Tuesday, November 15, 2011
Monday, November 7, 2011
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.
Monday, October 24, 2011
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.
Wednesday, September 28, 2011
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.)
Thursday, August 25, 2011
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.
Monday, August 8, 2011
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).
Thanks to How Appealing for the info.
Thursday, July 21, 2011
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.
Wednesday, July 20, 2011
The anti-cap article, written by Andrew Cohen, discusses the 2008 train crash in Chatsworth, CA caused by a texting engineer. Cohen quotes portions of Superior Court Judge Peter Lichtman's opinion as he divides the $200M capped damages among the victims, including 24 fatalities.
Friday, June 24, 2011
Tuesday, June 21, 2011
Bloomberg Business Week (AP) reports that New York City paid about $521 million in 2010 to settle personal injury and property damages suits. The Police Department, Department of Transportation and Health & Hospital Corp. had the most settlements in 2010.
Thursday, May 19, 2011
The Engle progeny tobacco cases in Florida are continuing apace, including through the appellate process. On Tuesday, a case that ended with a total of a $15.75 million verdict was argued in Florida's First Circuit Court of Appeals. As usual, the focus was on the plaintiff's knowledge of the risks of tobacco.
Thursday, May 12, 2011
A federal appellate panel in Chicago has upheld the certification of a class action against Pella, a manufacturer of windows, based on allegations of a design defect leading to rotting wood around the windows. One of the issues was how to handle consumers who have not yet suffered economic loss. The plaintiffs' counsel:
came up with a novel solution that persuaded U.S. District Judge James Zagel. He separated the window buyers into two classes: Consumers ...who have suffered economic loss, and a larger, nationwide group of those who haven't. But instead of seeking compensation for the latter class, he asked the judge to void Pella's 10-year warranty, pay for window inspections and other "declaratory" relief. The latter class would be allowed to file individual claims with Pella once rot was detected.
Consumer class actions are typically not in our wheelhouse, but the Chicago Tribune article quotes Sheila:
"This is an interesting twist in consumer fraud cases," said Sheila Scheuerman, an associate law professor at the Charleston School of Law who specializes in class actions. "Courts have been fairly hostile to classes where there are no injuries. But litigation always evolves to adapt to restrictions."
Full coverage from the Tribune is available here.
Thursday, April 14, 2011
Monday, March 14, 2011
Thursday, February 17, 2011
The South Carolina House of Representatives overwhelmingly voted to cap punitive damages at three times compensatory damages, with a maximum award of $350,000. The legislation also restricts the state attorney general's abillity to use outside counsel, and the fees allowed for such counsel. Similar legislation is expected to be picked up by the Senate shortly.
The bill is available here, and includes various exceptions to the punitives cap.
Tuesday, December 28, 2010
An article in Saturday's NY Times reported that New York State seeks reimbursement from indigent patients in state-run mental hospitals when the patient wins a tort award against the state for poor care in the very same hospital.
On his blog, Dorf on Law, Michael Dorf (Cornell) comments on the impact of this practice on the deterrence goal of a tort award As Dorf explains,
Vis-a-vis an indigent who owes the State hundreds of thousands or millions of dollars for past care, the State itself is a kind of indigent--in the sense that it will never see that money, and so can commit torts up to the value of that care without worrying about any real out-of-pocket cost.
Monday, December 27, 2010
As Brian Leiter reports, two law professors (from Penn and Widener) have won $5 million in punitive damages in a defamation suit against West Publishing. Although their contract allowed West to continue to publish their treatise using their names, the two professors sued West, claiming that the latest edition damaged their professional reputations because it was an inferior product (with only 3 new cases added to the entire book). A federal jury agreed with the professors and awarded $90k to each professor for compensatory damages, and $2.5 million each in punitive damages.
Leiter also has links to the Philadelphia Inquirer story as well as the Legal Intelligencer story.
Thanks to Lisa Smith-Butler for the alert.
Sunday, November 28, 2010
Josh Freedom duLac of The Washington Post published an article yesterday about liability for bed bugs. Judge Posner's Mathias case was ahead of its time. The recent surge in bed bugs has created an uptick in litigation against motel owners and landlords alike. duLac's article focuses on a Maryland attorney who is filing a series of bed bug liability suits. The typical compensatory damages claim is $200,000, and many of the suits claim punies. Bed bug suits, in Maryland and elsewhere, generally face three major issues.
First, plaintiff will have to prove notice on the part of the motel owner or landlord. Actual notice is best, but constructive notice should suffice. For constructive notice, the focus will be the length of time the condition (bed bugs) has been in place. The Maryland suits contain mostly conclusory allegations, so discovery will be important.
Second, plaintiff will have to establish compensatory damages. Bed bugs are nasty creatures, and I have a lot of sympathy for people impacted by them. On the other hand, as I noted in the article, I'm skeptical of the amounts claimed in the Maryland suits. $200,000 is a large sum of money. I know of someone who received slightly more than that from the tort system for losing his eyesight in both eyes. I don't claim that outcome was adequate, but it does bring the bed bug damages into perspective. I understand that ad damnum clauses are drafted as a ceiling, but these are quite high. Plaintiffs in Mathias got a jury verdict for compensatory damages of $5,000. A Florida attorney quoted in duLac's article is leaving the bed bug liability field because the damages are too small. He noted that he settled one case for $4,000 and another for $10,000.
Finally, a fairly standard punies regime requires a plaintiff to prove some type of conscious and deliberate behavior on the part of the defendant. In Mathias, the hotel owners were informed about the bed bugs. Instead of paying for a $500 extermination, the owners allowed the bed bug situation to fester for nearly two years. It was widely known the hotel had bed bugs. There were certain rooms that employees were not supposed to rent out because of the bugs, yet the rooms were rented if there were not enough other rooms available. Guests were informed the bugs were ticks (as if that's better!). Under these circumstances, the court upheld a punies verdict of $186,000. If proving notice in the Maryland cases will require the discovery of significant facts, for punies the bar is even higher.
Thursday, October 21, 2010
Yesterday in San Antonio, a civil jury found a nursing home negligent in the care of a man who developed severe, infected bed sores. The nearly $600,000 verdict will be reduced by a damage cap to $250,000. In a newspaper interview, the plaintiff's attorney argued that such trials had become rare because of the cap. My SA.com has the story.