Tuesday, April 30, 2013
Because of the link between torts and insurance, many of you either teach Insurance or are interested in the subject. Here's a local story focusing on terrorism insurance after Boston. The upshot is that homeowners are generally covered and businesses generally are offered coverage as a separate option every time they renew. Is anyone seeing similar interest in terrorism insurance in their locality?
Thanks to David Raeker-Jordan for the tip.
Friday, April 26, 2013
When Chris invited me to write a guest post for TortsProf, I already knew what I was going to write about: how the courthouse doors were being increasingly closed on tort plaintiffs by way of procedural changes, to the point that, in many contexts, civil procedure law was more determinative of the outcome of tort disputes than substantive law. Between the time I came up with my article, however, and the time it was due, civil procedure Professor Arthur Miller published his new article, “Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure.”
Talk about being preempted.
Professor Miller’s article is, unsurprisingly, thorough and erudite, covering the last thirty years of changes — the majority of them made out of whole judicial cloth — in the law applicable to procedural issues like summary judgment, class action certification, arbitration, pleading, jurisdiction, and discovery, all of which greatly benefitted defendants in tort lawsuits, particularly well-financed corporate defendants. I do not mean to repeat Professor Miller's arguments, nor to rehash the many arguments made by consumer and civil justice advocates against these recent developments (I’ve made many similar criticisms before), but to address them from the perspective of, shall we say, epistemology.
Society develops its laws by making choices about public policy, both choices about who should prevail in a given hypothetical where the facts are known, and choices about whom we favor when the true facts are unsettled, unknown, or unknowable. For example, in criminal prosecutions, we in theory demand considerable certainty — “beyond a reasonable doubt” — before permitting a conviction, in part because we claim to adhere to Blackstone’s formulation that “it is better that ten guilty persons escape than that one innocent suffer.” Blackstone’s formulation is itself an expression of the belief that, where there is a reasonable possibility that an element of the crime is not truly
known, we will favor the defendant.
For decades, tort law has been discussed as the rules we follow to decide when one party must pay for the injuries suffered by another. With the growing influence of civil procedure and evidentiary rules in tort litigation, and the growing cost of litigation (which affects plaintiffs just as much, if not more, than defendants) the real question in tort law that determines cases today is decreasingly a question of when one party will be liable to another and increasingly a question of when we allow an injured party to access the judicial system at all. The above procedural changes noted by Professor Miller are not mere alterations to the process by which a party brings their civil dispute to the court and presented to a jury; they are routinely outcome determinative.
The Federal Rules of Civil Procedure and of Evidence do not contemplate any circumstance in which a plaintiff with a potentially meritorious claim with unsettled facts is dismissed before trial, and yet tort litigation –— including nationwide multidistrict litigation involving thousands of claimants, billions of dollars in damages, and significant factual disputes — is routinely dismissed in advance of trial on the basis of factual determinations made by judges about what is known, unknown, or unknowable.
Thursday, April 25, 2013
Max Kennerly has successfully represented a wide variety of injured clients, from the parents of an 18-year-old who needlessly died during liposuction (a case that required a five week trial in 2008, resulting in a $20.5 million jury verdict, including the largest punitive damages ever awarded in a Pennsylvania medical malpractice case), to a baby boy injured at birth by a hospital that refused to perform a c-section for hours and so developed cerebral palsy, to the estate of a 19-year-old woman killed by a fatigued truck driver who was encouraged by his employer to fabricate his log book so he could spend more hours on the road. Max has also successfully represented a number of individuals and businesses with financial damages, including a homeowner whose mortgage company failed to properly search the title of her home and a small electronics business defrauded by a wealthy former contractor. As of 2012, in addition to his personal injury and medical malpractice work, he represents dozens of clients with product liability lawsuits arising from the Actos, Pradaxa, and implanted mesh erosions litigations.
The law isn’t just a job for Max, it’s a profession, and he devotes substantial time and energy to pro bono efforts and to educating lawyers and non-lawyers about the law. Max has several times appeared on the Philadelphia Court’s Pro Bono Honor Roll for his volunteer service. One of his passions is writing, and so he spends a lot of time informing the public about the law on his Litigation & Trial blog and through contributions to non-legal publications such as Emergency Physicians Monthly, where he debated a physician about malpractice issues, and NYC Aviation, where he discussed the Reno Air Races disaster. He has been referenced as a legal analyst in publications like The New York Times, The Atlantic and Business Insider. Most recently, he was quoted by the Philadelphia Daily News / WHYY’s ”It’s Our Money” project discussing Occupy Philadelphia, cited by Vanity Fair discussing the Facebook ownership lawsuit from The Social Network, and quoted by Reuters news discussing the Penn State child abuse scandal.
