October 15, 2010
Personal Injury Roundup No. 84 (10/15/10)
- OH: Woman badly burned in gynecological procedure sues hospital, doctor. (Justice News Flash)
- Justice Sotomayor appears most sympathetic to state vaccine suit. (ABA Journal); also Alberto Bernabe has the transcript.
- NY: Brain damage from med mal at birth yields $56M verdict, including $22M for pain and suffering; will be resolved on appeal. (Hochfelder/New York Injury Cases Blog)
- PA: Lackawanna County doctor loses appeal after one of the largest med mal verdicts in northeast PA history. (Scranton Times-Tribune)
Reform, Legislation, Policy
- Report: Med mal costs expected to rise (Business Insurance)
Trials, Settlements and Other Ends
- PA: 2 teens receive $185K, lawyer receives $425K from school district in webcam spying settlement. (ABA Journal)
- Podcast on med mal risk management (Bernabe)
- More Wacky Warnings (Frith/The California Civil Justice Blog, via Olson/Overlawyered)
- R.I.P. Richard Nagareda (TortsProf)
October 14, 2010
Hershovitz on Harry Potter and Tort Theory
A few years ago, Ben Barton (Tennessee) authored a much-downloaded piece on Harry Potter and government bureaucracy. Now there is a tort-specific Harry Potter article. Scott Hershovitz (Michigan) has posted to SSRN Harry Potter and the Trouble with Tort Theory. The abstract provides:
Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: They are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort’s substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law.
The problem is particularly acute for economists. They analyze the impact of tort’s substantive rules on accident and accident avoidance costs. Yet, the institution of tort law generates many other costs and benefits for society, and those costs and benefits affect the optimal arrangement of tort’s rules. The fact that economists have not factored these additional costs and benefits into their analyses calls into question their descriptive and normative claims about tort.
Corrective justice theory is not in as much trouble as the economic approach, but it is troubled still. Philosophers’ neglect of the procedural dimension of tort has caused them to overlook ways that tort does justice between wrongdoers and victims. And it has led them to make misleading claims about the nature of both corrective justice and tort law.
This article draws out the trouble with tort theory through a thought experiment, starring Harry Potter. Potter’s magic helps to highlight the features of tort that the leading theories overlook. Once they are in view, the article considers the ways in which the omissions cast doubt on the claims those theories make, investigates ways they might improved, and offers several observations about the choice between them.
October 13, 2010
More on Snyder v. Phelps
Alan Garfield (Widener) has written an op-ed entitled "Hate Funeral Protests? Then Ignore Them." Here's a sample:
If Albert Snyder is going to win on appeal, he will have to convince the Supreme Court that Phelps' speech is somehow different from the many types of offensive speech we already tolerate.
This is a difficult challenge, but not insurmountable. Snyder could convince the court that Phelps crossed the line when he exploited the Snyder family's private personal tragedy to publicize his cause. Or he could convince the court that our expansive tolerance for offensive speech has limits, and targeting funerals is one of them.
Given the facts, the court might be tempted to accept these arguments. But if it does, it will have to explain why every other person offended by harsh political speech can't also sue for damages.
We'll have to see what the Supreme Court says. But in the meantime, our society is already free to deal Phelps' speech the most fatal blow of all. Ignore it.
See also "Supreme Court case touches on complicated rights to free speech, privacy" (Harrisburg, PA's Patriot-News, quoting, among others, Widener's Bob Power).
October 12, 2010
Plaintiffs' Steering Committee Appointed in BP Oil Spill Litigation; Professor McGovern Appointed Special Master
Judge Barbier has appointed fifteen lawyers to the plaintiffs' steering committee ("PSC") in In re Oil Spill: Brian H. Barr, Jeffrey A. Breit, Elizabeth J. Cabraser, Philip F. Cossich, Jr., Robert T. Cunningham, Alphonso Michael Espy, Calvin C. Fayard, Jr., Robin L. Greenwald, Ervin A. Gonzalez, Rhon E. Jones, Matthew E. Lundy, Michael C. Palmintier, Paul M. Sterbcow, Scott Summy, and Mikal C. Watts. In addition, four lawyers were appointed to the Plaintiffs' Executive Committee: James Roy and Russ Herman, Brian Barr and Scott Summy. Fox 10 News lists the lawyer's office affiliations.
