May 16, 2009
The Enduring Relevance of Palsgraf
Thanks to John Day for reminding us that spending time covering the classics is not only fun, but also practical.
May 15, 2009
Personal Injury Roundup No. 36 (5/15/09)
It's graduation weekend at many schools. Best wishes to all law grads!
Reform, Legislation, Policy
- John Day on a doctor-owned med mal insurer's surgical checklist (Day on Torts)
- Hearings on the Medical Device Safety Act of 2009 (Drug and Device Law)
- Let's stick with Beck and Hermann for a while--In this post, they describe the ALI's attempt to finalize The Principles of the Law of Aggregate Litigation (Drug and Device Law)
- NC Medical Board opposes a bill in the legislature that would make it more difficult to discipline doctors (Raleigh News & Observer)
- OK tort reform compromise (TortsProf)
- A tort claim, a precondition to filing suit against a public entity such as a school, has been filed in Indiana over alleged sexual assault on a school bus (nwi.com)
- Walter Olson on "sexting suicide" suit (Overlawyered)
- Virginia Court of Appeals disputes the meaning of "assault." It's a criminal case, but the tort definition is discussed. (VLW Blog)
- Commentary on a recent D.C. Circuit decision rejecting the right-to-control test to distinguish between employees and independent contractors (Stier/Mass Torts Profs)
- Ron Miller on Settlement Loans (Maryland Injury Lawyer Blog)
- $2 million for injuries in team-building sumo wrestling (CBS Denver 4)
May 14, 2009
Legal publishers are experimenting with a new "Looseleaf" format. The text will be printed, but not bound. Students will be able to purchase a binder to insert the pages of the text. I'm excited about this for two reasons. First, it will save our students a lot of money. The traditional text typically costs between $110-150. Looseleaf costs will be about 35-40% of that amount. Second, it will allow them (and us!) to carry only the small, relevant, relatively weightless portion of text.
I received an e-mail from Aspen yesterday stating that The Torts Process by Henderson, Pearson, Kysar, & Siliciano is now available in looseleaf (looseleaf ISBN: 978-0-7355-8888-2). It would appear that this is a change in marketing strategy, so perhaps we can expect looseleaf versions for other popular Aspen Torts titles. At Lexis, three Torts titles are available in looseleaf format: Tort Law: Cases, Perspectives, and Problems by Galligan, Haddon, Maraist, McClellan, Rustad, Terry, & Wildman (looseleaf ISBN: 9781422425985); Torts: Cases, Problems, and Exercises by Weaver, Bauman, Cross, Klein, Martin, & Zwier (looseleaf ISBN: ISBN 9781422472682) ; and Tort Law and Practice by Vetri, Levine, Vogel, & Finley (looseleaf ISBN: 9781422418321).
On a related note, Carolina Academic Press has just announced a forthcoming (August 2009) fourth edition of Studies in American Tort Law by Johnson & Gunn.
OK Tort Reform Compromise Forged
Republicans in the Oklahoma legislature reached out to trial lawyers and patient advocacy groups to forge a tort-reform compromise that the governor will likely sign. The major features of the bill:
- A redefinition of what constitutes a frivolous lawsuit, combined with a strengthening of summary judgment rules;
- A certificate of merit requirement that covers all types of cases (not just med mal) and includes a pauper exception;
- A cap on non-economic damages of $400,000, but an exception that a judge or jury may waive the cap in cases of gross negligence or catastrophic injury;
- A requirement that the state explore purchasing a $20M insurance policy to create an indemnity fund for non-economic damages in excess of $400,000;
- Changes to joint-and-several liability rules; and
- Various class action changes
May 13, 2009
Supreme Court Nomination & Tort Law
Over the coming weeks, we will no doubt hear a lot about the imminent Supreme Court vacancy, and some of those discussions will presumably relate to tort law. Today, a couple of links, with no representation that they're representative:
- Eric Turkewitz advocates for "the tissue box test" in advocating for a nominee with experience as a trial lawyer. Walter Olson disagrees but is still glad he read it.
- Scott Greenfield has a similar theme, as does Norm Pattis.
- The Nation has a number of takes, though mostly unrelated to tort law.
- NAM wants judges who "understand business."
A Tax on Your Soda? Senate Holds Hearing on “Financing Comprehensive Health Care Reform”
Yesterday, the Senate Finance Committee held a hearing on “Financing Comprehensive Health Care Reform.” Over a dozen experts provided ideas about how to pay for the comprehensive health reform proposed by President Obama. As the Wall Street Journal reports, one idea included "a federal excise tax on soda, certain fruit drinks, energy drinks, sports drinks and ready-to-drink teas" - proposed by the Center for Science in the Public Interest.
FDA Investigating Heparin Deaths in Delaware
The FDA and Baxter International are investigating two deaths at Beebe Medical Center in Lewes, Del. Both patients were taking heparin, a widely used blood thinner made by Baxter. Both the WSJ and the Seattle Times (AP) have more.
May 12, 2009
Trial Law Report - Tennessee Tort Law Edition - Free!
Trial Law Report summaries every tort, civil procedure, evidence and trial law opinion released by the Tennessee appellate courts every month. We also provide you will a complete listing of all cases pending before the Tennessee Supreme Court and the United States Supreme Court on these subjects. Finally, I write a monthly column on some aspect of the law of trial each month.
"Is it becoming more dangerous to eat?"
So asks Andrew Martin and Gardiner Harris in Sunday's NY Times.
May 11, 2009
Colburn on Sunstein Appointment
My former colleague Jamie Colburn, now at Penn State, has a post up at Dorf on Law about Cass Sunstein's nomination to head the Office of Information and Regulatory Affairs. Worth a read.
Tennessee Considers Increasing Cap on Punitive Damages in Nursing Home Suits
Nashville Scene has some details (with a definite perspective, suggested by the "Kill Old People Cheat" part of its headline).