March 7, 2009
Green on Asbestos Apportionment
Michael Green (Wake Forest) has posted on SSRN Second Thoughts on Asbestos Apportionment. Here is the abstract:
Ordinary principles of apportionment of liability among multiple parties calls for first determining which parties caused which portions of the harm suffered by the claimant. If all parties were a cause of the same harm, then apportionment can proceed on the basis of comparative responsibility of the parties. This principle is derived from the basic requirement that parties are only liable for harm that their tortious conduct causes.
If any of the parties caused only a portion of the claimant's harm, then causal apportionment must precede apportionment based on comparative responsibility. The author had applied these two tenets of apportionment to asbestos litigation in a previous article. See A Future for Asbestos Apportionment?, 12 Conn. Ins. L.J. 315 (2006).
On reflection, this article (and author) concludes that general apportionment principles should not be applied to asbestos litigation. Because of gaps in scientific understanding about the progression of asbestotic disease and the contribution of any discrete exposure in that progression, apportionment on basic principles is highly problematic, unless artificial and unrealistic assumptions are made. Even then, such apportionment entails unacceptable inefficiencies. Instead, apportionment among multiple defendants should proceed on the basis of risk contribution, a method adopted by both the California Supreme Court and the House of Lords in England.
March 6, 2009
Personal Injury Roundup No. 27 (3/6/09)
Here is the Spring Break edition of the Roundup. Notice it's shorter than usual.
Reform, Legislation, Policy
- Hawaii's House Judiciary Committee approved a bill on Tuesday that could lead to caps on noneconomic damages in med mal claims against doctors in five specialties. (Honolulu Advertiser)
- Utah Senate gives initial passage to a bill raising the burden of proof in emergency room med mal cases to "clear and convincing" evidence. (Salt Lake Tribune) Arizona has attempted to pass this legislation several times. I commented on it in this post.
- Oklahoma House passes a tort reform bill that would, among other things, cap noneconomic damages at $300,000. The bill moves on to the Senate. The Governor has not yet weighed in. (NewsOK)
- Physicians rally in Albany for decreased med mal insurance premiums and the ability to collectively bargain with insurers. (Times Union)
- The Massachusetts AG's office has criminally charged a man for insurance fraud. After legitimately breaking a tooth while eating in a restaurant, the man has collected approximately $36,000 for repeatedly making the same claim at different restaurants. (ABA Journal)
Trials, Settlements & Other Ends
- Chesapeake, VA settles a wrongful death case of a man hit by an animal control truck for $275,000. (VLW Blog)
- 9/11 settlements approved (WSJ Law Blog)
- Wyeth v. Levine has finally been decided, and the blogosphere is full of commentary. (Drug & Device Law, Public Citizen, Maryland Injury Lawyer Blog, Point of Law, Overlawyered, Consumer Class Actions & Mass Torts)
- Although in the intellectual property context, there is a podcast available here that features a punitive damages panel including Cathy Sharkey (NYU), Thomas Colby (GW), and Dan Markel (FSU). (Via Solove/Co-Op)
March 5, 2009
Top 10 Recent Torts & Products Liability Downloads
Among papers posted in the last 60 days, the top 10 papers for the SSRN Torts & Products Liability Journal are:
1. Internet Law in a Nutshell
Michael L. Rustad
Suffolk University Law School
Date Posted: January 17, 2009
2. Choice of Law in Cross-Border Torts
Symeon C. Symeonides
Willamette University - College of Law
Date Posted: January 15, 2009
3. Choosing What We Mean by 'Causation' in the Law
Australian National University - ANU College of Law and University of Texas at Austin School of Law
Date Posted: February 8, 2009
4. Intentional Diminishment, the Non-Identity Problem, and Legal Liability
I. Glenn Cohen
Harvard Law School
Date Posted: January 21, 2009
5. The Prosser Notebook: Classroom as Biography and Intellectual History
Christopher J. Robinette
Widener University - School of Law
Date Posted: January 21, 2009
6. Punitive Damages by Numbers: Exxon Shipping Co. v. Baker
Joni Hersch and W. Kip Viscusi
Vanderbilt University Law School and Vanderbilt University - Law School
