Thursday, March 5, 2015
Bob Rabin (Stanford) has posted to SSRN his contribution to the JTL's O'Connell tribute. Entitled Jeffrey O'Connell and the Compensation Principle in Accident Law: Institutional and Intellectual Perspectives, the abstract provides:
In this essay, I locate the principles that animated the career of Jeffrey O’Connell in a larger context of examining the role of compensation in accident law. I provide a short historical excursion to set the stage. Next, I discuss how O’Connell followed his initial venture involving auto no-fault with a more expansive scheme of elective no-fault coverage for products and medical mishaps, which in turn was followed by his early offers proposal. Then, I briefly trace the legacy of O’Connell in the present era of mass tort and disaster relief claims. A final section offers a concluding note.
Wednesday, March 4, 2015
In Iowa, the medical community and trial lawyers have agreed to a voluntary early resolution program for medical malpractice cases; a Senate subcommittee has recommended passage. The bill's "Explanation" section provides:
This bill allows a physician, or a physician jointly with a health facility, to engage in an open, confidential discussion with a patient related to an adverse health care incident.
If an adverse health care incident occurs, the bill allows a physician, or a physician jointly with a health facility, to offer to engage in an open discussion with the patient. The notice of an offer to engage in an open discussion must be sent to the patient within 180 days after the adverse health care incident. If the patient agrees to proceed with an open discussion, the physician or health facility may investigate the adverse health care incident, disclose the results to the patient, and discuss steps the physician or health facility will take to prevent similar adverse health care incidents. The physician or health facility may also communicate to the patient that either the physician or health facility has determined that an offer of compensation is not warranted or that an offer of compensation is warranted. An offer of compensation may be conditioned upon the patient executing a release of future liability as to the adverse health care incident. All communications made under the Code chapter are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding.
The Gazette has the story.
Tuesday, March 3, 2015
Last year, Georgia debated becoming the first state in the country to reform med mal along the lines of workers comp. The bill failed. Sen. Brandon Beach is introducing a similar bill, Senate Bill 86:
Under the proposal, the new system will be governed by an 11-person panel consisting of physicians, attorneys, accountants and patient advocates. The board will set maximum injury compensation rates and approve medical review panelists.
Complaints will be handled by independent panels, comprised of representatives from practices or specialty areas similar to the provider. If a claim is found to have merit, the plaintiff will receive a monetary award to be determined by a compensation committee.
NeighborNewspapers.com has the story.
Monday, March 2, 2015
I have posted to SSRN my contribution to the Journal of Tort Law's Jeffrey O'Connell tribute. Entitled Party Autonomy in Tort Theory and Reform, the abstract provides:
Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.
Friday, February 27, 2015
The next issue of the Journal of Tort Law is a tribute to Jeffrey O'Connell, who died in January of 2013. From the Introduction:
O’Connell’s overriding goal was to make compensation more readily available to the injured. He saw traditional tort law as dilatory, unfair, inefficient and hence inadequate to address the pressing needs of injury victims. In pursuing reform, he necessarily took a stand in the theoretical debate about the purposes of tort law. In the typical case, he believed, tort should be compensatory; matters of individualized justice or deterrence were secondary. Given the realities of tort litigation as he saw them, O’Connell believed justice and deterrence goals were both harder to accomplish and harder to measure than a compensation objective. On this understanding, tort law is best justified as insurance and yet, for that very reason, was ripe for radical reform, given its deficiencies. At heart, O’Connell was deeply practical and pragmatic. He wanted his ideas to matter for the world and he valued the tangible good of victim compensation over what he took to be more speculative goods.
