Friday, December 3, 2010
- Maryland bed bug liability suits (WaPo)
- MD: Court of Appeals reinstates a wrongful death suit under FELA, finding the trial judge erred in failing to give an instruction on the inapplicability of assumption of risk. (Miller/The Maryland Injury Lawyer Blog)
- More on the negligent-golfing case on appeal in NY (Olson/Overlawyered)
- Washington Supreme Court abandons economic loss rule (Jackson on Consumer Class Actions and Mass Torts via Olson/Overlawyered)
Reform, Legislation, Policy
- Hospital safety: No improvement seen--Is malpractice litigation at fault? (Conk/Otherwise)
- Malpractice Premiums and Caps (Miller/Accident and Injury Lawyer Blog)
- Alberto Bernabe on med mal waivers (Torts)
- PA: Rendell vetoes "stand your ground" (Philadelphia Inquirer)
Trials, Settlements and Other Ends
- "Extenze" class action settlement (Frank/Point of Law)
- More on toxicogenomics (Couch/Abnormal Use)
- Stella Liebeck: The Movie (Turkewitz/New York Personal Injury Law Blog)
- NHTSA report indicates a rise in drug-related auto driver fatalities in the last 5 years (Day on Torts)
Wednesday, December 1, 2010
Earlier this week, Governor Ed Rendell of Pennsylvania vetoed the "stand your ground" expansion of the common-law "castle doctrine."
"The bill as passed encourages the use of deadly force, even when safe retreat is available, and advances a 'shoot first, ask questions later' mentality," Rendell said in a statement issued Saturday afternoon. "I do not believe that in a civilized society we should encourage violent and deadly confrontation when the victim can safely protect themselves."
The Pennsylvania District Attorneys' Association supported the veto:
"Pennsylvania already has a strong castle doctrine," said Dauphin County District Attorney Edward M. Marsico Jr., president of the state's District Attorneys Association. "Citizens already possess the right to defend themselves in their homes."
Governor-elect Tom Corbett has indicated he would sign "stand your ground" if it reaches his desk next year. The Philadelphia Inquirer has the story.
Tuesday, November 30, 2010
AALS Torts & Compensation Chair Cathy Sharkey has put together a fantastic panel for the 2011 Annual Meeting in San Francisco. The overview:
The proliferation of vaccine and pharmaceutical drug-related injuries challenges our conceptions of how the tort system can best meet its compensatory and regulatory aims in the 21stcentury. In 1986, Congress created the National Childhood Vaccine Act, establishing a no-fault compensation scheme for vaccine-related injuries. In 2010, the U.S. Supreme Court granted certiorari in Bruesewitz v. Wyeth, Inc. to decide whether design defect claims against vaccine manufacturers are preempted. This follows closely on the heels of the U.S. Supreme Court’s decision in Wyeth v. Levine, finding that failure to warn claims against a drug manufacturer were not preempted. Our panelists—who include two prominent torts and products liability scholars (Mary Davis, who posted on a related issue on Monday, and Bob Rabin, who will guest blog with us next semester), a seasoned litigator (Mal Wheeler), and a policy expert (James Copland)—will explore whether it makes sense to have separate legal regimes for vaccines and other pharmaceuticals. They will also address issues at the core of tort law in the modern administrative state: the need for no-fault victim compensation and the respective roles of litigation and governmental regulation.
The program is Saturday, January 8th from 1:30 to 3:15. The location has not been finalized because of an ongoing labor dispute. I'll provide an update on the location when it's available. I hope to see you there.
An opinion piece in the Wall Street Journal on Saturday, cleverly titled "1-800-Trial-Bar," described an announcement by Vice President Joe Biden of a government-funded toll-free number for employees to call with unresolved Fair Labor Standards Act or Family Medical Leave Act complaints to receive a referral to a private attorney.
It sounded like hype to me, but then I investigated a bit - and it's true! According to the ABA,
Some workers whose complaints aren’t resolved by the U.S. Labor Department will be told of another option: Find a private lawyer through an ABA-approved lawyer referral program.
....In a typical year, more than 35,000 workers contact the Wage and Hour Division with complaints, according to the Labor Department’s Office of Public Affairs. Most are resolved, but thousands can't be resolved because of limited capacity, Solis said at the press conference.