Date Posted: January 14, 2009
8. The Magnitude of Pain and Suffering Damages from a Law and Economics and Health Economics Point of View
Vaia Karapanou and Louis T. Visscher
Erasmus University Rotterdam (EUR) - Erasmus School of Law and Erasmus University Rotterdam (EUR) - Erasmus School of Law
Date Posted: January 16, 2009
9. Finding the Tort of Terrorism in International Law
Beth Van Schaack
Santa Clara University - School of Law
Date Posted: January 22, 2009
10. Economic Loss and the Duty of Care: A Study in the Exercise of Legal Justification
TC Beirne School of Law
Date Posted: January 5, 2009
Scheuerman on Statutory Damages and Due Process
Our own Sheila Scheuerman has posted to SSRN her most recent article Due Process Forgotten: The Problem of Statutory Damages and Class Actions. Here is the abstract:
This article analyzes the due process problem that arises when two litigation mechanisms converge: statutory damages and class actions. Individually, the class action device and statutory damages serve a similar function: encouraging litigation by offsetting disincentives to suit where the alleged wrongdoing involves nominal financial harm. When combined, however, they create the potential for unintended bet-the-company liability. Courts have struggled with how to address these statutory damages class actions because the prevailing legal framework is jurisprudentially flawed and ignores the realities of modern class action litigation. This article assesses the current due process jurisprudence in this area, and proposes an analytical framework drawn from the Supreme Court's punitive damages jurisprudence. Indeed, the article shows that the modern due process standard for punitive damages - known as the BMW guideposts - in fact evolved from a test developed in early Supreme Court precedent analyzing the constitutional limits on statutory damages. Thus, the article argues that the BMW guideposts should apply to aggregate statutory damages awards, and furthermore should be considered before, not after, class certification.
Check it out!
March 4, 2009
Court Rejects Preemption in Levine Case
Products Liability in China
Morning Edition today had an interesting story on the civil litigation challenges facing the families of people injured by tainted milk in China.
Plan for 9/11 Dust Cases
New York Law Journal reports that Judge Hellerstein has approved a "road map" for resolving the 9,000 respiratory illness cases in the 9/11 litigation:
A total of 225 of the most severe cases have been selected by two special masters appointed by Southern District of New York Judge Alvin Hellerstein in the litigation brought by more than 9,000 plaintiffs. Of that group of 225, six cases will soon be selected for what are formally scheduled to be trials but are really a path toward settlement. Two of those sample cases will be selected by New York City, its contractors and other defendants; two more will be selected by attorneys for those who claim injury from the cleanup of toxic materials; and another two will be selected by the judge himself. Those six cases will then steam forward with full discovery according Hellerstein. By September, they will have been joined in stages by another 24 cases, setting a total of 30 cases on track for the argument of motions beginning in January 2010 and trial readiness by May 2010.
(Via Point of Law).
March 3, 2009
"Where A Lawyer Can Be A Lawyer"
Jonathan Turley reports that a mother has filed a negligence suit against Chuck-E-Cheese for "allowing too many children into an 'enclosed tunnel' areas leading to a pile-up at the bottom of a slide." The mother seeks $50k for injuries sustained by her daughter.
The Nation on Suppressed Memories
In a story that touches on both criminal and civil cases (and notes the financial influence of civil cases), The Nation this week gives a preview of the upcoming Massachusetts Supreme Judicial Court's appeal of Paul Shanley, convicted a few years ago in a sex abuse scandal largely on the basis of "recovered memories." The article is critical of the expert testimony and notes that most courts in more recent years have rejected similar evidence.
March 2, 2009
Sebok on Hess and the other Engle Progeny
In his Writ column, Tony Sebok (Cardozo) argues that the $8 million verdict in the Hess case will be struck down due to the unconstitutionality of the "mini-trial" concept approved by the Florida Supreme Court.