Tuesday, May 31, 2016
In the Claims Journal, Gary Wickert discusses potential changes to auto accident litigation due to the transition to autonomous vehicles. He notes the 2017 Mercedes E-Class Sedan will offer the following features:
- Drive Pilot‘s adaptive cruise control (Distronic) and Steering Pilot (lane keep assist) track the car in front at speeds up to 130 mph (210 kph) and can stay lane-centered at up to 81 mph (130 kph). It tracks nearby vehicles and senses highway lane markings.
- Active Lane Change Assist is a radar- and camera-based system that semi-automates lane changes. Flip the directional signal and the car waits two seconds and then changes lanes on its own.
- Active Brake Assist with cross-traffic function similarly has “extended speed thresholds” for detecting cars and pedestrians. The car brakes if it detects crossing traffic that you aren’t slowing for and will initiate advance braking if it senses you’ve come upon the tail end of traffic jam, where there’s no room to maneuver.
- Evasive Steering Assist works with pedestrian detection to help the driver steer around a pedestrian and then apply steering wheel torque (force) to recover and get the straightened out afterwards.
- Active Blind Spot Assist (blind spot detection), in addition to highway speed warning, can warn of possible city-speed lateral (side) collisions.
- Pre-Safe Sound emits a sharp “interference signal” through the sound system if it detects an impending collision. It triggers a biological reflex in the human ear that prepares the occupants for the sound of the collision if it happens.
- Remote Parking Pilot pulls the car out of a garage or parking space using a smartphone app, with the driver outside. This lets big cars park in narrow spaces and tiny garages.
- Car-to-X communication is the first car with integral car-to-X, meaning car-to-anything communications where a connected car ahead helps cars behind “see” around corners or through obstacles.
As noted elsewhere, the most significant potential change appears to be a migration from negligence to products liability for auto accidents.
Monday, May 30, 2016
Friday, May 27, 2016
A recent conference at the James Humphreys Center for Complex Litigation at George Washington addressed the complex issue of liens for medical expenses and subrogation. The conference chairs, Alan Morrison and Roger Trangsgrud, issued a report entitled "Subrogation of Medical-Expense Claims: A Proposal for Future Study", available here: Download GW Law Roundtable Subrogation Proposal Final Thanks to Michael Kaplen for the tip.
Thursday, May 26, 2016
Yesterday I posted about New York's sexual assault statute of limitations. Another bill in front of the legislature involves the med mal statute of limitations, specifically whether the discovery rule should be adopted. Currently, New York's 2 1/2-year statute begins to run when the negligence is committed. The bill, named Lavern's Law after a woman who died in 2013, would toll the statute until discovery, but leave the length at 2 1/2 years. New York is 1 of only 6 states without the discovery rule for med mal cases. The New York Daily News has the story, focusing on a tragic case.
Wednesday, May 25, 2016
Last month, I reported that Pennsylvania was debating bills to remove or extend the statute of limitations for sexual assault cases. The same is occurring in New York, where current law requires a lawsuit to be filed by the time an alleged victim reaches the age of 23. On Monday, the state senate voted down (30-29) an amendment that would have forced a vote on eliminating the statute of limitations for sexual assault cases going forward and creating a 1-year window in which to bring expired claims. It sounds as though other bills may be considered this session. Syracuse.com has the story.
Tuesday, May 24, 2016
Over at Torts Today, George Conk is reporting that compensation in China for governmental rights violations has increased. Unlike the U.S., which has fairly strong doctrines of governmental immunity, China allows the government to be held liable with fewer formal obstacles.
Monday, May 23, 2016
Ben Shmueli & Yuval Sinai have posted to SSRN Victim Pays Damages to Tortfeasor: The When and Wherefore. The abstract provides:
Is there a reality in which the victim pays damages to the tortfeasor? This article analyzes Calabresi and Melamed’s liability rule for the damaging party (Rule 4), where the damaged party has the right to prevent pollution if the polluter is compensated first. Under the conventional application of this rule, the victim first collects the money and compensates the injurer, and only then is the injurer required to eliminate the nuisance (ex ante). There is no reference to a possibility of the injurer first eliminating the nuisance and only then receiving compensation (ex post). We argue that the timing of the payment should be changed when the activity causing the nuisance has social and economic value. Each version of the rule advances the aggregate welfare in some sense, but also harms it in another.
