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.
Monday, August 15, 2016
Here is a classic eggshell plaintiff case in which one officer (Lancaster County) gave another (City of Lincoln) a friendly punch on the shoulder in greeting, without knowing that the recipient had recently undergone rotator cuff surgery. The result was $63,418 in medical bills, covered by workers' comp. The City of Lincoln sued Lancaster County for indemnification, but a district judge determined that the punch was an intentional tort (battery) rather than negligence, therefore immunizing Lancaster County from liability under Nebraska's municipal tort claims act. The Lincoln Journal Star has details.
Wednesday, August 3, 2016
On Monday, the Connecticut Supreme Court ruled that a woman who found her husband crushed to death shortly after a large ATV fell on him cannot sue his employer for bystander emotional distress. She recovered pursuant to the state's workers comp statute. The Hartford Courant has the story.
Monday, July 18, 2016
DuPont has been defending multiple lawsuits over C8, a detergent-like chemical used to make Teflon at a DuPont plant in West Virginia. DuPont released C8 into the Ohio River and approximately 3,500 plaintiffs from river towns in Ohio and West Virginia allege C8 has caused various types of cancer. Earlier this month, a jury in Columbus found that DuPont acted with malice when it dumped C8 into the river and awarded a plaintiff with testicular cancer $500,000 in punitive damages. The Columbus Dispatch has coverage here and here.
Monday, July 11, 2016
Take-home exposure cases, in which a worker brought home a toxic substance like asbestos on his or her clothes and sickened a spouse, are being expanded in New Jersey. Last week the court unanimously held such cases were not restricted to spouses. The facts involve a woman who later became the spouse of a worker bringing home toxic substances. She was not, however, married to him at the time the exposure began. The court stated the spousal relationship was not necessary; several factors must be weighed, the most important of which is foreseeability. NJ Spotlight has the story.
Sunday, July 10, 2016
Monday, July 4, 2016
Wednesday, June 29, 2016
At least 6 children have been crushed to death by IKEA dressers, prompting the company to recall approximately 29 million dressers dating to 2002. Suit filed against IKEA alleges problems with the design and warnings on the products. ABC has the story.
Tuesday, June 28, 2016
State-based tort law does not lead to a lot of USSC cases, so we are often left with cases tangentially related to torts. The Court just affirmed by default (4-4) tribal jurisdiction over an assault (molestation) claim brought by a 13-year old member of the Mississippi Band of Choctaw Indians against a Dollar General store operating on tribal lands. Courthouse News Service has the story.
Monday, June 27, 2016
Christopher French has posted to SSRN Sex, Videos, and Insurance: How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict. The abstract provides:
On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most people for: 1) the shockingly high verdict amount of $140 million awarded to a celebrity adulterer who was filmed having sex with his best friend’s wife, and 2) the battle between what constitutes the outer boundaries of what is considered “news” under the First Amendment and a celebrity’s right to privacy. The case also should be remembered, however, for the lesson it provides business owners: instead of facing a damage award that forced Gawker to file for bankruptcy and to now seek relief on appeal, Gawker actually could have avoided paying any portion of the damage award. How could Gawker have obtained that result? Insurance. This article debunks the conventional wisdom that insurance does not cover intentional torts such as invasion of privacy or punitive damage awards and that it is against public policy to allow insurance to cover intentional torts and punitive damages. Consequently, if Gawker had purchased appropriate insurance, then it may have been able to avoid paying any portion of the ultimate damage award.
Wednesday, June 22, 2016
Back in March, I posted about a grand jury report detailing the sexual molestation of children in the Altoona-Johnstown Diocese. Now two women have filed lawsuits alleging that a priest from the parish abused them in the 1970s. The grand jury report led to a debate in the legislature about extending the statute of limitations and possibly including a window in which expired cases could be filed. The state House passed a bill that would retroactively extend the civil statute of limitations (from age 30 to age 50). The state Senate Judiciary Committee held a meeting last week and heard from five experts on the constitutionality of retroactively altering the statute of limitations. The Pennsylvania Constitution has arguably been interpreted as more restrictive than the United States Constitution on the issue. Four of the five experts opined that the bill was unconstitutional. The women's lawsuits appear to make a case for extending the statute based on the alleged concealment of the cover-up by the diocese extending through last year.
Wednesday, June 15, 2016
I'm teaching Products Liability this summer. It's a fun course to teach, and I have a sense of relief about many of the products defects we no longer have to deal with on a regular basis. For example, last night in class we covered a case in which a wheel flew off a car and injured a child. That seemed to me an antiquated problem. Yet today one of my students sent me this article about a 2013 Tesla Model S electric car having the same issue. Moreover, the company sometimes proffers consumers waivers and nondisclosure agreements as part of the repair process. Nondisclosure agreements are common in lawsuit settlements, but this seems unusual.
Thursday, June 9, 2016
The Pittsburgh Post-Gazette has a Pennsylvania-focused story on 3-D printing. The disruptive nature of the technology for products liability has been obvious for several years. There are very few cases, but attorneys have started to ponder the issues. The story has several takeaway points. First, attorneys expect the early cases to focus on medical and auto parts. Second, the role of computer-aided design (CAD) software as a blueprint for designs will be important:
Products liability attorney Mihai M. Vrasmasu of Shook, Hardy & Bacon said that, when dealing with companies that use 3-D printing, liability issues can generally be broken down to three categories: when a manufacturer buys or licenses a design that is used to print the product, when a manufacturer modifies that file before printing the product, and when a manufacturer designs the file.
Finally, especially in the early period of uncertainty, it is crucial to use contracts to manage liability.
Monday, June 6, 2016
On April 3, an Amtrak train traveling from New York to Savannah collided with a backhoe in Chester, PA. The man operating the backhoe, 61-year-old Joseph Carter, was killed. Kline & Specter's Tom Kline has filed suit on behalf of Carter's adult children. The Delaware County Daily Times has the story.
Friday, June 3, 2016
Malaysia's Federal Court introduced the tort of harassment, covering sexual harassment, into the legal system this week:
“After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it,” the apex court bench led by Chief Judge of Malaya, Tan Sri Zulkefli Ahmad Makinudin said in the judgement.
MalayMailOnline has the story.
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.
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.
Thursday, April 28, 2016
Lawyers for residents of Flint, MI have filed administrative complaints, required as a step to suing government agencies, against the EPA for damage caused by lead in the water. The complaints reference an alleged email from an agency expert warning about the problem in June 2015. Reuters has the story.
Monday, April 25, 2016
About two weeks ago, Bloomberg BNA had a piece on defects in firearms. No agency has the authority to force a recall, meaning voluntary recalls by manufacturers and class actions are the only effective methods. Class actions are rare. Victor Schwartz is quoted extensively on "regulation by litigation."