Monday, December 7, 2015
Nicholas McBride (Cambridge) has posted to SSRN The Humanity of Private Law-Chapter1. Building Blocks. The abstract provides:
In this draft of the first substantive chapter from The Humanity of Private Law, I set out a (more or less) complete grammar of private law, explaining how fundamental private law concepts like right, duty, obligation, wrong, liability, power, disability, interest, and property relate to each other, while noting the occasions when the ways in which these concepts are used will be affected by what account of private law one endorses – so that, for example, the notion of someone having a ‘right to’ something is indispensable under a Kantian account of private law, while non-Kantians need not make use of such an idea and should not, if they want to avoid confusion.
Among the cases discussed in this chapter are Hedley Byrne v Heller, Spartan Steel & Alloys Ltd v Martin, Bradford v Pickles, Armory v Delamirie, Vincent v Lake Erie, and Rylands v Fletcher. Among the issues discussed are: (1) the nature of legal duties, and what makes a particular legal duty a private law duty; (2) the nature of the rights set out in the European Convention on Human Rights; (3) the distinctions between different kinds of private law liabilities, and private law powers; (4) whether there is a duty to pay damages to the victim of one’s wrong, or make restitution to someone at whose expense you have been unjustly enriched; (5) the proper analysis of awards of damages in lieu of an injunction; and (6) the nature of property, interests in property, and rights arising out of having an interest in property.
Friday, December 4, 2015
From Roger McEowen (Iowa State Center for Agricultural Law and Taxation):
The parties are friends and neighbors and are both farmers. The plaintiff has raised various types of livestock, but the summer of 2012 was his first time raising sheep. The defendant had bred sheep for over 30 years. On occasion, the plaintiff allowed the defendant to keep livestock on the plaintiff's property. In the summer of 2012, the parties went together to a livestock yard where the defendant bought a lamb ram to replace his existing ram. The ram showed no vicious tendencies. After ewes had been put in the pasture with the ram, the plaintiff was butted repeatedly by the ram as he attempted to turn on sprinklers in the pasture. At the time of the incident, the plaintiff was 82 years old. He suffered a concussion, five broken ribs, a broken sternum and a broken shoulder. The plaintiff was hospitalized for 16 days. The plaintiff sued based solely on a theory of gender based strict liability irrespective of whether or not the defendant knew the ram was abnormally dangerous. The trial court granted summary judgment for the defendant. On appeal, the court affirmed. The appellate court noted that the standard of care under state (WA) law is ordinary care if the animal is not inclined to commit mischief, unless it is shown that the animal's owner knew that the animal had vicious tendencies. In that event, strict liability is the rule. The court noted that this approach was consistent with Restatement (Second) of Torts Secs. 509 and 518. Under Restatement (Second) of Torts Sec. 509 comment e, rams have not historically been regarded as being inherently dangerous animals, but comment 23 of the Restatement (Third) of Torts propose a possible gender-or-breed-based modification of the general rule treating domestic animals as not excessively dangerous. The court, however, referenced the policy reasons for not holding owners of male domestic livestock to a strict liability standard. In addition, the court noted that the legislature could modify the law and had already done so with respect to dogs in certain situations. Rhodes v. MacHugh, No. 32509-1-III, 2015 Wash. App. LEXIS 2687 (Wash. Ct. App. Nov. 3, 2015).
Thursday, December 3, 2015
Philadelphia hospitals started running simulations of high-risk incidents, such as child birth, and the results are encouraging:
Such training has helped Penn cut malpractice costs by 26 percent since 2011, to $92.2 million in the year ended June 30, even as revenue has risen 28 percent, to $4.3 billion.
Temple University Health System has logged an even steeper decline in liability costs, to $11.3 million in fiscal 2015 from $48.1 million in 2011, records show.
The Philadelphia Inquirer has the story.
Wednesday, November 25, 2015
I referenced the Feres Doctrine yesterday. Over at Bill of Health, there is a post about an amicus brief filed by Alex Stein and Dov Fox urging the Supreme Court to grant cert in a Tenth Circuit case, Ortiz v. U.S.:
When a civilian spouse of a serviceman receives negligent prenatal care from military doctors and delivers an injured baby as a result of that malpractice, there is no question that Feres immunity does not apply and that the baby can sue the United States under the FTCA. When military medical malpractice injures the baby of a servicewoman, this baby should be equally able to obtain redress under the FTCA. A system that would single out the civilian children of servicewomen for adverse treatment discriminates against women who serve in the armed forces. . . To interpret the FTCA as the Tenth Circuit did permits discrimination between these two classes of similarly situated victims of military malpractice and violates fundamental principles of equal protection.