The primary aim of the present article is to introduce a new model for Rule 4 that would guide legislators, regulators, and judges in deciding when to order compensation as a condition for eliminating the nuisance and when to order the injurer to remove the nuisance first and only then collect the funds.
This article also introduces a comparative perspective that reveals the potential use of the ex post version of Rule 4, as manifest in sources of the Jewish legal tradition. This comparison further bolsters our proposal in favour of a division between ex ante and ex post versions of the rule.
Ultimately, offering two versions for the implementation of Rule 4 would better enable the adaptation of a suitable solution according to the circumstances and thus would widen the possibilities for the rule’s use.
Wednesday, May 18, 2016
Christopher Mueller (Colorado), who has a terrific Evidence casebook, has posted to SSRN Taking Another Look at MDL Product Liability Settlements: Somebody Needs to Do it. The abstract provides:
This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. The best way to do so is to allow collateral review of such settlements in suits brought by dissatisfied claimants.
Tuesday, May 17, 2016
Monday, May 16, 2016
The Argus Leader has compiled what it calls a first-ever glimpse at South Dakota med mal cases. It sounds very similar to med mal data from the U.S. as a whole:
The analysis of South Dakota data show that the vast majority of claims made against health providers are dismissed or withdrawn without any payment.
In 2014, insurers reported 163 claims that were either filed or closed. Of those, 28 were dismissed. Another 24 were closed with no payment amount recorded.
In 2015 there were 148 claims filed or closed with the Division, and 48 of those were closed without payment.
In 2014, insurers paid nearly $10.9 million on 27 settlements and one jury verdict. In 2015, that number dropped to nearly $6.4 million on 18 settlements.
In those two years, the largest settlement was $3 million. The average settlement was $367,654. The settlement amounts only reflect what insurance companies paid. They do not include additional amounts paid by health providers.
But getting those settlements can take years for injured patients or their surviving loved ones. The $3 million settlement, for example, took nearly four years from date of injury to settlement.
The full story is here.
Wednesday, May 11, 2016
Nathan Miller has posted to SSRN Human Rights Abuses as Tort Harms: Losses in Translation. The abstract provides:
This Article examines the normative challenges posed by bringing international human rights claims in state courts under the common law of torts. It argues that the normative structure of the private law of torts cannot adequately address the very different concerns at stake when addressing public harms. Torts address issues that arise between two parties and those parties alone. But public law addresses harms done simultaneously to individuals and to the body politic. Redress for public harms should encompass both individual and systemic remedies, but tort law offers only the former. Instead of advancing tort claims, advocates should urge state courts to exercise their concurrent jurisdiction over the customary international legal norms incorporated into the federal common law to hear claims for violations of international human rights.
Tuesday, May 10, 2016
Dr. Patrick McKenna, of the Wisconsin School of Medicine and Public Health, has published a study on the effect of apology immunity laws in med mal cases. He found:
that mean litigation length was 3.4 years in states with apology laws compared with 5.6 years in states without such laws. In the 38 states with apology laws, the mean litigation length was 4.4 years before apology laws were enacted and 4.1 years after the laws were enacted.
Renal & Urology News has the story.
Monday, May 9, 2016
Marshall Shapo has published The Experimental Society. The blurb:
This book examines society’s responses to many kinds of experimentation, focusing on both creation of and assessment of risks. As people seek new ways to make their lives safer and happier, the widespread process of experimentation claims victims. Some of these are people who directly and willingly accept the risks of experiments. By comparison, some are effectively experimental subjects in the hands of others who often may not even think of themselves as experimenting with the lives of consumers.
