Friday, October 28, 2016
The Washington Post ran a story this week about using race and gender to calculate damages. (See prior coverage here.) Among others, the story quotes Martha Chamallas and Jenny Wriggins. Here's a sample:
The practice of using race and gender to determine personal injury damages, which dates back at least a century, has produced some striking results.
The case of the male fetus and 6-year-old girl came in 1996, after a collision between a postal truck and a car left the car’s passengers – the girl and her godmother, a pregnant 33-year-old – dead.
In the case, which took place in a federal court in the Southern District of Georgia, both sides agreed the male fetus’s award to be higher than the girl’s, largely because of the difference in how much they were expected to earn over their lifetime, commonly known as “future lost income.” That’s despite testimony that the girl “exhibited a level of intellectual ability and behavior that surpassed that of most other students” and had a college fund in the works. The fetus’s mother had not completed college and the father was unknown, according to court records.
Tuesday, October 25, 2016
According to data from the Administrative Office of Pennsylvania Courts covering 2012-2014, Lackawanna County has 3.2 filings for every 1,000 residents, second in the state only to Philadelphia. Why so high? Lawyers and commentators discuss advertising, the number of lawyers, the presence of multiple courthouses, the presence of governmental organizations with in-house staff, the proximity of major highways, and the lack of tort reform. The Times-Tribune has the story.
Thursday, October 20, 2016
Lisa Rickard & Mark Behrens have a piece in Law360 arguing for disclosure regarding 3rd-party litigation funding. The conclusion:
The U.S. Chamber Institute for Legal Reform and others have urged the Advisory Committee on Civil Rules to adopt an amendment to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure that would require disclosure of third-party litigation funding at the outset of a lawsuit. So far, the committee has taken a “wait and see” approach. The Catch-22 is that, because third-party funding of lawsuits occurs in secrecy, the proof needed to support reform is elusive.
Federal judges in individual cases, particularly those managing multidistrict litigations, have the power to bring about transparency regarding the presence of third-party litigation funders in their courts. They should make all case management orders provide for the disclosure of third-party litigation funding. This would improve justice in those courts and give the Advisory Committee the data it needs to determine how best to bring third-party litigation funding into the sunlight.
Monday, October 17, 2016
Bruce Kaufman at Bloomberg has just completed a 4-part series on amusement park injuries. The links are below:
Sunday, October 16, 2016
A Connecticut judge dismissed the case filed by parents of children killed at Sandy Hook Elementary School against gun manufacturers. The parents alleged negligent entrustment in an attempt to get around the Protection of Lawful Commerce in Arms Act. The judge ruled the plaintiffs did not meet the exception. WaPo has the story.
Friday, October 14, 2016
Alberto Galasso (Toronto-Strategic Management) & Hong Luo (Harvard Business School) have published Tort Reform and Innovation. The abstract provides:
Current academic and policy debates focus on the impact of tort reforms on physicians’ behavior and medical costs. This paper examines whether these reforms also affect incentives to develop new technologies. We find that, on average, laws that limit the liability exposure of healthcare providers are associated with a significant reduction in medical device patenting and that the effect is predominantly driven by innovators located in the states passing the reforms. Tort laws have the strongest impact in medical fields in which the probability of facing a malpractice claim is the largest, and they do not seem to affect the amount of new technologies of the highest and lowest quality. Our results underscore the importance of considering dynamic effects in the economic analysis of tort laws.
Download here: Download GalassoHong_27Sept16 (1)
Thursday, October 13, 2016
The Arkansas Supreme Court has just killed the ballot initiative to amend the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. The court ruled the ballot title left critical elements, including "noneconomic damages", undefined. Arkansas Times has the story.
At Ralph Nader's "Breaking Through Power" conference two weeks ago, Margaret Jane Radin proposed a new tort: deceptive deprivation of core legal rights. Her focus is on the use of fine print boilerplate to take rights away from consumers and she offers a specific example:
“Pre-dispute arbitration clauses that erase class actions and jury trial would be a good candidate, because in cases of widespread small harms — such a $5 per month overcharge by a cable company, for example — no one party can get legal redress, and the company achieves large extra gains by aggregating small losses of a large number of people.”
