Friday, April 6, 2012
The families of two victims of the April 2007 shooting at Virginia Tech won an $8M award last month. However, that award will be reduced to $100,000 per family pursuant to the Virginia Tort Claims Act. Many states have tort claims acts which took the place of full sovereign immunity; they allow tort claims, but with capped damages and sometimes at a higher standard, such as gross negligence. Reuters has the story.
Thursday, March 29, 2012
Wednesday, March 28, 2012
Yesterday the Missouri Supreme Court heard arguments on whether that state's 2005 cap on non-economic damages in medical malpractice cases violates the state constitution. In 2011, a jury decided that physicians failed to act when an unborn child showed signs of distress in the womb. The child was born with cerebral palsy and will not progress beyond the mental capacity of a three-year-old. The jury awarded $4,821,000 in total damages. Of that amount, $1.45M was non-economic and was reduced to $350,000 pursuant to the cap. The Springfield News-Leader has the details.
Monday, March 26, 2012
The U.S. House of Representatives has passed nationwide tort reform measures as part of a bill repealing the Medicare Independent Payment Advisory Board, created as part of the Affordable Care Act in 2010. Per an ABA summary, the bill, H.R. 5, the "Protecting Access to Healthcare Act," would
- Cap noneconomic damages at $250,000 in medical suits,
- Allow courts to reduce contingent fees and to redirect damages to plaintiffs,
- Create a “fair share” rule in which each party would be liable only for its share of any damages, pre-empting state laws that call for joint and several liability, and
- Abolish the collateral-source rule.
The Senate is unlikely to consider the bill, and President Obama has threatened to veto it, if passed. The Hill's Floor Action Blog has more.
Monday, March 19, 2012
MN Governor Mark Dayton has signed legislation restoring caps in wrongful death cases against state or local governments to pre-2008 levels. The new law caps liability at $1 million because of “a single occurrence, if the claim involves nonprofit corporations engaged in or administering outdoor recreational activities funded or operating under a government-issued permit.” StarTribune Politics has more.
Friday, March 16, 2012
The New Hampshire Senate is touting an early offer approach to medical malpractice. The proposal was designed with the input of Jeffrey O'Connell (Virginia) who conceived of the concept of early offers and has championed it for years. The NH proposal allows the patient, not the health care provider, to initiate the early offer process. One proponent of the bill explained:
victims of malpractice would send a notice of injury to the medical provider. The provider then has 90 days to decide to extend an early offer and can ask the patient to undergo a physical exam. The patient then has 60 days to accept or reject the early offer, and can ask for a hearing with state insurance officials if any disputes need to be resolved.
The Union Leader has the details.
Tuesday, February 21, 2012
Thursday, February 9, 2012
In Arizona, the Economic Development and Jobs Creation Committee approved a bill that would exempt manufacturers from claims for punitive damages if they followed all federal, state, or agency standard for creating a product. The bill moves to the full Senate. The Arizona Republic has the story.
In Minnesota, the House last week passed several tort reform measures. The measures, which passed largely on party-line votes, include:
• Reducing Minnesota's statute of limitations, the time limit for filing suit, from six years after the incident to four years.
• Allowing an early appeal to question the class-action status of large suits, in an attempt to weed out frivolous actions.
• Limits on attorney fees in certain cases, such as wrongful termination or sexual harassment, where state law requires the fees be paid as part of the lawsuit.
• Reducing the interest rate on judgments that remain unpaid while a case proceeds. The current 10 percent rate would be reduced to a market-based rate no lower than 4 percent.
The Minneapolis Star Tribune has the story.
Wednesday, November 2, 2011
Neil Alldredge (National Association of Mutual Insurance Companies) has an interesting article on reforming no-fault automobile laws, including specific recommendations for individual states. Here's a sample:
Early on, many states experienced cost savings, and no-fault seemed full of promise. Over time, however, some states’ laws produced unintended negative consequences. While the system intended to clear the court dockets of minor lawsuits, court dockets have become more cluttered because of weak litigation thresholds.
