Sunday, January 31, 2010
The New York Times has an interesting piece today on Altria's direction in recent years, including its support for FDA oversight, its acquisitions to grow in the smokeless arena, and its efforts on smokeless cigarettes. Worth a read.
Saturday, January 30, 2010
Gerard Magliocca (Indiana-Indy), newly installed chair of the AALS section on maritime law, is creating a panel for next year's AALS annual meeting. The panel will discuss distinctions between maritime and land-based law from a variety of perspectives. Anyone interested in addressing this issue from a tort perspective should contact Gerard at email@example.com. His Co-Op post with the request for volunteers is here.
Friday, January 29, 2010
Reform, Legislation, Policy
- TN: Med Mal claims report for 2008 (Day on Torts)
- As a matter of federal law, truck drivers may no longer text. (Day on Torts)
- VA: A proposal to streamline UIM recovery passes key subcommittee (VLW Blog)
- First "death by dentures" suit filed. (Olson/Point of Law)
Trials, Settlements and Other Ends
- MD: Defense verdict in Baltimore med mal suit. (Maryland Injury Lawyer Blog)
- NY: Traumatic Back Injury Results in $3.26M verdict (New York Injury Cases Blog)
- Detroit lawyer fined for chasing victims of Continental/Colgan flight 3407 crash near Buffalo. (Turkewitz)
- Dorfman on Explaining Tort Law (Solum/Legal Theory Blog)\
- Larry Solum's "Download of the Week:" John Gardner's "What is Tort Law for? Part 1--The Place of Corrective Justice" (Legal Theory Blog)
Thursday, January 28, 2010
Monday's guest blogger is Richard Epstein. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, where he currently teaches Roman Law and Torts. He has also been the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution since 2000.
Prior to joining the University of Chicago Law School faculty, he taught law at the University of Southern California from 1968 to 1972. He served as Interim Dean from February to June, 2001.
He received an LLD, hc, from the University of Ghent, in 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001. At present, he is a director of the John M. Olin Program in Law and Economics.
His books include Antitrust Decrees in Theory and Practice: Why Less Is More(AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006); Cases and Materials on Torts (Aspen Law & Business; 9th ed. 2008); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.
He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.
Wednesday, January 27, 2010
A man going through a McDonald's drive-thru in Virginia was allegedly burned by the grease from a chicken sandwich. When he took a bite, “the grease from the inside of the chicken sandwich spread out all over my bottom lip, my top lip, down onto my chin.” When he complained to a McDonald's employee, another employee allegedly stated, “This is what happens to the sandwiches when they aren’t drained completely.” The Fourth Circuit vacated judgment for the defendants and remanded the case for trial. The opinion in Sutton v. Roth, L.L.C. is here. The story is from VLW Blog.
There are two pieces of med mal reform news from my home state.
First, Virginia hospitals are supporting General Assembly legislation authorizing a disclosure/early offer pilot program. The House bill, No. 306, is sponsored by Henrico County neurologist and Del. John O'Bannon. The bill "would authorize the state health commissioner to work with private health care facilities to implement a program that calls for full disclosure to patients when things go wrong and a 'pre-claim resolution process' to head off lawsuits." (VLW Blog)
Second, there will be no legislation to change the med mal damage cap this year. Currently, the cap is $2M. Note it is a cap on all damages, not just a cap on noneconomic damages. (VLW Blog)
Tuesday, January 26, 2010
The Miami Herald reports that Glaxo and Merck have launched on-line databases disclosing payments to physicians:
Responding to a continuing push from lawmakers to reveal how much the pharmaceutical industry is influencing America's doctors, two more major drug makers have made public their payments to physicians, but an industry expert says the data are of limited value.
The new websites, by GlaxoSmithKline and Merck, join one set up by Eli Lilly in August. A similar service is expected from Pfizer later this year.
. . . . ``We welcome the companies that are voluntarily disclosing,'' said Allan Coukell, a pharmacist who directs the Pew Prescription Project, a nonprofit watchdog group. ``But that remains a tiny fraction of all companies.''
The Senate healthcare reform bill contains a requirement for all drug makers to reveal their payments to doctors. ``We very much need national reporting standards,'' Coukell said. ``What we have now is incomplete, with different standards and not aggregated in one place.''
What's more, the drug makers disclose different things. Glaxo, for example, reveals consultant and speaker fees, while Merck reveals only ``promotional'' speeches not involving continuing medical education, known as CME.
Monday, January 25, 2010
“[I]n this atmosphere of economics now a change in a fundamental part of law affecting landholders is bound to have an effect on the cost of homeowner insurance if the word is out that there is a duty to trespassers. . . .
