TortsProf Blog

WI: $3.7M Med Mal Verdict

Yesterday, a jury in Wisconsin awarded the family of a deceased farm worker $3.7 million in damages for medical malpractice.  Gustavo Espinal-Santos died Jan. 1, 2004, after contracting blastomycosis, a fungal infection often transmitted through water or soil.  He presented at a family practice in December of 2003, where he was examined by physician assistants and diagnosed with pneumonia.  The family alleged a failure to run basic diagnostic tests, specifically x-rays.  After a four-day trial, the jury deliberated eight hours before finding negligence on the part of the practice and the physician supervising the physician assistants.  The award will be reduced pursuant to Wisconsin's damages cap.  The story, courtesy of greenbay pressgazette.com, is here.

--CJR

Personal Injury Roundup No. 52 (10/02/09)

I know we've celebrated one year of having the Roundup already, but we've missed a few weeks.  This 52nd Roundup represents a full year of actual posts.

Reform, Legislation, Policy

• Philip Howard on (lack of) med mal reform (WSJ via Olson/Point of Law)
• AAJ opposes med mal reform; membership (and dues therefrom) have dropped (ABA Journal)
• The Chinese Drywall Mess (The Pop Tort)
• Eric Turkewitz's brother, Dr. Turkewitz (!), on defensive medicine.  (New York Personal Injury Law Blog)
• Lawyers file challenge to Indiana's med mal cap.  (Indianapolis Star, via Olson/Point of Law)

New Lawsuits

• "Hold your Wee for a Wii" trial begins (TortsProf)
• Family of Americans killed in Air France crash sue (AP)

Appeals

• TN:  According to John Day, the TN Supreme Court has ruled that "a plaintiff who lost a medical malpractice case in federal court was not estopped from pursing a case against a State-employed doctor even though the federal court jury assigned no fault to the doctor, a non-party in the federal court action."  (Day on Torts)

Damages

• Impermissible jury compromise requires court to set aside $500,000 pain and suffering verdict for ankle injuries in case stemming from 1993 WTC bombing (Hochfelder)

Miscellaneous

• Driving Distractions (VLW Blog w/ link to NYT article)
• Our Guest Blogger Series is attracting attention.  (Drug & Device Law) (Professor Froomkin/Miami)

--CJR

Monday's Guest Blogger: Frank Vandall

Frank J. Vandall is Professor of Law at Emory University, where he has been on faculty since 1970.  He received a B.A. from Washington and Jefferson College in 1964 and a J.D. from Vanderbilt University in 1967.  Professor Vandall also holds an LL.M. (1968) and S.J.D. (1979) from the University of Wisconsin.

Professor Vandall is the author of a first-year casebook, Torts, Cases, Problems and Questions, which was published in early 1997; a products and liability casebook, Products Liability Cases, Materials, Problems (1994); "Our Product Liability System: An Efficient Solution to a Complex Problem," Denver Law Review; a theoretical tort book for lawyers and business people, Strict Liability: Legal and Economic Analysis; and Police Training for Tough Calls: Discretionary Situations. His articles include "Suits by Public Hospitals to Recover Expenditures for the Treatment of Disease, Injury and Disability Caused by Tobacco and Alcohol," Fordham Urban Law Review (1994); "Reallocating the Costs of Smoking: The Application of Absolute Liability to Cigarette Manufacturers," Ohio State Law Journal; "Criminal Prosecution of Corporations for Defective Products," International Legal Practitioner; "Judge Posner's Negligence-Efficiency Theory: A Critique," Emory Law Journal; "A Critique of the Proposed Restatement, Third Products Liability, Section 2(b): The Reasonable Alternative Design Requirement," Tennessee Law Review (1994); "The Restatement, Third Products Liability, Section 2(b): Design Defect," Temple Law Review (1995); and "Constructing a Roof Before the Foundation is Prepared: The Restatement (Third) of Torts, Product Liability: Section 2(b) Design Defect," Michigan Journal of Law Reform (1997).

Professor Vandall teaches first-year torts and advanced courses in products liability and torts. He has served as scholar-in-residence at the Institute of Advanced Legal Studies at the London School of Economics. Professor Vandall was the Roger Traynor Research Professor at the University of California, Hastings College of Law during 1993.

