May 20, 2011
Personal Injury Roundup No. 104 (5/20/11)
- Rakofsky v. the Internet. (TortsProf)
Trials, Settlements and Other Ends
- DOJ taps Sheila Birnbaum to administer the fund for ground zero workers. (Bloomberg Bus Week, Huff Post)
- Judge's impartiality questioned in $322 million asbestos verdict in Mississippi. (Overlawyered)
- Bratz manufacturer MGA seeks $177 million on punitive damages from rival Mattel. (AmLaw Daily)
Reform, Legislation, Policy
- Med Mal reform bill passes House committee, but passage by full Congress unlikely. (CT Mirror)
- NC works on workers-comp reform. (PR Newswire)
- TN Senate passes cap on non-economic damages. (Nashville City Paper)
- As we work on our summer projects, Opinio Juris features posts by the Outgoing Exective Articles Editor of the Chicago Law Review about the law review submission process.
May 19, 2011
Argument Over Engle Progeny Verdict
The Engle progeny tobacco cases in Florida are continuing apace, including through the appellate process. On Tuesday, a case that ended with a total of a $15.75 million verdict was argued in Florida's First Circuit Court of Appeals. As usual, the focus was on the plaintiff's knowledge of the risks of tobacco.
Digging Deeper, Defamation Suit Filed by Rakofsky
After by virtually all accounts being incompetent in his attempt to present a defense to murder charges, Joseph Rakofsky chose not to focus solely on how not to do that again, but instead has sued virtually everyone who's mentioned his adventures in D.C. court. That includes Eric Turkewitz, who has, to say the least, an answer for Rakofsky.
You can find the complaint in what has been dubbed "Rakofsky v. Internet" here.
May 18, 2011
PA: Med Mal Filings Hit New Low
From the Public Information Unit of Pennsylvania Courts:
In 2010, there were 1,491 filings, representing a 38.5 percent decline from the “base years” 2000-2002 (shown in Table 1, attached). In Philadelphia, the state’s judicial district with the largest caseload, the decline has been by nearly 70 percent during the same period.
The base years are the period just prior to two significant rule changes made by the Supreme Court. The first change required attorneys to obtain from a medical professional a certificate of merit that establishes that the medical procedures in a case fall outside acceptable standards. A second change required medical malpractice actions to be brought only in the county where the cause of action takes place — a move aimed at eliminating so-called “venue shopping.”
Tables 2 and 3 detail medical malpractice jury and non-jury verdict amounts for 2010. In comparison to earlier years, Tables 2 and 3 show that 2010 had the fewest number of jury verdicts in comparison to earlier years. The tables also show more than 80% of the verdicts were for the defense.
“Pennsylvania’s Judiciary collaboratively addressed a complex medical malpractice litigation crisis, and the latest figures show the progress made in the last seven years,” Chief Justice of Pennsylvania Ronald D. Castille said. “One of our fundamental priorities is to assure the Commonwealth’s citizens that the legal process will not be abused in malpractice cases. We’re very encouraged by these statistics. The crisis is over.”
The AOPC began the systematic collection of data from each of Pennsylvania’s 67 counties four years ago as part of the Judiciary’s commitment to intergovernmental collaboration in addressing medical malpractice litigation issues. Counties also began to methodically track med mal case information to enhance the focus and accuracy of data collections. New statewide Rules of Civil Procedure were promulgated — Pa.R.C.P. 1018 and 1042.16 — to help identify med mal cases together with a new rule of Judicial Administration — Pa.R.J.A. 1904 — to codify the reporting requirements. An extensive collection of data, rules and other information may be viewed on the Medical Malpractice resource page of the Pennsylvania Judiciary’s Web site at: http://www.pacourts.us/Links/Media/MedicalMalpractice/default.htm
Two on Preemption
Cathy Sharkey (NYU) has posted to SSRN Inside Agency Preemption. The abstract provides:
A subtle shift has taken place in the mechanics of preemption, the doctrine used to determine when federal law displaces state law. In the past, Congress had been the leading actor, with courts and commentators focusing almost exclusively on the precise wording of its statutory directives as clues to its intent to displace state law. Federal agencies were, if not ignored, certainly no more than supporting players. But the twenty-first century has witnessed a role reversal. Federal agencies now play the dominant role in statutory interpretation. The U.S. Supreme Court has recognized the ascendancy of federal agencies in preemption disputes - an ascendancy unchecked by the change in Presidential administrations. This Article confronts the profound implications for the administrative rulemaking process caused by the ascendancy of federal agencies in the preemption realm. Stakeholders with vested interests in preemption disputes, such as state governmental organizations and other representatives of state interests, state attorneys general, consumer and business-oriented organizations, and private litigants, can continue to ignore the preemptive rulemaking processes within federal agencies only at their peril.