So before we move into this I ask that this be given very careful consideration because I believe in the courts this will bring about more confusion and its impacts on insurance could be very, very hard for people who are ordinary homeowners who right now are struggling to pay their insurance at this time.”
American Law Institute Annual Meeting
The question of the impact of tort law changes on liability, costs, and insurance premiums lurks in many areas, although to date the primary area of inquiry has been in the medical malpractice field.* Victor’s statement addressed a draft Chapter of the Third Restatement of Torts that proposed rules imposing a duty of reasonable care on land possessors to all entrants on the land, save for a small class of trespassers, denominated flagrant trespassers. Flagrant trespassers are those whose entrance on the land is in egregious disregard of the owner’s rights and would include those who enter with the intent to do mayhem or commit other serious crimes while on the property. Victor, the pre-eminent lobbyist for entities that are subject to tort liability or insure against it, was arguing that liberalizing the duties imposed on land possessors could cause real hardship by increasing homeowners’ insurance premiums.**
Such arguments are common, but rarely is empirical data available or, if it is, analyzed. We were able to do some empirical inquiry on this question, unfortunately not until after Victor’s comment. Despite his dire predictions and the absence of any evidence refuting it, I am pleased to report that the We realized, while researching and writing the Chapter on land possessor duties, that a huge natural experiment had taken place in this country from 1968 through 2009. During that period, roughly half the states had changed their law from the status-based duty rules inherited from feudal These tort law changes would permit an examination of their impact of these changes on the number of lawsuits and the magnitude of liability. We (my co-authors include Michael Heise of Cornell Law School and Brett Green of the Kellogg Graduate School of Business at Northwestern) were able to obtain data on a state-by-state basis from the Insurance Services Office, which gathers data from insurers and reports to state insurance commissions. ISO compiles composite data, and we secured that data for homeowners and renters’ liability claims and losses for a 20-year period from1989 through 2008. Our initial examination consisted of the eight states that had reformed their land possessor law during the 20 years for which we were able to obtain data. Looking at the claims and loss experience before and after the change provides some evidence about whether the tort reform intervention had an impact.*** Below are graphs showing the losses (in dollars adjusted for inflation) per occupied unit (including homes, condominiums, and apartments) and the number of claims per 100,000 occupied units that occurred in each state over the 20 year period. Losses and claims are scaled on the left hand Y axis and shown in a blue line, while the legal rule of the state is scaled on the right side of the Y axis and shown in a dotted and discontinuous red line. A value of one on the “reform status” scale corresponds to the historical status-based duty rules, with only invitees owed a duty of reasonable care. Two reflects the most modest reform, providing both invitees and social guest with a duty of reasonable care; three includes all licensees in that duty; and four signifies a duty of reasonable care to all entrants, including trespassers.
Such arguments are common, but rarely is empirical data available or, if it is, analyzed. We were able to do some empirical inquiry on this question, unfortunately not until after Victor’s comment. Despite his dire predictions and the absence of any evidence refuting it, I am pleased to report that the
We realized, while researching and writing the Chapter on land possessor duties, that a huge natural experiment had taken place in this country from 1968 through 2009. During that period, roughly half the states had changed their law from the status-based duty rules inherited from feudal
These tort law changes would permit an examination of their impact of these changes on the number of lawsuits and the magnitude of liability. We (my co-authors include Michael Heise of Cornell Law School and Brett Green of the Kellogg Graduate School of Business at Northwestern) were able to obtain data on a state-by-state basis from the Insurance Services Office, which gathers data from insurers and reports to state insurance commissions. ISO compiles composite data, and we secured that data for homeowners and renters’ liability claims and losses for a 20-year period from1989 through 2008.
Our initial examination consisted of the eight states that had reformed their land possessor law during the 20 years for which we were able to obtain data. Looking at the claims and loss experience before and after the change provides some evidence about whether the tort reform intervention had an impact.*** Below are graphs showing the losses (in dollars adjusted for inflation) per occupied unit (including homes, condominiums, and apartments) and the number of claims per 100,000 occupied units that occurred in each state over the 20 year period. Losses and claims are scaled on the left hand Y axis and shown in a blue line, while the legal rule of the state is scaled on the right side of the Y axis and shown in a dotted and discontinuous red line. A value of one on the “reform status” scale corresponds to the historical status-based duty rules, with only invitees owed a duty of reasonable care. Two reflects the most modest reform, providing both invitees and social guest with a duty of reasonable care; three includes all licensees in that duty; and four signifies a duty of reasonable care to all entrants, including trespassers.
