Wednesday, June 26, 2013
AboutLawsuits.com is reporting a study questioning the amount of defensive medicine in the health care system:
In a study published earlier this month by the medical journal JAMA Internal Medicine, researchers working with Veterans Affairs hospitals indicate that doctors at the government-run medical centers, who are generally shielded from the effects of most malpractice lawsuits, request just as many unnecessary medical tests as their peers in the private sector, who are far more vulnerable to lawsuits.
The study was based on the number of times a doctor requested a myocardial perfusion imaging (MPI) test without sufficient justification. The article is here, but I don't have access to the study itself.
Tuesday, June 25, 2013
1 129 Some Rule-of-Law Anxieties About Strict Liability in Private Law; John Gardner
2 125 What is Tort Law for? Part 2. The Place of Distributive Justice; John Gardner
3 102 Tort Law and Responsibility; John Goldberg & Ben Zipursky
John Goldberg & Ben Zipursky
5 92 Junior Seau, Head Trauma, and the NFL's Concussion Problem, andre douglas pond cummings
6 75 Tort Law's Role in Protecting Privacy: Current and Future Directions; Barbara McDonald
7 71 The Tort Foundation of Duty of Care and Business Judgment; Robert Rhee
8 68 Reality Check: How Malpractice Facts Changed Malpractice Liability Theory; Jennifer Arlen
9 60 The Practice: Class Action Cacophony at the Supreme Court; Linda Mullenix
10 60 Economic Analysis of Medical Malpractice Liability and Its Reform; Jennifer Arlen
Monday, June 24, 2013
Keith Hylton (Boston University) has posted to SSRN Towards a Regulatory Framework for Third-Party Litigation Funding. The abstract provides:
Because third-party funding and sales of legal rights are equivalent in terms of their economics, I examine arrangements in which third-party sales of legal rights are permitted today – waiver, subrogation, and settlement agreements. The existing arrangements provide valuable lessons for the appropriate regulatory approach to third-party financing of litigation.--CJR
Thursday, June 20, 2013
Today the Florida Supreme Court invalidates a contract between a doctor and patient, signed prior to treatment, which required arbitration and set a damages limit (of $250,000) lower than the damages cap set by the Florida legislature. The opinion (pdf) is here: Download Florida SC medical malpractice arbitration
Wednesday, June 19, 2013
Monday, June 17, 2013
Walter Olson has a post on today's USSC case Maracich v Spears: "The Privacy Case in Which Every Justice Switched Sides." (Compared with Maryland v. King).
Thursday, June 13, 2013
Keith Hylton (Boston University) has posted to SSRN The Economics of Class Actions and Class Action Waivers. The abstract provides:
Class action litigation has generated a series of recent Supreme Court decisions imposing greater federal court supervision over the prosecution of collective injury claims. This group of cases raises the question whether class action waivers should be permitted on policy grounds. I examine the economics of class actions and waivers in this paper. I distinguish between the standard one-on-one litigation environment and the class action environment. In the standard environment, waivers between informed agents enhance society’s welfare. In the class action environment, in contrast, not all waivers are likely to enhance
Wednesday, June 12, 2013
Jane Stapleton (Texas/ANU) has posted to SSRN two pieces on causation. First up is Reflections on Common Sense Causation in Australia and the abstract provides:
Part 1 of this chapter argues that the High Court of Australia’s so-called “common sense test” of causation is an empty slogan, neither a test nor anything to do with common sense. For clarity of legal analysis the issue of whether a factor was involved with the existence of the relevant phenomenon (that is, the issue of factual causation) should be kept explicitly separate from the issue of the appropriate scope of legal responsibility for that phenomenon. Expressing the latter scope issue as a “causal” issue is obfuscating and should be abandoned. This Part also argues: that Australian courts should cease referring to the “scope of the duty”; that a factor should be recognised as a factual cause if it contributes in any way to the existence of the phenomenon in issue even if it is neither a “but for” nor a sufficient factor for the existence of that phenomenon; and that aspects of the civil liability legislation prompted by the Review of the Law of Negligence: Final Report (the “Ipp Report”) can and should be ignored. Part II elaborates the “factual causation then scope-of-liability-for-consequences” approach with illustrations from the common law and under statute, including many of commercial cases.