As this Article further shows, those processes are, in and of themselves, rich areas of investigation. Taking a unique perspective "inside" the preemptive rulemaking processes within five major federal agencies that regulate in areas as diverse as health and safety, banking, and the environment, the Article presents the first look at agencies’ responses to President Obama’s Memorandum on Preemption and their efforts to ensure compliance with the relevant provisions of the Federalism Executive Order 13132 governing preemptive rulemaking.
With this empirical grounding in agency practice, the Article addresses possibilities for reform, including a novel attorney general preemption notification provision and a blueprint for external review of newly proposed internal oversight procedures. The specific reform measures are guided by the twin overarching goals of (1) creating a "home" within agencies for consideration of the federalism values at stake in preemptive rulemaking and ensuring participation in the rulemaking process by suitable representatives of the state regulatory interests; and (2) establishing a system of internal agency policing of the empirical and factual predicates to arguments for preemption, coupled with external oversight. This journey inside agency preemption charts preemption’s future path.
UPDATED: Drug & Device Law discusses Sharkey's article here.
Ronen Perry (Haifa) has posted to SSRN Differential Preemption. The abstract provides:
Preemption is a constitutional law doctrine whereby state and local authorities are deprived of their powers in particular areas governed by federal law. In setting the boundaries of state sovereignty within a federal polity, it constitutes one of the pillars of the federal political structure. Viewed differently, preemption is one of the strongest legal unification methods. Recent cases like Williamson v. Mazda and Bruesewitz v. Wyeth highlight the growing salience of preemption in contemporary legal discourse. The Article focuses on a highly important and distinctive niche in preemption debate, namely the interrelation between federal maritime law and state law. It offers an original theoretical framework for maritime preemption analysis, which supports a judicial heuristic standing in stark contrast to that advocated by prominent scholars as the late Professor David Currie. Although maritime preemption remains the source of inspiration and the focal point of the Article, the implications of the main idea are far-reaching. It may be pertinent to allocation of lawmaking powers in other areas and to other types of unification and harmonization methods, and may be applicable in other federal and federal-like systems, such as the European Union.
The Article contends that the preemptive force of federal maritime law should relate to prospective litigants’ ability to pre-select the law applicable to their interaction. Maritime preemption is generally based on the need for uniformity. However, and this is crucial, uniformity is not an end in itself, but a means for the protection and advancement of more fundamental federal interests. As the underlying justifications for uniformity weaken, so does the need for preemption. The Article ascertains that if the parties in a particular type of cases can easily select applicable law before the occurrence of the legally relevant incident, uniformity becomes unnecessary. Moreover, where pre-selection based on individual preferences is possible, uniformity may be detrimental to the common good, because it curtails regulatory competition. Under these circumstances, uniformity-driven preemption of state law should be avoided. If, on the other hand, pre-selection is impossible or impractical, the need for uniformity resurfaces, and preemption might be warranted.
May 17, 2011
Class Certification Denied in YAZ MDL
Sean Wajert at Mass Tort Defense has the full story.
May 16, 2011
Guest Blogger Robert Rabin: "The Legacy of New York Times v. Sullivan: Time for a Reassessment?"