Because losses and claims are attributed to the year in which the loss event occurred, a change in land possessor duties could affect claims and losses in years before the change occurred.**** We would expect claims to be the most sensitive measure of the impact of a change in tort law that expands those who are owed a duty of reasonable care. That expansion should produce more claims, but the amount recovered, especially by trespassers, should not increase proportionately. Yet, in the end, losses are more important for the cost of insurance than claims.*****
Eyeballing the claims graphs, only two states appear to have any association between the magnitude of claims and land possessor duty reform. Most states are either unaffected by the change or show a decline in claims after the reform. Two states (
With regard to losses, there is considerable variability from year to year and in all states except for
We’re at too early a stage to say anything definitive, and empirical research about legal systems often does not provide strong enough evidence for firm conclusions. Yet the evidence seems to point away from any noticeable impact on losses or expenses to insurers from these changes. We have not yet obtained data on premiums. However, premiums are affected by a number of other factors that will be difficult to identify and measure. Losses, by contrast, are not affected by those other factors and are more directly tied to legal changes than premiums. In short, losses are more sensitive to changes in tort law than premiums.****** Moreover, even if there is an impact on losses and costs for liability coverage, those costs are dwarfed by losses due to hazards covered by the first-party segments of those policies, the latter comprising approximately 90% of the total costs for homeowners’ policies. In short, we have found nothing to support Victor Schwartz’s statement in the preface about the consequences of reforming the law relating to land possessor’s duties. This suggests caution–a trait not often displayed by lawyers engaged in arguing or litigating on behalf of clients–in predicting the impact of a change in tort law on claiming, losses, and insurance premiums. It also suggests skepticism about such claims until empirical evidence can be obtained and analyzed.
*See, e.g., Ronen Avraham, An Empirical Study of the Impact of Tort Reforms on Medical Malpractice Settlement Payments, 36 J. Legal Stud. S183 (2007).
**A change in land possessor duties would have its most dramatic impact on liability of those who own or rent residential property. Businesses that open their property to the public are subject to a duty of reasonable care to virtually all entrants.
***We have not yet performed analyses that will attempt to account for other factors that may affect claims and losses.
****We would expect changes in claiming primarily to show up following the date of legal change. Most claims are straightforward and therefore can be resolved within a few months. Thus, the time from event to claim resolution is relatively short. By contrast, complicated claims, which likely correspond to higher-value claims, consist of one-third claims, take significantly longer to resolve and if litigation results, can extend for several years. We suspect these claims constitute a higher proportion of the losses and could produce an effect that looks like it precedes the legal intervention in the graphs above.
*****Losses are not the exclusive source of cost for liability insurers. They also incur costs in hiring attorneys to represent insureds when suit is filed and administrative costs in processing any claim that is filed.
******See Martin F. Grace & J. Tyler Leverty, How Tort Reform Affects Insurance Markets (unpublished manuscript
Friday, January 22, 2010
Reform, Legislation, Policy
- Tobacco companies must disclose cigarette ingredients to FDA in June. (AP/ABC News)
- "FDA issues warning about BPA exposure." (CBS News)
- Iraqi government contemplating class action suit against private security firm Blackwater for injuries to Iraqi civilians. (AP/Business Week)
- NYC woman sues city after her 15-year-old daughter dies in foster care (NY Daily News)
- NY Civil Liberties Union brings federal class action lawsuit against city for alleged abuse by school cops. (WPIX, WNYC)
- Four Charleston firefighters sue Sofa Superstore alleging that a tragic 2007 fire at the store, which killed 9 Charleston firefighters, caused the survivors to suffer numerous ailments including post-traumatic stress and depression (Charleston City Paper)
- Florida federal court certifies yogurt class action for unfair trade practices claims. (Consumer Class Actions & Mass Torts)
Trials, Settlements and Other Ends
- Chicago-area med-mal case settles for $7.5M (Chicago Sun-Times)
- 2009 California Punitive Damages Year in Review. (Cal Punitive Damages)
- Punitive damages for cell phone use while driving? (TortTalk)
Thanks to Gil Lenz for material this week.
Wednesday, January 20, 2010
Mike Green is the Bess and Walter Williams Distinguished Chair at the Wake Forest University School of Law. He currently serves as a Co-Reporter for the Restatement (Third) of Torts: Liability for Physical Harm, a publication of the prestigious American Law Institute. Mike is a co-author of one of the best selling Torts casebook and of the most popular Products Liability texts. He was ranked as the 6th most cited law professor writing about torts and product liability in a recent survey. He is a co-author of the Reference Guide on Epidemiology in the Federal Judicial Center’s Reference Manual on Scientific Evidence, which serves as a reference on scientific disciplines for federal judges. He has a pilot’s license and enjoys flying around North Carolina and beyond. He and his wife, Carol, have two sons and a daughter.
