TortsProf Blog

OK Gov. Henry Signs Tort Reform Compromise

You may recall that, a little over a week ago, I posted on a compromise tort reform bill hammered out in the Oklahoma legislature.  There were six main features of the bill:

1. A redefinition of what constitutes a frivolous lawsuit, combined with a strengthening of summary judgment rules;
2. A certificate of merit requirement that covers all types of cases (not just med mal) and includes a pauper exception;
3. 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;
4. 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;
5. Changes to joint-and-several liability rules; and
6. Various class action changes

On Thursday, Gov. Brad Henry signed the bill.  It will take effect on November 1st.  LegalNewsline has more.

--CJR

Personal Injury Roundup No. 37 (5/22/09)

A quick announcement before we get to the Roundup: You'll be seeing some schedule shifts over the next weeks and months.  I (Bill) am becoming Western New England's Associate Dean for External Affairs and will be dialing down my posting here a bit.  I'll still do the Roundup and post fairly regularly, but not on as specific a schedule.  Thanks to Sheila and Chris for picking up my slack!

And now, on with the show, er, roundup:

Reform, Legislation, Policy

• President Obama reverses much of preemption-by-preamble legacy of Bush administration (Huffington Post, Point of Law, Drug & Device Law) (for what it's worth, I think the last link has it right - unsurprising and probably, post-Levine, not as big a deal as it could be)
• ALI's principles of aggregate litigation getting finalized (summarized at Drug & Device Law Blog)
• Should foreign corporations have the same tort exposure as US corporations? (TortsProf) 
• NEJM on physician conflicts of interest (NEJM) 
• Robinette on early offers & apologies (Northwestern.edu) 
• Feres doctrine debated (UPI) 
• Deductibility of punitive damages (Insurance Journal, also at Point of Law) 
• New York's second largest medical malpractice insurer is insolvent (New York Personal Injury Attorney Blog)

New Lawsuits

• Weird set of facts results in lawsuit, when caregiver watching a bounce house gets smacked by a bouncer, later dies (On Point News) 
• First lawsuit may be imminent in swine flu outbreak (Examiner.com)

Damages

• $1 awarded in policy shooting (Washington Post)
• $10,000 damages in taser suit (Rutland Herald) 
• Punitive damages possible in Florida defamation suit (Orlando Sentinel)

Appeals    

• Collection of links about the implications (many torts-related) of the Supreme Court's Iqbal decision, limiting notice pleading in the context of a Bivens action (Point of Law)

Miscellaneous

• If you show up in the "Damages" section of the roundup with a $1 million verdict, maybe you can join the "Million Dollar Advocates Special People's Club" (okay, I added the last part).  Eric Turkewitz digs some.  Note that I will make you a pretty badge for your website for substantially less than $1,200.

--BC

Schwartz Testifies in Favor of Liability for Foreign Corporations

Victor Schwartz (Shook, Hardy, & Bacon) testified on Capitol Hill on Tuesday in an effort to close a liability loophole for foreign corporations. 

"American companies are paying a tort tax," said Schwartz. "[Foreign companies] should have the same liability exposure if they're doing any meaningful business in the United States."

Andrew Longstreth of The AmLaw Litigation Daily has the story.  Schwartz's testimony is here.

--CJR

Bill to Partially Overrule Feres Doctrine Approved by House Judiciary Subcommittee

On Tuesday, the House Judiciary Subcommittee on Commercial and Administrative Law approved a bill to allow armed services members and their families to sue for negligent medical care.  The full House Judiciary Committee is expected to consider the bill by the end of July.  The Mid-Hudson News has a brief story.  The Kansas City infoZine has the back story.

--CJR

Famous Tort Cases Poll

Larry Cunningham (GW) is seeking your input over at Concurring Opinion on famous tort opinions penned by Cardozo and Posner.

- SBS

California Supreme Court Decides Important UCL Case

The California Supreme Court issued its opinion in In re Tobacco Cases yesterday. As Maura Dolan for the LA Times reports,

The case against the tobacco industry, which lower courts had dismissed, charges the industry with luring people to smoke with deceptive ads about cigarette safety.  Brought on behalf of every Californian who saw the ads and purchased cigarettes from 1993 to 2001, the suit could produce a jury award in the billions of dollars, lawyers said.

Proposition 64 amended the state's unfair competition law to require people who sue to show they lost money or property as a result of an illegal act.  ...  Monday's ruling was unanimous in requiring representatives of the class -- the named individuals who filed the lawsuit -- to prove they relied on tobacco ads when they purchased cigarettes. Trial lawyers had conceded that point.

The court also agreed with trial lawyers that the named representatives should not have to prove "an unrealistic degree of specificity" about which ads they saw.

Business groups had argued that every member of the class -- all those who purchased cigarettes during the eight-year period--should also have to prove they bought cigarettes as a result of the advertisements, a huge legal hurdle.  The court majority said such a requirement would "effectively eliminate the class action lawsuit as a vehicle for the vindication" of consumer rights.

The court's three most conservative justices dissented, arguing that the majority ruling invited "mischief" and frivolous lawsuits that Proposition 64 was designed to halt.

Here's a copy of the opinion (pdf).   Kimberly Kralowec (UCL Practitioner) has a thorough analysis of the case.

- SBS

Delaware Deaths Not Caused By Heparin

As previously noted, the FDA and Baxter International were investigating whether the drug heparin was to blame for two deaths at Beebe Medical Center in Lewes, Del.   The Wall Street Journal reports that Baxter has concluded that the deaths were unrelated to the patients' use of heparin, and that the heparin involved was not tainted.

- SBS

Robinette on Early Offers and Apologies

Our own Chris Robinette has just published "The Synergy of Early Offers and Medical Explanations/Apologies" in Northwestern Law Review's Colloquy.  As the Introduction explains,

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators. It has been challenged as inefficient, inaccurate, and even counterproductive.  Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other.  Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial to plaintiffs, defendants, and society as a whole. Although some attention has been paid to combining early offers with explanations of the incident or with apologies, the idea has never received a focused analysis.  Recent scholarship on explanations and apologies allows greater insight into the role they play in conflict resolution, and their importance to an early offers proposal in the field of medical malpractice.  This Essay considers such scholarship and explores the advantages of combining early offers with explanations of the incident and/or apologies.

- SBS

Comparative Fault Bill Passes NC House

As the Rocky Mountain Telegram (AP)reports, a bill that would change North Carolina to a comparative fault jurisdiction passed the NC House last week.   North Carolina is currently a contributory negligence jurisdiction.  Under the bill, North Carolina would become a modified comparative fault jurisdiction, where the plaintiff would recover only if she is less than 50% at fault.   (If found 50% at fault, the plaintiff would still recover nothing).  

- SBS

Learned Intermediary in NY

Beck & Herrmann describe and oppose the bill.

Alberto Bernabe (John Marshall) responds and supports it.

--BC

Fraudulent Asbestos Removal

Via Point of Law, a stunning Boston Globe story about an diploma mill for asbestos abatement and the resultant risks.

--BC