Saturday, November 21, 2009
Tonight at 8:00 p.m, the Senate will vote on cloture for the health care bill. In other words, the Senate will decide whether to begin debating it. It appears Democrats have 58 of the necessary 60 votes to survive the first hurdle. CNN has the story. In a related (torts) issue, a group of medical malpractice victims held a press conference in Richmond, VA yesterday to urge Virginia's Senators not to include med mal reform in the bill. (PR Newswire)
Friday, November 20, 2009
I hope your last week before Thanksgiving was a good one!
Reform, Legislation, Policy
- Tim Lytton's guest post attracts attention. (Frank/Point of Law) (Lahav/Mass Tort Profs)
- Law Profs Max Mehlman & Dale Nance (Case Western) argue med mal tort reform reduces important safety incentives. (Cleveland Plain Dealer via Injury Board.com)
- CA: Group pushes for $1 tobacco tax increase to fund cancer research (LegalNewsline)
- All-asbestos roundup at Point of Law. (Twu/Point of Law)
- TX: State AG urges Texas Supreme Court to uphold constitutionality of statute of repose. (LegalNewsline)
- Courtney Love sued for libel by tweet. (CNN)
- ID: Man tased in buttocks sues City of Boise. (IdahoStateman.com)
- NE: State med mal damages cap challenged as unconstitutional. (North Platte Bulletin)
Trials, Settlements and Other Ends
- SC: Med mal suit settled prior to rare med mal punies determination by jury. (AboutLawsuits.com)
- NY: Med Mal pain-and-suffering verdict reduced by over $1M without explanation (New York Injury Cases Blog)
- IL: No experts needed in NIED cases (Via Bernabe)
- PA: Harrisburg mayor-elect alleges in a civil suit that faulty gas pump sprayed her with gas, ruining her clothes and leaving her unable to pump her own gas. (PennLive.com via Olson/Overlawyered)
- Med Mal on SNL (Via The Pop Tort)
- NY: CT fertility doctor loses NY license after inseminating a patient with the wrong sperm. (New York Injury News.com)
- Eric Turkewitz guest blogs at Kevin, M.D. (Via New York Personal Injury Law Blog)
Thursday, November 19, 2009
Monday's Guest Blogger is Ben Zipursky. Zipursky is currently the James H. Quinn '49 Chair in Legal Ethics and Professor of Law at Fordham Law School, where he teaches Torts, Law & Philosophy, Advanced Torts ‑ Defamation & Privacy, Tort Theory, and Jurisprudence. He also served as Associate Dean at Fordham from 2001-2003.
Professor Zipursky is a leading scholar in torts, tort theory and jurisprudence, and has published more than forty articles and chapters on subjects ranging from punitive damages and duty in tort law to the varieties of pragmatism within legal philosophy. Zipursky is also a co-author of Tort Law: Responsibilities and Redress (Aspen Publishers, 2004) (with fall Guest Bloggers Tony Sebok and John Goldberg), and also Torts: A Short Introduction (Oxford University Press forthcoming 2010) (with John Goldberg).
In addition to his law degree, Zipursky holds a Ph.D. in philosophy from the University of Pittsburgh. Before joining academia, Zipursky clerked for the Honorable Kimba M. Wood (S.D.N.Y), and practiced as a litigation associate at Arnold & Porter (New York). He has taught as a Visiting Professor at Columbia Law School, Vanderbilt Law School, and Harvard Law School.
Wednesday, November 18, 2009
Last week, the Iowa Supreme Court decided Thompson v. Kaczinski, 2009 WL 3786632 (Iowa 2009), and adopted the Restatement (Third) of Torts approach to both duty and causation. The plaintiffs lost control of their car on a rural road because a trampoline had been blown onto the road from an adjacent home. Plaintiffs filed suit against the owners of the trampoline, alleging defendants had a duty to keep it out of the road. Both the district and intermediate appellate courts found no duty and no causation as a matter of law. The Iowa Supreme Court reversed and remanded. In so doing, it adopted R3's positions on both duty and causation. Specifically, the court found that foreseeability should not be considered part of the duty analysis, but is instead for the jury to decide under breach. As to causation, the court adopted R3's "scope of liability" (as opposed to "proximate cause") analysis.
Thanks to Mike Green for the tip.
In Tedrick v. Community Resources Center, Inc., Nos. 104861, 104876 (Ill. Sept. 24, 2009), the Supreme Court of Illinois explicitly rejected Tarasoff. Earlier opinions cast doubt on the acceptance of the famous California case in Illinois, but Tedrick made it official. The opinion (pdf) is here.
Thanks to DePaul's Mark Weber for the tip.
Tuesday, November 17, 2009
Torts professors frequently become connoisseurs, or at least aficionados, of warning labels. Knowing this, a colleague brought me the warning label in his copy of Walther P-38 Pistol by Major George C. Nonte. The book was published in 1975 by Desert Publications.
The Publisher (Desert Publications) produces this book for informational and entertainment purposes and under no circumstances advises, encourages or approves of use of this material in any manner.
It's sad that the publisher can't even "approve of," never mind "advise" or "encourage," the "use of" the material "in any manner." The informational and entertainment values of certain portions of the book, such as chapter 3 on "Care and Maintenance" or chapter 4 on "Stripping and Servicing," seem limited.
The New York Times reports that lobbyists working for Genentech, one of the world's largest bio-tech companies, authored statements on the health care debate for over 40 House members:
The lobbyists, employed by Genentech and by two Washington law firms, were remarkably successful in getting the statements printed in the Congressional Record under the names of different members of Congress.
Genentech, a subsidiary of the Swiss drug giant Roche, estimates that 42 House members picked up some of its talking points — 22 Republicans and 20 Democrats, an unusual bipartisan coup for lobbyists.
