is a category mistake since the very possibility of identifying an erroneous outcome, by definition, makes the procedure non-random and therefore not a lottery. (One could criticize the outcome of a lottery on the basis that it was not random—for example, where the lottery is “fixed”—but that would render it no longer a lottery.) Of course, for practical purposes, the error rate of a decision procedure could be so high as to render outcomes practically random. But no one, not even the most ardent advocates of tort reform, has suggested that high damage awards based on erroneous findings of liability are anything but statistical outliers.
One might argue that there is a randomness as to whether an individual who files a false claim of medical malpractice will be lucky enough to draw the rare judge or jury who will produce an erroneous judgment in his favor. But this random distribution of errors does not make a flawed process into a random one. While bank depositors stand a random chance of an accounting error in their favor, this does not make depositing one’s money in a bank tantamount to playing a lottery.
One might argue, instead, that the tort system operates like a lottery not because of the chances that false claims will succeed but because only a small percentage of negligent actors are held liable. According to this view, the low probability that a doctor who commits medical malpractice will actually be successfully sued makes the system a lottery from the defendant’s point of view. Does a low probability of being held liable make the process a lottery? Does the fact that those who cheat on their taxes stand some random chance of avoiding detection make the tax system a lottery? In one respect, yes, one could argue that negligent actors are subject to a liability lottery and that dishonest taxpayers participate in an audit lottery. Many areas of law involve lotteries in this sense: the same could be said of the chances of getting a speeding ticket or being arrested for robbery or of being the victim of a breach of contract.
But I suspect that critics of the tort system mean something else when they describe the tort system as a litigation lottery. They mean to identify a feature of the tort system that distinguishes it from other areas of law such as criminal and contract law. They mean to suggest that tort litigation is arbitrary in way that these other areas of law are not, that tort litigation outcomes are not, on some level, governed by the rule of law to the same degree as are other parts of the legal system. Ultimately the problem with the lottery analogy is that it proves too much—if the tort system is like a lottery insofar as negligent defendants stand only a random chance of being held liable, the same can be said about the enforcement of rights in many other areas of the law. There is no basis for charging that the tort system is any more or less a lottery than these other areas of the law.
Comparing tort litigation to a lottery is, at best, unhelpful for understanding the sources, frequency, and magnitude of error in the tort system. At worst, it is a rhetorical strategy aimed at undermining public confidence in the civil justice system in order to strengthen popular support for tort reform. In the rush to reform the tort system, we would be well advised to ignore this kind of rhetoric and take a more careful look at what its real shortcomings are.
For a more extended analysis of Thaler & Sunstein’s critique of medical malpractice litigation and their proposals for reform, see Tom Baker and Timothy D. Lytton, Allowing Patients to Waive the Right to Sue for Medical Malpractice: A Response to Thaler and Sunstein, forthcoming in Northwestern Law Review and available now on SSRN.
Timothy D. Lytton
Albert and Angela Farone Distinguished Professor of Law
Friday, November 13, 2009
George Conk (Fordham) and Wang Zhu (Sichuan University School of Law) have posted to SSRN Tort Liability Law of the People's Republic of China. Here is the abstract:
Discussion of the need to revise the basic Civil Code of China began in 1997. Like the American Restatement process it is a brick by brick effort which does not proceed with the urgency of specific operational laws.
In December 2002 a working draft, prepared by the Legislative Affairs Commission of the National Peoples Congress, was distributed for public discussion. Our attention went to the chapter stating the basic parameters of tort liability. This was translated with commentary and appeared in the Beijing Journal Private Law (Si Fa) in 2005, and, with commentary, in the Fordham International Law Journal in 2007. [Conk, George W., A New Tort Code Emerges in China: An Introduction to the Discussion and a Translation of Chapter 8 - Tort Law of the Official Discussion Draft of the Proposed Revised Civil Code. Fordham International Law Journal, Vol. 30, No. 935-999, 2007; Fordham Law Legal Studies Research Paper No. 1015041. Available at SSRN: http://ssrn.com/abstract=1015041]
The road to discussion on the floor of the National Peoples Congress has been longer than expected. It was delayed, inter alia, by the protracted discussions regarding the proposed changes in the law of property. This has given time for scholars and others to engage in discussions of the shape of the revisions.
On December 21, 2008 the Legislative Affairs Commission released a second draft. That was the subject of discussion at a July 2009 Sino- U.S. symposium. The event was sponsored by the American Law Institute and the host People's University of China (Renmin University) Law School's Center for Scientific Research on Civil and Commercial Law, in collaboration with the official China Law Society's Civil Law Research Commission.
This translation of the second draft was prepared for the benefit of the discussants at the Renmin University symposium.
What’s Wrong with Torts (II)
In my previous post I suggested that torts are legal wrongs rather than moral wrongs, and that the concept of a legal wrong is not vacuous, but instead refers to the violation of a directive to refrain from interfering with important interests of others, such as bodily integrity. In this entry, I refine the definition of torts as wrongs, again based on a paper that Ben Zipursky and I are writing.