Within the law, Max was selected by his peers to be included in Super Lawyers magazine as a Pennsylvania Rising Star. He has also taught Continuing Legal Education seminars for the Pennsylvania Bar Institute, has contributed to legal publications such as The Jury Expert, and has been quoted by publications like Inhouse Counsel and the American Association for Justice’s Trial magazine.
Max also wrote one legal book with Jim Beasley, Jr., a guide for civil lawyers in Pennsylvania, that was published earlier this year, and is working on another one (also with Jim) for civil lawyers nationwide, due in another two years.
Max graduated from Yale University with Honors in History and from the Beasley School of Law at Temple University as a Law Faculty Scholar and a member of the Rubin Public Interest Society. At Yale he wrote an award-winning paper on the history of the Federal Reserve. At Temple Law he was a Teaching Assistant in Constitutional Law for Dean Robert Reinstein and a clerk in the Federal Court Clerkship Clinical program.
At JOTWELL, Ben Zipursky (Fordham) reviews Nancy Moore's Intent and Consent in the Tort of Battery: Confusion and Controversy, 61 Am. U. L. Rev. 1585 (2012).
The 2014 AALS Annual Meeting will feature a combined Torts and Compensation Systems and Insurance Sections presentation "On the Unavoidable Intersection of Torts and Insurance." Speakers include Tom Baker (Penn),Nora Freeman Engstrom (Stanford), and Kent Syverud (Wash. Univ. in St. Louis). If you would like to join this panel, there is a call for papers. The information is available over at the Faculty Lounge.
Wednesday, April 24, 2013
Linda Mullenix (Texas) has posted to SSRN The Practice: Class Action Cacophony at the Supreme Court. The abstract provides:
Commentary and analysis of the Supreme Court’s February and March 2013, decisions in three major class action appeals: Amgen Inc. v. Connecticut Retirement Plan and Trust Funds (February 27, 2103); Standard Fire Ins. Co. v. Knowles (March 19, 2013), and Comcast Corp. v. Behrends (March 27, 2013). The article surveys the Court’s liberal and conservative divide on class certification issues, giving some support to both the plaintiff and defense sides of the class action docket. In Amgen, in an opinion by Justice Ginsburg, a divided Court again saved the fraud on the market presumption for certification of securities class actions. On the other hand, in Comcast, in an opinion authored by Justice Scalia, an equally divided Court found fatal to class certification the failure of proof of classwide damages for a Rule 23(b)(3) damage action. The Comcast decision, coupled with a concurrence by Justice Alito, suggests that there may be at least four votes for the Court to consider the original fraud on the market presumption announced in the landmark case, Basic v. Levinson.
Although embodying different outcomes, the Amgen and Comcast decisions both embrace the same litany of core class certification principles. However, the Court in neither case has clarified or illuminated further the debate over the extent to which trial courts may properly assess the underlying merits of class claims as part of the certification process. Instead, the Court in both cases deflected the merits conversation into the Rule 23 predominance requirement.
Finally, in Standard Fire Ins. Co. v. Knowles, in an opinion by Justice Breyer, a unanimous Court agreed that a class representative could not stipulate to less than the $5 million damage threshold in order to evade removal under the Class Action Fairness Act of 2005. A class representative could bind himself, but had no power or authority to bind absent class members.
Monday, April 22, 2013
Last Tuesday, April 16, 2013, Widener University School of Law, the Widener Law Journal, and the Coalition for Litigation Justice, Inc. sponsored a day-long symposium, Perspectives on Mass Torts Litigation.
The line-up was spectacular! The first panel on Mass Tort Theory included Professor Michael Green (Wake Forest School of Law); Professor Deborah Hensler (Stanford Law School); Professor Linda Mullenix (University of Texas School of Law); and Professor Aaron Twerski (Brooklyn Law School). The panel was moderated by TortsProf's own Chris Robinette (Widener).
The second panel addresssed Emerging Issues in Mass Tort Practice. This panel included the Hon. Thurbert Baker (McKenna Long & Aldridge LLP; Atlanta, GA); John Beisner (Skadden Arps; Washington, DC); Tobias Millrood (Pogust Braslow & Millrood; Philadelphia, PA); and Victor Schwartz (Shook, Hardy & Bacon; Washington, DC).
One of the symposium's highlights was the luncheon address by the Hon. Eduardo Robreno (E.D. Pa.) on Federal Asbestos Litigation: Black Hole or New Paradigm? This fascintating talk provided a look at the current state of asbestos litigation and a glimpse of the future as well.
