Friday, April 21, 2017
Kim Yuracko & Ronen Avraham have posted to SSRN Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages. The abstract provides:
In 2011, a young couple eagerly expecting the birth of their first child moved into an apartment in Brooklyn, New York, excited to have a new home for their growing family. Their child, a son, was born healthy soon thereafter. One year later, however, the couple received devastating news. A routine medical exam had detected lead in their young son’s blood. It turned out that the dust from lead paint in their new home had been quietly poisoning their baby. The family quickly moved out, but permanent damage to the baby’s central nervous system had been done. Over the next several years he would manifest significant cognitive delays as well as severe social and emotional impairments. The baby’s mother sued and the landlord was found negligent.
In calculating damages, the critical question for the jury was how much would this young child have earned over the course of his life had he not become injured. In answering this question, experts for both the plaintiff and the defendant took into consideration, albeit to different extents, the fact that the baby was Hispanic and used this fact to offer lower damage estimates than they would have had the baby been white. Relying on race-based data to calculate tort damages is, after all, standard practice. The only thing unusual about the case was that the judge, Jack Weinstein, of the Eastern District of New, refused to allow it.
Thursday, April 20, 2017
The Restatement of the Law of Liability Insurance is up for approval by the membership at the ALI Annual Meeting next month. Reporters Tom Baker and Kyle Logue have posted to SSRN In Defense of the Restatement of Liability Insurance Law. The abstract provides:
For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. The Restatement of the Law Liability Insurance is the American Law Institute’s first effort to “restate” the common law governing such liability insurance policies, and we are the reporters. In a recent essay funded by the insurance industry, Yale Law Professor George Priest launched a strident critique of the Restatement project, arguing that the rules adopted in the Restatement (a) are radically contrary to existing case law, (b) have a naïve “pro-policyholder” bias that ignores basic economic insights regarding how insurance works, and (c) will, as a result of (a) and (b), lead to increases in liability insurance premiums and disruption in coverage, to the detriment of individuals and firms that need liability insurance. This essay argues that each of these claims is false. First, the Restatement rules all are grounded in existing law, and most already apply in most jurisdictions. Second, while the Restatement rules are premised on an exhaustive and detailed legal analysis, they also are informed by and consistent with modern economic and psychological research on how insurance markets work. By contrast, Priest’s critique ignores case law and relies on an unrealistic adherence to an outdated, pre-behavioralist model of economic rationality. Finally, because the underlying premises are untrue, Priest’s predictions of market disruption are analytically unsound, and he has not provided any evidence of problems in the insurance markets in which Restatement rules already apply that could provide an empirical foundation for these predictions.
Liability insurance companies have access to the best data that could prove or disprove such claims. If the insurance industry believes that broader application of the rules adopted in the Restatement will harm liability insurance markets, it should provide disinterested empirical legal studies researchers with access to the data needed to test that belief, rather than simply attacking the Restatement. The researchers can then use the data to evaluate the comparative effects of the legal rules among which the Restatement is choosing. As an industry that prides itself on sophisticated use of data and analytics, insurers should embrace the use of data to assess which legal rules are economically efficient, rather than simply making claims when there is a paucity of empirical evidence. As economically and empirically minded legal scholars, we would welcome such evidence, and we expect that the American Law Institute would as well.
Wednesday, April 19, 2017
I reported last week that the Iowa House passed a med mal bill with a general cap of $250,000 on non-economic damages, but an exception for cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.” The Iowa Senate, having already passed the bill without the exception, passed a bill with the exception on Monday. The bill now goes to Governor Branstad's desk. He is expected to sign it. The Des Moines Register has the story.
Tuesday, April 18, 2017
On April 6, the Florida Supreme Court ruled, unanimously, that Congress's decision to regulate, but not ban, cigarettes does NOT preclude tort claims under state law. The court reached the opposite conclusion from a 2015 Eleventh Circuit case, which held tort claims undermine the decision by legislators to keep cigarettes on the market. The Eleventh Circuit is schedule to review its holding en banc, and a final ruling is still pending. Courtroom View Network has the story.
Monday, April 17, 2017
Sunday, April 16, 2017
Friday, April 14, 2017
The Iowa House passed a med mal reform bill after amending it to include a "soft cap" exception to the general cap of $250,000:
The key to winning bipartisan support for Senate File 465 was an amendment that removed a hard cap on non-economic damage awards “in the most egregious cases,” said the floor manager Rep. Ashley Hinson, R-Marion. It would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”
The Senate previously approved the bill without the exception, and the two bills will need to be reconciled. The bill also includes a certificate of merit requirement.
The Waterloo Cedar Falls Courier has the story.
Thursday, April 13, 2017
In Forbes, Michael Krauss opines on "What Should Tort Law Do When Autonomous Vehicles Crash?". The gist:
How should tort law deal with these kinds of future problems? In my view, the answer follows from a sound understanding of the more sensible elements of America’s often troubling products liability law:
- In the case of manufacturing defects, manufacturers of autonomous vehicles should be liable to victims for accidents that occurred. Manufacturers have marketed a product that does not perform as advertised, and this misrepresentation provides both the moral grounds for liability and the appropriate economic incentives to perform efficient (not perfect – no one is perfect) quality control.