The brief is here: Download OrtizAmicusSteinFox
Tuesday, November 24, 2015
The Department of Defense is expanding a program, already underway at eight facilities, in which conversations are encouraged between medical practitioners and patients about medical injuries. The program allows patients and providers an avenue to discuss injuries and apologize. Alternative dispute resolution is also provided. The program does not require a waiver of malpractice actions, though the Feres Doctrine already prevents active-duty troops from suing for med mal. Pursuant to the program, no determinations about negligence are made. Military Times has the story.
Monday, November 23, 2015
A Philadelphia jury has awarded $10.1M to a mother and son for the failure of Children's Hospital of Philadelphia to diagnose bacterial meningitis in the boy despite several trips to the emergency room. The child, now 6, suffers from hearing loss, language disorder, developmental and learning delays, and a loss of balance. The trial lasted 4 weeks, but the jury made its decision in 3 hours. Philly.com has the story.
Friday, November 20, 2015
Benjamin Shmueli has posted to SSRN Legal Pluralism in Tort Theory: Balancing Instrumental Theories and Corrective Justice. The abstract provides:
Unified-monistic theories of tort law focus on a single goal of tort law, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixed-pluralistic theories attempt to produce a balance between various goals of tort law by integrating several of the considerations underlying the different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. The present article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law, that is, within the framework of tort law theory.
Starting from a position of support for the mixed-pluralistic thesis, the advantages offered by current mixed-pluralistic approaches are identified, and a new mixed-pluralistic approach is proposed which is adapted to the multitude of significant changes that have affected contemporary common tort law in recent years. This new approach divides (mostly negligence) issues into two principal categories on the basis of the profile of the defendant and the nature of his tortious act, concurrently striking a balance between the various goals of tort law, as the situation warrants. Thus the suggested mixed-pluralistic approach offers a new and actual balance between corrective justice and instrumental theories — that is, distributive justice and optimal deterrence. Hence, it actually offers a balance between deontological theories, that are interest in the moral aspect, and utilitarian theories, that are more interested in the consequentialist outcome of the tort action. The proposed approach will be implemented through the presentation of a number of tort issues, some traditional and classic and others modern and novel.
The suggested approach challenges the study of both law and economics and corrective justice by trying to delimit their dominance as sole goals. It also corresponds with other pluralistic approaches to the study of torts.
Thursday, November 19, 2015
On Monday, I posted about defendants attempting to use med mal tort reform protections to make it harder to recover for falls in hospitals. In a similar vein is a recent Alabama case in which a doctor attempted to invoke a prohibition against discovering and introducing at trial evidence of other malpractice to avoid the admission of the evidence as modus operandi (FRE 404(b)(2) or state equivalent). The claim, however, was that the doctor had sexually assaulted the plaintiff during the course of medical treatment. In Ex parte Vanderwall, — So.3d —- 2015 WL 5725153 (Ala. 2015), the Alabama Supreme Court held the prohibition only applies in med mal cases, which do not include cases of sexual assault. The plaintiff was, therefore, able to use past instances of sexual misconduct incidental to medical treatment as proof that the doctor responsible for that misconduct assaulted her as well. Alex Stein has more blogging at Harvard's Bill of Health.
Wednesday, November 18, 2015
Stephen Sugarman has posted to SSRN Misusing the "No Duty" Doctrine in Torts Decisions: Following the Restatement (Third) of Torts Would Yield Better Decisions. The abstract provides:
Courts misuse the “no duty” doctrine in torts cases when they really mean there has been “no breach” of the duty of care. "No duty” should be reserved for cases where a defendant can escape tort liability even if the defendant caused harm through unreasonable conduct. Whether the risk was foreseen or not does not go to “duty.” It is relevant to “breach.” Relying on the “duty” doctrine takes cases away from juries, sometimes inappropriately. The Restatement (Third) of Torts gets this right.
Tuesday, November 17, 2015
Monday, November 16, 2015
Because of the hurdles many states place on med mal cases, it is beneficial for defendants to classify falls in hospitals as malpractice. The Texas Supreme Court recently attempted to clarify the distinction between med mal and a premises liability slip-and-fall:
In Reddic v. East Texas Medical Center, decided on October 30, 2015, the Court stated that there must be “a substantive relationship between the safety standards the visitor alleged the hospital breached and the provision of health care” for the case to be considered medical malpractice.
Michael Ksiazek has more at The National Law Review.
Friday, November 13, 2015
Last week, I reported that open-heart surgery patients at York Hospital may have been exposed to bacteria that could lead to infections. This week, Penn State Hershey Medical Center announced that its open-heart surgery patients may have also been exposed to bacteria. This appears to be developing into potential products liability cases, perhaps all over the world:
The infections have been linked to heater-cooler devices that are part of the process of controlling patients' body temperature during open heart surgery. A department of health spokeswoman said heater-coolers are used in all open heart surgeries.