In an interview, Representative Bill Pascrell Jr., Democrat of New Jersey, said: “I regret that the language was the same. I did not know it was.” He said he got his statement from his staff and “did not know where they got the information from.”
Members of Congress submit statements for publication in the Congressional Record all the time, often with a decorous request to “revise and extend my remarks.” It is unusual for so many revisions and extensions to match up word for word. It is even more unusual to find clear evidence that the statements originated with lobbyists.
As we struggle to come up with final exam ideas, TMZ brings us an interesting proximate cause issue.
DJ AM (aka Adam Goldstein) died back in August from a drug overdose (according to the medical examiner). His estate, however, has filed a wrongful death claim against various defendants involved in an airline crash back in September 2008. His estate alleges that "the crash ultimately caused Adam Goldstein's death" because he was forced to take various drugs to treat the burns he suffered in the crash as well as the emotional distress caused by the crash. TMZ has more.
Notably, TMZ also reports that the family of the co-pilot killed in the crash recently settled a claim against the owner and operator of the airplane for $500,000.
Thanks to Meredith Miller for the tip.
Monday, November 16, 2009
The tort system is frequently described by critics as a “litigation lottery.” For example, in their best-selling book Nudge, Richard Thaler and Cass Sunstein compare medical malpractice litigation to a lottery based on the assertion that many plaintiffs who suffer no harm or have not been treated negligently nonetheless receive compensation. They point to the variability in pain and suffering and punitive damages awards as further support for the comparison. According to this view, even if erroneous findings of liability and high awards are rare (as the weight of empirical evidence seems to suggest), they nevertheless make litigation into a game of chance. As leading tort reform advocate Ted Frank explains on PointofLaw.com, “[t]he nature of a litigation lottery is that the availability of potentially huge damages justify bringing a meritless claim, so long as there is some small chance that the combination of an outlier judge and an outlier jury will produce a jackpot that compensates for the risk that the judge/jury combination will get it right.”
Yet the possibility of erroneous outcomes and variable awards does not make tort litigation a lottery. Indeed, the very possibility of identifying some outcomes as erroneous fundamentally distinguishes litigation from a lottery. Winners in litigation are determined not by chance but by applying the law to the facts of a case. Of course, there is always the possibility of an erroneous outcome when a judge misapplies the law or the jury misconstrues the facts. But this is quite different from the process of random selection whereby lottery winners are selected. It makes no sense to argue that a randomly selected lottery winner should not have won. In contrast, it is certainly possible to criticize litigation outcomes as erroneous—to argue that the prevailing party should not have won—precisely because litigation, unlike a lottery, is governed by the rule of law. Suggesting that the error rate of a decision procedure makes it a lottery is a category mistake since the very possibility of identifying an erroneous outcome, by definition, makes the procedure non-random and therefore not a lottery. (One could criticize the outcome of a lottery on the basis that it was not random—for example, where the lottery is “fixed”—but that would render it no longer a lottery.) Of course, for practical purposes, the error rate of a decision procedure could be so high as to render outcomes practically random. But no one, not even the most ardent advocates of tort reform, has suggested that high damage awards based on erroneous findings of liability are anything but statistical outliers.
One might argue that there is a randomness as to whether an individual who files a false claim of medical malpractice will be lucky enough to draw the rare judge or jury who will produce an erroneous judgment in his favor. But this random distribution of errors does not make a flawed process into a random one. While bank depositors stand a random chance of an accounting error in their favor, this does not make depositing one’s money in a bank tantamount to playing a lottery.
One might argue, instead, that the tort system operates like a lottery not because of the chances that false claims will succeed but because only a small percentage of negligent actors are held liable. According to this view, the low probability that a doctor who commits medical malpractice will actually be successfully sued makes the system a lottery from the defendant’s point of view. Does a low probability of being held liable make the process a lottery? Does the fact that those who cheat on their taxes stand some random chance of avoiding detection make the tax system a lottery? In one respect, yes, one could argue that negligent actors are subject to a liability lottery and that dishonest taxpayers participate in an audit lottery. Many areas of law involve lotteries in this sense: the same could be said of the chances of getting a speeding ticket or being arrested for robbery or of being the victim of a breach of contract.
But I suspect that critics of the tort system mean something else when they describe the tort system as a litigation lottery. They mean to identify a feature of the tort system that distinguishes it from other areas of law such as criminal and contract law. They mean to suggest that tort litigation is arbitrary in way that these other areas of law are not, that tort litigation outcomes are not, on some level, governed by the rule of law to the same degree as are other parts of the legal system. Ultimately the problem with the lottery analogy is that it proves too much—if the tort system is like a lottery insofar as negligent defendants stand only a random chance of being held liable, the same can be said about the enforcement of rights in many other areas of the law. There is no basis for charging that the tort system is any more or less a lottery than these other areas of the law.
Comparing tort litigation to a lottery is, at best, unhelpful for understanding the sources, frequency, and magnitude of error in the tort system. At worst, it is a rhetorical strategy aimed at undermining public confidence in the civil justice system in order to strengthen popular support for tort reform. In the rush to reform the tort system, we would be well advised to ignore this kind of rhetoric and take a more careful look at what its real shortcomings are.
For a more extended analysis of Thaler & Sunstein’s critique of medical malpractice litigation and their proposals for reform, see Tom Baker and Timothy D. Lytton, Allowing Patients to Waive the Right to Sue for Medical Malpractice: A Response to Thaler and Sunstein, forthcoming in Northwestern Law Review and available now on SSRN.
Timothy D. Lytton
Albert and Angela Farone Distinguished Professor of Law