Saturday, March 28, 2009
New Zealand famously abolished tort actions for personal injuries and set up a comprehensive no-fault compensation plan. Australia seriously considered a similar plan, but never adopted it. Harold Luntz (University of Melbourne) has written an article comparing how personal injuries are handled in the two jurisdictions. His article, A View from Abroad, has just been posted to SSRN. Here is the abstract:
The Woodhouse Commission examined the common criticisms of the common law action for negligence in relation to personal injury. The criticisms included the risk of litigation (the uncertainty of outcome); the reduction of damages if there was any contributory negligence; the long delays before the receipt of compensation, if any; the high costs of determining who was and who was not entitled; the need to find a solvent defendant; the adverse effects on rehabilitation; and the inappropriateness of lump sum awards of damages to provide for long-term incapacity. The Woodhouse Commission concluded that "the time [had] clearly come for the common law action to yield to a more coherent and consistent remedy in the whole area of personal injury", and it recommended "that the Court action based on fault should now be abolished in respect of all cases of personal injury, no matter how occurring". This article examines the continued application of the common law of negligence in relation to personal injury in Australia, with particular reference to decisions of the High Court of Australia. It demonstrates that the criticisms made by the Woodhouse Commission remain valid 40 years later, and contrasts the decisions of the High Court with how similar injuries would be dealt with in New Zealand. For pragmatic reasons, the Woodhouse Commission confined its recommendations to accidental injuries, and hoped that other forms of incapacity could be accommodated later. The later "Australian Woodhouse Report" recommended the extension of the compensation scheme to incapacity caused by congenital conditions and sickness, but that scheme was never implemented. The failure to extend the New Zealand compensation scheme in this way means that some of the High Court decisions on the common law deal with situations on the borderline of the New Zealand compensation scheme and are likely to give rise to similar problems.
Friday, March 27, 2009
Reform, Legislation, Policy
- In 2006, the UK passed a compensation act that included a provision to allow defendants to make apologies. Prue E. Vines (University of New South Wales) writes about its effects in a new article. (Via Solum/Legal Theory Blog)
- WV Senate passes a bill clarifying that pharmacists and pharmacies are health care providers for purposes of last year's medical malpractice reforms. (WV MetroNews)
- On Tuesday, the family of a Marine who died of cancer undiagnosed despite several military medical examinations testified before the House Judiciary Subcommittee on Commercial and Administrative Law. The family seeks a law to overturn the Supreme Court's Feres decision, which bars claims against the federal government by members of the armed forces for injuries arising out of their military service. (Kansas City InfoZine)
Trials, Settlements & Other Ends
- Golfer John Daly has his defamation case against a Florida newspaper dismissed at the summary judgment stage; the newspaper may seek the cost of defense. (ABA Journal)
- Some post-Wyeth v. Levine claims are still preempted by FDA approval rules Judge Solomon Olivier, Jr. of the federal district court in Cleveland. (Krauss/Point of Law)
- Final Big Dig civil settlements (Legal News Line)
- John Hochfelder discusses the variability of negligence trials as an appellate court upholds the $22,000 verdict of a trial court; the first time the case was tried the award was $575,000. (New York Injury Cases Blog)
- Alberto Bernabe discusses an issue I ran into in practice several times: Duties to non-clients in the legal malpractice setting. (Bernabe Torts)
- Pro wrestler fakes a fall at 7-11 in an attempt to get $50,000 in premises liability case. (Philadelphia Daily News via Olson/Overlawyered)
- John Day on the increase in structured settlements. (Day on Torts)
- John Culhane (Widener) posts Tort, Compensation, and Two Kinds of Justice on SSRN.