Interestingly, of the seventeen lawyers, only two - Cabraser and Watts - were noted on Mark Behren's Top Plaintiffs' Lawyers List.
As is typical, the Judge's order provides no reason for his selection of these seventeen lawyers from the 112 applicants. And, as is also typical, the Judge's order vests the PSC with complete control over the course of the litigation. According to the Judge's order, the PSC will conduct all pretrial discovery, appear as counsel at all pretrial hearings, submit and oppose all motions, and explore settlement, among other things.
October 11, 2010
Guest Blogger Lester Brickman on "Yes, Virginia, There Is A Litigation Explosion."
Today's guest blogger is Lester Brickman, Professor of Law and former Acting Dean at at the Benjamin N. Cardozo School of Law.
YES, VIRGINIA, THERE IS A LITIGATION EXPLOSION
The dispute over the growth of tort liability and whether this has resulted in a “litigation explosion” transcends mere statistical jousting. Invariably, those who conclude that there has been explosive growth in tort litigation support reforms to roll back excessive tort liability expansion. Conversely, those who reject the explosive growth thesis also reject tort reforms as unnecessary and unwise. In the tort reform wars, the battle over whether there has been a substantial increase in the scope of tort liability and resulting “explosion” in litigation, as measured by the volume of tort litigation, looms large. The accepted wisdom, of course, is that the claim of a “litigation explosion” is pure bunk. Not so fast.
The litigation explosion deniers mostly rely on empirical data on the numbers of tort lawsuits filed, collected by the National Center for State Courts or found in annual reports issued by the federal judiciary, as well as studies by the RAND Institute of Civil Justice. Based solely on this published data, I concur that there is no factual basis for a litigation explosion. But the published data suffers from many critical infirmities which I describe in my forthcoming book, Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge Univ. Press, Jan. 2011).
Furthermore, the tort filing statistics measure ignores increases in tort claim valuation and the total amounts of wealth transferred through the tort system, and as a result, does not a provide a meaningful account of what is occurring in the tort system. Consider, for example, the experience of New York City. While the number of tort claims filed against the city grew by 50 percent between 1984 and 1994, the dollar value of the settlements and judgments in the same time period increased by over twice that amount, from an average of $14,386 per claim to $29,894, up 108 percent. Even when the aggregate number of tort claims filed against the city dropped by 18.5% between 1995 and 2004, the dollar amount of settlements and judgments increased by 122%, from $241.5 million to $536.8 million.
These inadequacies pale when compared to the most glaring defect in case filing statistics: the omission of millions of tort claims that have resulted in tens of billions of dollars in wealth transfers. Relying on case filings as a measure of what is going on to the tort system is like relying on U.S. census data, which omits California, New York and Texas, to measure the nation’s population growth.
There are somewhere between 15,000,000 and 20,000,000 civil cases filed annually in state courts, including divorce, property, contracts, torts, and landlord-tenant cases. An estimated 1,000,000 to 1,500,000 of these civil suits are tort cases. In addition, there are approximately 50,000 to 70,000 tort filings a year in federal courts. However, the actual number of plaintiffs who become claimants in state and federal courts is actually far higher than these numbers suggest. Here is why: Each time a lawyer files a tort case, he pays a filing fee to the court. In mass tort litigations -- such as asbestos -- tort lawyers came up with a clever ruse, which both saved money and materially increased the pressure on defendants to settle tens of thousands of mostly bogus claims. In states such as Texas, Mississippi, West Virginia, and Illinois, lawyers filed complaints against dozens, if not hundreds, of asbestos defendants on behalf of a single plaintiff, let’s say John Smith. They then added ten to fifty additional plaintiffs to the case. However, the title of the case remained John Smith vs. [one hundred defendants listed by name], so the lawyer paid one filing fee. For purposes of counting the number of case filings, John Smith and fifty other plaintiffs vs. one hundred defendants -- which added up to over 5,000 claims -- counted as one filing! As many as 100,000 asbestos plaintiffs who filed suit against scores of defendants totaling millions of claims were thus omitted from case filing statistics.