Corporate Crime Reporter has the story.
Monday, October 10, 2016
In November, the people of Arkansas are supposed to vote on a ballot measure amending the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. A special judge has determined there are flaws in the petition process; nursing home employees allegedly solicited signatures from nursing home residents. Family members of the residents question whether the residents were able to understand what they were signing. The issue now goes to the state supreme court. A big issue, however, is whether some of the judges should recuse themselves. The only member of the court not to receive campaign contributions from the nursing home industry is the chief justice. Arkansasmatters.com has the story.
Friday, October 7, 2016
A recent Washington Court of Appeals decision expanded the scope of duty owed by professionals designing structures. The court held an engineer's duty to developers and property owners includes "the prevention of safety risks" even if no personal injury or property damage has occurred. Ross Siler at Lexology has details.
Wednesday, October 5, 2016
South Dakota physician Lars Aanning admits he lied to protect a colleague in a med mal case 15 years ago. He then takes it a step further:
“In essence, no supporting testimony from a defendant physician’s colleagues can ever be deemed trustworthy, truthful or true—because those colleagues have essentially sworn an oath of loyalty to each other” in their employment contract, Aanning wrote.
The ABA Journal has the story.
Tuesday, October 4, 2016
Friday, September 30, 2016
Autonomous vehicles have made it to Harrisburg. PennDOT, the City of Harrisburg, and Carnegie Mellon hosted the Pennsylvania Safety Symposium at the Capitol Complex to highlight safety and technology advances. Fox 43 has the story. Carnegie Mellon is conducting a lot of research and Pittsburgh is where Uber is piloting its autonomous initiative. I saw one of their vehicles in a trip to Pittsburgh earlier this month.
Also, NHTSA has just released guidelines for autonomous vehicles. Business Insider has the story. Key takeaways include:
- Three barriers have been preventing fully autonomous cars from hitting the road: 1) high technological component prices; 2) varying degrees of consumer trust in the technology; and 3) relatively nonexistent regulations. Howev
er, in the past six months, there have been many advances in overcoming these barriers.
- Technology has been improving as new market entrants find innovative ways to expand on existing fully autonomous car technology. As a result, the price of the components required for fully autonomous cars has been dropping.
- Consumer trust in fully autonomous vehicle technology has increased in the past two years.
- California became the first US state to propose regulations. California's regulations stipulate that a fully autonomous car must have a driver behind the wheel at all times, discouraging Google's and Uber's idea of a driverless taxi system.
Tuesday, September 27, 2016
The family of an 18-year-old killed when his motorcycle crashed into a bean field has filed a tort claim notice against the town that once employed the off-duty reserve officer who chased the teen. The teen was allegedly driving 120 miles per hour on a motorcycle without a license plate. According to the town, the off-duty reserve officer, who has since resigned, had no authority to pursue him. The plaintiff's lawyer made the following statement:
“To hold the Town of Nashville liable, we must show that Burch was acting in the ‘course of his employment.’ Knowing this and in anticipation of a lawsuit, Nashville is disavowing Leonard Burch and throwing him under the proverbial bus.”
Fox59 has details.
Friday, September 23, 2016
The Parr family in Texas won a $3M verdict alleging they were sickened by fumes from natural gas wells. They sued using a nuisance theory. At oral arguments in the Fifth Circuit last week, the defendant driller argued the case did not lie in nuisance, but instead was a toxic tort case. The key difference between the two is the lower evidentiary burden; the plaintiffs conceded they could not meet Texas's toxic tort standards. Defendant noted:
[T]he family didn’t introduce expert testimony or other evidence supporting its claim of toxic exposure, didn’t have a doctor testify that their injuries were caused by the alleged pollutants and couldn’t prove their property was irreparably damaged by nearby drilling.