--CJR

Cupp on Preemption

Richard Cupp (Pepperdine) has posted to SSRN Preemption's Rise (and Bit of a Fall) as Products Liability Reform:  Wyeth, Riegel, Altria, and the Restatement (Third)'s Prescription Product Design Defect Standard.  Here is the abstract:

This Article is Professor Cupp's most recent contribution to the discussion of the Restatement (Third) of Torts and its standard for prescription product design defect claims, especially in light of the rising strength of the preemption doctrine and the recent Supreme Court cases of Riegel v. Medtronic and Wyeth v. Levine. Under the Restatement (Third)'s standard, outlined in section 6(c), a prescription product manufacturer may not be held liable in a prescription product design defect case unless no reasonable health care provider would have prescribed the product to any class of persons.

The Article begins by fleshing out section 6(c)'s standard of prescription product design defect liability and explaining why, in Professor Cupp's view, it is a "near-immunity" standard. The Article also briefly addresses the limited number of cases that cite the standard itself, explaining why many courts and commentators appear to not be in favor of it. Then, the Article discusses important recent Supreme Court preemption litigation. This discussion starts with the 1992 case of Cipollone v. Liggett Group, Inc., which was decided around the time formal work on the Restatement (Third) began, followed by three recent cases: Riegel, Wyeth, and Altria Group, Inc. v. Good. The Article then analyzes the Food and Drug Administration (FDA)'s shifting position on whether FDA approval should create preemption, which came to light during the most recent Bush administration. The Article continues by discussing whether section 6(c) reflected the mood of the courts in assessing prescription product design liability at the time of its drafting. This mood, as illustrated in the 1993 Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, reflected the tendency to favor restricting liability in prescription product design liability cases by employing an increasingly aggressive use of preemption analysis. In conclusion, the Article suggests that recent preemption decisions may parallel the Restatement (Third)'s disdain for prescription product design liability but acceptance of prescription product warning liability.

--CJR

"Hold Your Wee for a Wii" Trial in Progress

I don't expect to do regular updates, but today's update might be an interesting basis for discussions of knowledge and foreseeability.

--BC

Cheng & Yoon on "Predicting the Constitutionality of Punitive Damages"

Edward Cheng (Brooklyn) and Albert Yoon (Toronto) have posted their recent article, "Predicting the Constitutionality of Punitive Damages:  A Statistical Approach."  The abstract provides:

The constitutional doctrine governing punitive damages captivates legal scholars and jurists in part because it is both complex and evolving. The unpredictability, however, presents difficulties for attorneys and their clients, who need greater certainty to make practical decisions about litigation and settlement. In this Essay, we offer a statistical approach for predicting court decisions on the constitutionality of punitives. As it turns out, basic logisitic regression methods with appropriate model selection can be quite effective, although we make further gains using a Bayesian hierarchical approach. Using a new dataset of cases challenging punitive damage constitutionality from 1989 to 2008, our hierarchical model can predict out-of-sample outcomes with 76-85 percent accuracy. These results suggest that while constitutionality may not be subject to a deterministic formula, it can be effectively modeled statistically. Beyond the punitive damages context, our work additionally offers a glimpse of the potential of statistical models for predicting a wide variety of legal questions.

- SBS

Some Data Points On Coffee

Last week's guest post from Michael Rustad discussed (among other things) the infamous Liebeck v. McDonald's case, triggering a response from Ted Frank (in the comments) and an additional post from Rustad.

I start my Torts class with asking students what they think of when they think of "Torts."  Invariably, the Liebeck case comes up, along with some of the various understandings of the case that are out there.  One of the points of the discussion is both that case's centrality to many torts discussions, and the variety of "facts" that exist about it.

This year, I decided to ask students to use a food thermometer I have to compare the temperatures of coffee and other hot drinks as served in the Springfield area.  I have not calibrated the thermometer (a CDN home food thermometer, chosen, if memory serves, because of a recommendation in Cooks Illustrated), though it has in the past come up with temperatures very similar to those of other food thermometers in my house. Nor is this a blinded experiment or anything along those lines.  I mostly wanted to see what variety there might be in temperatures.

The instructions I gave:

1.  Purchase an ordinary coffee.  If you are getting anything other than coffee (i.e., tea, latte, etc.) note that in your post.

