August 29, 2009
Statute of Repose Win in Fen-Phen Appeal
Over at Drug & Device Law, Jim Beck writes about the Sixth Circuit's decision affirming summary judgment for Wyeth based on Tennessee's statute of repose.
August 28, 2009
Personal Injury Roundup No. 48 (8/28/09)
We just finished our first full week of classes here at Charleston. Here's what happened this week in torts:
Reform, Legislation, Policy
- Health reform debate continues to percolate. (WaPo, AP, ABC News Political Punch)
- Representative Henry Waxman (D-CA) takes on Medicare Part D drug program. (NYT)
- As required by statute, FDA creates the Tobacco Products Scientific Advisory Committee and is requesting nominations for members. (FDA Law Blog)
- Federal judge grants Daubert motion and excludes plaintiff's expert in Bausch & Lomb ReNu MDL. (Drug & Device)
- Another federal judge excludes the plaintiff's causation expert in Viagra MDL. (Mass Tort Defense, Mass Tort Profs)
- A coach and an aide have filed separate lawsuits over the collapse of the Dallas Cowboys training facility back in May. (AP, Dallas Morning News)
- Unmasked blogger plans to sue Google for complying with a court order to reveal her identity in the "Skanks in NYC" defamation suit. (CNN, ABA Journal, Concurring Op)
- Two Pennsylvania women sue over pitt bull attacks. (Sun News)
- Yaz blood-clot lawsuit filed in Illinois. (About Lawsuits)
- Mother-in-law sues comedienne for defamation based on daughter-in-law's jokes, and keeping it all in the family, the lawyer/husband/son is representing his comedienne wife. (WSJ Law Blog, ABA Journal)
Trials, Settlements and Other Ends
- Beck & Herrmann collect Zyprexa andAredia-Zometa summary judgment rulings. (Drug & Device)
- Federal judge dismisses Trasyol class action. (Mass Tort Defense)
- $1.3M verdict in Maryland med-mal case. (About Lawsuits)
- Pennsylvania appellate court rejects assumption-of-the-risk defense for golfer struck by ball. (Point of Law)
- LA jury awards $13.8 million punitive damages in tobacco case retrial. (Cal Punitive Damages)
August 27, 2009
Introducing Guest Blogger Keith Hylton
Monday's Guest Blogger is Keith Hylton. Hylton is currently the Honorable Paul J. Liacos Professor of Law at Boston University School of Law. Hylton joined the BU Law faculty in 1995 after teaching for six years and receiving tenure at Northwestern University School of Law. At BU Law, he teaches courses in antitrust, torts and labor law.
Hylton's articles are too numerous to list here. His 2008 publications alone include: "Asbestos and Mass Torts with Fraudulent Victims," in Symposium on Perspectives on Asbestos Litigation, 37 Southwestern Law Review 575 (2008); "Due Process and Punitive Damages: An Economic Approach," in Symposium on Punitive Damages, 2 Charleston Law Review 345 (2008); "The Lawful Acquisition and Exercise of Monopoly Power and Its Implications for the Objectives of Antitrust," with David S. Evans, 4 Competition Policy International 203 (2008); "A Positive Theory of Strict Liability," 4 Review of Law & Economics 153 (2008); "Preemption and Products Liability: A Positive Theory," 16 Supreme Court Economic Review 205 (2008); "A Theory of Wealth and Punitive Damages," in Symposium on 'Crimtorts', 17 Widener Law Journal (2008); "Unilateral Refusals to Deal and the Antitrust Modernization Commission Report," 53 Antitrust Bulletin 623 (2008); "Weyerhaeuser, Predatory Bidding, and Error Costs," 53 The Antitrust Bulletin 51 (2008); and "When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards," 16 Supreme Court Economic Review 39 (2008).
In addition, Hylton serves as co-editor of Competition Policy International and editor of the Social Science Research Network's Torts, Products Liability and Insurance Law Abstracts.
Hylton is also a former chair of the Section on Torts and Compensation Systems of the American Association of Law Schools, a former chair of the Section on Antitrust and Economic Regulation of the American Association of Law Schools, a former director of the American Law and Economics Association, a former secretary of the American Bar Association Labor and Employment Law Section, a former member of the editorial board of the Journal of Legal Education and a current member of the American Law Institute.