Friday, October 21, 2011
Eric Turkewitz has a great post on New York's highest court wading into the issue of what constitutes a "serious injury" for purposes of the state's no-fault threshold. The failure to set proper thresholds is one of the biggest reasons that no-fault has not performed as well as it was expected to. Monetary thresholds were set too low and verbal thresholds were too vague. Eric rightfully challenges the language of New York's verbal threshold (and it's one of the best-drafted statutes).
Tighter threshold language is relevant to an issue I've been working on lately. The Malaysian automobile tort system is terribly inefficient. Among other things, Malaysia has separate hearings for liability and damages, often months or even years apart. A group of Malaysian researchers led by Norila Abu Hasan is preparing a no-fault choice automobile proposal. Last December, they visited the United States and consulted several scholars, including Andy Popper and Jeffrey O'Connell. I told them drafting a proper threshold was crucial to the success of the system. I'll be presenting a paper on thresholds in Malaysia in December.
Eric provided the language in the New York statute in his post, complete with his italicized portions indicating vagueness problems:
- A personal injury that results in death;
- A significant disfigurement;
- A fracture;
- The loss of a fetus;
- Permanent loss of use of a body organ, member, function or system;
- Permanent consequential limitation of use of a body organ or member;
- Significant limitation of use of a body function or system; or
- A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”.
Eric also recommended that the legislature revisit the language. As someone who will be recommending threshold language in the near future, how should it be changed? I'd love to hear from Eric or anyone else who has ideas on the subject.
Tuesday, October 18, 2011
The AP reports that the Mississippi Supreme Court has called for additional briefing in a certified question regarding the constitutionality of Mississippi's $1 million cap on non-economic damages.
Specifically, in the case before the court, the parties agreed that $2.2 million of the $4 million jury award was for non-economic damages. The Mississippi Supreme Court has asked the parties to explain how they reached that amount.
More from the AP story.
Wednesday, October 5, 2011
Gov. Walker called the Wisconsin State Legislature into session last week to focus on jobs. Among other issues, four tort reform proposals will be introduced:
(1) A bill requiring courts to consider certain factors in determining reasonable attorneys' fees;
(2) A bill providing immunity for certain drug and device manufacturers based on preemption;
(3) A bill preempting courts in WI from adopting R3's "flagrant trespasser" doctrine; and
(4) A bill changing the interest rates on judgments in certain actions.
The State Bar of Wisconsin has the details.
Monday, October 3, 2011
The Tennessee Civil Justice Reform Act, signed by the governor back in June, took effect on October 1st. The new law contains venue provisions, caps non-economic damages, and caps punitive damages. The same bill also contained the "Class Action Improvement Act of 2011," which would prohibit class actions under Tennessee's consumer fraud statute. A copy of the bill is available here: http://www.capitol.tn.gov/Bills/107/Bill/SB1522.pdf
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, September 22, 2011
Saturday, September 3, 2011
WSJ Law Blog recently posted on Mexico's adoption of class actions. The new Mexican law includes a loser-pays provision. The details are here.
Thanks to Mark Behrens for the tip.
Thursday, August 11, 2011
Two quick things about amusement parks:
- First, Wiggin & Dana attorney Erik Beard has started a blog about amusement park law generally, and today he's posted about why, in his view, the founding fathers would be glad that there are widely varying amusement ride regulatory schemes.
- Second, this weekend's episode of This American Life will be all about amusement parks. I may or may not be in it -- I spent a day at Six Flags New England with a producer and did a few interviews with her, but it's still not entirely clear whether her segment will be in. (It's a tight episode.) But you should listen anyway.
Wednesday, August 3, 2011
Sen. Pat Vance has introduced a bill requiring dentists to carry $3M in malpractice insurance (at a cost of about $2,400 a year). The bill unanimously passed the state Senate. It has not yet been taken up in the state House. Pennlive has the story.
Monday, August 1, 2011
Details here. The law has a semi-flexible cap on punitive damages, with $500,000 or three times actual damages as the default, but with a safety valve provision to raise the cap to $2 million in certain situations. Proponents argued that the legislation will increase businesses' desire to locate in the state.