The third panel was on Keystone State Civil Justice Issues. The organizers used a neat format - essentialy a point-counterpoint by a plaintiff's lawyer and a defense lawyer. The fourth panel took us inside Asbestos-Related Bankruptcy Issues, and featured Professor S. Todd Brown (SUNY Buffalo Law School), and two practicing lawyers.
Bryon Stier (Southwestern) and I rounded out the day with a panel on Mass Tort Ethics.
My thanks to Chris and everyone at Widener for an outstanding conference. It was a honor to participate.
Saturday, April 20, 2013
Journal of European Tort Law, vol 4 issue 1 (2013) (available here)
Duncan Fairgrieve, Geraint Howells and Marcus Pilgerstorfer ‘The Product Liability Directive: Time to get Soft?’ (2013) 4 JETL 1
Hugo A Acciarri and Nuno Garoupa ‘On the Judicial Interest Rate: Towards a Law and Economic Theory’ (2013) 4 JETL 34
Paula Giliker ’Tony Weir and the Law of Tort (2013) 4 JETL 63
Philippe Brun and Christophe Quézel-Ambrunaz ‘French Tort Law Facing Reform’ (2013) 4 JETL 78
Ina Ebert ‘Lotte Meurkens/Emily Nordin (eds), The Power of Punitive Damages. Is Europe Missing Out?’ (2013) 4 JETL 95
Daniel Gardner ‘Jacques De Mol, Le dommage psychique – Du traumatisme à l’expertise’ (2013) 4 JETL 98
Piotr Machnikowski ‘Pekka Aalto, Public Liability in EU Law: Brasserie, Bergaderm and Beyond’ (2013) 4 JETL 101
Ulrich Magnus ’Marten Breuer, Staatshaftung für judikatives Unrecht. Eine Untersuchung zum deutschen Recht, zum Europa- und Völkerrecht’ (2013) 4 JETL 106
Ugo Mattei ’M Infantino, La causalità nel diritto della responsabilità extracontrattuale. Studio di diritto comparato’ (2013) 4 JETL 110
Andrew Tettenborn ’B Winiger/H Koziol/B Koch/R Zimmermann (eds), Digest of European Tort Law, Vol 2: Essential Cases on Damage’ (2013) 4 JETL 113
Thanks to Ken Oliphant for the tip.
Friday, April 19, 2013
John Hochfelder: "Recovering Millions of Dollars in Damages for Pain and Suffering in New York Traumatic Injury Lawsuits – Too Much? Runaway Justice?"
We often hear in New York complaints that it’s too easy to recover too much money in tort suits. We hear of fraudulent claims, trumped up lawsuits, overly generous juries and the like, all of which can result in a civil justice system that rewards unworthy claimants with pain and suffering awards way out of proportion to their actual injuries. In this article, we take a look at a representative sampling of recent cases that have yielded large recoveries and leave it to you, the reader, to decide whether justice has been done.
Generally, the amount of damages awarded for personal injuries is a question for the jury. In New York, the judgment of a jury is entitled to great deference; however, where the verdict amount is thought to be excessive or inadequate, a party may appeal under CPLR 5501.
Under the statute, the appellate court determines that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation. In doing so, the courts are required to review other cases with the same or similar injuries to determine the amount that is “reasonable compensation” in the State of New York.
The figures one reads about in newspapers are usually verdict amounts. Appellate resolutions usually take a year or two and are mostly under-reported in the press.
So let’s take a look at several appellate court cases in New York to see what amounts are approved for pain and suffering damages for various types of injuries:
Thursday, April 18, 2013
John M. Hochfelder is a traumatic injury trial lawyer in the New York City metropolitan area and Hudson Valley region. His career began as a law clerk to a federal judge in the U.S. District Court (S.D.N.Y.) after which he was a commercial litigator in a large Manhattan law firm. He's been a local court judge, an EMT and now, in addition to his personal injury law practice he publishes the widely read and acclaimed New York Injury Cases Blog where Mr. Hochfelder reports on and analyzes all New York appellate cases that rule on damages.
Wednesday, April 17, 2013
From Tony Sebok:
Greetings! In my capacity as secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
1. Torts and Compensation Section Newsletter
As most of you know, our section publishes a newsletter each fall listing: (1) Symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. We are now beginning the process of compiling material for this year's newsletter. If you know of anything that should be included, please forward relevant citations and other information to me at firstname.lastname@example.org. The deadline for inclusion is September 1, 2013.