August 26, 2009
The Prosser Notebook is Available Online at Berkeley Law Library
Our regular readers know that a member of my first Torts class was kind enough to share with me the Torts notebook of his grandfather, Leroy S. Merrifield. Mr. Merrifield's first year at the University of Minnesota Law School was 1938-39, and his professor was William Prosser. At the time, Prosser was working on Prosser on Torts, which was published in 1941.
Leroy S. Merrifield went on to became a law professor, and teach Torts, at George Washington University Law School. The notebook, then, provides the thoughts of an eminent torts scholar, in the process of creating arguably the most influential hornbook on torts, as channeled by a student who would go on to become a Torts professor.
Thanks to the efforts of Berkeley Law archivist William Benemann, the notebook is now available online: http://sunsite2.berkeley.edu:8088/xdlib//prosser/ucb/mets/cubanc_67_1_00064213.xml.
My article analyzing the notebook is available here.
Porat & Stein on Liability for Future Harm
Ariel Porat (Tel Aviv) & Alex Stein (Cardozo) have posted to SSRN Liability for Future Harm. Here is the abstract:
This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine the American and English court decisions pertaining to this issue and consider whether a probability-based compensation for the victim’s expected - albeit not yet materialized - harm is just and efficient. We demonstrate how the virtues of a legal regime that allows a tort victim to recover compensation for her expected harm overshadow its vices. We conclude that a person’s risk of sustaining harm in the future should be actionable whenever the risk is substantial. We further conclude that it should be left to the victim to decide whether to recover for his or her expected harm, or else wait and see if the risk materializes and recover only if it does. We observe that allowing victims to make this choice might create a collective action problem. Because expedited compensation for a victim’s expected harm erodes the wrongdoer’s ability to compensate future claimants, victims would opt for an early recovery for expected harm even when their substantive remedial preferences are different. We demonstrate, however, that this problem can be resolved.
August 25, 2009
Torts Opening at Albany
Peter Halewood asked us to post this announcement from Albany Law School:
ALBANY LAW SCHOOL invites applications for as many as seven tenure-track positions beginning in the fall of 2010. Appointment will be made at the assistant, associate or full professor level, depending on experience. We are particularly interested in faculty with expertise in one or more of the following areas: family law, intellectual property, trusts and estates, tax, torts, criminal procedure, and business (including contracts, corporations, regulatory compliance, and mergers and acquisitions). Candidates must demonstrate 1) a strong academic background, 2) a capacity for and a commitment to excellence in scholarship, and 3) a capacity for and a commitment to be an effective teacher in the classroom and to spend significant time outside of class working with students.
ALBANY LAW SCHOOL is a small, independent private school in New York State’s capital. Established in 1851, it is the oldest independent law school in the nation and the oldest law school in New York. You can learn more about the school by visiting our website: www.albanylaw.edu
Application (electronic preferred) should include cover letter, resume, a list of publications and three references and be sent to Faculty Recruitment Committee c/o Barbara Jordan-Smith, Dean’s Office, Albany Law School, 80 New Scotland Ave., Albany, NY 12208-3494, firstname.lastname@example.org.
Albany Law School is an Equal Opportunity Employer.
"Flip and Fall"
Jonathan Turley reports that a Chicago woman who fell while walking on the floor near a dolphin tank is suing the zoo for “recklessly and willfully trained and encouraged the dolphins to throw water at the spectators in the stands, making the floor wet and slippery.”
August 24, 2009
Jeffrey O'Connell: Tort Liability as Social Insurance
Though not often thought of this way, tort liability coverage for personal injury can be best seen as social insurance. Such a vantage invites the government to take a firm hand in shaping such coverage rather than leaving it to the market, as is largely done with other forms of private insurance whether life, health, disability or homeowners. Social insurance can be defined as insurance coverage mandated by the government for losses – coverage that is so essential to well-being that society deems it impermissible for the populace to fail to be covered for such losses. Obvious examples are workers’ compensation, medicaid, medicare, along with old age benefits and total disability insurance under social security, etc. All these are mandated by state or federal legislation. Tort liability insurance is also mandated by law – in this case by common law rather than legislation, but law nonetheless. The common law in every state mandates that those liable for causing injury by their substandard conduct (or product) pay their victims’ losses. In the case of auto accidents, liability insurance for misconduct as defined by common law is indeed expressly mandated in one form or another for motorists by legislation in every state. Furthermore, mandatory auto insurance statutes not only protect the assets of those who commit torts but impart rights to those they injure.
