February 1, 2013
Shepherd on Products Liability and Economic Activity
Joanna Shepherd (Emory) has published Products Liability and Economic Activity: An Empirical Analysis of Tort Reform's Impact on Businesses, Employment, and Production (pdf available for download from Vanderbilt Law Review's website). The abstract provides:
For decades, advocates of tort reform have argued that expansive products liability stifles economic activity by imposing excessive and unpredictable liability costs on businesses. Although politicians aspiring to create jobs, attract businesses, and improve the economy have relied on this argument to enact hundreds of reforms, it has largely gone empirically untested. No longer. Using the most comprehensive dataset to date on products liability reforms and economic activity, I find that many reforms that restrict the scope of products liability improve economic conditions. Specifically, these reforms increase the number of businesses, employment, and production in the industries that face most of the products liability claims: the manufacturing, retail, distribution, wholesale, and insurance industries. However, several other popular reforms have either a weak effect or no effect on economic activity. My results have important implications for recently enacted reforms and proposed legislation: while many of these reforms will improve economic conditions as lawmakers hope, others will have no effect. In the current economy, as business groups intensify their demands for tort reform, my findings provide critical evidence for courts and legislatures that are reassessing the appropriate scope of products liability.
UPDATED: Max Kennerly critiques the article at Litigation and Trial.
January 31, 2013
Teninbaum & Kraman on Medical Apologies and Compensation
Gabe Teninbaum (Suffolk) & Steve Kraman (University of Kentucky Department of Internal Medicine) have posted to SSRN Disclosure & Offer at Twenty Five: Time to Adopt Policies to Promote Fairly Negotiated Compensation. The abstract provides:
In 1987, this article’s co-author (Dr. Kraman), with other hospital staff at the Lexington, Kentucky VA Medical Center, created the risk management method now known as "disclosure & offer." The Lexington VA's guiding principal was that patients injured by medical errors should be made whole without the need for litigation. Their process included advising patients to seek counsel and then negotiating fair compensation with the attorneys/patients. After 10 years, the Lexington VA group published a study revealing the success of their program in fairly compensating patients while reducing litigation costs.
Today, disclosure & offer programs are a national phenomenon. Most aspects of the VA model have been adopted by facilities that employ their own disclosure programs. Yet, the newer generation of programs appear to have adopted a more self-serving approach when it comes to discussing compensation with patients (typically not advising patients to seek legal counsel; nor putting safeguards in place to assure patients understand their legal rights and financial needs resulting from their injury before negotiating with risk managers). This article argues that negotiating with unrepresented patients creates a conflict of interests and recommends practices to remedy it for facilities engaging in "disclosure & offer."
January 30, 2013
SD to Retain Alienation of Affections
For the 3rd time in 11 years, Sen. Stan Edelstein attempted to repeal South Dakota's alienation of affections law. This time he was aided by a high-profile trial against a state's attorney in which the jury ultimately rejected the plaintiff's claims. Media coverage was extensive and included specific and intimate details of the relationships involved. The trial changed some minds, but not enough. The Senate Judiciary Committee rejected the bill on a 4-3 vote. South Dakota will remain one of a handful of states retaining the heart balm tort. Argus.com has the story.
January 29, 2013
Call for Torts Papers: 2013 Society of Legal Scholars Annual Conference
James Lee (Birmingham Law School (UK)) has sent around the following call for papers:
I write to invite proposals for papers for the Torts subject section meeting of the 2013 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 3rd to Friday 6th September 2013 at the University of Edinburgh, with Professor Hector MacQueen as President.
The overall theme of the Conference is ‘Britain and Ireland in Europe, Europe in Britain and Ireland’. Papers may engage with this topic as it applies to tort, but proposals on any aspect of the law of tort would be very welcome. The Torts section will take place in the first half of the Conference: please note that it has changed from the second half last year, so will run on Tuesday 3rd and Wednesday 4th.
All members of the section, whether research students, early career academics or more senior colleagues are invited to offer papers. It is not necessary to be a member of the Society in order to join, although all presenters are encouraged to consider joining.
If you are interested in presenting a paper, please e-mail me at firstname.lastname@example.org with a title and a brief abstract. I am happy to discuss any potential submissions informally. Please also tell me if you are proposing a paper for another section, so that I can coordinate arrangements with my fellow convenors. The deadline for proposals is 12pm UK time on Monday 4th March 2013.
Proposers will be informed of the outcome as soon as possible after the deadline. All those who have papers accepted will be required to post a final abstract to the conference paperbank by the end of July.
Another reason to present a paper at the Conference is the 'Best Paper Prize', which is open to all those who comply with the criteria to be found at http://www.legalscholars.ac.uk/conference/best-paper-prize.cfm. Papers for the prize must be placed in the paperbank in advance of the conference. The Prize includes a monetary award of £250, and the winning paper will be published in Legal Studies. Please note that there is a strict word limit, and the rules have been clarified so that any paper must not be already published or under consideration for publication anywhere. (Papers not for consideration for the prize are not of course subject to these rules).
After the success with their introduction last year, there will also be the opportunity to present research posters. If any members of the section would be interested in offering a poster, please write to me and I shall offer further details. There is also a prize for the best poster.
Convenors have been asked to make it clear to all potential speakers and poster presenters that all speakers, presenters and delegates (and convenors) are required to book and to pay to attend the conference. Booking information will be circulated later in the year.
January 28, 2013
PA Judge Upholds $10M Children's Motrin Verdict
The Legal Intelligencer reports that Philadelphia Court of Common Pleas Judge Nitza Alejandro has denied Johnson & Johnson's McNeil-PPC's post-trial motions in a case involving over the counter Children's Motrin. In the case, a jury awarded $10 million to a young girl who suffered Stevens-Johnson syndrome/toxic epidermal necrolysis after taking Children's Motrin. The full story is behind a free registration wall.
Thanks to Lisa Smith-Butler for the alert.