TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Sunday, November 28, 2010

Bed Bug Liability

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. 

--CJR

November 28, 2010 in Current Affairs, Damages | Permalink | Comments (1) | TrackBack (0)

Thursday, October 21, 2010

Texas Jury Finds Nursing Home Negligent

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.

--CJR

October 21, 2010 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, September 27, 2010

Justice Scalia Grants Stay of LA Tobacco Ruling

In his role as Circuit Justice for the Fifth Circuit, Justice Scalia granted a stay of execution on a $241.5 million judgment to fund a smoking cessation program for the benefit of class members in Scott v. Philip Morris, a class action involving Louisiana residents.   In a five page opinion, Justice Scalia found it likely that the Court would grant certiorari and that the case raises important questions about due process limits on class actions.   Lyle Denniston at SCOTUS Blog has commentary.

- SBS

September 27, 2010 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 31, 2010

$11 Million Defamation Judgment Against Gossip Blog

Last week, a federal judge ordered a gossip blog to pay a Cincinnati Bengals cheerleader $11 million for libel and defamation:  

U.S. District Court Judge William O. Bertelsman on Wednesday ordered Los Angeles-based Dirty World Entertainment Recordings — which the complaint and judgment said operates TheDirt.com — to pay $1 million in compensatory damages and $10 million in punitive damages for failing to respond to the suit.

Politico, however, reports that the plaintiff may have sued the wrong holding company for the blog. 

More from Legal Blog Watch.

Thanks to Lisa Smith-Butler for the alert.

- SBS

August 31, 2010 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Monday, August 23, 2010

BP Spill Fund vs. 9/11 Fund

An article in Saturday's NY Timescompares the work ahead of Ken Feinberg with the BP Oil Fund, with his prior work on the 9/11 Fund.

- SBS

August 23, 2010 in Current Affairs, Damages, MDLs and Class Actions, Products Liability | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 18, 2010

SC Adopts Risk-Utility As Sole Test in Design Defect Cases, Also on Post-Distribution Evidence and Punitive Damages

In an opinion filed on Monday, the South Carolina Supreme Court adopted the risk-utility test for design defect cases, rejecting use of a consumer expectations test.   Under the risk-utility test, the court held that the plaintiff was required to present evidence of a reasonable alternative design that would have prevented the product from being unreasonably dangerous. 

The court further held that "the use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper."

And finally, as to punitive damages, the court considered what financial evidence is proper in assessing punitive damages.  Recognizing that the U.S. Supreme Court has not spoken on this issue, the court adopted a cautious approach, holding that only the defendant's net worth could be introduced.  Applying this standard, the court found that evidence concerning the salaries and compensation of the defendant's officers was improper.

Thanks to William Gaskill for the case alert.

- SBS

August 18, 2010 in Current Affairs, Damages, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, May 20, 2010

Gender, Race, and Tort Law

In less than two weeks, The Measure of Injury:  Race, Gender, and Tort Law,  the new book by Martha Chamallas (Ohio State) and Jenny Wriggins (Maine), will be available from NYU Press. 

At Law & Society in Chicago next week, there will be an "Author Meets Readers" panel on the book.  Scheduled for Friday, May 28 from 4:30-6:15 at the Renaissance Hotel, the panel will be chaired by Anne Bloom (University of the Pacific).  Readers are:  Julie Davies (University of the Pacific), Lisa Pruitt (California, Davis), Catharine Wells (Boston College), and me. 

--CJR

May 20, 2010 in Books, Conferences, Damages | Permalink | Comments (0) | TrackBack (0)

Saturday, December 19, 2009

Mississippi Noneconomic Damages Cap Challenged

A shooting at a store in Belzoni is the backdrop for the challenge.  The AP has the story.

--CJR

December 19, 2009 in Current Affairs, Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Saturday, October 3, 2009

WI: $3.7M Med Mal Verdict

Yesterday, a jury in Wisconsin awarded the family of a deceased farm worker $3.7 million in damages for medical malpractice.  Gustavo Espinal-Santos died Jan. 1, 2004, after contracting blastomycosis, a fungal infection often transmitted through water or soil.  He presented at a family practice in December of 2003, where he was examined by physician assistants and diagnosed with pneumonia.  The family alleged a failure to run basic diagnostic tests, specifically x-rays.  After a four-day trial, the jury deliberated eight hours before finding negligence on the part of the practice and the physician supervising the physician assistants.  The award will be reduced pursuant to Wisconsin's damages cap.  The story, courtesy of greenbay pressgazette.com, is here.