The Relationality of Tortious Wrongdoing
Torts always involve the violation of relational directives – that is, directives as to how one must act or refrain from acting toward a particular person or class of persons. Other legal wrongs such as crimes and regulatory offenses can be relational but they need not be. The purchase and possession of a controlled substance is a criminal wrong but it is not a relational wrong and therefore cannot be a tort. A gratuitous physical attack on someone is a relational wrong that is both a crime and a tort. Inadvertence toward another’s physical well-being can be the basis for tort liability but usually will not count as a crime.
Each tort is defined so as to be a relational wrong. A libel consists of the publication, in writing, of a defamatory statement about a particular person or persons. A fraud is a deceiving of another. This relational aspect to torts is partly what Cardozo had in mind when he famously asserted in Palsgraf that there is no negligence “in the air.” Carelessness provides the basis for tort liability only insofar as it is carelessness toward a person or class of persons.
To describe torts as relational legal wrongs is not to say that torts require a pre-existing relationship between wrongdoer and victim. A driver who drives carelessly with respect to a pedestrian is subject to liability for negligence if his careless driving proximately causes physical harm to the pedestrian. That they are strangers to one another does not in any way undermine the idea that the careless driver was careless as to the pedestrian.
Torts as Injurious Wrongs
It is common today to think of wrongful conduct in terms of two components: conduct and consequences. It is equally common to suppose that one can sensibly talk about wrongfulness only with respect to conduct, not consequences. The latter are said to be a matter of brute luck. For example, the wrongfulness of negligence is said to reside in the careless conduct of the wrongdoer. What happens as a result of that conduct – the victim’s injury – is just a matter of fact that, for reasons of policy, tort doctrine has deemed relevant to setting the sanction to be imposed on the careless actor for his wrongful action.
Although common, this view is mistaken and pernicious. Torts are not wrongful acts that happen to generate adverse consequences for another. Torts are injurious wrongs. To say the same thing, the directives contained in tort law do not enjoin actions per se. They enjoin injurings of various sorts. Take battery. On the standard but mistaken view, judicial decisions defining battery instruct us as follows: “Avoid actions that you hope will cause, or know will cause, the harmful or offensive touching of another. If you don’t avoid such actions, you will have done wrong. And if it turns out that your wrong ends up causing the right sort of consequence for another, you will be ordered to indemnify that other her losses.” A better rendition of the directive contained in the tort of battery is this: “Don’t touch others in ways that tend to be harmful or are widely regarded as offensive.” On this rendering of battery, until there is a touching no wrong has been done. Likewise, the directive built into negligence law is not properly characterized as: “Act with due care toward others.” It is instead: “Do not injure someone by acting without due care toward him or persons situated like him.” Until there is injury, the wrong of negligence has not been committed.
Connecting the Dots
Torts are violations of duly enacted directives that enjoin us from injuring others by acting wrongfully toward them. They are legal, relational, injurious wrongs. Only when one understands that torts are wrongs of this special sort can one make sense of why tort law connects the commission of a wrong to the filing of lawsuits for damages and other remedies. By definition, torts are legal wrongs that have victims – the person or persons who has or have been wrongfully injured by virtue of a violation of one of tort law’s directives. This is why it is natural and appropriate for tort law to grant to the victim a right to respond through law to obtain redress for the wrong done to her. The particular way in which tort law defines wrongs and the particular form of response it permits are two sides of the same coin.
Professor of Law
Thursday, November 12, 2009
Monday's Guest Blogger is Tim Lytton. Lytton is currently the Albert and Angela Farone Distinguished Professor of Law at Albany Law School, where he teaches Administrative Law, Advanced Torts, ADR, Con Law, Jurisprudence, Legislation, Regulatory Law and Torts.
Lytton began his academic career in 1991 at Capital University Law School (Ohio), where he was an assistant professor. He was a fellow at the Hartman Institute for Advanced Jewish Studies, Jerusalem, and also a fellow in the Harvard University Program in Ethics and the Professions. Following a research fellowship at Yale University, Lytton taught at New York Law School from 1997 to 2000. Lytton joined the Albany faculty in 2000. Lytton was awarded the first annual Excellence in Teaching award in 2006.
He has published numerous articles in both English and Spanish on torts, conflict resolution, and jurisprudence. He is the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (Michigan University Press 2005) and co-author of Jurisprudence, Cases and Materials: An Introduction to the Philosophy of Law (Lexis 2006). His most recent book is Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008).
Wednesday, November 11, 2009
Two L.A. residents have sued Toyota Motor Corp., alleging some Toyota and Lexus products manufactured since 2001 have been made with defective components causing sudden, unexpected acceleration. They are seeking class-action status. Toyota has focused on floor mats as the cause of the problem. However, last week the National Highway Traffic Safety Administration (NHTSA) criticized Toyota for releasing misleading information about the floor-mat investigation. The Orange County Register has the story about the suit and the NHTSA statement.