Friday, July 17, 2009
Yesterday the Institute for European Tort Law (of which Ken Oliphant is director) and the European Centre of Tort and Insurance Law published their new book: Punitive Damages: Common Law and Civil Law Perspectives; Tort & Insurance Law, vol. 25 (Helmut Koziol Vanessa Wilcox, eds.). From the blurb:
With the growing literature on the subject of punitive damages, the consensus is that it seems worthwhile and even necessary to discuss, thoroughly and on a comparative basis, the nature, role and suitability of such damages in tort law and private law in general.
This book contains reports from selected jurisdictions that explicitly allow the award of punitive damages as well as from jurisdictions which purport (sometimes emphatically) to deny their existence (although a number covertly incorporate such damages into the framework of their tort systems). It also benefits from special reports on insurance, law and economics, private international law and aggravated damages. The book’s comparative report and conclusion critically evaluates the material in the above reports and advances a thorough analysis of the nature of punitive damages, the cases for and against them, and their suitability in the field of tort law. Alternative remedies in private and criminal law are also considered.
Order details, for those interested, can be found here:
It's been a big week in Wisconsin.
Reform, Legislation, Policy
- WI: Bill would expand parties who could bring a med mal death suit to include non-dependent family members (Wisconsin Radio Network)
- Point: John Avlon (Manhattan Institute)--"Sue City": The Big Apple's tort tax dwarfs other cities (Forbes.com)
- Counterpoint: Eric Turkewitz--Debunking another tort reform column (New York Personal Injury Law Blog)
- Counterpoint: Ron Miller (The Maryland Injury Lawyer Blog)
- More coverage at Overlawyered
Trials, Settlement and Other Ends
- TX: Pre-cap med mal verdict: $10M (JusticeNewsFlash.com)
- NY: Bronx jury awards $60M in med mal case (PR Newsline)
- TN: Shelby county jury awards $24M in med mal case (commercialappeal.com)
Thursday, July 16, 2009
Michael Lewis Wells (Georgia) has posted to SSRN A Common Lawyer's Perspective on the European Perspective on Punitive Damages. Here's the abstract:
Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heavily influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was comparatively easy for lawyers to convince judges that juries in tort cases should be allowed to punish defendants for egregious misconduct.
First up is hospital vicarious liability, promoted by Professor Philip Peters (Missouri) in a recent SSRN posting Making Hospitals Accountable. Here is the abstract:
Modern health care is delivered by large teams of highly trained individuals in a complex web of interaction that demands coordination and oversight. For this reason, the traditional model of malpractice liability, in which the individual caregiver is liable, is outmoded: medical errors often are the result of system failures, and systemic changes best address these problems. For this reason, a robust regime of hospital vicarious liability has more potential than any other malpractice reform to realign the deterrent power of tort law with the goal of patient safety.
Next we have health courts, promoted by lawyer-author Philip Howard (Common Good) in a WSJ op-ed. Here's a taste:
Studies have repeatedly demonstrated that the current ad hoc system of justice, with verdicts that vary widely from one jury to the next, has spawned a culture of legal fear and self protection. Studies also show that the system fails injured patients -- a claim takes an average of five years to resolve and nearly 60 cents out of every dollar spent in the malpractice system ends up going to lawyers or administrative costs.
That's why most of the important health-care constituencies, from the American Medical Association to AARP, favor creating pilot projects for special health courts. Mr. Obama has recently talked about the need "to explore a range of ideas about how to . . . scale back the excessive defensive medicine."
(Via Olson/Point of Law)
Wednesday, July 15, 2009
Over at The Legal Workshop, Cornell has posted my essay, "Through the Looking Glass: A Response to Professor Markel's Retributive Damages." In this essay, I take a look at "Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction" by Professor Dan Markel (Florida State). As stated in the introduction, the essay addresses two threshold issues:
First, can the “retributive damages” model properly be considered punitive damages? Second, do “retributive damages” avoid the doctrinal problems that have plagued punitive damages for decades? In my view, the answer to both questions is “no.”
Tuesday, July 14, 2009
The ABC comedy Better Off Ted this week featured an episode centered on a products liability lawsuit. In it, the fictional-but-amusing Veridian Dynamics (which has, among other things, created "meat without cows" and "weaponized pumpkins") was sued for a perfume that, according to reports, caused hornets to attack 3 in 5,000 women who wore it.
The episode ("Trust and Consequence") -- which is not available online as of this writing, but likely will be soon at the ABC site -- includes (spoilers!) aspects of discovery (including an explanation about a problematic e-mail going missing), attorneys becoming romantically interested in employees of their adversaries, and a defendant seeking a scapegoat to avoid public anger.
Plus, it's funny.
Monday, July 13, 2009
Jim Gibson (Richmond), mostly an IP prof (and my former colleague from Williams & Connolly), has posted (a while ago) an interesting torts-related piece, Doctrinal Feedback and (Un)Reasonable Care. In it, he addresses the circularity of the standard of care in tort law, where the level of care required is affected by the negligence standard's definition's reference to actual conduct. Put another way, if a standard of care is defined by referring to what doctors actually do (in the med mal context), and doctors are acting not just to avoid harm, but to avoid litigation, the legal standard is being affected by itself.