Now, beginning on Dec. 13, workers with unresolved complaints under the Fair Labor Standards Act or the Family Medical Leave Act will be told of another option. They will get a letter explaining their rights and offering a toll-free number that can link them to ABA-approved lawyer referral programs in their geographic area.
As the White House Press Release explains further, the rationale seems to be "Well, the Department of Labor can't handle all of these complaints so we'll outsource the work to private lawyers." I'm paraphrasing, but here's the official explanation from the press release: "[C]omplainants whose cases cannot be resolved by DOL because of limited capacity will be given a toll-free number to a newly created system where they are connected to an ABA-approved attorney referral provider if there are participating attorneys in their area." (emphasis added).
Here's an idea - Instead of outsourcing to private attorneys, the Department of Justice could hire more recent law grads through its Honors Program and thus create jobs as well as resolve these FLSA/FMLA complaints.
Monday, November 29, 2010
I have spent the better part of the last decade thinking and writing about federal preemption of state common law damages actions, particularly in the products liability context. I think that federal preemption provisions should be narrowly construed to preserve state tort law--I am an unapologetic fan of the tort system with all its supposed faults. I think that state common law tort doctrine, and the private litigation that stems from it, adds value to our society that is largely immeasurable. Congressional intent, the "touchstone" of preemption analysis according to the Supreme Court, should be crystal clear if it is to displace that law. A longstanding "presumption against preemption" operates as a tool of discerning congressional intent in default of such clarity, but the Supreme Court wavers in its adherence to the presumption and, consequently, it is under attack.
The Supreme Court is poised to answer another preemption case this term in Bruesewitz v. Wyeth involving preemption under the National Childhood Vaccine Injury Act (Vaccine Act). The Vaccine Act contains an express preemption provision which the Court will have to interpret and the application of the presumption against preemption, in both express and implied preemption, will be in issue. Unlike most congressional legislation which affects products liability, the Vaccine Act created a compensation system for children who are injured by the unavoidable side effects of a vaccine. The legislation was the product of a substantial outcry by vaccine manufacturers in the mid-1980s about the effect of tort litigation on the vaccine supply—manufacturers would stop producing vaccines if Congress didn’t do something. So Congress did. Over twenty years later, the Court must determine in Bruesewitz what Congress meant when it said that state tort law was preempted if a vaccine’s side effects were “unavoidable.” For those of you familiar with the Restatement (2d) of Torts § 402A on strict products liability, this language comes from comment k on liability for unavoidable risks.
In 1991, the Supreme Court began in earnest to address preemption in product liability claims and has decided over a dozen such cases using a confusing array of analyses with results that are sometimes difficult to reconcile. Bruesewitz is one of two products liability preemption cases the Court has agreed to hear this term. The other involves preemption of product liability claims under the National Traffic and Motor Vehicle Safety Act of 1966. In Williamson v. Mazda Motor of America Inc., the Court must determine whether the Motor Vehicle Safety Act impliedly preempts a claim based on the design of rear seat belt systems. This case will build on Geier v. American Honda Motor Corp., decided in 2000, in which the Court found implied conflict preemption based on the federal seat belt standard in a case involving the failure to incorporate air bags into the vehicle's design. Geier found the plainitiff's claim preempted even though the legislation contains a savings clause that purports to save common law damages actions. There is obviously much more to these cases but delving into preemption in detail is not my major goal.
While exploring the Vaccine Act and the preemption issue raised by Bruesewitz (because I never want to miss an opportunity to write something about preemption), I happened to receive an e-mail from our Torts colleague (and my former professor) Dean David Logan from Roger Williams University School of Law forwarding the following New York Times article by Binyamin Applebaum that I had not seen: http://www.nytimes.com/2010/11/15/business/15lawsuit.html?_r=1&nl=todaysheadlines&emc=a2. This article reports on the increase in private financing of tort litigation. I was startled by it. The Times article reports that “Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings.” I suppose that I should not have been surprised that private investors might be interested in the results of private litigation—law firms have to go somewhere for the funds to finance such litigation.
In the way that law professors do, I began to think about the intersection of my research into the Vaccine Act preemption issue, and my newfound knowledge of the abundance of private investment in tort litigation. The increase in preemption arguments since the early 1990s surely resulted in part from product manufacturers and other litigation targets trying to get out from under the “weight,” perceived or real, of large-scale tort litigation. The occasional tort claim in the face of federal regulation never seemed to generate much preemption interest until truly large-scale tort litigation became the norm after the explosion in asbestos cases in the 1980s and 1990s. Traditional analysis of the preemptive scope of most federal regulation had not resulted in findings of preemption until then; indeed, very few such arguments had been made.