Law 360 has the story (behind a free registration wall).
Thursday, September 22, 2016
A suit filed in California alleges some of Ford's sunroofs are dangerous and Ford has been aware of it for nearly a decade. The suit specifically alleges that as sunroofs have expanded over larger portions of the roof of cars, they have become less safe:
At least 70 owners of Ford vehicles have reported to the National Highway Traffic and Safety Administration that at least 80 panoramic sunroofs have shattered. The complaint alleges Ford has known about this problem since at least 2008 due to complaints to the NHTSA about defective sunroofs shattering in the Ford Edge. Ford has been the subject of an ongoing investigation by the NHTSA on this issue since May 2014.
AdvantageNews.com has the story.
Friday, September 16, 2016
Emory's Joanne Shepherd has authored a study, commissioned and funded by the American Tort Reform Foundation, finding Louisiana's consumer protection laws need to be revamped. She concludes the combination of vagueness and expansive damages has resulted in exploitation by trial lawyers, leading to litigation that costs the consumers the laws were designed to protect. Louisiana Record has the story.
Monday, September 12, 2016
I missed this initially, but about 3 weeks ago, the ABA Journal reported that a battery claim between law professors has been dismissed. The dispute arose out of an encounter in which one professor (and associate and/or interim dean) wanted to speak to another (Torts) professor about a dispute between the Torts professor and a librarian. Descriptions of the touching that started the encounter differed. The dean/professor said he placed his hand on the shoulder of the Torts professor; the Torts professor said the dean/professor grabbed his shoulder and began berating him. The Torts professor filed a battery claim, but the judge dismissed it because the contact was not harmful or offensive. The story is here.
Tuesday, September 6, 2016
In Forbes, John Goodman, Senior Fellow at the Independent Institute, discusses the well-known shortcomings of the tort system for medical malpractice. He then proposes an alternative:
Prior to undergoing treatment, patients would be offered voluntary, no-fault insurance as an alternative to the tort system. The base patient compensation would be set by an independent commission and would be paid irrespective of the cause of the adverse event. The rates would be similar to the schedule of payments under workers’ compensation and patients would be free to pay additional premiums out of their own pockets for more generous coverage. Base compensation would be paid by insurers from premium payments by hospitals and physicians—just as they buy malpractice insurance today. The premiums would reflect the individual provider’s (or institution’s) success or failure at reducing adverse events.
Insurance companies, rather than patients and third-party payers, would become the monitors of hospital quality. Providers whose patients experience a lot of adverse events would face high premiums. As the insurance premiums become reflected in hospital and doctor fees, patients and their insurers would become aware of potentially large differences in the cost of care. Price competition would drive patients to lower-cost, higher-quality care.
The entire article is here.
Thursday, August 18, 2016
In late 2014, the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, overruling several unusual aspects of state law and declining to adopt R3. The case created a lot of uncertainty, which has been compounded by recent turnover on the court. This summer, the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions unveiled the first changes to standard products jury instructions in forty years. The defense bar and manufacturers are not happy. In a ten-page letter (Download DC-#626926-v1-Pa__jury_instruction_protest_letter_2016) sent to the subcommittee's chair, partners from multiple law firms and twenty companies, including Johnson & Johnson; Pfizer Inc.; GlaxoSmithKline; Ford; Shell Oil, and Eli Lilly, raised objections to the proposed standard jury instructions. The Legal Intelligencer reports:
Chief among those issues, the defense bar said, is the update's failure to include any mention of the requirement under Section 402A of the Restatement (Second) of Torts that a product defect must be "unreasonably dangerous" to support strict liability. The instructions are inconsistent with Tincher's adoption of the "prevailing standard of proof" reflected in the jury instructions of most states that follow Section 402A, and should be rewritten to include an instruction on the issue, the letter said.
The subcommittee chair responded that the subcommittee had taken all perspectives into account when crafting the revisions, but would nevertheless review the proposed instructions again at its next meeting. The full article (behind a free sign-up wall) is here.