2.  Before adding cream or any other product, and as soon as possible after the beverage being handed to you, check the temperature of the drink.  To do so, turn on the thermometer ("On/Off" switch), wait for it to show the air temperature, and then put the metal probe into the drink (put it essentially all the way in, without the plastic part going into the drink).  Once the temperature listed stabilizes, note the temperature (in Fahrenheit).  Then clean off the thermometer probe thoroughly.  Do not immerse the plastic part of the thermometer.

3.  In this [TWEN] forum, post the location where you got the beverage, the date, the time, and the temperature.  Additionally, if the beverage is anything other than coffee, note that.

4.  Repeats are fine -- i.e., it is fine for multiple people to report the temperature of the Court Cafe's coffee.  (I know from personal experience that it varies fairly dramatically.)

5.  Home-brewed coffee is also fine.

The thermometer is still making its rounds through the class, but here's what we've seen so far:

• I got coffee from the law school court cafe just before class today (approximately 1:00 pm).  It was the house blend from one of the insulated containers.  I don't know how long it had been in there.  The thermometer indicated that it was 167.9 degrees.

• I just purchased today (9/3) a small coffee from the Dunkin Donuts across from campus at approx 9:15 am.  The temperature of this coffee was 174.3 degrees.  As I was driving to campus I was also testing this partiuclar drink and some did spill on my hand.  It was hot and it did hurt, but no burn was evident.

• September 4 at 8:00 a.m:  Today I measured the temperature of my home brewed coffee. It was dunken donuts coffee made in an older model of a krups coffee pot. The coffee measured 160.3 F.  I observed this was optimal temperature because I was going to drink it immediately. However, if I put it down for a little while it cools fast...it would not be ideal temp if I was traveling with the coffee starting at this temp.

• This morning, September 8th at 6:45am. I boiled water for tea using a stainless steel kettle on an electric stove. When the kettle whistled I poured the water over the tea and waited approximately 2 minutes before testing the water (tea bag still immersed). 171.6*F, I will not drink it probably for about 5-10 minutes though to allow it to cool down.

• Wednesday, September 9th, 7:40am: I purchased Starbucks Coffee, Mild Blend out of one of the insulated thermoses in the [law school] cafe downstairs [a/k/a the Court Cafe]. The temperature read at 179.4 degrees.

• September 9th, 3:30pm - I bought a coffee from a McDonalds on Allen Street in Springfield.  The temperature was 159.1 F.

• September 11, 2009, 8:30 am...I bought a coffee at the main cafeteria in the Germain Campus center (The Rock Cafe Food Court)...It is advertised as "New England Coffee", I chose the Breakfast blend.  Last time I bought coffee there I burned my mouth on it, so I was interested to see how hot it was...It was 171.4...which I was kind of disappointed it wasn't higher...but I still think that this is too hot to serve in flimsy paper cups with no covers!

• Saturday Sept. 12th: purchased regular coffee from Starbucks at the mall in Holyoke. 166.6F

• On 9/20/09 at  4:30pm I purchased a coffee from Starbucks in Northampton, MA.  The temperature was 173.4 degrees.

Again, the thermometer has not been calibrated, but I believe from experience cooking with it that it is fairly accurate.  So far, the highest temperature has been just shy of 180, and the lowest has been just over 159 -- from a McDonald's.

More updates to come.  And if any other Torts professors are so inclined, perhaps we could build up a wider range of data on coffee temperatures.

--BC

Guest Blogger Jonathan Cardi: "Does Tort Law Really Deter?"

Last Spring, I participated in a conference at Wake Forest on the Restatement (Third) of Torts.  As is usually the case when a group of law professors get together, a number of panelists spoke about whether this or that Restatement provision is economically efficient.  This reminded me of a question that I have pondered since law school but never researched—what empirical evidence is there that the existence of common-law tort decisions in fact deters future tortious conduct?  I posed this question to a couple of the law and economists attending the conference.  After thinking about it for a while, they knew of no such evidence, and one admitted that he was a little embarrassed never even to have considered the question. 

Now that I have surveyed the existing literature, I am not surprised by the answers I received—and the professor should not have felt embarrassed.  Very little study of the question exists.  Law and economics has dominated discussion of tort law for nearly four decades.  Virtually every piece of L&E literature relies on the assumption that tort rules and decisions are at least capable of deterring future conduct.  Moreover, as Professor Hylton suggested in his blog, judges too find the proposition “noncontroversial, even obvious.”  And yet the basic premise is grossly under-tested.

