April 23, 2010
Personal Injury Roundup No. 74
Reform, Legislation, Policy
- Louisiana Senate committee rejects bill to ban energy drinks to kids. (Bloomberg Business Week)
- Pennsylvania releases med-mal data. (TortsProf)
- Florida passes two tort-reform measures - risky activity waivers for children and increase on damages caps in suits against the state. (Miami Herald)
- FDA plans to limit amount of salt in processed foods. (WaPo)
- Rhode Island Supreme Court allows suit against city of Newport for fall along the famous Cliff Walk. (UPI)
- NY Appellate Division rules assumption of risk was not complete defense in cheer leading accident. (NY Law Journal/law.com)
- Ninth Circuit follows Seventh Circuit and holds that denial of class certification does not divest court of CAFA jurisdiction. (Consumer Class Actions & Mass Torts)
Trials, Settlements and Other Ends
- Judge dismisses Federal Torts Claims Act suit against SEC over Madoff fraud. (National Law Journal/law.com)
- Sort of an "other end" - MN doctors ask judge to reject Guidant plea deal that would settle federal criminal charges over Guidant heart defibrillators. (MN Star Tribune)
- Washington Legal Foundation introduces its new blog: Legal Pulse.
April 22, 2010
Monday's Guest Blogger: Andrew Klein
Andrew R. Klein is the Paul E. Beam Professor of Law at the Indiana University School of Law-Indianapolis. He previously taught at Samford University’s Cumberland School of Law and practiced with the Chicago firm of Sidley & Austin.
Professor Klein has published articles on a range of tort law issues. He is co-author of a casebook, Torts: Cases, Problems and Exercises (Lexis/Nexis 3rd ed. 2009) and is currently working with a group of co-authors on a new casebook, Toxic and Environmental Torts: Cases and Materials (Thomson/West forthcoming 2010).
Professor Klein is a member of the American Law Institute and serves on the executive committee of the AALS section on Torts and Compensation Systems. He also serves as Reporter for the Seventh Circuit United States Court of Appeals Civil Jury Instructions Committee. In addition, Professor Klein is a dedicated classroom teacher who has won nine student teaching awards during his career.
April 21, 2010
PA: 2009 Med Mal Data
Pennsylvania prepares more detailed med mal filings and verdicts data than most states. Yesterday, the 2009 figures were released. In 2009, there were 1,533 med mal filings, a 43.9% decline from the "base" years of 2000-2002. In 2003, Pennsylvania enacted two reforms: (1) a certificate of merit requirement and (2) a venue restriction. The news release (pdf), complete with statistics: Download FINAL - 4-20-10 med mal 2009 filings and verdicts. Thanks to David Tyler, one of my Torts students, for the tip.
Sharkey on Exxon Valdez
Cathy Sharkey (NYU) has posted to SSRN The Exxon Valdez Litigation Marathon: A Window on Punitive Damages. The abstract provides:
The Exxon Valdez litigation marathon - a protracted, two-decade-long battle over the propriety and constitutionality of the jury’s $5 billion punitive damages award - provides a window into the past, present, and future of punitive damages. Acting akin to a common law court under federal admiralty jurisdiction, the U.S. Supreme Court provided a template for lower courts to follow. Free of constitutional constraints, the Court diagnoses the problem with punitive damages - unpredictability - and propose a solution: a 1:1 ratio of punitive to compensatory damages. The flaws in the Court’s statistical analysis provide a reminder that those “unsophisticated in statistics” should proceed with caution. The Court’s single-minded focus on unpredictability almost inexorably drives it to embrace and reinforce an exclusively retributive rationale for punitive damages. The Court invokes the analogy of the sentencing guidelines as a model for achieving greater predictability; once enamored with this model, the linkage between the guidelines and criminal retribution spills over to punitive damages as civil retribution. There is, moreover, an uncanny coincidence between the Court’s common law, policy-laden analysis, and the heavy-handed direction its constitutional excessiveness decisions had been taking.
Three issues loom large on the horizon of punitive damages doctrine and policy. First, the Court’s fixation on unpredictability can be linked with a broader trend in the Court’s jurisprudence of circumscribing the role of the civil jury in the name of certainty, predictability, and efficiency. Second, the Court had before it a case in a unique procedural posture: the plaintiffs were part of a “limited fund,” mandatory, non-opt out class action for resolution of punitive damages only. Because that element of the case was not appealed to the Court, the Court left for another day resolution of the classwide determination of punitive damages. Third, the Court’s quest for a national solution to the punitive damages problem and its equation of punitive damages and criminal fines presage impending federalism battles. By elevating a single punitive damages goal - that of retributive punishment - the Court sets the stage for a clash with state courts and legislatures who might be inspired to define their legitimate state interests in punitive damages differently.