Business Week has the details. The plaintiffs (nineteen among thousands of people with related claims) are former pipe workers and they allege that Exxon knew as early as the 1930s that their drilling pipes were contaminated but didn't inform regulatory agencies until 1988.
Exxon asserts that it did nothing wrong and contends that the radiation levels that were there are insufficient to cause harm. The story suggests that the plaintiffs are seeking medical monitoring and punitive damages -- it makes no reference of any current injuries. Three workers who do have cancer settled prior to trial; none of the current plaintiffs have cancer.
The owners of the property where the plaintiffs worked obtained a $1 billion punitive damages award against Exxon in 2001; that amount was reduced to $112 million and paid. In those appeals, a Louisiana appeals court called Exxon's conduct "inexcusable."
Tuesday, January 19, 2010
David Partlett (Emory) has posted to SSRN his symposium introduction celebrating the scholarship of David Fischer. Entitled David Fischer, the Fox (a), the abstract provides:
This essay recognizes the seminal scholarship of Professor David Fischer. The piece notes that scholars in modern tort theory are either splitters or lumpers. Referring to Isaiah Berlin’s dichotomy, they are either hedgehogs or foxes. Fischer is a fox (a splitter) in a world of hedgehogs (lumpers). Fischer does the hard analytical work on the interior of the law that uncovers problems and dilemmas for courts as they go about ascribing responsibility for wrongful acts. The piece shows this by reference to two interior tort problems: (1) liability for lost chances, and (2) causation in over-determined cases.
Of course, I am partial to Berlinian analyses of tort law.
Wajert, Beck & Gallo on "Reduced Legal Oversight For FDA Warning Letters Amplifies Compliance And Liability Risks"
The Washington Legal Foundation has published a "legal backgrounder" piece by Sean Wajert, Jim Beck and Vincent Gallo (all of Dechert) titled "Reduced Legal Oversight for FDA Warning Letters Amplifies Compliance and Liability Risks. (pdf)" The piece reviews the impact of the FDA's new policy eliminating legal review of regulatory letters.
In today's Los Angeles Times, Tom Hamburger and James Oliphant report on the lobbying efforts to keep medical malpractice reform out of the health care reform bills:
....With Democratic strategists looking for ways to woo Republican support for the overall healthcare bill, changes in so-called tort law seemed likely. Even President Obama in a speech to the American Medical Assn. said he recognized the issue as a problem.
But after a massive lobbying campaign and party-line votes in Congress, the malpractice system is largely untouched by the Democrats' healthcare overhaul. Drug makers and the insurance industry, in contrast, were forced to make costly concessions....
Monday, January 18, 2010
Buzbee's Introduction and Conclusion in "Preemption Choice: The Theory, Law and Reality of Federalism's Core Question"
William W. Buzbee (Emory) has posted the Introduction and Conclusion chapters from "Preemption Choice: The Theory, Law and Reality of Fedralism's Core Question" on SSRN. The abtract provides:
This posting provides the covers and introductory pages, Introduction and Conclusion from the Preemption Choice book published by Cambridge University Press. The book takes a different approach to preemption than the usual focus on judicial preemption doctrine. Instead, prompted by increasingly aggressive executive branch assertions of preemptive power in recent years and a burgeoning body of preemption decisions in the courts, the book’s chapters analyze preemption as fundamentally a question of regulatory design choice by numerous actors and institutions. Each chapter offers its own focus and analytical frame, but a theme explored throughout the book is that judges, policymakers and scholars assessing preemption choices should pay greater attention to the benefits of regulatory overlap and interaction, especially opportunities for regulatory learning. A place undoubtedly remains for preemptive regulation, but preemptive regimes also have costs.