A number of scholars have attempted to answer the question with regard to specific areas of tort law—the effects of no-fault auto insurance rules, workers’ compensation schemes, and medical malpractice reforms have served as the most common subjects.  There have also been at least three efforts—by Gary Schwartz; Don Dewees, David Duff, & Michael Trebilcock; and Michael Smith—to aggregate evidence of deterrence to get a look at the bigger picture.  Results are mixed.  No study has found that tort law serves as a comprehensive deterrent as Landes, Posner, and Shavell, for example, have proposed.  Some have found limited evidence that tort acts as a weak deterrent with respect to certain behaviors.  Still others have found no evidence of deterrence and even, in a few cases, a negative association—that certain tort rules actually lead to an increase in injuries.

In one respect, it is not surprising that there exists so little study of tort law’s deterrent effects.  Empirical investigation of the question poses significant challenges.  Obtaining data measuring individuals’ risky behavior is difficult; the number of variables affecting behavior levels is potentially overwhelming; and the rules governing common-law tort liability do not generally vary much among American jurisdictions (providing limited opportunities for comparison).

In light of the challenges facing real-world empirical study of deterrence, Albert Yoon and I are attempting a behavioral-science approach to the question.  As a first bite at the apple, this Fall we recruited a number of fellow torts profs to offer to incoming 1L students a series of four surveys designed to elicit evidence of whether the general threat of tort liability deters individuals’ risky conduct.  Each survey was comprised of three parts.  The first part contained nine vignettes, instructing subjects to imagine themselves facing decisions to engage in risky behaviors under the backdrop of a particular legal regime.  The second part consisted of a previously-validated, thirty-question measure of subjects’ inherent risk proclivities (an attempt to segregate subjects’ inherent risk proclivities from any found deterrent effect).  The third part collected demographic information. 

Each student took only one survey.  Each survey was identical, except for the legal regime applicable to the vignettes.  Survey #1 told subjects that they could not be sued and would not be held liable for any injury they might cause in doing the conduct described, but that there was a law against the conduct that imposed a criminal fine.  Survey #2 informed subjects that there was no criminal law barring the behavior, but that they might be sued and might have to pay for any resulting injury.  Survey #3 contained a prompt to the effect that neither criminal nor tort law barred the activity.  And Survey #4 contained no legal prompt at all, leaving in place subjects’ background understanding of relevant law.  At the end of each vignette, subjects were asked to rate the likelihood that they would engage in the behavior described.

Thus far, we have gathered over 700 survey responses, and we are just beginning to analyze the data.  Our hypothesis tracks conventional wisdom with regard to deterrence.  Our guess was that Survey #3 (no crim or tort liability) would produce responses indicating the highest likelihood that subjects would engage in the potentially tortious behavior.  Survey #4 (no prompt) seemed likely to produce a lower likelihood because although subjects might presume the possibility of liability, they were not prompted to actively consider it.  Survey #2 (tort, no crim) seemed likely to have some deterrent effect, and Survey #1 (crim, no tort) might well prove to be the strongest deterrent.

But I wonder whether this hypothesis will bear out.  What if our behavioral-science investigation produces evidence that tort law does not deter individuals from engaging in risky conduct?  Would that be so surprising?  It would perhaps be jarring in light of 40 years of efficiency-based literature, but would it render tort law superfluous?  It is fairly clear, as an historical matter, that tort law did not arise as a means of deterring future conduct, but as a means of resolving individual disputes over who should pay for allegedly wrongful acts that resulted in injury.  This notion is not quaint even in today’s complex, industrialized world.  Nor would such evidence render efficiency irrelevant in tort law—perhaps tort law deters commercial actors, if not individuals.

Of course, Albert and my study has significant limitations.  Our pilot only involved law students, a group that is hardly representative of the general population in terms of race, gender, age, education, or socio-economic background.  Moreover, the study only tested subjects’ stated willingness to engage in the described behaviors—and behavioral-science studies have shown a frequent disconnect between how people say they will act and how they in fact do act.  Finally, subjects were asked to consider their actions a priori—but tortious behavior frequently consists instead of snap judgments or less-than-conscious errors.

