Wednesday, February 29, 2012
Congratulations to the students of the Federal Courts Law Review for a wonderful symposium last Friday, February 24, 2012, on "Mass Torts in the Federal Courts." In today's post, I will recap the two individual presenters: Ken Feinberg and the Honorable Marina Corodemus (ret.).
Ken Feinberg gave the keynote address. His remarks focused on his work with the 9/11 Fund as well as the Gulf Coast Claims Facility. Feinberg noted five options to adjudicating mass torts: (1) Rule 23 class actions, (2), MDLs, (3) regional consolidation, (4) bankruptcy by the defendant, and (5) individual litigation of each case. Feinberg expressed skepticism that Rule 23 permitted aggregation of mass torts. While acknowledging that MDLs worked for mass torts, he pointed out that MDLs only capture federal cases. The downside to regional consolidation, according to Feinberg, was that it did not provide truly mass resolution. Finally, he asserted that bankruptcy was a "draconian way" to achieve mass resolution. He argued that the 9/11 Fund and the Gulf Coast Claims Facility were both sui generis and challenged the audience (and other speakers) to address three questions: (1) Are the federal courts receptive to mass tort litigation? (2) What legal challenges to do mass torts confront in the federal courts? and (3) What is the alternative to adjudicating mass torts in the federal courts? Audience questions raised the delegation issue inherent in the fund approach: is it a good idea to delegate all of that authority to one person to resolve mass tort claims including the amount of payment?
The Honorable Marina Corodemus (ret). shared "A View from the Bench" based on her perspective as New Jersey's sole mass torts judge for over ten years. Judge Corodemus discussed her experiences in trying to coordinate mass tort cases with federal judges handling MDLs as well as other state court judges. She concluded by identifying two problems for the future: (1) the increasing number of mass tort claims and (2) the shrinking budgets of the state court system.
In tomorrow's post, I will describe the three panel presentations.
Tuesday, February 28, 2012
Asbestos.com reports the heirs of dockyard workers in the tiny Mediterranean country of Malta filed asbestos-liability claims in New York against American companies that made products used aboard U.S. Navy ships.
The dock workers were exposed to the asbestos when the Navy ships were brought in for service and repairs. Although the exposure came as long as 40 years ago, some of the worker died only recently. Mesothelioma cancer, which is caused by the asbestos exposure, can linger for up to 50 years before it shows any symptoms.
According to Maltatoday, the leading news service in Malta, up to 400 workers or their families have filed claims through the United States court system.
Thanks to Cary Sklaren for the tip.
Monday, February 27, 2012
Jenny Wriggins (Maine) has posted to SSRN a paper sure to receive attention, Is the Health Insurance Individual Mandate 'Unprecedented?': The Case of Auto Insurance Mandates. The abstract provides:
Opponents of the Patient Protection and Affordable Care Act of 2010 assert that the ‘individual mandate’ is unprecedented, not just in the narrow and obvious sense that the federal government has never before required people to have health insurance, but in a much broader sense as well. They claim government even at the state level has never before required people to insure themselves. This article examines the assertion that the mandate is an unprecedented outlier and a sharp departure from all past government policies. This article finds that the laws in many states require drivers to purchase insurance coverage for their own injuries, that several states’ laws require drivers to buy coverage for their own medical expenses, and that liability insurance mandates protect careless drivers along with their victims. These long-standing individual insurance mandates have been overlooked by both sides in the current debate. As requirements for people to insure themselves, they are clear, powerful precedents for the health insurance individual mandate. If forced to admit that these laws exist, opponents may then claim that driving is a pure choice: If people object to state auto insurance laws, they can simply opt out and choose not to drive, while there is no opt-out from the individual health insurance mandate. The article argues that ‘driving as a pure choice’ is largely illusory and not a sufficient basis on which to argue that these precedents are irrelevant.
Finally, the article turns to the forgotten history of auto insurance mandates, drawing lessons from that history for today’s debate. The history shows first that, leaving aside the Commerce Clause arguments which by definition only apply to the federal government, the arguments used to resist auto insurance mandates were strikingly similar to arguments used to oppose the health insurance individual mandate. Second, courts have consistently recognized a link between insurance and the public welfare justifying regulation in the auto context. Third, governments have recognized for decades that the auto insurance market must be regulated to provide a socially optimal level of coverage, as seen in the U.S. Supreme Court’s 1951 decision upholding a California market regulation law. Finally, state governments have long required people to purchase insurance for themselves from private sellers. The health insurance individual mandate is not different in kind from auto insurance individual mandates but rather extends the idea of insurance mandates to an even more important context.