The book starts in Part I with three chapters examining underlying federalism theory, history, and variables influencing policymakers’ choice of whether to make federal law preemptive of state regulatory or common law. After Professors Robert Verchick and Nina Mendelson lay out central concepts and debates over preemption, especially in light of federalism theories, Professor Robert Schapiro explores the concept and benefits of “polyphonic federalism.” Professor David Vladeck looks at the effects of preemptive regimes, especially on common law claims, in light of prevalent forms of regulatory failure. Part II offers two chapters exploring the “layered government norm,” focusing on the politically prevalent choice to retain concurrent and overlapping federal and state regulation. Professor Trevor Morrison argues that the role of state attorneys general should be specially protected from preemption claims. Professor William Buzbee explores the distinctions between federal regulatory floors and ceilings, showing how floors preserve the benefits of institutional diversity. Part III focuses on judicial preemption doctrine and interpretive choices, including Professor Christopher Schroeder’s succinct canvassing of Supreme Court preemption doctrine, Professor Sandi Zellmer’s analysis of the frequent judicial failure to give weight to savings clauses, and Professor Robert Glicksman’s chapter examining federal preemption arguments even in the face of federal inaction. This Part also includes a chapter by Professor Bradford Clark, who argues that due to the U.S. Constitution’s procedural hurdles to creation of ‘supreme” federal law, preemption debates require close attention to the process generating claims of preemptive effect. Professor William Funk’s chapter explores the preemptive effects of agency actions. The closing Part IV starts with Professor Thomas McGarity’s chapter analyzing the “regulation-common law feedback loop” and the resulting mutual learning that is facilitated by non-preemptive regimes, while Professor Andreen offers insights from the experience of delegated program federalism under the Clean Water Act. The part’s last chapter, co-authored by Professors David Adelman and Kirsten Engel, draws insights from biological adaptation and modern ecosystem theory for preemption choice, favoring regulatory regimes allowing for dynamism and adaptation. The book’s closing chapter by Professor William Buzbee distills insights from the chapters to derive a menu of preemption choice variables.
Saturday, January 16, 2010
In a course change, the FDA announced that it would be attempting to change BPA's status from "food additive" to "food conduct substance" and that it would be engaging in an extensive safety review of the product, which is in myriad food containers and other plastic packaging.
Friday, January 15, 2010
Apologies for the delay; more students showed up than I expected!
Reform, Legislation, Policy
- Waivers as risk management (SSRN)
- Causation in asbestos cases (Legal Theory Blog)
- Tort reform is central to Schwarzenegger's policy goals (Legal News Line)
- Georgia legislature ready to try, try again if reform measures held unconstitutional (Atlanta Business Journal)
- Missouri Supreme Court reviewing that state's reforms (KRCG)
- Well, a look at a new lawsuit anyway, in the form of the defamation suit against some Kardashian or other (Writ)
- Family of murdered toddler sues killer, state (Honolulu Advertiser)
- Family of doctor who died after being tasered is suing Taser International (Phoenix New Times)
Trials, Settlements and Other Ends
- Settlement in suit against Whole Foods and others for crash, though punitives may remain; allegation is that Whole Foods brought trucking in-house without knowing how to do it well (Chippewa.com)
- California Supreme Court denies tobacco suit appeal from $2.85 million award (SFGate)
- Punitive damages reversed in secret videotaping case (where the tape was of Michael Jackson) (MTV.com)
Happy new year, everyone!
Wednesday, January 13, 2010
We are delighted to announce the Guest Blogger Monday lineup for the Spring 2010 semester:
1/25--Mike Green (Wake Forest)
2/1--Richard Epstein (Chicago)
2/8--Kenneth Abraham (Virginia)
2/15--Alan Calnan (Southwestern)
2/22--Anita Bernstein (Brooklyn)
3/1--Kenneth Simons (Boston University)
3/8--Michael McCann (Vermont)
3/15--James Henderson (Cornell)
3/22--Richard Nagareda (Vanderbilt)
3/29--David Owen (South Carolina)
4/5--Jane Stapleton (Texas/ANU)
4/12--Phoebe Haddon (Maryland)
4/19--Jennifer Wriggins (Maine)
4/26--Andrew Klein (Indianapolis)
5/3--Mark Geistfeld (NYU)
You can find a list of the fall guest blogger posts here. We look forward to a variety of interesting and thoughtful posts again each Monday this Spring.
- Sheila & Chris
Tuesday, January 12, 2010
Darby Dickerson (Stetson) has posted to SSRN Sign and Release? Using Waivers and Releases as Risk-Management Tools. The abstract provides:
Many on- and off-campus activities provide students with tremendous educational and social benefits. But these same activities can also carry risks. As part of an overall risk-management plan for an activity or an event, a campus activities department might consider whether it is appropriate to request participating students to sign a release, waiver, or similar exculpatory agreement.
Although many think of waivers and releases simply as tools to shift risk or avoid liability, they can actually be used for our students’ benefit. If properly drafted, waivers and releases can provide students with a balanced view of the activity, convey information that will allow them to decide whether to participate, and educate them about how to stay safe while participating.
It is best to view waivers and releases as just one part of a comprehensive risk-management process, and not as stand-alone documents or single-step risk plans. It is also important to understand that an activities department should not have a “standard release.” Instead, waivers and releases should be tailored to the particular event, activity, or trip. The article expands on these and related points.