A similar process occurred when asbestos and other mass tort cases were consolidated in state courts. Here too, lawyers saved money on filing fees by listing only a handful of plaintiffs in a consolidated case and paying their filing fees, even when there were actually thousands of plaintiffs.
Another source of vastly undercounting civil case filings is the virtual omission of class actions and the substantial omission of bankruptcy trust claims filings. These constitute an enormous and growing number of claims, generating billions of dollars in wealth transferred through the tort system and hundreds of millions dollars in contingency fees for lawyers.
Class actions include millions of claimants who become eligible for billions of dollars of compensation annually but who are virtually all invisible when it comes to counting tort case filings. Class action lawyers pay filing fees only for each of the named plaintiffs. Since the number of civil cases filed is determined on the basis of the number of filing fees paid, the putative class action counts for statistical purposes as one or perhaps two or three civil actions. This accounting is unchanged by the fact of certification of a class. In addition, some states do not count a civil action as filed until a jury or first witness is sworn at the commencement of a trial -- events that rarely occur in class actions.
While some class action settlements incorporate thousands of individual claims filed in courts, other class action settlements include claims that are filed after a settlement has been reached and a trust or other mechanism has been created for payment of the settlement funds. For example, when the silicone breast implant litigation settlement was reached, approximately 440,000 women filed claims to be paid out of the settlement. The vast majority of these claimants were recruited by lawyers after the settlement was reached and had not previously filed suit in a court. Accordingly, these hundreds of thousands of claims were not counted in case filing compilations.
Another area of large-scale undercounting involves trusts or similar mechanisms for the payment of claims, which are created in the course of certain bankruptcy proceedings. Assets are transferred from the debtor in bankruptcy to the trust for the payment of current and, in the case of latent injuries, future tort claimants. While many of those filing claims with the trust have previously filed tort actions in federal or state court, filing a tort action in a court is typically not a prerequisite for filing a claim with the trust. As many as hundreds of thousands of asbestos claimants, mostly generated by litigation screenings, who presented claims to the trusts and received and continue to receive, in the aggregate, billions of dollars of compensation, may never have brought suit in a court and are, therefore, not counted in tort claim filing data.
If joined cases, consolidated cases, class actions, mass tort settlements, and bankruptcy trust filings were included in tort claims filing data -- as they properly should be -- then there has indeed been a “litigation explosion.” Nonetheless, as I discuss in Lawyer Barons, the fact that there has been a litigation explosion does not, in and of itself, mean that there is an excess of litigation that imposes social costs that far exceed benefits.
Whether that is the case is the issue I tackle in my book. Contrary to a broad academic consensus, I argue that the financial incentives for lawyers to litigate in many instances have become so inordinately high that they perversely impact our civil justice system and impose other substantial costs. But that is a subject for another day.
- Lester Brickman
Professor of Law
Benjamin N. Cardozo School of Law
October 10, 2010
In Memoriam: Richard Nagareda (1963-2010)
I am very sorry to report the untimely death of one of the great minds in mass tort litigation, Richard Nagareda. According to the Vanderbilt notice, Professor Nagareda died suddenly at his home on Friday October 8, 2010. Vanderbilt released the following statement:
“Richard was a personal friend as well as an esteemed colleague, and those of us who were fortunate enough to know him and work with him for the past several years are devastated by his death,” Dean Chris Guthrie said. “The legal academy has lost a gifted scholar, and our students an extremely talented teacher. Our faculty members have lost a good friend and exemplary colleague, and his family a beloved husband, father and son."
We were lucky to have Professor Nagareda guest blog here at TortsProf last spring. His guest blog piece explored "Developments in the Resolution of Mass Torts: The New Face of Client Consent."