April 25, 2009
OK: Tie Vote Stalls Attorney's Fee Cap
A bill to limit attorney's fees to 33% of the first million dollars and 20% of amounts over $1 million stalled in the Oklahoma Senate with a tie vote. NewsOK has the details.
April 24, 2009
PA Governor: Med Mal Stabilized
On Thursday, PA Governor Ed Rendell cited statistics that med mal cases have declined 41% since early in the decade, and claimed that the changes are attributable to legal reforms. In 2002, PA instituted venue restrictions and required a certificate of merit prior to filing suit. The number of companies offering malpractice insurance in PA has climbed from 3 in 2002 to 57 today. Because of the changes, Rendell will not renew MCARE, the state-funded insurance subsidy program for physicians. The legislative counsel for the PA Association for Justice, which represents trial lawyers, said his members were satisfied with the changes because there were no longer calls for caps on damages. The Philadelphia Inquirer has the story.
Personal Injury Roundup No. 33 (4/24/09)
As the semester winds down, tort law rolls on...
Reform, Legislation, Policy
- Nevada Supreme Court, citing a large backlog, arranges for retired judges to help settle med mal cases. (Las Vegas Business Press)
- Provisions of a Colorado bill that would have eased caps on med mal damages are removed. (Denver Business Journal)
- Nevada Assembly passes bill that would lift the cap for non-economic damages in med mal cases for gross negligence. (Las Vegas Sun)
- Public Citizen releases report ranking how state medical boards discipline physicians. (Public Citizen, via The Pop Tort)
- Tennessee bill to cap damages in nursing home cases appears dead. (The Pop Tort)
Trials, Settlements & Other Ends
- Trial judge upholds $416,500 jury award to former model in med mal case against her former doctor, who was treating her for depression when the two engaged in a sexual relationship. The jury found plaintiff-former model to be 25% at fault. (New York Law Journal, Newsday)
- Libel suit against Sasha Baron Cohen and Da Ali G Show dismissed. (The AmLaw Daily)
- Can podiatrists testify about causation for foot injuries? The Virginia Supreme Court decided to hear the appeal this week. (VLW Blog)
- Beck & Hermann thoroughly analyze the trend in PA law regarding the divide between negligence and strict liability. (Drug & Device Law)
Thanks to Sheila for content this week.
April 23, 2009
Brownstein on the Ramifications of Heller for Self-Defense
Alan Brownstein (UC Davis) has posted to SSRN The Constitutionalization of Self-Defense in Tort and Criminal Law, Grammatically Correct Originalism, and Other Second Amendment Musings. Here is the abstract:
This article considers several issues raised by the Supreme Court’s opinion in District of Columbia v. Heller. One question is whether Heller requires the constitutionalization of self-defense decisions in tort and criminal law. If the Second Amendment protects the right to keep and bear arms for immediate self-defense purposes, as Heller holds, it arguably also protects the right to use firearms for self defense purposes. Put simply, does it make sense to interpret the Second Amendment to protect to the means to exercise self-defense without extending some level of protection to the act of self-defense itself?
Answering this question in the affirmative leads to other issues. The privilege or excuse of self-defense is grounded on an ad hoc evaluation by juries of the reasonableness of the defendant’s conduct. That analysis may be appropriate for tort or criminal law purposes, but it is arguably much more problematic as a constitutional standard. There is also the question of whether a constitutionally required determination as to the reasonableness of defendant’s conduct must be independently reviewed by appellate courts.
Heller may influence tort law in another way. Gun owners are often held liable for negligence if they store a firearm in a location where a child gains access to it and injures themselves or others with the weapon. The same safeguards that prevent a child from obtaining a firearm, however, such as storing it in a locked drawer, may make the weapon less available for immediate self-defense. Thus, state courts may need constitutional guidance as to how these negligence lawsuits should be resolved in order to avoid the substantial burdening of a gun owner’s Second Amendment rights.
The article addresses other issues as well, such as the role of so-called prefatory clauses in developing doctrine for the protection of enumerated rights.