Friday, February 24, 2012
|1||351||Choice of Law in the American Courts in 2011: Twenty-Fifth Annual Survey
Symeon C. Symeonides,
Willamette University - College of Law,
Date posted to database: January 6, 2012
Last Revised: January 29, 2012
|2||179||Smooth and Bumpy Laws
Adam J. Kolber,
NYU School of Law,
Date posted to database: January 27, 2012
Last Revised: February 16, 2012
|3||102||Economic Analysis of Punitive Damages: Theory, Empirics, and Doctrine
Catherine M. Sharkey,
New York University (NYU) - School of Law,
Date posted to database: January 23, 2012
Last Revised: January 27, 2012
|4||95||Corporate Liability for Extraterritorial Torts Under the Alien Tort Statute and Beyond: An Economic Analysis
Alan O. Sykes,
Stanford University - Law School,
Date posted to database: January 11, 2012
Last Revised: January 27, 2012
|5||77||Property Rules, Liability Rules, and Patents: One Experimental View of the Cathedral
Andrew W. Torrance, Bill Tomlinson,
University of Kansas - School of Law, University of California, Irvine,
Date posted to database: January 29, 2012
Last Revised: January 29, 2012
|6||66||Blindsight: How We See Disabilities in Tort Litigation
Anne Bloom, Paul Steven Miller,
University of the Pacific (UOP) - McGeorge School of Law, University of Washington School of Law,
Date posted to database: December 13, 2011
Last Revised: January 10, 2012
Oren Bar-Gill, Ariel Porat,
New York University (NYU) - School of Law, Tel Aviv University,
Date posted to database: January 17, 2012
Last Revised: February 4, 2012
|8||58||In Defense of Deterrence
Andrew F. Popper,
American University, Washington College of Law,
Date posted to database: January 18, 2012
Last Revised: January 18, 2012
|9||59||New Private Law Theory and Tort Law: A Comment
Keith N. Hylton,
Date posted to database: February 1, 2012
Last Revised: February 1, 2012
|10||64||Empirical Analysis of Tort Damages
W. Kip Viscusi,
Vanderbilt University - Law School,
Date posted to database: January 13, 2012
Last Revised: January 13, 2012
Wednesday, February 22, 2012
Kyle Graham (Santa Clara) has posted to SSRN Of Frightened Horses and Autonomous Vehicles: Tort Law and its Assimilation of Innovations. The abstract provides:
This symposium contribution considers five recurring themes in the application of tort law to new technologies. First, the initial batch of cases presented to courts may be atypical of later lawsuits that implicate the innovation, yet relate rules with surprising persistence. Second, these cases may be identified, and resolved, by reference to analogies that rely on similarities in form, and which do not wear well over time. Third, it may be difficult to isolate the unreasonable risks generated by an innovation from the benefits it is perceived to offer. Fourth, potential claims by early adopters of the technology may be more difficult to identify and recover upon than those that arise later, once the technology develops a mainstream audience. Fifth, and finally, uncertainty among potential plaintiffs (and their counsel) regarding the existence of a cause of action and the likelihood of recovery may beget a dearth of claims that involve an innovation for a significant period of time after its initial appearance. In introducing and explaining these themes, this article considers the initial application of tort law to technologies such as automobiles, airplanes, radio and television, and Tasers.
Tuesday, February 21, 2012
Monday, February 20, 2012
The Philadelphia Court of Common Pleas has issued a new general court regulation (No. 2012-01) changing the protocol for mass torts cases. Notable features include:
- No reverse bifurcation of any mass tort case, including asbestos, unless agreed upon by all counsel involved.
- No consolidation of mass tort cases absent an agreement of all parties, except in the asbestos program.
- Deferrral of all punitive damage claims.
For researchers, the order provides interesting information about the mass torts, specifically asbestos, docket in the Philadelphia Court of Common Pleas:
The asbestos case inventory as of February 3, 2012 numbers 770 cases. Since 2006 when the asbestos inventory numbered 589 cases, there has been a pronounced upward trend in filings in each successive year. Although the disposition rate remained at an average of 244 cases per year over this six year period, the Court’s disposition rate has not kept pace with filings and a significant backlog has developed and will continue to develop if measures are not implemented to ameliorate the trend.