Even with these limitations, I think that the study will prove to be a valuable first salvo into an area in considerable need of empirical investigation.  If any of you are interested in assigning the surveys to your torts students, the study provides a nice conversation-starter with regard to the purposes of tort law.  You can reach me at jcardi@uky.edu if you are interested. 

--Jonathan Cardi

   Dorothy Salmon Professor of Law

   University of Kentucky

Guest Blogger Mike Rustad Responds to Ted Frank

Mr. Frank takes issue with my statement that McDonald's coffee was "superheated" in my recent guest post here on TortsProf.    He writes that other coffee vendors also sold their coffee at 190 degrees.  He also states that some home brewed coffee is brewed at that temperature. 

Home-brewed coffee is generally brewed at 130 to 140 degrees according to trial testimony in the McDonald's case.  The plaintiff's experts testified that, as the temperature of coffee decreases to 155 degrees and below, the risk of serious burns goes down exponentially.  Liebeck v. Mcdonald's Restaurant, Inc., Case No. CV-93-02419, Nat'l Jury Verdict (Aug. 1994) (available on LEXIS/NEXIS).  In addition, "[t]he plaintiff's attorney offered evidence that at the time of the subject accident, McDonald's sold its coffee at 180 - 190 degrees Fahrenheit by corporate specification.  The plaintiff offered expert testimony that at this temperature, if spilled, coffee causes full thickness burns (third degree burns to the muscle/fatty tissue layer) in two to seven seconds."  Id.  Mrs. Liebeck suffered third degree burns that required skin grafting, painful debridement and disfigurement.  The verdict report in the case stated: "The plaintiff's experts testified that for every degree centigrade above 140 degrees Fahrenheit, human skin burns twice as fast. . . The defendants admitted that the company had not studied the time and temperature at which consumers would be subjected to third degree burns in the event coffee is spilled onto their bodies."  Id.  I think it is fair to say that the coffee was superheated.   A jury could have found that McDonald's coffee was marketed with excessive preventable dangers to the consuming public. 

The fact that other vendors sold coffee brewed at a scalding temperature does not immunize the vendor from liability.  In the famous Ford Pinto case, the placement of the fuel tank and fuel-integrity problems were widespread in the industry.  A custom is not necessarily controlling when it comes to tort liability.  In the T.J. Hooper case, Judge Learned Hand notes that in most cases "reasonable prudence is in fact common prudence."  However,  Judge Hand reminds us that  "a whole calling may have unduly lagged in the adoption of new and available devices."  The T.J. Hooper , 60 F.2d 737, 739-40 (2d Cir. 1932).  The custom of serving coffee at 190 degrees is not controlling.  Custom is the floor but not necessarily the ceiling of due care when it comes to coffee as well as other products. 

When I teach and write about the McDonald's hot coffee case, I present both sides of the issue.  Learning how to see a case from both the plaintiff's perspective and the defense perspective is a critically important lawyering skill.  I point out that reasonable fact finders can come to different conclusions after considering the same record.  In the class discussion as well as our casebook, I ask whether the punitive damages award against McDonald's will 'overly deter' socially beneficial activities.  I present the defense view that McDonald's sold 2.5 billion cups of McDonald's coffee against approximately 700 reported injuries as well as the counter-point that reported injuries may underestimate the risk of unreported injuries or "near misses."  In my class discussion, I often cite Holowaty v. McDonald's Corp., 10 F. Supp.2d 1078 (D. Minn. 1998), where the court found no design defect SINCE McDonald's coffee was maintained at a temperature standard in the industry.  This was an instance where the court treated custom as conclusive as for the existence of a defect.   In the Minnesota hot coffee case, the court found the restaurant chain had no duty to warn the consumer since the plaintiff was aware of the risk of hot coffee. 

The point of my guest post was to advocate using multiple perspectives, including the plaintiff and the defense views, of the McDonald's hot coffee case.  The hot coffee case was widely portrayed by tort reformers as a poster child for tort reform.  My teaching point is that there are multiple perspectives and tort lessons to teach from this famous tort story.

- Michael L. Rustad
Hugh C. Culverhouse Visiting Chair
Stetson University College of Law

After 2009-2010

Thomas F. Lambert Jr. Professor of Law

& Co-Director of Intellectual Property Law Program.

Suffolk University Law School