--CJR

October 3, 2009 in Damages | Permalink | Comments (0) | TrackBack (0)

Thursday, July 30, 2009

$3.4M Mesothelioma Verdict

A California jury has awarded $3.4 million to the family of a former Manville plant worker.   About Lawsuits has more.

- SBS

July 30, 2009 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 22, 2009

$24M Med Mal Verdict In Tennessee

A Tennessee jury has awarded nearly $24 million in a breast cancer misdiagnosis suit.   AboutLawsuits has more.

- SBS

July 22, 2009 in Damages | Permalink | Comments (0) | TrackBack (0)

Thursday, July 9, 2009

MI Court: Damages for Caring for Kids Uncapped

A divided Michigan Supreme Court has allowed to stand a ruling that a dead mother's family can sue for $1.4 M for lost household services.  The defendants argued the damages were noneconomic and, thus, subject to a damages cap.  I haven't read the opinion, and I can't vouch for the valuation, but the principle seems accurate.  Replacing these services will require a monetary payment.  The Chicago Tribune has a brief story here.

--CJR

July 9, 2009 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, April 13, 2009

LA Times on Punitives

In an editorial, the LAT calls on the Supreme Court to give better guidance on punitive damages, saying the state of law today has "wasted the time of lawyers, judges and injured parties, and sometimes has led to injustices."

--BC

April 13, 2009 in Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 31, 2009

Williams v. Philip Morris Cert. Grant Withdrawn as Improvidently Granted

Per curiam opinion here, some analysis here.

--BC

March 31, 2009 in Damages | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2009

Punitives Considered in Clerical Abuse Case

In a case where the punitive damages were over $7 million, the Church contends that the court improperly instructed the jury, permitting an award of punitive damages without a finding of bad motive.  Details are here.

--BC

March 26, 2009 in Damages | Permalink | Comments (0) | TrackBack (0)

Thursday, February 26, 2009

Recent Pain-and-Suffering Awards

Wednesday, February 18, 2009

Hess Lawyers Seek $130M+ in Tobacco Case

The AP has details; $100M of the amount sought is punitive damages.  The jury found causation in an earlier phase of the trial, and the since-decertified class action established in Florida that the tobacco companies hid risks of smoking.

--BC

February 18, 2009 in Damages, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2009

Updated: First Post-Engle Trial Begins

A few years ago, the Florida Supreme Court threw out a $145 billion class verdict against various members of the tobacco industry.  Now, as Sheila noted in last week's roundup, the first Florida trial post-Engle has begun; Bloomberg has a somewhat more detailed piece on the trial's start.  In the trial, the plaintiffs do get to take advantage of the preclusive effect of the class finding that cigarettes are addictive and cause cancer. 

The trial is in three parts, with the first focusing on liability; the second (if needed) on compensatory damages and the availability of punitive damages; and the third (again if needed) on the amount of punitive damages.

Update: In case you're particularly interested in the case, you can watch it live (for a charge) at CourtroomView.com.

--BC

February 9, 2009 in Damages, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (1)

Saturday, February 7, 2009

Pain-and-Suffering Awards for Hip and Pelvis Injuries

Over at New York Injury Cases Blog, John Hochfelder has an intriguing post demonstrating the variability of pain-and-suffering awards for hip and pelvis injuries.

--CJR

February 7, 2009 in Damages | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 20, 2009

Hochfelder Surveys NY Foot Fracture Verdicts

Over at New York Injury Cases Blog, John Hochfelder surveys verdicts and settlements in recent foot injury cases (excluding amputations).  Hochfelder finds a wide range from a low of $75,000 to a high of $2.2 million.   He attributes the disparity to the nature of the injury - the $75k for example was for an injured pinky toe while the $2.2 million was for a crushed foot requiring complex reconstruction surgery. 

- SBS

January 20, 2009 in Damages | Permalink | Comments (0) | TrackBack (0)