Thursday, March 26, 2009
Ken Simons (Boston) has posted to SSRN The Restatement Third of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines. Simons will present the paper next week at the Wake Forest Conference on the Restatement (Third) of Torts. Here is the abstract:
The traditional strict liability doctrines - liability for abnormally dangerous activities, for wild animals, for abnormally dangerous animals, and for intruding livestock - can largely be explained by a small set of rationales. The Restatement Third Draft offers six principal economic and fairness-based rationales for strict rather than negligence liability: providing the injurer an incentive to optimize (1) the level of care and (2) the level of the activity; and recognizing the justice of requiring the injurer to pay when his activity (3) creates a nonreciprocal risk, (4) affords him a nonreciprocal benefit, (5) is the exclusive cause of the harm, or (6) when the community's sense of fairness supports strict liability. The Draft also rejects (7) loss-spreading as a rationale in this context. With the notable exception of (5), exclusive causation, this is a defensible and plausible set of rationales. However, the actual strict liability doctrines endorsed in the Draft are narrower in scope than the robust logic of these rationales would imply. This mismatch is probably best explained by judicial reluctance to impose strict liability unless the effects of such liability are modest. At the same time, from a wider perspective, the supposed contest between strict liability and negligence approaches is overstated, for each approach contains traces of the other.
Wednesday, March 25, 2009
In an unanimous opinion (pdf), the U.S. Court of Appeals for the D.C. Circuit has affirmed a judgment against NBA guard Allen Iverson for negligent supervision of his body guards involved in a nightclub brawl. BLT has more on the story.
Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and deterrence.
Unlike traditional scholarship that emphasizes individual autonomy or welfare maximization, this Article borrows from the literature of moral and political philosophy as well as social psychology to analyze group dynamics within nonclass aggregation. It requires us to view plaintiffs within large-scale litigation as a community of sorts and to recognize that sometimes litigants incur obligations simply by virtue of being a group member, whether chosen or not and whether welfare maximizing or not. Moreover, empirical studies demonstrate that once people consider themselves part of a group, they exhibit other-regarding preferences-trust, reciprocity, and altruism-toward other members. Cohesive group members are more likely to cooperate with one another and care about the collective outcome, and less likely to exit the group when doing so benefits the individual rather than the group In the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate client-client conflicts, and restore the tether between clients and their attorney. Thus, using groups to overcome the problems in nonclass aggregation not only makes sense from a group responsibility perspective, it may also harmonize with wealth maximization and individual autonomy goals.
Tuesday, March 24, 2009
As Pacific Business News reports, House Bill 1784 is moving forward in the Hawaiian legislature:
HB 1784 limits noneconomic damages to $250,000 in medical malpractice claims against certain specialists who practice in areas such as emergency medicine, neurological surgery, obstetrics and gynecology, orthopedic surgery and general surgery.
It also caps at $3 million the award for gross negligence.
Last week, I mentioned the article by Trent Taylor on State of North Carolina v. TVA, which held that air emissions from coal-fired power plants operated by the TVA were a public nuisance. Now, Jane Genova at Law & More has an interviewwith Jones Day partner Chuck Moellenberg Jr., with his thoughts on the case.
Monday, March 23, 2009
Jean Eggen & John Culhane (Widener) have posted on SSRN Gun Torts: Defining a Cause of Action for Victims in Suits Against Gun Manufacturers. Here is the abstract:
Although tens of thousands of Americans die from gun violence every year, the regulation of firearms remains inadequate. Those who are injured, or the survivors of those killed by guns, therefore have sought relief through tort law against those who manufacture these uniquely deadly products. With rare exceptions, however, these suits have been unsuccessful. Most courts have found that the conduct of gun manufacturers is not actionable under strict product liability doctrine, negligence, or the law of abnormally dangerous activities. This Article argues that courts have been too reluctant to apply tort liability to gun manufacturers. It is possible and necessary, the authors demonstrate, to fashion a rule of liability that will call irresponsible gun manufacturers to account, and that doing so will not amount to absolute liability against the gun industry. Drawing theoretical support for their position from central pillars of tort law, the authors offer a test for judging whether a class of guns should be considered defectively designed. Such a determination should hinge on whether the impugned gun is a "manifestly unreasonable" design. This concept is recognized in the Third Restatement of Torts, but too narrowly defined there. The authors flesh out the concept by reworking the factors for abnormally dangerous activities to make them more directly applicable to the complex array of design and marketing decisions that gun manufacturers make. Through a series of illustrations, they then apply this test to different types of guns and show how the test supports liability for certain egregious practices, but not for some other practices. In addition, the authors recommend that claims for negligent marketing be allowed to supplement the design claims in appropriate cases.
As a follow-up to last week's apology posts, John Kador is publishing a new book on May 1st that focuses on apologies in the corporate setting. He concludes that apologies are not without cost, but they are almost always less costly than defensiveness and denial. For more on the book, click here.