Via Solum/Legal Theory Blog
Hylton on Intent in Tort Law
Keith Hylton (Boston) has posted on SSRN Intent in Tort Law. Here is the abstract:
This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of tort liability rules. Intent rules serve a regulatory function by internalizing costs optimally. The intent standard for battery internalizes costs in a manner that discourages socially harmful acts and at the same time avoids discouraging socially beneficial activity. The intent standard for assault is more difficult to satisfy than that for battery because it is designed to provide a subsidy of a sort to the speech that is often intermixed with potentially threatening conduct. In addition to the optimal internalization goal, transaction costs play a role in the specification of intent requirements. The subtle difference between the intent requirements for trespass and battery can be explained on the basis of transaction costs.
April 22, 2009
Iraq v. Beaty Recap
Up at the SCOTUSBlog.
In Texas, No Health Care Savings (Yet?) From Caps
Dallas Morning News columnist Jim Landers takes a look at the impact of caps on medical malpractice awards in Texas, concluding that (based on varioust data), at least as yet, the reduced malpractice insurance rates have not translated into lower health care costs for Texans.
Health Reform or Climate Change?
Congress returned from its recess on Monday and has to decide whether to prioritize health care reform or climate change. The Wall Street Journal reports that Congressional Democrats are leaning towards health care reform. Reed Smith's Health Industry Washington Watch reprints a letter from Senators Max Baucus and Ted Kennedy promising a mark-up of health reform legislation by June.
April 21, 2009
Civil Lawsuit Against Army Corps of Engineers Over Katrina Destruction Began Yesterday
As the New York Times reports, the Katrina lawsuit against the Army Corps of Engineers began yesterday in the United States District Court for the Eastern District of Louisiana. Judge Stanwood R. Duval is hearing the case without a jury. Plaintiffs claim that the poor design of the Mississippi River Gulf Outlet, a 76 mile channel from New Orleans to the Gulf of Mexico, amplified the hurricane's damage. In March, Judge Duval rejected the government's immunity defense because the MR-GO was not a flood control measure, but rather a navigation channel. The trial is expected to last a month.
Update (from BC): A comment below notes the Slabbed blog, which is providing extensive coverage of the trial.
Food Safety - Thank Goodness for Minnesota
Yesterday, the New York Times had an interesting article on how states handle food safety reports. Thankfully for the rest of us, Minnesota is a very diligent state, "safeguarding not only Minnesotans but much of the rest of the country, as well."
If not for the Minnesota Department of Health, the Peanut Corporation of America might still be selling salmonella--laced peanuts, Dole might still be selling contaminated lettuce, and ConAgra might still be selling dangerous Banquet brand pot pies — sickening hundreds or thousands more people.
In these and other cases, epidemiologists from Minnesota pinpointed the causes of food scares while officials in other states were barely aware that their residents were getting sick. From 1990 to 2006, Minnesota health officials uncovered 548 food-related illness outbreaks, while those in Kentucky found 18, according to an analysis of health records.
April 20, 2009
More on Iraq v. Beaty
I posted over the weekend about the Supreme Court hearing argument today in the case of Iraq v. Beaty, addressing whether U.S. courts have jurisdiction over tort suits against Iraq for alleged torts during Saddam Hussein's reign. The SCOTUSBlog has posted a preview of the argument.
NYU Posts Preemption Symposium Videos, Materials
Suit Alleges Collusion Between Plaintiffs' Lawyers, Diocese in Abuse Settlements
The Diocese of Charleston denies the allegations, which were made in a suit filed earlier this year. The suit was originally filed directly in the South Carolina Supreme Court, which refused to hear it under its original jurisdiction, and so it was refiled last week in trial court. The suit alleges that the victims' lawyers put their own interests ahead of those of their clients; the victims' lawyers also deny the allegations.
April 19, 2009
Supreme Court to Hear Argument on Suit Against Iraq
Tomorrow the Supreme Court will hear argument in Iraq v. Beaty, a case addressing the U.S. courts' jurisdiction over claims against Iraq for liability claims for actions that took place during Saddam Hussein's reign. The case has consolidated a number of suits including, for example, claims for wrongs committed against hostages held by the former government.