In January and again in March, 2009, certain Court leadership invited the filing of asbestos cases from other jurisdictions and did so apparently unaware that, at that time, this Court’s asbestos program was only meeting the ABA’s suggested standards for resolving these cases in 24-25 months in 42% of the cases filed. During a five year period from 2007 through 2011, 82.2% of the cases were disposed of within 31-36 months, leaving almost an entire fifth of the inventory undisposed after three years.
From 2001 to 2008, an average of approximately one-third of the filings were from outside the Commonwealth. A dramatic increase in these filings occurred after this Court’s leadership invited claims from other jurisdictions. In 2009, when published comments were offered encouraging the filing of claims in Philadelphia, out-of-state filings soared to 41% and in 2011 reached an astonishing 47%.
Preliminary Conclusion: With regard to other Mass Tort Programs, the Court failed to meet ABA suggested standards for the disposition of cases in the HRT, Paxil, Beryllium, Phen-Fen and Vioxx matters, but achieved 100% compliance with the Avandia, Trasylol, Digitek, Firefighters’ Hearing Loss, Gadolinium and Anti-Convulsant Drugs programs. The Asbestos Program was by far the one Mass Tort Program most out of compliance with the standards. Significant results were achieved in HRT, Paxil and pharmaceutical mass torts.
You can download the new regulation here: Download Philadelphia Mass Torts New Protocol
Thanks to Mark Behrens (SHB) for the news.
Friday, February 17, 2012
Thursday, February 16, 2012
Gawker presents a somehow-not-fictional air gun with the air pressure gauge in what might be called...not an ideal location. Check it out. I'd say it's exam-worthy, except the counterarguments would be a bit weak.
Wednesday, February 15, 2012
Alex Long (Tennessee) has posted to SSRN Lawyers Intentionally Inflicting Emotional Distress. The abstract provides:
This article examines the tort of intentional infliction of emotional distress (IIED) as applied to lawyers engaged in the practice of law. IIED claims against lawyers have arisen in a variety of contexts, ranging from a lawyer’s act of disclosing client confidences to a prosecutor to demanding sex from a client in exchange for legal services. Courts have always had difficulty defining the concept of “extreme and outrageous conduct” for purposes of an IIED claim, but IIED claims against lawyers pose even greater definitional problems for courts. In an effort to provide greater clarity, the article advocates that courts should adopt the following standard: conduct that would warrant disbarment for a lawyer is presumptively extreme and outrageous conduct for purposes of an IIED claim.
Monday, February 13, 2012
Thursday, February 9, 2012
In Arizona, the Economic Development and Jobs Creation Committee approved a bill that would exempt manufacturers from claims for punitive damages if they followed all federal, state, or agency standard for creating a product. The bill moves to the full Senate. The Arizona Republic has the story.
In Minnesota, the House last week passed several tort reform measures. The measures, which passed largely on party-line votes, include:
• Reducing Minnesota's statute of limitations, the time limit for filing suit, from six years after the incident to four years.
• Allowing an early appeal to question the class-action status of large suits, in an attempt to weed out frivolous actions.
• Limits on attorney fees in certain cases, such as wrongful termination or sexual harassment, where state law requires the fees be paid as part of the lawsuit.
• Reducing the interest rate on judgments that remain unpaid while a case proceeds. The current 10 percent rate would be reduced to a market-based rate no lower than 4 percent.
The Minneapolis Star Tribune has the story.
Tuesday, February 7, 2012
Okay, so this is not torts-related, but I simply had to mention the release of The Last Justice, written by my good friend Anthony Franze. Anthony is a lawyer with Arnold & Porter's Appellate & Supreme Court practice and his novel is set in the high court with the Solicitor General as the main character.
Advance reviews already have raved that the book is reminiscent of "early Robert Ludlum," and have praised Anthony as the next John Grisham:
"Bristling with fascinating insider details, The Last Justice by Anthony J. Franze is a rare legal thriller—authentic, exciting, and beautifully written. From little-seen Supreme Court chambers to elite boardrooms and darkened bedrooms, you'll be swept along on a tidal wave of suspense. Watch out, John Grisham—Franze has arrived, and he's damn good!"
—Gayle Lynds, New York Times bestselling author
"A stunning opening, an action-packed, intriguing middle, and a pulse-pounding ending. Who could ask for more from a thriller. Welcome Anthony Franze—a great new voice has entered the genre."
