Saturday, April 21, 2012
Judge Stephen W. Wilson of the U.S. District Court for the Central District of California has issued what may be the first order following Iqbal in an asbestos case: Download Order (Mtn to Dismiss Ps' Complaint) 4-17-12.
Thanks to Cary Sklaren for the tip.
Thursday, April 19, 2012
Don Gifford (Maryland) has posted to SSRN The Constitutional Bounding of Adjudication: A Fuller(ian) Explanation for the Supreme Court's Mass Tort Jurisprudence. The abstract provides:
In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of tort litigation echoed the public law models of Abram Chayes and Owen Fiss that, a generation ago, described public interest litigation in areas such as civil rights. In rejecting public law tort litigation, the Court constitutionally imposes a more traditional model of adjudication, a model advocated by mid-twentieth century legal philosopher Lon Fuller but regarded as archaic by most contemporary scholars. I then evaluate the Court’s model on the basis of factors including the limits of judicial competence, the need to legitimize the judicial role in a democracy, and the related impact of constitutional separation of powers. I weigh these factors against arguments that unbounded adjudication is necessary both to compensate mass torts victims who otherwise would be denied recovery and to regulate corporate misconduct in the face of regulatory dysfunction. I conclude that a presumptive model of bounded adjudication would restrain unprincipled adjudication without imposing an institutional straightjacket.
(Via Solum/Legal Theory Blog)
On Monday, the Ninth Circuit issued its decision in Stengel v. Medtronic, Inc., No. 10-17755, slip op. [pdf]. The case involved a Medtronic pain-pump that the plaintiff alleged caused his paraplegia. The Ninth Circuit upheld dismissal based on Reigel v. Medtronic, Inc., 552 U.S. 312 (2008), and also denied plaintiffs' "failure to report" claim under implied preemption.
Wednesday, April 18, 2012
New Hampshire has proposed an early offers regime for medical malpractice cases. It passed the Senate and will be up for a vote in the House shortly. Pursuant to the bill, a patient who believes she is the victim of malpractice may send a notice of injury to the heath care provider requesting an early offer. The provider has 90 days to decide to extend an early offer and can ask the patient to undergo a physical exam. If extended, the offer must cover all economic loss—medical bills and lost wages. There are modest amounts of pain and suffering damages included based on classification of the injury as determined using the National Practitioner Data Bank severity scale. The patient then has 60 days to accept or reject the early offer. If she accepts the offer, the case is over. However, if she rejects the offer, she must prove gross negligence to a clear-and-convincing standard in order to recover.
The bill is based on a proposal authored by Jeffrey O’Connell, with the change of allowing the claimant, not the health care provider, to initiate the early offer process. I endorse the change and support the bill, though a similar system could be implemented without legislation. Criticism of the bill has come from the perspective of claimants. I’ll try to address specific points shortly, but I want to start with the general proposition that my support for the bill is largely based on its advantages for claimants. There are other potential benefits—savings, etc.—but they are not the chief reason I support early offers.
Early offers allows, but does not force, a claimant to bypass the tort system. Tort law has virtues, but among them are not certainty and swiftness. Because of an understandable focus on individual justice, the tort system can be very uncertain and slow, with significant transaction costs. There are many claimants who would prefer to have their claims resolved along insurance principles—with more certain payment for economic loss, taking care of the their urgent needs. I have sat at the hospital bed of a catastrophically injured loved one. After his health, my main concern was that he not be bankrupted by the enormous costs of life-saving care.
Some claimants have the resources to wait out a five-year malpractice struggle. Some claimants may enjoy the adversarial proceedings of depositions, interrogatories, and cross examinations. But all do not, and early offers gives them a possible way around them, while providing for basic economic loss much more swiftly. What follows are some objections to early offers I’ve seen in various columns and posts. I try to respond to each.
Tuesday, April 17, 2012
The 2012 Clifford Symposium on Tort Law and Social Policy, "A Celebration of the Thought of Marc Galanter," will take place on April 26 and 27 at DePaul University College of Law. As always, the symposium is chaired by Stephan Landsman.
Thanks to Alberto Bernabe for the tip.
Sunday, April 15, 2012
Cathy Sharkey (NYU) has posted to SSRN Preemption as a Judicial End-Run Around the Administrative Process?. The abstract provides:
Judicial review of agency action under the Administrative Procedure Act (APA) and preemption challenges provide parallel proceedings for resolution of disputes over whether state and federal law are simpatico or at war. Douglas v. Independent Living Center of Southern California, Inc., provides an opportunity to reflect upon the coexistence of, and relationship between, these parallel tracks for adjudicating federal-state conflicts. Who is, and who should be, the ultimate arbiter of whether such federal-state conflicts exist and how to resolve them — agencies or courts?
In this Essay, I used Douglas as a lens through which to explore two concepts: first, whether courts can act as “prompters,” pushing federal agencies to discharge their duty to weigh in on whether a conflict between federal and state law exists in a given context; and second, whether there can exist a synergistic relationship between courts and agencies in determining whether a conflict between federal and state law exists. Specifically, I explore two questions left unresolved by the Court’s Douglas decision: (1) Why permit a preemption cause of action at all in situations where there is a viable administrative action? And (2) where parallel proceedings persist, should agency determinations receive varying degrees of deference in each?