April 20, 2010
Borchers on "Punitive Damages, Forum Shopping and the Conflicts of Laws"
Patrick Borchers (Creighton) has posted "Punitive Damages, Forum Shopping, and the Conflicts of Laws" on SSRN. The abstract provides:
Few issues have as profound an impact on civil litigation as the availability and dimensions of punitive damages. States, however, vary considerably on whether punitive damages are allowed, the quantum and burden of proof necessary to establish liability for them, their insurability and the standard of appellate review of their award. Because of the high stakes involved, all three of the traditional branches of the discipline of the conflict of laws -- jurisdiction, choice of law and judgment recognition -- are directly involved. Civil plaintiffs naturally seek to find courts that will be hospitable to their attempted assertion of punitive damage liability and civil defendants are equally anxious to avoid such courts. The practice of attempting to find a friendly court is known colloquially as "forum shopping." This article examines how the branches of the conflict of laws are implicated in this high stakes battle and also examines what implications the Supreme Court's decision in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) has for conflicts issues in the punitive damage wars.
The 40th Anniversary of Earth Day
Just a reminder that the 40th anniversary of Earth Day approaches on Thursday.
April 19, 2010
Guest Blogger Jennifer Wriggins: "Torts, Insurance, and the Value of Injury"
When U.S House Speaker
A A A mismatch between insurance coverage and common injuries to women also characterizes the liability insurance market, which crucially affects tort law. If a victim of domestic violence (which necessarily is tortious and usually criminal) tries to bring a tort suit against the perpetrator, she will almost certainly find that insurance coverage is barred by the “intentional acts” exclusion or the “family member” exclusion found as a standard feature in liability policies. Interspousal immunity may have been discarded, but private insurance has erected an equally effective barrier to recovery. Since liability insurance indisputably drives tort law, a domestic violence victim will most often be without a remedy.
Domestic violence victims encounter other barriers when they file tort claims. The statute of limitations for intentional torts is typically one or two years, shorter than that for negligence and strict liability, which typically is between two and six years. Although the short statute of limitations barrier is applied equally to all intentional tort victims, the shorter limitations period is particularly harsh for domestic violence victims. This is because the pattern of coercion and control that often characterizes domestic violence makes considering a tort claim near the time of injury inconceivable for many domestic violence victims. The shorter statute of limitations for intentional torts can be traced back to a 1623 Act of Parliament, the rationale for which has been lost to obscurity. Because the usual policy reasons for statutes of limitations--barring stale claims, avoiding the problem of fading memories, and fostering predictability--apply to both intentional torts and negligence, there is no reason for the shorter statutes of limitations. To compound difficulties, there is a tendency to steer domestic violence claims into family court. Some states require that any tort claims be joined with a divorce, or else be barred by res judicata or collateral estoppel. These joinder rules can put extreme pressure on domestic violence tort victims who may be unable to contemplate a tort claim until their divorce is final.
How cruelly ironic that tort law supposedly regards intentional torts to be more serious than negligently inflicted harms. After all, unlike with negligence, there is no economically efficient level of intentional torts such as assault, battery, and intentional infliction of emotional distress. Yet, we have developed an asymmetric system of torts and insurance that provides mandatory liability insurance to compensate for injuries caused by automobile accidents, but at the same time ensures that injuries from domestic violence are not compensated by liability insurance (and until recently, may not have even been covered by a woman’s health insurance). The costs of car accidents do not fall solely on the victims, but very often are shifted and spread through comprehensive torts and insurance mechanisms. Thus, injuries caused by negligent drivers have a most-favored injury status in our torts and insurance system. Despite the widespread harm caused by domestic violence, the dominant focus of torts continues to be accidental injury
A century ago, Oliver Wendell Holmes and Roscoe Pound centered the field of torts on accidental injury and declared the problem of intentional torts to be solved. Interspousal immunity was then the law of the land and domestic violence was legal. Sadly, in the torts realm, not that much has changed; tort suits for this pervasive harm are exceedingly rare. The costs of domestic violence still are not shifted but fall solely on the victims (and their children). The risks of domestic violence are not shared. Given the widespread public attention to domestic violence, we no longer can say, as we could forty years ago, that we do not appreciate the magnitude of the harm. Although torts scholars often talk about deterrence and compensation as being broad goals of tort law, we seem to take for granted that tort law is incapable of deterring or compensating for this widespread harm. In my view, we have not even attempted to get the private enforcement mechanisms of torts and insurance to work in this area. As Kenneth Abraham recently wrote, the insurance business is “remarkably creative” at insuring risks that at first seemed uninsurable. Is it finally time to start considering injuries caused by domestic violence to be as worthy of tort compensation as injuries caused by negligent drivers?
--Jennifer B. Wriggins
Sumner T. Bernstein Professor of Law and Associate Dean for Research
-Kenneth Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11 (
-Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law (NYU Press forthcoming May 2010)
-Robert Pear, ‘Women Buying Health Policies Pay a Penalty,’
-Jennifer Wriggins, ‘Domestic Violence Torts,’ 75 So. Cal. L. Rev. 121 (2001)