TortsProf Blog

Editor: Christopher J. Robinette
Widener Univ. School of Law

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Thursday, October 9, 2014

WI: Judge Holds Med Mal Cap Does Not Apply to $25.3M Verdict

A Milwaukee County circuit judge held the state's $750,000 cap on pain and suffering did not apply to a $25.3M verdict, including $15M of pain and suffering to her and $1.5M to her husband, for a woman who lost all 4 limbs due to septic infection.  The court did not find the cap unconstitutional, but held there was no rational basis to apply it to this case.  An appeal is expected.  A Journal Times editorial in support of the judge's ruling is here.

 

October 9, 2014 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 29, 2014

Behrens & Appel on Medical Monitoring in NLJ

Recently the New York Court of Appeals rejected medical monitoring.  Behrens and Appel approve:

The New York Court of Appeals reached the right conclusion. For over 200 years, one of the fundamental principles of tort law has been that a plaintiff cannot recover without proof of a physical injury. This bright-line rule may seem harsh in some cases, but it is the best filter courts have developed to prevent a flood of claims, provide faster access to courts for those with reliable and serious claims, and ensure that the sick will not have to compete with the nonsick for compensation.

The full op-ed (behind a pay wall) is here.

--CJR

January 29, 2014 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Friday, September 20, 2013

Recovery from Injuries

Huff Post has a piece on the recovery of Chef Eduardo Garcia from injuries he received in a 2011 hunting accident.  Garcia's left arm was amputated below the elbow and he now has a bionic hand.  John Hochfelder, who blogs at NewYorkInjuryCasesBlog.com, represented Garcia in the tort case.

--CJR

September 20, 2013 in Damages, Science | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 2, 2013

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

January 2, 2013 in Current Affairs, Damages | Permalink | Comments (1) | TrackBack (0)

Thursday, October 11, 2012

5th Circuit Asks for Supplemental Briefs in Mississippi Non-Economic Damages Cap Case

The Fifth Circuit has asked for supplement briefs in a case addressing the constitutionality of Mississippi's $1 million cap on non-economic damages.  The Mississippi Press has more.

- SBS

October 11, 2012 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 5, 2012

VA: Facebook "Likes" Admissible, But Defamation Punies Award Cut

In a federal case in Virginia, the number of"likes" an allegedly defamatory Facebook page received was admissible, but a punitive damages award was reduced.  Peter Vieth of Virginia Lawyers Weekly has the story:

A federal judge says a dog trainer who claimed he was defamed by online accusations of animal abuse was entitled to tell a jury how many people “liked” the offending Facebook page, a federal judge has ruled.

Nevertheless, U.S. District Judge James Cacheris said the jury’s “grossly excessive” $60,000 punitive damages verdict in favor of the dog trainer should be cut by three quarters. Cacheris says the defendant can either accept the reduction of punitives to $15,000 or take a new trial.

The full story is here.

--CJR

September 5, 2012 in Damages, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2012

Missouri Supreme Court Holds Cap on Non-Economic Damages Violates State Constitution

In a decision issued July 31st, the Missouri Supreme Court struck down the state's statutory cap on non-economic damages as violating the Missouri state constitution.  Specifically, the court found that the cap violated the right to a trial by jury.  A copy of the decision is available here (pdf).

- SBS

August 6, 2012 in Current Affairs, Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 6, 2012

NY: Nonpecuniary Damages Not Available for Legal Malpractice

So held the Court of Appeals in Dombrowki v. Bulson  (pdf) (at least against criminal defense attorneys). 

Thanks to Mark Weber for the tip.

--CJR

June 6, 2012 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, April 23, 2012

Judge Awards $65k Damages for Loss of Pet

A Colorado judge has awarded $65,000 for the negligent death of the plaintiff's 18-month old dog.  A cleaning service mistakenly let the dog out, where she was hit by a car.  The dog crawled back into the house, and the cleaning service left the dying dog - knowing it had been hit - under the dining room table, where the owner found her dead upon returning 2 hours later.  

 Colorado News9 and Channel 7 have more.   

Thanks to Lisa Smith-Butler for the alert.  

- SBS 

April 23, 2012 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 25, 2012

Sharkey on Economic Analysis of Punitive Damages

Cathy Sharkey (NYU) has posted to SSRN Economic Analysis of Punitive Damages:  Theory, Empirics, and Doctrine.  The abstract provides:

This chapter — to be included in Research Handbook on the Economics of Torts (Arlen ed., Kluwer, forthcoming 2012) — assesses economic rationales for punitive damages in light of contemporary empirics and doctrine. The primary economic rationale for supra-compensatory damages is optimal deterrence (or loss internalization): when compensatory damages alone will not induce an actor to take cost-justified safety precautions, then supra-compensatory damages are necessary to force the actor to internalize the full scope of the harms caused by his actions. Alternative economic rationales — disgorgement of ill-gotten gains and enforcement of property rights — have been proposed to align the theory with the historical and conventional focus of punitive damages on intentionally wrongful behavior.

Notwithstanding its academic prominence, the economic deterrence rationale has not dominated doctrine. In fact, the U.S. Supreme Court has all but rejected economic deterrence, by instead placing increasing emphasis on a competing retributive punishment rationale. But, since punitive damages lie squarely within the purview of state law, state legislatures and courts possess a degree of freedom to articulate state-based goals of punitive damages — such as economic deterrence — even in the face of heavy-handed federal constitutional review imposed by the U.S. Supreme Court.