The second is Unnecessary Causes, not yet available for downloading, and the abstract provides:
This article argues that private law, specifically tort law, should adopt a notion of a “cause” that is wider than the relation of necessity that is encapsulated in the traditional but-for test. The law may have an interest in the relation between an indivisible injury and a specific tortious contribution to the mechanism by which it occurred, which contribution was unnecessary because the relevant element of that mechanism was “over-subscribed”. The suggested approach facilitates separation of two distinct issues: whether a breach of duty contributed to the occurrence of the injury of which complaint is made (the “factual cause” issue); and whether that injury represents “damage” relative to the benchmark of where the victim would have been had he not been the victim of tortious conduct. --CJR
The discussion includes English medical negligence cases, the recent decision of the Supreme Court of Canada in Clements v Clements (2012), and US cases involving Title VII and the downloading of child
Tuesday, June 11, 2013
The Faculty Lounge reports that Phoebe Haddon will be stepping down as Dean at Maryland at the end of the 2013-2014 academic year. According to the press release, Haddon will return to faculty research and teaching in Fall 2014. Haddon's teaching and research include torts and constitutional law.
Monday, June 10, 2013
The Oklahoman reports that the Oklahoma Supreme Court ruled that the state's Comprehensive Lawsuit Reform Act of 2009 was unconstitutional under the state constitution. The court found that the statute violated the single-subject rule of the OK state constitution, which requires that each bill only deal with a single subject. Forbes also has a report.
The Times Union reports that the Oklahoma legislature is trying to figure out how to re-enact the provisions of the 2009 act in a manner that comports with the court's ruling.
Friday, June 7, 2013
Professor Ernest Weinrib, Cecil A Wright Professor of Law at the University of Toronto, will be speaking at Macquarie Law School in Sydney, Australia, on the topic of 'Causal Uncertainty in Negligence Law', on August 22nd. The flyer is attached: Download Ernest Weinrib Public Talk_FINAL (1)-1
Thursday, June 6, 2013
Back in November, a horrible tragedy occurred at the Pittsburgh Zoo & PPG Aquarium when a two-year-old boy fell into a wild dog exhibit and was mauled to death. In late May, the parents filed a wrongful death action against the zoo. The last zoo mauling case I recall was in San Francisco on Christmas Day 2007, when a tiger named Tatiana escaped and killed one person while wounding two others.
It appears (though there is a bit of contrary authority) that Pennsylvania does not follow the traditional rule of strict liability for wild animals; thus the parents must prove negligence. Governmental immunity is often an issue in these cases, but this zoo is private (despite the name). If the zoo were owned by a municipality, there would be no recovery; the code explicitly states: "Damages shall not be recoverable...on account of any injury caused by wild animals...." 42 Pa.C.S.A. 8542(b)(8). There are cases on point for injuries by a dolphin and a wolf.
Obviously the facts will have to be developed, but there is an allegation of a warning by a zoo employee that a child might fall into the enclosure before the death occurred. There are further allegations that rescue efforts were hindered by unloaded or blank tranquilizer guns. The zoo will certainly pursue a comparative negligence defense. This is a case that should settle. From the parents' perspective, reliving this tragedy in depositions and a trial would be traumatic. The zoo runs the risk of a large judgment (I think it would be extremely difficult to convince jurors that the mother was more responsible than the zoo for the tragedy, as would be required by PA's 50% comparative negligence statute) and bad publicity.
Adam Smeltz of the Pittsburgh Tribune-Review has published a series of stories on the case:
Pittsburgh zoo mauling case hinges on liability (quoting me)
Wednesday, June 5, 2013
Video of the panels from the April 16 symposium on Mass Tort Litigation is now available.
Panel 1; Mass Tort Theory: Deborah Hensler (Stanford), Linda Mullenix (Texas), Mike Green (Wake Forest), and Aaron Twerski (Brooklyn)
Panel 2; Emerging Issues in Mass Tort Practice: Hon. Thurbert Baker (McKenna Long & Aldridge), John Beisner (Skadden Arps), Tobias Millrood (Pogust Braslow & Millrood), and Victor Schwartz (Shook Hardy & Bacon)
Distinguished Address: Hon. Eduardo Robreno (E.D. Pa.); Federal Asbestos Litigation: Black Hole or New Paradigm?
Panel 3; Keystone State Civil Justice Issues: Nancy Winkler (Eisenberg Rothweiler Winkler Eisenberg & Jeck), Nicholas Vari (K&L Gates), Mark Behrens (Shook Hardy & Bacon), and Scott Cooper (Schmidt Kramer)
Panel 4; Asbestos-Related Bankruptcy Issues: Todd Brown (Buffalo), Bruce Mattock (Goldberg Persky & White), and WIlliam Shelley (Gordon & Rees)
Panel 5; Mass Tort Ethics: Sheila Scheuerman (Charleston) and Byron Stier (Southwestern)