2. Prosser Award
This is the first call for nominations for the 2014 William L. Prosser Award. The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ... ." Recent recipients are Jane Stapleton, Robert Rabin, Richard Posner, Guido Calabresi, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The announcement of the award will be made at the annual AALS meeting in January, 2014.
Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 9, 2013. E-mail submissions to email@example.com are preferred. If you would rather mail hard copies of nomination materials, please use the address in the signature line below.
Our committee will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach. In the meantime, feel free to contact me if you have any questions.
Tuesday, April 16, 2013
Keith Hylton (Boston University) reviews Laposata, Barnes, & Glantz's Tobacco Industry Influence on the American Law Institute's Restatements of Torts and Implications for Its Conflicts of Interest Policies over at JOTWELL.
Friday, April 12, 2013
By a 27-12 vote, the Florida Senate passed SB 1792, requiring an expert against a defendant doctor to be in the same specialty as the defendant, not just the same field. The bill now goes to the Florida House. The Jacksonville Business Journal has the story.
Thursday, April 11, 2013
The Florida Senate is set to vote today on a tort reform package (SB 1792) that would make med mal cases more difficult to pursue. The major provision requires expert witnesses called against a defendant doctor to practice the exact same kind of medicine as the defendant instead of only being in a similar field. An AP story is here.
Wednesday, April 10, 2013
Elizabeth Chamblee Burch (Georgia) has posted to SSRN Adequately Representing Groups. The abstract provides:
Adequate representation and preclusion depend on whether the courts treat a litigant as part of a group experiencing an aggregate harm or as a distinct person suffering individual injuries. And though a vast literature about adequate representation exists in the class-action context, it thins dramatically when contemplating other forms of group litigation, such as parens patriae actions and multidistrict litigation. As class actions have gradually fallen into disfavor and attorneys and commentators seek alternative means for resolving group harms, the relative clarity of Rule 23 wanes. How should courts evaluate adequate representation in parens patriae actions and in multidistrict litigation? The answer to this question matters immensely since adequate representation is critical to precluding relitigation and achieving finality.
This Article suggests that courts should differentiate between inadequate representation claims based on the underlying right at stake. When the underlying right arises from an aggregate harm — a harm that affects a group of people equally and collectively — and demands an indivisible remedy, courts should tolerate greater conflicts among group members when evaluating a subsequent claim of inadequate representation. Because the harm is aggregate and the remedy is indivisible (typically declaratory or injunctive relief), if one group member receives the remedy, then they all receive the remedy. The litigation operates to group members’ benefit or detriment equally, so if one group member is inadequately represented, they are all inadequately represented. Consequently, a subsequent litigant can successfully avoid preclusion only where the lawyers or the named representatives acted contrary to the group’s best interests or attempted to represent an overinclusive, noncohesive group where some members required unique relief that the representative had no selfish reason to pursue.
Conversely, when plaintiffs suffer individual injuries at the same defendant’s hands and unite their claims for economic or efficiency reasons, that aggregation does not convert their individual injuries into an aggregate harm. When counsel fails to fairly represent her client in vindicating that harm, inadequate representation is an individual injury. In multidistrict litigation and Rule 23(b)(3) class actions, which typically include individuals litigating their individual harms together for systematic and litigant efficiency, courts should look for “structural conflicts” between the claimants themselves as well as between the representatives and the claimants. This means that both initially and on a collateral attack, courts should accept fewer conflicts than in cases involving aggregate rights. Accordingly, judges should assess whether there are reasons the lawyers “might skew systematically the conduct of the litigation so as to favor some claimants over others on grounds aside from reasoned evaluation of their respective claims or to disfavor claimants generally vis-à-vis the lawyers themselves.”
Tuesday, April 9, 2013
Victor Schwartz, Phil Goldberg and Cary Silverman (Shook Hardy & Bacon) recently published Warning: Shifting Liability to Manufacturers of Brand-Name Medicines When the Harm Was Allegedly Caused by Generic Drug Has Severe Side Effects in Fordham Law Review. The abstract provides:
Can a product manufacturer be subject to liability for a competitor’s product? American tort law has always said, “No.” It does not matter if the products are identical. Companies are not to be their competitors’ keepers.
Nevertheless, over the past few years, three courts have overturned this fundamental of tort law, holding that a manufacturer of a brand-name prescription drug can be subject to liability even when a plaintiff alleges that he or she was harmed by a generic drug made by the brand-name manufacturer’s competitor. Most courts, including four federal courts of appeal and dozens of federal district and state trial courts, have rejected this expansion of tort law.
