TortsProf Blog

Georgia Proposes Tort Reform Bill

On Friday, Georgia state Senator Brandon Beach introduced a bill that would create a hearings-system to handle medical malpractice claims.    The proposed system would be similar to the worker's comp system:

[The bill] would create a system in which patients take complaints of doctor or hospital mistakes to a panel of physicians for hearings rather than filing lawsuits in court. If the panel concludes compensation is warranted, it pays out of a fund all providers pay into, like the no-fault system that covers on-the-job injuries.

The Augusta Chronicle has more.

- SBS

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.

--CJR 

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.

- SBS

 

PA: $4M Verdict in Hunting Accident

Plaintiff hunter suffered blindness, brain trauma, and extensive scarring.  He was injured by another hunter, who had been barred from having a gun because of a prior conviction.  The judge awarded over $4 million in damages.  The case was argued by Schmidt Kramer's Joe Chapman (Widener Law '08).  The story (pdf) is here:  Download Hobbins Verdict -- Daily Item, 1-18-13[1].

--CJR    

Symeonides' 26th Annual Choice of Law Survey

Symeon Symeonides has published his annual chocie of law survey.  The abstract provides:

 

This is the Twenty-Sixth Annual Survey of American Choice-of-Law Cases. It is intended as a
service to fellow teachers and students of conflicts law, in the United States
and abroad.

            Of the 4,300 cases decided in 2012 by
state and federal courts, this Survey reviews 1,225 appellate cases, focusing
on those cases that may contribute something new to the development or
understanding of conflicts law, particularly choice of law. Highlights include:

▸          Numerous exemplifying the valiant efforts of state courts, and
some lower federal courts, to protect consumers, employees, and other
presumptively weak parties from the Supreme Court’s ever-expanding
interpretation of the Federal Arbitration Act;

▸          A few cases enforcing choice-of-law clauses unfavorable to
their drafters, and many more cases involving deadly combinations of
choice-of-law and choice-of-forum clauses;

▸          Several interesting products liability cases, and other tort
conflicts, including maritime torts and workers’ compensation claims by
professional football players;

▸          The first appellate case interpreting the recent amendments
of the anti-terrorism exception to the Foreign Sovereign Immunity Act (FSIA);

▸          The first cases holding unconstitutional the Defense of
Marriage Act (DOMA);

▸          A Massachusetts case holding that an undissolved Vermont
same-sex union was an impediment to a subsequent same-sex marriage in
Massachusetts; 

▸          An Arizona case holding that a Canadian same-sex marriage
was against Arizona’s public policy, but—unlike other cases—also holding that
the trial court had jurisdiction to annul the marriage and divide the parties’
property;

▸          The first case in decades upholding a foreign marriage by
proxy;

▸          A case upholding, on First Amendment grounds, an injunction
against Oklahoma’s “Anti-Shari’a” Amendment; and

▸          A case refusing to recognize a Japanese divorce, custody,
and child support judgment rendered in a bilateral proceeding because the
husband did not receive notice of a subsequent guardianship proceeding.

 

- SBS

Indiana Governor Seeks Tort Reform

Indiana Governor-elect Mike Pence has included tort reform in his first year legislative agenda.  Proposals include a loser pays bill.   Details have not been released yet.

The Chicago Post Tribune and WISH TV both have reports.

- SBS

Ninth Circuit Allows Failure to Warn Medical Device Case to Proceed

Muddling the preemption waters, the Ninth Circuit has ruled that a plaintiff can bring a state law failure to warn claim against a medical device manufacturer.  The court found the claim was not preempted by the Medical Device Amendments to the Food, Drug, and Cosmetic Act.   A copy of the opinion is here.  The Recorder (via law.com) has more.

Thanks to Lisa Smith-Butler for the alert.

- SBS

Roller Coaster Death Case Settles

The family of an Iraq War veteran killed in a roller coaster accident has settled with Darien Lake amusement park.  The amount is undisclosed, but is rumored to be in the low seven figures as part of a structured settlement; the money will be used to care for the man's two young daughters.  The Buffalo News has the details. 

Thanks to Bill Childs for the tip.

--CJR

Defamation Lawsuit Over Law Review Article

The National Law Journal reports that a New Jersey banker, Robert Catalanello, has sued Associate Dean Zachary Dean (Arizona State), for defamation and invasion of privacy based on Dean's 2011 law review article, "Of Meat and Manhood."  Dean's aricle analyzes a discriminaion lawsuit brought against Catalanello by a former employee.   The suit also names the law review (Wash U St. Louis), and Western New England School of Law, where Dean lectured on the article.

- SBS

CA: Bumper Car Injury Covered by "Primary Assumption of Risk"

The Supreme Court of California has ruled that "primary assumption of risk" or the "inherent risk doctrine" applies to bumper cars.  Typically applied to sporting activities, the court extended the doctrine to cover a San Jose doctor who broke her wrist on a ride in 2005.  Regardless of the substantive merits, I don't like the terminology.  I think it's better to cover this under either a duty or a breach analysis instead of adding concepts to the law.  This is a case that makes me miss Bill Childs, with his passion for covering amusement parks!  The Los Angeles Times covers the story here; the opinion (pdf) is here.

