September 4, 2009
Podcast on Medical Apologies
WHYY has a podcast on medical apologies featuring Richard Boothman, chief risk officer at the University of Michigan Health System, and Thomas Gallagher, a physician and associate professor of medicine at the University of Washington Medical Center. Listen here:
Thanks to David Raeker-Jordan for the tip.
September 3, 2009
Personal Injury Roundup No. 49 (9/4/09)
Reform, Legislation, Policy
- OK: Tort reform takes effect on 11/1, potential claimants urged to file now. (NewsOk, via Olson/Overlawyered)
- NY: Tightening comparative negligence in med mal cases? (Olson/Point of Law)
- In support of medical checklists as tort reform. (Day on Torts)
- Judge Weinstein pushes for a global settlement of remaining AG Zyprexa suits. (LegalNewsline)
- UK: Suit blaming birth defects on pollution is allowed to go forward (Olson/Point of Law)
- Not yet a new lawsuit, but it might be on the way. FDA says residue in Diet Pepsi can was a frog or toad. (CNN)
Trials, Settlements and Other Ends
- VA: The Virginia Supreme Court refused a petition for appeal in a case in which the defendant was granted charitable immunity. The parents of a 25-year-old retarded man claimed the employees of a non-stock corporation set up as a charitable organization were responsible for breaking their son's leg. (VLW Blog)
- MD: Jury awards $50,000 in teen suicide against stepfather who kept a gun in the house, knowing his stepson was depressed. (Maryland Daily Record)
- Pfizer agrees to pay $2.3 billion for promotion of Bextra (Bernabe/Torts)
- NY: New lead paint verdicts for children range from $600,000 to $1.2M. (New York Injury Cases Blog)
September 2, 2009
Guest Blogger Monday Series
The reaction to Guest Blogger Monday has been very positive. So far, Jeffrey O'Connell (Virginia) wrote on "Tort Liability as Social Insurance" and Keith Hylton (Boston University) posted on "Is Tort Law Economically Efficient?". We will take a break this coming Monday because of Labor Day, but will return the following Monday (9/14). The schedule for the rest of the fall is:
9/14 – Tony Sebok (Cardozo)
9/21 – Mike Rustad (Suffolk)
9/28 – Jonathan Cardi (Kentucky)
10/5 – Frank Vandall (Emory)
10/12 – John Oberdiek (Rutgers-Camden)
10/19 – Martha Chamallas (Ohio State)
10/26 – Adam Scales (W&L)
11/2- Jason Solomon (Georgia)
11/9 – John Goldberg (Harvard)
11/16 - Tim Lytton (Albany)
11/23 – Ben Zipursky (Fordham)
In the spring, we look forward to Ken Abraham (Virginia), Mike Green (Wake Forest) Andy Klein (Indiana-Indianapolis), David Owen (South Carolina), and Jennifer Wriggins (Maine), among others.
--Sheila & Chris
September 1, 2009
Alan Calnan's "Duty and Integrity in Tort Law" Available from CAP
Duty and Integrity in Tort Law is a comprehensive, versatile and revolutionary examination of the tort concept of duty. After tracing the historical evolution of tort law, Duty and Integrityanalyzes the current approaches to tort duties, including the new approach offered by the authoritative Restatement (Third) of Torts. Unlike these approaches, which tend to focus exclusively on negligence duties, Duty and Integrity examines the role of duty in all three of tort law’s theories of liability—intentional torts, strict liability and negligence—exposing the similarities and differences of these duties and suggesting grounds for their integration.
Aside from its critical commentary, Duty and Integrity contains many important philosophical and pragmatic insights. It reveals the moral and political foundations of tort law and duty by offering accessible explorations of corrective justice, distributive justice, and liberalism. Because liberal justice requires coherence in law, Ronald Dworkin’s acclaimed theory of “law as integrity” both frames and instructs the discussion. After explaining, critiquing, and endorsing a modified version of Dworkin’s approach, the book presents a groundbreaking methodology called “duty as integrity” for resolving any tort duty question. To demonstrate the practicality of this approach, Duty and Integrity concludes by thoroughly applying the proposed methodology to a recent and controversial decision of an influential state supreme court.
Given its broad intellectual scope, Duty and Integrity in Tort Law should appeal to legal and nonlegal academics and their students, as well as members of the legal community at large. Its transparent style makes it suitable both for advanced undergraduate or graduate classes on law, philosophy or political science and for law school courses on torts, advanced torts, tort theory, jurisprudence, law and politics, law and policy, legal history, and many more.
Stier on Verdict Variability and the Mass Tort Class Action
Byron Stier (Southwestern) has posted to SSRN Jackpot Justice: Verdict Variability and the Mass Tort Class Action. Here is the abstract:
Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.
$3.5 M Misdiagnosis Verdict in Texas
About Lawsuits reports that a Texas jury has returned a $3.5 million verdict in a misdiagnosis of cancer case.
Allegations of Evidence Destruction in Toyota Rollover Suits
The ABA Journal reports that a former in-house counsel at Toyota has filed a racketeering suit against Toyota alleging that the company "destroyed evidence in hundreds of rollover suits."
August 31, 2009
Guest Blogger Keith Hylton: "Is Tort Law Economically Efficient?"
A great deal has been written about the economic efficiency of the law, and of tort law in particular. There are arguments to be made on both sides, and I will not repeat all of them here.
The argument for efficiency of tort law was first set out explicitly by Richard Posner, though it was suggested one hundred years earlier by Holmes, who referred to the common law as largely determined by "convenience”. Posner never said precisely how this efficiency property came about. Paul Rubin offered a mechanism: litigants would tend to challenge inefficient rules more than efficient rules, and as a result the inefficient rules would be overturned more often than would efficient rules. Rubin’s answer has been challenged by later articles (yes, I’ve taken part in this too). Now, it appears that the most fashionable thing to say about the topic is that the tort law may be efficient sometimes.
The funny thing I find about this literature is that the simplest argument for tort law efficiency (whether you agree with it or not is another thing) has not been explored in the literature. I guess that is because it is so simple that it would not look intellectually challenging enough to attract the interest of a peer review journal, and it may also be too simple to be spun out into a long-winded law review paper. The simplest argument is that judges can look at the case in front of them and figure out the social costs of alternative
rulings. Once they do that, most are likely to adopt the decision that leads to the lowest social costs. And a judge doesn’t have to be an expert in economics to figure out which of several alternative decisions will result in the lowest social costs. Over time, that tends to make tort law, and much of common law, economically efficient.
When I used to teach a class in law and economics in a program for judges at Brookings, I used to offer them this simple hypothesis to see how they would react. I thought they would find the hypothesis controversial – and judges are quick to let you know if they disagree with you. I found that they always agreed and treated as it as if it were noncontroversial, even obvious.
I don’t think this was a case of sample selection. The judges who signed up for the program often expressed great skepticism in economic analysis. As a group, however, they were far more receptive to the common law efficiency hypothesis than are law teachers.
Keith N. Hylton
Honorable Paul J. Liacos Professor of Law