This debate has intensified since 2011, when the Supreme Court of the United States held that all duty to warn claims against manufacturers of generic drugs are preempted by federal drug. The personal injury bar is hoping that courts will give competitor liability theories a new look, particularly when courts find that there is no other path for users of generic drugs to sue.
This Article explains the reasons courts should continue resisting any temptation to change state tort law to allow for competitor liability: (1) it is driven by a search for pockets for paying claims in violation of fundamental tort law principles; (2) the overwhelming majority of courts have continued rejecting competitor liability, even since the Supreme Court ruling; and (3) shifting liability to manufacturers of brand-name drugs could have significant adverse legal and health care consequences.
Monday, April 8, 2013
The National Law Journal reports that consumers have filed economic loss claims against Ford based on the risk of sudden unintended acceleration. The national class action has been filed in federal court in West Virginia. Unsurprisingly, the claims exclude potential personal injury or wrongful death claims. Rather, the claims sound in contract and include Magnuson-Moss, state warranty, consumer protection and unfair trade practices claims. The full article is behind a free registration wall.
I have written about these risk-based claims in Against Liability for Private Risk-Exposure.
Friday, April 5, 2013
Daniel Cummins: "A Maze of Uncertainty: PA Products Liability Law Remains in a Confusing State of Flux"
As of the writing of this article in January of 2013, confusion is reigning in the Commonwealth of Pennsylvania on the uncertain issue of whether the Restatement (Second) of Torts or the different analysis set forth in the Restatement (Third) of Torts should be utilized in Pennsylvania products liability cases. This uncertainty is the result of an ever-growing split of authority not only between the Pennsylvania state and federal courts, but also among, and even within, the different federal district courts across the Commonwealth.
The situation has now spiraled downward to the point that litigants with cases pending in the Pennsylvania federal court system have to research whether the particular federal district court judge presiding over the case has previously issued a decision on the issue in order to determine which Restatement standard will be applied in that case. While one Pennsylvania federal court judge has politely noted that this area of the law in Pennsylvania is in a “state of flux,” See Sikkelee v. Precision Automotive, Inc., 876 F. Supp. 2d 479, 489 (M.D. Pa. 2012 Jones, J.). another has more aptly described Pennsylvania products liability law as being “a maze of uncertainty.” See Samson v. Crown Equipment, 2:10-CV-0958, 2012 WL 3027989 (W.D. Pa. 2012 Hornak, J.).
Which standard is applied could make or break a case. Although the Restatement (Second) favors strict liability concepts over negligence principles in the products liability context, the Restatement (Third) decreases the impact of concepts such as "intended use" and "intended user" and places a greater emphasis on the negligence principle of "reasonable foreseeability." All of these changes in the Restatement (Third) arguably shift the balance in favor of manufacturer defendants in personal injury cases based upon allegations that a defective product was the cause of the injury.
As noted below, under the current status of Pennsylvania products liability law, whether the case will be governed by the Restatement (Second) of Torts or the Restatement (Third) of Torts depends upon whether the case is in state or federal court, and if the case is in federal court, the answer may further depend upon which particular federal district court judge is presiding over the case.
Thursday, April 4, 2013
Daniel E. Cummins, Esquire is a partner in Foley, Comerford & Cummins in Scranton, PA with over 15 years of insurance defense experience. Cummins has focused his practice on defending motor vehicle accident liability cases and UIM/UM arbitration matters along with premises liability and products liability cases. Heis also routinely summoned by his clients to handle matters involving insurance coverage questions and insurance subrogation claims.
Cummins is a cum laude graduate of Villanova University (’90, B.A., English) after which he attended the Dickinson School of Law (’93, J.D.) and completed his law school studies at the University of London Faculty of Laws in London, England (Spring, ’93).
Cummins is an award-winning columnist for, among other publications, Pennsylvania Law Weekly. He blogs regularly at Tort Talk and has been named a "Lawyer on the Fast Track" and a "Super Lawyer-Rising Star."
Wednesday, April 3, 2013
Ellen Bublick (Arizona) has compiled The Concise Restatement of Torts (3d ed.) for the ALI. The book draws on 5 projects from the Restatement (Third) of Torts and is organized like many first-year casebooks. The Concise Restatement of Torts is under 400 pages, was published on earlier this week, and is available through ALI here.
I have never used a supplement in my Torts course. I have recommended several secondary sources (and will continue to do so). However, I taught Contracts for the first time last year and found a supplement useful in that course. Based on that experience, I decided a supplement would help my Torts students as well. I have been looking around for the right Torts supplement, and this is it. Virtually every topic I cover in my two-semester course is in The Concise Restatement of Torts.