Admittedly, tort liability insurance is not similarly legislatively mandated for, say, medical mistakes or malfunctioning products. But as a practical matter, any party – personal or corporate – potentially liable is compelled to purchase liability insurance based on the government’s common law dictate as to the legal consequences of such misconduct. Because tort liability is required by law, it follows that it should be viewed as a form of social insurance. Especially is this so since, on the other side of the coin, all who purchase goods or services are also, of course, required to pay for the tort liability coverage accompanying such purchases.
All this leads to the propriety, indeed necessity, for any government to structure this mandated insurance such that above all it seeks to protect those who suffer real need – namely those in almost any socioeconomic class seriously injured by tortious accidents whose losses outstrip all other applicable coverages.
It thus makes sense for tort liability coverage as social insurance to (1) limit transaction costs, (2) ensure that the populace need not buy coverage that pays for non-essential coverage, for example, non-economic losses – especially when so much economic loss in our society from injury and illness is uncovered, and (3) eliminate the waste involved in double payment of any loss by both first-party and third-party insurers. With respect to that third item, it makes sense for tort liability coverage to eliminate the waste of insurance companies shifting money back and forth to prevent double payment by so-called ‘subrogation’ claims. The latter are brought against third-party liability insurers by first-party health or disability insurers to recoup amounts the latter have already paid for the victim’s medical expenses or lost wages.
In other words, these subrogation claims are brought against third-party liability insurers covering their insureds who allegedly (but only allegedly) have by their torts caused the need for earlier payment by first-party insurers to their insureds. They entail not only the waste of two insurers paying for the same lower loss but doing so at a time when more serious losses are often going unpaid from any source. Third-party liability insurance, along with first-party insurance, is very expensive and the more it is required to cover, the more expensive it is. Having liability insurers duplicate payment already made by other insurers obviously means less insurance available for those with unreimbursed losses from any source. Why? Because very little insurance (at least in the U.S.) is sold without any limits. The more coverage that is included in third-party insurance the higher the cost, the lower the limits likely to be covered, and the lower the limits covered obviously the less insurance available to the most seriously injured. Under an early offers plan paying promptly for economic losses in excess of other coverages, one could expect less expensive higher limits of coverage, or at least better use of coverage even without higher limits.
It cannot be over emphasized that the United States is a tragically underinsured country for both illness and injury – and growing more so all the time. Those with no health insurance at all ever increase in number, close to 16% in 2005. (If it is true that the young (18-24) who are healthier and therefore need less health care are disproportionately among the uninsured (c. 40%), it is those very same youngsters who are disproportionately involved in accidents leading to tort suits.) Even those with health insurance are being required by their employers to bear more and more of their health care costs through any or all of the following: higher deductions from their pay, higher deductibles applied to any healthcare service rendered, or lower overall limits of coverage. Health insurance for retirees is more and more disappearing. The cost of government supplied health insurance – primarily Medicare and Medicaid – already direly threatens state and federal budgets, threats that loom even larger in the future, dwarfing even the huge potential costs of social security’s old age coverage. The percentage of Americans with disability insurance covering wage loss is indeed even far less than for health insurance. Pensions are disappearing for many or being severely lessened by the wholesale abandonment of defined benefit plans, replaced in turn by defined contribution plans with more and more of the burden of uncertainty falling on potential pensioners.
One has to admit that the dollars involved in tort liability coverage for personal injury, large as they are, can make only a small dent in sensibly supplementing economic losses payable by America’s notoriously inadequate health and disability coverage, whether public or private. For example, the United States now spends almost $2 trillion annually on health care alone. But medical malpractice costs paid by doctors and hospitals, including self insurance, come to only about 2.5% of total health care expenditures. But still billions of dollars from liability insurance are available which if structured more sensibly could alleviate insurance shortages for many sorely in need while also substantially lessening the cost of liability insurance now misserving both an uninsured and underinsured public.
A [pdf] piece lauding "early offers" as consistent with this analysis is here: Download Personal Injury Law as Social Insurance