The papers that follow reference O’Connell’s pragmatism, but also branch out to touch on many different aspects of his work. Robert Rabin finds that mass tort and disaster relief claims are today being handled on terms congruent with O’Connell’s efforts to realign the tort system to focus on compensation. Kenneth Abraham and G. Edward White combine O’Connell’s love of biography with his interest in tort law to study the life and influence of a scholar who was in many ways a forerunner and kindred spirit: William Prosser. Nora Freeman Engstrom, in the spirit of O’Connell’s critiques of tort, turns the tables by subjecting no-fault programs to careful analysis. Anthony Sebok finds one of O’Connell’s early first-party insurance proposals relevant to currently heated debates over litigation finance. Zoë Sinel challenges O’Connell’s claim that tort is properly understood and assessed by its ability to deliver compensation. Finally, Christopher Robinette finds in O’Connell’s scholarship guidance as to how to begin distinguishing those tort suits worthy of individualized justice treatment from those better suited to serve a compensatory objective.
The pieces are available at De Gruyter's "Ahead of Print" section, though I believe Tony's and Nora's articles are not yet included.
Thursday, February 26, 2015
Over at Save Our Juries, Suja Thomas (Illinois) has a post about the role of discovery in the GM ignition litigation and a proposal to change the discovery rules. Pursuant to the proposed rule, parties would be able to resist discovery on the grounds that the request is not "proportional" to "the needs of the case."
Wednesday, February 25, 2015
In a case of a boundary dispute turned ugly (mooning, public urination, etc.), the Vermont Supreme Court adopted the dominant-purpose test for determining the existence of a spite fence. Moreover, the standard was met when the fence blocked the view of a mountain (from a bed-and-breakfast property), caused backed-up drainage, and contained signs on the side facing the neighbor's property. The case is Obolensky v. Trombley. Coverage from Roger McEowen at the Iowa State Center for Agricultural Law and Taxation is here.
Tuesday, February 24, 2015
The West Virginia Senate recently passed a bill reinstating the "open and obvious" doctrine in premises liability. In Illinois, a bill introduced in the House would go in the opposite direction, restricting consideration of open and obvious conditions to the trier of fact on the issue of comparative fault. Thus, a judge would not be able to consider open and obvious on the duty issue. The National Law Review has the story.
Monday, February 23, 2015
Current law in Indiana restricts medical providers from volunteering their services unless they have malpractice insurance. Similar to laws in several other states, House Bill 1145:
would establish a licensing procedure for both volunteers and locations at which medical services can be offered. Volunteers must sign a waiver and be working without compensation at a licensed facility in order for civil immunity to be applicable.
Exceptions to the malpractice immunity will be made in instances where gross negligence or willful misconduct has taken place or if a nonapproved procedure is performed by a volunteer.
Indiana Daily Student has the story.
Sunday, February 22, 2015
On Wednesday, on an 18-16 vote, the Senate defeated a punitive damages cap. On Thursday, on a 26-8 vote, the Senate passed a bill that capped damages at $500,000 or four times compensatory damages (up from 3x in the bill defeated a day earlier), whichever is greater. WV MetroNews has the story.
Saturday, February 21, 2015
Defences in Tort
Edited by Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith
This book is the first in a series of essay collections on defences in private law. It addresses defences to liability arising in tort. The essays range from those adopting a primarily doctrinal approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while some are concerned with the links between defences, or with how defences relate to the structure of tort law as a whole. A number of the essays also draw upon concepts and literature that have been developed mainly in relation to the criminal law and consider their application to tort law. The essays make several original contributions to this complex, important but neglected field of academic enquiry.
Andrew Dyson is an Assistant Professor in Private Law at the London School of Economics and Political Science.
James Goudkamp is a Fellow of Keble College, Oxford and an Associate Professor in the Oxford Law Faculty.
Frederick Wilmot-Smith is a Prize Fellow at All Souls College, Oxford and Lecturer in Law at Balliol College.
February 2015 452pp Hbk 9781849465267 RSP: £75 / US $150
20% DISCOUNT PRICE: £60 / US$120
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If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.
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UK, EU and ROW Website - http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465267
Friday, February 20, 2015
Jeb Barnes (USC-Political Science) and Thomas Burke (Wellesley-Political Science) have published How Policy Shapes Politics: Rights, Courts, Litigation, and the Struggle Over Injury Compensation
How Policy Shapes Politics analyzes the politics of injury compensation in the United States, a field in which judicialized policies operate side-by-side with bureaucratized social insurance programs. The authors conclude that the choice between judicialized and bureaucratized injury compensation policies can have powerful political consequences.