Fast forward to 2010. Large-scale tort litigation is the norm. And every case in which there is a federal regulation presents an opportunity for defendants to pose preemption arguments. The presumption against preemption assumes that state common law tort doctrine operates as an important counterpoint to federal regulation. What else informs the presumption? Must we explore the way in which state common law damages actions proceed--with an understanding of the monetary influences and the pressure to settle--as part of the analysis? Common law tort claims survive federal preemption efforts depending on an assessment of congressional intent but does that assessment require an understanding of the modern way that those claims come to exist and are resolved? I had not included the litigation process into my own analysis but that may have been naive. I wonder whether the value of tort law as I have always believed in it is being thwarted by those who champion it just as it is by those who would displace it with the work of federal regulators. The use of class actions and other aggregate litigation directed toward settlement was largely unknown to the Congresses writing legislation which is now the subject of preemption analysis. The Vaccine Act was written explicitly against the background of a concern for large-scale litigation and yet Congress still explicitly preserved some state common law claims. That awareness may be critical to deciding the scope of the Vaccine Act's preemption provision. In hindsight, that seems a remarkable step.
I have often criticized product manufacturers who cry that “the sky is falling” because of the flood of alleged unmeritorious litigation that they face. Private financing of litigation does not render litigation unmeritorious; on the contrary, it may suggest the opposite. But as we end another semester of teaching torts to One-Ls, my belief in the importance of a robust state tort law unimpeded by an aggressive use of preemption, and my concern over the influence of private investment of large-scale tort litigation have collided in a way that makes me ponder how I will reconcile the conflict for my Torts students of the future. What will I tell my students next year when they ask me what the purpose of tort law is in the 21st century with the mass of federal regulation controlling conduct of product manufacturers and others, and the pressure on lawyers to provide a return on investment to the financiers of private litigation. I would be interested to hear your answers.
--Mary J. Davis, Associate Dean for Administration and Faculty Development and the Stites and Harbison Professor of Law, University of Kentucky College of Law
Sunday, November 28, 2010
Josh Freedom duLac of The Washington Post published an article yesterday about liability for bed bugs. Judge Posner's Mathias case was ahead of its time. The recent surge in bed bugs has created an uptick in litigation against motel owners and landlords alike. duLac's article focuses on a Maryland attorney who is filing a series of bed bug liability suits. The typical compensatory damages claim is $200,000, and many of the suits claim punies. Bed bug suits, in Maryland and elsewhere, generally face three major issues.
First, plaintiff will have to prove notice on the part of the motel owner or landlord. Actual notice is best, but constructive notice should suffice. For constructive notice, the focus will be the length of time the condition (bed bugs) has been in place. The Maryland suits contain mostly conclusory allegations, so discovery will be important.
Second, plaintiff will have to establish compensatory damages. Bed bugs are nasty creatures, and I have a lot of sympathy for people impacted by them. On the other hand, as I noted in the article, I'm skeptical of the amounts claimed in the Maryland suits. $200,000 is a large sum of money. I know of someone who received slightly more than that from the tort system for losing his eyesight in both eyes. I don't claim that outcome was adequate, but it does bring the bed bug damages into perspective. I understand that ad damnum clauses are drafted as a ceiling, but these are quite high. Plaintiffs in Mathias got a jury verdict for compensatory damages of $5,000. A Florida attorney quoted in duLac's article is leaving the bed bug liability field because the damages are too small. He noted that he settled one case for $4,000 and another for $10,000.
Finally, a fairly standard punies regime requires a plaintiff to prove some type of conscious and deliberate behavior on the part of the defendant. In Mathias, the hotel owners were informed about the bed bugs. Instead of paying for a $500 extermination, the owners allowed the bed bug situation to fester for nearly two years. It was widely known the hotel had bed bugs. There were certain rooms that employees were not supposed to rent out because of the bugs, yet the rooms were rented if there were not enough other rooms available. Guests were informed the bugs were ticks (as if that's better!). Under these circumstances, the court upheld a punies verdict of $186,000. If proving notice in the Maryland cases will require the discovery of significant facts, for punies the bar is even higher.