--CJR

January 25, 2012 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 19, 2012

Licari on Enforcing Punitive Damage Awards in France after Fountaine Pajot

François-Xavier Licari has posted Enforcing Punitive Damage Awards in France after Fountaine Pajot on SSRN. The abstract provides:

In a landmark ruling, the Cour de cassation held that 'an award of punitive damages is not, per se, contrary to public policy,' but that 'it is otherwise when the amount awarded is disproportionate with regard to the damage sustained and the debtor's breach of his contractual obligation.' Schlenzka & Langhorne v. Fountaine Pajot, S.A. involved the failed attempt by American judgment creditors to enforce their California judgment against a French defendant in France. At the same time that the judgment creditors were taking their case through the French legal system, the Cour de cassation, in a different line of cases, liberalized the conditions under which a foreign judgment could be enforced in France. But when the Court opened one door for the American plaintiffs, it closed another by refusing to enforce the judgment because it included disproportionate punitive damages. The Court's reasons were inconsistent with prior interpretations of proportionality and disingenuous to the court's modern approach to the enforcement of foreign judgments. In just a few words, the Court echoed prevailing French and European sentiments about American punitive damage awards. Unfortunately, the prevailing attitudes are dominated more by prejudice than by fact and reason.

 

 

 

- SBS

 

January 19, 2012 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 22, 2011

Recovery of Sentimental Value of Pets

Courthouse News Service reports on an interesting case out of Texas, Medlen v. Strickland (pdf). In Medlen, the Texas Court of Appeals "ruled that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet, reversing and remanding the ruling of a trial court."

Animal Law Blog also have coverage

- SBS

November 22, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 15, 2011

Challenges to State Punitive Damages Caps

California Punitive Damages Blog reports that both the Arkansas Supreme Court and the Missouri Supreme Court are considering challenges to the legislative caps on punitive damages in those states.

- SBS

November 15, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, November 7, 2011

WV Nursing Home Verdict: $91.5M

An 87-year-old woman died shortly after entering a Charleston, WV nursing home.  The nursing home has been hit with a $91.5 million jury verdict.  At least 2 issues may be taken up on appeal.  First, WV has a med mal cap that limits recovery of non-economic damages to $500,000.  The jury found that only a small part of the negligence was "medical."  Instead, the largest part of the negligence was the failure to provide basic necessities such as food and water.  Second, in an attempt to earn punies, the plaintiff's lawyer informed the jury that the nursing home's parent corporation earned $4 billion last year.  However, that figure was gross earnings; the parent corporation's taxable income last year was $75 million.  WVGazette.com has the details.

--CJR

November 7, 2011 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Monday, October 24, 2011

First Circuit Reverses Dismissal of Data Breach Case

In In re Hannaford Bros. Co. Customer Data Security Breach Litig. (pdf), the First Circuit reversed the dismissal of negligence and implied contract claims against Hannaford Supermarkets by customers who were victims of a data breach.   The court found that "plaintiffs' reasonably foreseeable mitigation costs constitute a cognizable harm under Maine law."  Specifically, the court found that the purchase of identity theft insurance and replacement card fees constituted harm.  

Thanks to Lisa Smith-Butler for the alert.

- SBS

 

October 24, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 28, 2011

Indiana Stage Collapse Leads to Lawsuit, Challenges

Most people know that a stage collapsed during the Indiana State Fair, killing several people.  Not surprisingly, survivors of the victims have filed suit.  One suit challenges both Indiana's $5 million total cap on damages in claims seeking damages from the state and seeks to make damages available for surviving same-sex partners.  (Indiana does not recognize same-sex marriage.)

--BC

September 28, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Intermediate Appellate Court Upholds Damages Cap in California

I missed it earlier this month, but an intermediate appellate court in California upheld a $250,000 cap on noneconomic damages in medical malpractice claims. 

--BC

September 28, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, August 25, 2011

Second-Hand Smoke Case Continues Against Housing Cooperative, Sans Punitives Claim

A resident of Greenbelt Homes in Maryland filed suit against the housing cooperative for failing to prevent his exposure to his neighbors' second-hand smoke.  The trial started on Monday and, while the negligence claim is continuing, the judge did dismiss the claim for punitive damages.

--BC

August 25, 2011 in Current Affairs, Damages | Permalink | Comments (1) | TrackBack (0)

Monday, August 8, 2011

Dead Men Can't Be Sued for Punitive Damages

The Iowa Supreme Court has reaffirmed its long standing rule (dating back to 1884) prohibiting punitive damages claims against deceased individuals.  The court reasoned that awarding punitive damages against an estate does not serve the purposes of punitive damages, which the court identified as (1) punishment, (2) specific deterrence, and (3) general deterrence.  Iowa's decision follows the majority rule on this issue.  (The opinion helpfully includes footnotes and citations discussing the majority/minority breakdown).

A copy of the court's opinion is here. The Des Moines Register has full coverage.

Thanks to How Appealing for the info.

- SBS

August 8, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Thursday, July 21, 2011

A Rebuttal to the Atlantic Amtrak Piece

Yesterday Chris posted a link to an Atlantic piece, written by Andrew Cohen, critical of the cap on damages in railroad accident cases.  Ted Frank has some pointed criticisms that are worth reading as well.

--BC

July 21, 2011 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (2) | TrackBack (0)