By comparing the political trajectories of different types of policies, some more court-centered, others less so, the authors probe the consequences of arguably one of the most significant developments in post-World War II government, the increasingly prominent role of courts, litigation, and legal rights in politics.
Thursday, February 19, 2015
West Virginia has been an extremely busy place for tort law this month. Yesterday the Senate declined to enact a punies cap of $500,000 or three times compensatory damages, whichever is greater. The vote was 18-16, with two Republicans joining the Democrats in opposition. WV MetroNews has the story.
Wednesday, February 18, 2015
Jonathan Cardi (Wake Forest) has posted to SSRN The Role of Negligence Duty Analysis in Employment Discrimination Cases. The abstract provides:
In a concurring opinion in the 1989 decision Price Waterhouse v. Hopkins, Justice O’Connor first referred to Title VII of the Civil Rights Act as a "statutory employment 'tort.'" Since then, the Supreme Court and federal courts generally have reified Justice O’Connor’s words, gradually altering the legal perception of employment discrimination legislation from its intended nature as a set of civil rights statutes aimed at ridding the nation of a pernicious social problem to a narrowly tailored provision of compensation for private wrongs. Courts have done so, in part, by importing doctrine from the common law of torts — particularly in the realm of factual causation and scope of liability — to interpret and fill supposed gaps in the statutes. This Article asserts that courts’ embrace of tort concepts runs even deeper than they have expressly stated — that courts have drawn not only upon the concepts of causation and scope of liability (proximate cause), but also engaged the question of whether employers owe a duty not to take allegedly discriminatory actions. The Article urges that use of duty reasoning is problematic for two torts-internal reasons. First, the nature of wrongfulness in employment discrimination cases is not analogous to negligence or, indeed, to any tort. It is therefore improper for courts to apply tort conceptions of wrongfulness to answer questions of liability in employment discrimination cases. Second, if employment discrimination claims are, as the Supreme Court has referred to them, statutory torts, then drawing upon common-law duty reasoning is improper, as it is an incorrect application of the law of statutory torts.
Tuesday, February 17, 2015
The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero. The case (pdf) is here: Download TX Sup Ct = Seat Belt Admiss From the opinion:
We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a
plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of
apportioning responsibility under our proportionate-responsibility statute, provided that the
plaintiff’s conduct caused or was a cause of his damages.
Thanks to Jill Lens (Baylor) for the tip.
Monday, February 16, 2015
Benjamin Ogden (Boston University-Economics) and Keith Hylton (Boston University) have posted to SSRN Incentives to Take Care Under Contributory and Comparative Fault. The abstract provides:
Previous literature on contributory versus comparative negligence has shown that they reach equivalent equilibria. These results, however, depend upon a stylized application of the Hand Formula. We show that, under a correct application of the Hand Formula, there are differences between the two regimes: under bilateral harm, comparative negligence generates greater incentives for care, but this care occurs only when care is not socially optimal. By contrast, under unilateral harm or asymmetric costs of care, contributory negligence creates more care, but only when such care is not socially optimal. Therefore, it is possible to socially rank negligence regimes depending upon the symmetry of potential harm and costs of care. We discuss a potential reform the court could undertake, the Retrospective Negligence Test, that when applied in the case of bilateral harm would make comparative negligence optimal.
Friday, February 13, 2015
The House Judiciary Committee approved a bill to extend West Virginia's $500,000 non-economic damages cap in med mal cases to nursing homes. The Senate has already passed the bill. WV Metro News has the story.
Thursday, February 12, 2015
Wednesday, February 11, 2015
In Watts v. Medicis Pharmaceutical Corp., an intermediate appellate court in Arizona reversed the dismissal of plaintiff's complaint, holding that the Uniform Contribution Among Tortfeasors Act abrogates the learned intermediary doctrine. The opinion is here: Download AMANDA WATTS, an adultindividual, PlaintiffAppellant, v. MEDICIS PHARMACEUTICAL CORPORATION. Thanks to Bob Bohrer (Cal Western) for the tip.