--CJR

Tweets Affect Damages in Georgia Car Accident Case

Attorneys on both sides believe that a plaintiff's Twitter posts affected the damages that she received in a car accident case in Georgia state court.   In her tweets, the plaintiff described an "epic weekend" in New Orleans, posted photos at the beach for spring break, and stated "I'm starting to love my scar," which both sides claim hurt her pain and suffering claim.  The Daily Report has the full story.

Thanks to Lisa Smith-Butler for the alert.

- SBS

BP Economic Loss Class Action Settlement Approved

by Judge Barbier, reports George Conk.

--CJR

Legal Malpractice and Penn State Scandal

The Legal Intelligencer reports that Gary Schultz, a former Penn State administrator now facing criminal charges, "has filed a praecipe for writ of summons against the university's former general counsel, Cynthia Baldwin, indicating he intends to sue her for legal malpractice."    According to the article,  at least two Penn State employees testified before the grand jury believing Baldwin was there as their lawyer.   Baldwin, however, asserts that she was representing the university, not the employees, but "she did not think it was "appropriate" to interrupt the proceedings and clarify."

The full story requires free registration. 

Thanks to Lisa Smith-Butler for the alert.  

- SBS

2012 Judicial Hellholes

The American Tort Reform Association released its list of Judicial Hellholes for 2012-2013.  California has replaced Philly at the top spot on the list.  The rest of the top five include West Virginia, Madison County, IL, New York City and Albany, NY, and Baltimore, MD. 

- SBS

Explosion in Chemistry Class

Last week, a local middle school chemistry class ended in an explosion.  Seven people were injured and two were transported via helicopter to John Hopkins.  Fortunately, all seven are now out of the hospital.  The chemistry teacher is reputed to be extremely cautious, and it is not yet clear what happened to cause the explosion.  The Patriot News (Harrisburg) has an article, including contributions from Widener TortsProf Randy Lee, about the legal issues in suing over such an incident.

Those of you struggling to write an exam might consider this as the basis for a question.  By tweaking the facts a bit, you can test negligence, contrib, assumption of risk, battery, sovereign immunity, etc.

--CJR

 

"Reforming the Tort System: Freeing the Patient"

Psychology Today has an article by John C. Goodman, Ph.D., on "Reforming the Tort System: Freeing the Patient."    The article examines medical malpractice liability by contract, rather than the tort system. Goodman is a Research Fellow at the Independent Institute and President and Kellye Wright Fellow in Healthcare at the National Center for Policy Analysis.

- SBS

Torts Blogs in the ABA Blawg 100

A shout out to the torts-related blogs in the ABA's 6th annual "Blawg 100":

Abnormal Use - "an unreasonably dangerous products liability blog dedicated to the discussion of federal and state products liability litigation" by the attorneys at Gallivan, White & Boyd, P.A.

Drug and Device Law - "Jim Beck's personal views (and those of several other attorneys) of various topics that arise in the defense of pharmaceutical and medical device product liability litigation"

Overlawyered - "chronicling the high cost of our legal system"

New York Personal Injury Law Blog (Blawg 100 Hall of Fame!!)- Eric Turkewitz's blog on "New York personal injury law, medical malpractice, the civil justice system, and cases of interest"

Tort Talk - "updates, trends, and thoughts regarding Pennsylvania Civil Litigation Law by northeastern Pennsylvania insurance defense attorney Daniel E. Cummins"

- SBS

"Tort Litigation and Juries: By the Numbers"

The Center for Justice and Democracy at New York Law School has published  "Tort Litigation and Juries: By the Numbers."   The briefing summarizes recent statistical analysis of tort filings, trials, and awards.

- SBS  

Federalism and Tort Reform

A number of authors have been engaging in a lively debate about congressional power to enact tort reform. Starting it off, Paul Clement authored Federalism, the Framers, and Federal Legal Reform - Setting the Record Straight, released by the Chamber of Commerce in October.  Essentially, Clement defends federal tort reform as permissibe under the Commerce Clause.  Last week, Rob Natelson of the Independence Institute offered a response: Did the Founders Constitution Permit Federal Tort Reform?   And now, Randy Barnett over at Volokh Conspiracy has weighed in.   

- SBS

 

 

Hurricane Sandy Power Outage Negligence Suits

Twenty angry customers of New Jersey Power & Light have sued the company for negligence, among other things, due to the power outage in the wake of hurricane Sandy.  One of the chief allegations is that the company is not keeping up with the infrastructure and outages are becoming more common and lasting longer.  A similar suit was filed against the Long Island Power Authority in New York.  NJ.com has the story.

--CJR