A soldier is killed in Iraq, serving his country; his grieving father arranges a funeral service and burial in the nearby cemetery of their hometown church; a publicity-seeking religious sect, dedicated to hateful religious and homophobic disparagement, as well as denigration of the U.S. government and its military efforts, pickets the funeral service. Due to this arresting set of factual circumstances, Snyder v. Phelps, an intentional infliction of emotional distress claim by the dead soldier’s father against the leader and members of the sect, was afforded considerable media attention—triggering widespread outrage in support of the victimized father. Despite the outpouring of sympathy, however, when the case reached the U.S. Supreme Court, the Circuit Court of Appeals decision overturning a jury verdict in favor of the plaintiff was affirmed, 8-1, on First Amendment grounds, Snyder v. Phelps, 131 S.Ct. 1207 (2011).
Snyder is, in fact, an easy case, in my view. When an individual or organized group engages in speech about a matter of public concern, the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) has generated more than a half-century of precedent standing for the proposition that tort victims’ common law rights are substantially limited. The authority of Times—the power of its articulation of the values promoted by free and robust public discourse—has spilled beyond the borders of that Civil Rights-era defamation claim by southern officials against a widely-respected national newspaper to related tort areas of protection of personality: privacy (Time, Inc. v. Hill, 385 U.S. 374 (1967)) and intentional infliction of emotional distress (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)).
Snyder is firmly in that tradition—and it is an easy case because it does not test the limited categories of tort that survive Times restrictions: fighting words and personally threatening harassment. But if that is all one should read into Snyder, the case is of little consequence. On the other hand, if it signals a corrective in the understanding of Times, which went off-course, as I see it, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), that is another matter.
Gertz, which involved allegations of a communist plot to promote claims of police brutality—allegations clearly within the zone of political discourse on a matter of public concern—shifted the focal point of inquiry from the content of defendant’s speech to the status of the victimized plaintiff (in particular, whether plaintiff was a “private figure” or not); providing lesser protection of a defendant’s speech in the latter category of cases. This was, in fact, a sharp divergence from the spirit of Times; in particular, promoting a marketplace of discourse on public issues as central to the meaning of a democratic society.
Moreover, Gertz rested on insubstantial foundations: the conclusory rationale that “public officials” and “public figures” assumed the risk of defamatory statements by participating in public affairs; and the dubious proposition (treated almost apologetically in a Gertz footnote) that public figures could neutralize defamatory statements by their access to media forums. Whatever the questionable earlier salience of this distinction between public and private figure access to forums of retaliatory speech, in the online era of blogs and Facebook, it is now highly anachronistic.
But does Snyder in fact signal a revival of the foundational premise of Times protection of speech on matters of public concern? The majority opinion’s invocation of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), emphasizing the purely private nature in that case of defendant’s incorrect attribution to plaintiff of a bankruptcy petition, as a point of contrast from the political protest involved in Snyder (and the concomitant failure to even mention Gertz or private figure considerations in the Snyder opinion), possibly points in that direction.
And suppose that the Court were to resurrect the promotion of the public marketplace of ideas as the core meaning of Times: Would that signal the demise of unencumbered protection of personality-based tort claims? Not at all. Take as a single example (of many that might be offered), Johnson v. Johnson, 654 A.2d 1212 (R.I.1995), in which an ex-husband loudly proclaimed in a restaurant setting and in the presence of his ex-wife, that she was a whore. Quite correctly, in my view, the Rhode Island court dispatched the First Amendment claim as a defense to the ex-wife’s tort claim. There remains not the slightest reason for affording constitutional protection to the defendant’s indifference to the feelings of the victim in such a case, when it rises to the level of outrageous breach of norms of civility. If Snyder turns out to be a first step towards a revival of a public/private subject matter focal point, then it will stand as an easy case with substantial consequences.
--Robert L. Rabin, A. Calder Mackay Professor of Law, Stanford Law School