Pennlive has the story, including pictures of the device in question.
Thursday, November 12, 2015
Wednesday, November 11, 2015
Phi Kappa Psi, the fraternity where an alleged gang rape occurred, has sued Rolling Stone and the author of a sensational article for publishing the account. Rolling Stone relied on the allegations of the alleged victim, but subsequent investigations found no evidence to substantiate the claims. Three individual members of the fraternity are suing for at least $225,000 each and an associate dean is suing for $7.5 million dollars. Virginia Lawyers Weekly has the story.
Updated: Because I practiced in Charlottesville, I have been looking for the name of the attorney representing the plaintiffs. It turns out that Tom Albro, for whom I worked for seven years, is that attorney. Rolling Stone had better be prepared.
Tuesday, November 10, 2015
Monday, November 9, 2015
Craig Allen (University of Washington) has posted to SSRN Investigations and Litigation Follow S.S. El Faro Tragedy. The abstract provides:
On October 1, 2015, the U.S. flag cargo ship El Faro sank with all hands in the Atlantic Ocean east of The Bahamas, during Hurricane Joaquin. The casualty is under investigation by the U.S. Coast Guard and the National Transportation Safety Board. In response to claims by families of some of the 33 crew member, the vessel owner invoked the U.S. Shipowner Limitation of Liability Act. Events leading up to the tragedy will be given strict scrutiny in the coming months.
Friday, November 6, 2015
Antonin I. Pribetic (Himelfarb Proszanski) and Marc J. Randazza (Randazza Legal Group) have posted to SSRN 'War of the Words': Differing Canadian and American Approaches to Internet Defamation. The abstract provides:
This article provides a comparative analysis of differing approaches to Canadian and American internet defamation law. It begins with a discussion of the elements of a cause of action and available defences. It then canvasses jurisdiction and choice of law issues. Following a review of notice requirements and limitation periods, it provides the mechanics for unmasking anonymous defendants – John Doe applications, Norwich Pharmacal orders, injunctive relief. Finally, the paper outlines the key legal issues in the recognition and enforcement of Canadian and American cyberlibel judgments abroad, within the context of the libel tourism debate.
Thursday, November 5, 2015
In a local case that made national news, York Hospital announced that as many as 1,300 patients who had open-heart surgery over several years could have been exposed to bacteria. The York Daily Record is reporting that attorneys throughout the region are receiving phone calls and setting appointments.
Monday, November 2, 2015
A man in London was seriously injured by a sofa that fell from a building. It is not known exactly what happened, but the sofa may have fallen from scaffolding more than 100 feet above the ground. BBC has the story.
Thanks to David Raeker-Jordan for the tip.
Friday, October 30, 2015
James Hackney has posted to SSRN Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History. The abstract provides:
This Article explores the intersection between the judicial and scholarly work of Judge Jack Weinstein, particularly as related to mass tort litigation and the development of legal theory and tort law in America. The primary focus will be on Judge Weinstein’s handling of the Agent Orange litigation. Judge Weinstein’s tenure on the federal bench began in 1967. Some seven years earlier, Ronald Coase published his The Problem of Social Costs, a monumental moment in American legal theory and tort law policy. Three years later, Guido Calabresi published his path-breaking text, The Costs of Accidents. These two texts are representative of the law and neoclassical economics movement, which would indelibly shape tort law theory in America during Judge Weinstein’s years as a judge.
Law and neoclassical economics is most often discussed as a methodology for analyzing tort law on the basis of efficiency. However, it also exemplifies a broader approach to law that goes beyond efficiency analysis and can be found in much of contemporary legal theory. This broader approach focuses its analysis on the social good as opposed to prioritizing individual rights. It is through the lens of these two features of twentieth-century legal theory (efficiency and the social good), particularly as they apply to tort law, that this Article will examine the Agent Orange litigation.
The Agent Orange litigation is a landmark in American history. It involved hundreds of lawsuits, thousands of claimants (15,000 by one estimate), and seven corporate defendants. Aside from its scope, the issues surrounding Agent Orange are particularly worthy of attention because they exemplify the problems associated with resolving mass tort cases. An intriguing aspect of Judge Weinstein’s worldview, which is reflected in the disposition of the Agent Orange litigation, is that he champions efficiency and the social good while placing a premium on recognizing individual suffering as an existential reality.
Of course, the Agent Orange litigation is also circumscribed by the specter of the Vietnam War, which makes it an even more compelling site of inquiry. The Agent Orange litigation and Judge Weinstein’s legendary handling of it provides us with a unique opportunity to consider tort law in the context of not only legal theory, but one of America’s most searing historical moments, the Vietnam War.