—Steve Berry, New York Times bestselling author
"In the style of John Grisham, with the authority of Oliver Wendell Holmes—and with insight to spare—Anthony Franze's legal thriller brings you into Washington's innermost inner sanctums, at a breakneck pace, and with writing so good that you will feel the chill of the marble halls—and the bullets slicing the chilly air around you."
—Keith Thomson, New York Times bestselling author
Even the National Law Journal’s Supreme Court correspondent Tony Mauro called the book a “page-turner” that is “downright respectful of the Court, scrupulously accurate in its details about the institution's inner working.”
Having read the book myself - and having taught a Supreme Court Seminar - I agree with all the praise. I am biased, I admit, but the book is fantastic! It strikes an incredible balance of supense with accurate insider details about the Court. The history and details about the Supreme Court and the SG's Office are so accurate and well written that I could see the book being used as optional reading in an Appellate Practice or Law & Literature course, much the way A Civil Action is used in Civ Pro courses.
The book is available at your local book store and on-line starting today. Check it out!
Andy Popper (American) has posted to SSRN In Defense of Deterrence. The abstract provides:
The civil justice system deters misconduct. It generates far-reaching and positive market effects beyond victim compensation and recovery. Civil judgments, settlements, the potential for litigation — the tort system itself — has a beneficial effect on the behavior of those who are the subject of legal action as well as others in the same or similar lines of commerce. Over the last twenty years, legal scholars have debated whether the civil justice system generally, and tort recovery in particular, generates a deterrent effect. Those who have argued for tort reform (limiting the expanse and reach of accountability in the civil justice system) contend that the tort system has failed to live up to its promise of providing meaningful deterrence. Those who oppose tort reform and defend the civil justice system argue that tort cases have a powerful effect not only on the parties, but also on others involved in similar activity. This article takes the following position: those supporting tort reform cannot wish away deterrence. To claim that punishment has no effect on other market participants is to deny our collective experience. Deterrence is a real and present virtue of the tort system. The actual or potential imposition of civil tort liability changes the behavior of others.
Monday, February 6, 2012
Keith Hylton (Boston University) has posted to SSRN New Private Law Theory and Tort Law: A Comment. The abstract provides:
This comment was prepared for the Harvard Law Review symposium on “The New Private Law,” as a response to Benjamin Zipursky’s principal paper on torts. I find Zipursky’s reliance on Cardozo’s Palsgraf opinion as a foundational source of tort theory troubling, for two reasons. First, Cardozo fails to offer a consistent theoretical framework for tort law in his opinions, many of which are difficult to reconcile with one another. Second, Palsgraf should be understood as an effort by Cardozo to provide greater predictability, within a special class of proximate cause cases, by reallocating decision-making power from juries to judges. It was almost surely not an effort to set out a nonconsequentialist theory of tort law. While I agree with some of the goals of the new private law movement, much work remains to be done, within the methodological approach championed by Zipursky, in constructing a rigorous theoretical framework.
Friday, February 3, 2012
Anne Bloom (Pacific-McGeorge) and the late Paul Steven Miller (University of Washington) have posted to SSRN Blindsight: How We See Disabilities in Tort Litigation. The abstract provides:
Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely to internalize this distorted perspective, as they are repeatedly exposed to it in the course of the litigation. This Article recommends several ways that tort litigation can present plaintiffs with disabilities in more empowering ways, while still recognizing the severity of the injuries involved, and without sacrificing the recovery of hedonic damages or otherwise reducing the plaintiffs’ awards.
Thursday, February 2, 2012
Samson Vermont (Miami) has asked for your input for his seminar class. Do you know of any pending tort cases that turn on actual cause or proximate cause? He is looking for cases (in any state or federal court) that are on appeal or expected to be on appeal. Or, as another alternative, a case that did not get appealed but could have been appealed on causation grounds.
You are welcome to reply in the comments.
Wednesday, February 1, 2012
Last year, Rutgers-Camden became one of the few law schools to have 2 or more insurance experts on faculty when it hired Adam Scales (Jay Feinman has taught there for years). Now the school continues its focus on insurance by hosting "Bad Faith and Beyond" on February 29th. In addition to Adam and Jay, speakers include: Ken Abraham, Tom Baker, Robert Jerry, Ellen Pryor, Doug Richmond, and Peter Siegelman. Details are here.