The Experimental Society covers a wide spectrum of products and activities, including those that radiate into the environment like nuclear power, hydrofracking, and asbestos. The book spotlights prescription drugs and substances used in the most ordinary consumer products such as salt, caffeine, and BPA in sippy cups. It also discusses the testing of new ways of thinking, including those related to social organization and processes, and even the law itself. A particular concern is the case in which the subjects of experiments are unaware that the experiments are taking place.
This lucidly written volume will be useful to practicing lawyers who specialize in personal injury law, and law professors who teach such subjects as torts and products liability, medicine, and science. Physicians and scientists in various branches of medicine will find it provocative, as will political scientists, economists, sociologists, anthropologists, and philosophers.
Shapo is interviewed about the book here.
Friday, May 6, 2016
Yesterday, the Oregon Supreme Court upheld a $3M cap on damages against the state and its employees. The ruling caps a $12M jury verdict for a 2009 botched liver surgery that nearly killed a then 8-year-old boy. The jury found there were $6M in future medicals, at least half of which must now be absorbed by the family. OregonLive has the story.
Thursday, May 5, 2016
Two physicians at Johns Hopkins have conducted a study concluding that medical errors cause approximately 250,000 deaths every year in the United States, the third leading cause of death after heart disease and cancer. CNN has the story, including links to the study itself.
Wednesday, May 4, 2016
Cathy Sharkey has posted to SSRN The Remains of the Citadel (Economic Loss Rule in Products Cases). The abstract provides:
Though its seeds may have been planted long before, the economic loss rule in products liability tort law emerged in full force at the very same moment as the doctrine of strict products liability in the mid-1960s. This moment, fueled by the fall of privity and the rise of implied warranty earlier in the century, was of great doctrinal import — a moment when strict liability threatened to erase altogether the boundary between tort and contract in the context of defective products cases and move those cases firmly into the tort realm. The economic loss rule emerged as a crucial new levee against a flood of potentially limitless tort liability. It forged a new dividing line, keeping cases involving pure financial losses within the domain of con-tract by denying recovery for such losses under any theory of tort. Seen in this light, the economic loss rule emerged to protect the “remains” of the citadel of privity.
William Prosser, so intently focused on the dramatic siege on the citadel of privity, overlooked a few, highly significant cases, where courts continued to require privity in order for the plaintiff to recover for negligently inflicted economic losses by defective products. Over the two decades that followed Prosser’s The Fall of the Citadel, the debate over the economic loss rule in products cases continued to unfold, culminating in the U.S. Supreme Court’s embrace in East River Steamship. That case ensured the economic loss rule would keep contract from “drowning in a sea of tort” and that the wall between the “separate spheres” of tort and contract law could not be breached.
After an exploration of the evolution of, and rationales for, the economic loss rule in products cases, this Article examines whether the citadel’s last bastion should be preserved. It con-cludes that the economic loss rule in products cases may be best justified as a means to induce the putative victims — here, the parties with superior information regarding risk of financial loss — to protect themselves.
Monday, May 2, 2016
Hanoch Dagan & Avi Dorfman have posted to SSRN Against Private Law Escapism: Comment on Arthur Ripstein, Private Wrongs. The abstract provides:
Can a comprehensive theory of tort law evade the ultimate test of our moral intuitions (or reflective equilibrium)? We shall argue, first, that Ripstein’s illuminating Private Wrongs, including in particular his organizing distinctions between misfeasance and nonfeasance, between relation and comparison, and between horizontal and vertical justice, cannot escape that test; and, second, that his theory fails to meet such a test.
The Comment proceeds in four stages. We first lay out the basic structure of Ripstein’s theory of the justice of tort law and the nature of the argument he deploys in developing this theory (Part I). We then suggest that, and explain why, his effort to derive the content of the justice of tort law by taking legal doctrine at face value must fail (Part II). The next two stages of the argument consider an alternative reading of Private Wrongs (Part III) and a broader assessment of the justice of tort law against the background of public law (Part IV).