- In the case of informational defects (failure-to-warn problems), manufacturers should be liable only if they were negligent (that is, if a reasonable manufacturer would have provided a better warning or better instructions). If, as seems likely, legislation or regulations stipulate what warning an autonomous vehicle should contain, compliance with such law or regulation should exclude liability, just as it should (for example) for the mandated warnings on prescription drugs.
- In the case of design defects, the rule should again be based on negligence– was this design choice made by the manufacturer a good one, all things considered? Very important moral issues arise here (see my two moose examples above) and in some cases informed consent of risks imposed by programming would likely be required. This is where design and information defects merge, and so it is totally appropriate that the same legal standard apply in both cases. These issues could be left to properly instructed juries’ evolving notions of reasonable care under the Common Law, or could be pre-empted by regulators (who might choose to maximize social utility at the cost of precluding driving choices heretofore felt to be reasonable). Such regulation should be very carefully debated before being adopted – but if it is adopted it should bind tort tribunals until public outcry leads to its change.
Wednesday, April 12, 2017
Nora Engstrom has posted to SSRN Retaliatory RICO and the Puzzle of Fraudulent Claiming. The abstract provides:
Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit.
Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO’s use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.
Monday, April 10, 2017
Peter Applegarth, of the Supreme Court of Queensland, has also developed historical expertise on Lord Atkin. Atkin is best known for his 1932 judgment in Donoghue v. Stevenson (the Paisley Snail), a foundational case in English and Commonwealth tort law. In that case, Atkin established a duty of care from manufacturers to consumers based on the "neighbour principle". Justice Applegarth has written this article about Lord Atkin and his father: Download The Australian article 23.1.16, and delivered this lecture at the Selden Society Lecture series in October 2015.
Friday, April 7, 2017
Cristina Tilley has posted to SSRN Tort Law Inside Out. The abstract provides:
For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms.
This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, to doctrine. Scrutinizing tort doctrine yields a surprising insight: tort law is not primarily concerned with efficiency or morality, as the instrumentalists have long contended, but with community. A linguistic study of the Restatement of Torts reveals that doctrine alludes to community more frequently and more comprehensively than it does to any other justificatory concept. Specifically, throughout the Restatement’s discussion of negligence, strict liability, and intentional wrongs, doctrine disfavors stating interpersonal duties in positive terms, preferring to let them float with community values. Consequently, tort operates as a vehicle through which communities perpetually reexamine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement.
Tort law’s state goal is to construct community. Moreover, tort doctrine acknowledges that two distinct kinds of community – closed and open – can generate the values that govern resolution of interpersonal disputes. Accordingly, tort doctrine embeds a choice between the morality norms of traditional, closed communities and the efficiency norms of the modern, open community, depending on whether the dispute is local or national in scope. So a descriptive account of tort doctrine suggests that morality and efficiency are not mutually exclusive theories of tort, but rather complementary manifestations of tort law’s broader community-constructing purpose. A survey of American tort cases confirms that courts have been fluctuating intuitively between local morality norms and national efficiency norms for decades, without fully acknowledging or operationalizing this practice.
Pivoting from theory to practice, the Article suggests that tort law should embrace and refine its ability to toggle between local morality and national efficiency. The Article briefly sketches how the toggle would operate to adjudicate select hot-button issues arising within each type of tort liability: battery (intentional tort), youth football (strict liability), and failure to vaccinate (negligence). On each of these topics, group norms – and therefore liability – would be expected to vary within adjudicative communities. Making this normative toggle explicit would both enhance the internal integrity of tort law and improve tort law’s external standing relative to other bodies of law such as the Constitution and federal statutes. Moreover, the Article concludes, understanding tort liability as an expression of particular community values might prevent the constitutional override of injury verdicts arising from protected behavior such as gun ownership or speech.
Thursday, April 6, 2017
Chinese tort law is struggling with when and how to recognize what they refer to as "veneration rights," similar to our emotional distress, but with an increased sensitivity to remedies of rehabilitation of reputation and apology. George Conk has coverage at OTHERWISE.
Wednesday, April 5, 2017
At Reason.com, surgeon Jeffrey Singer states he would love tort reform, but he has caveats. First, citing empirical studies, he acknowledges it is unlikely to significantly reduce medical costs. Second, he wants state-based tort reform because he believes federal malpractice reform would be unconstitutional.
Tuesday, April 4, 2017
Mark Lemley & Eugene Volokh have posted to SSRN Law, Virtual Reality, and Augmented Reality, which includes a discussion of tort law. The abstract provides:
Virtual Reality (VR) and Augmented Reality (AR) are going to be big -- not just for gaming but for work, for social life, and for evaluating and buying real-world products. Like many big technological advances, they will in some ways challenge legal doctrine. In this Article, we will speculate about some of these upcoming challenges, asking:
(1) How might the law treat “street crimes” in VR and AR -- behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and “virtual groping”? Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self-help (which will offer an attractive alternative protection to users, but also a further excuse for real-world police departments not to get involved).
(2) How might the law handle tort lawsuits, by users against users, users against VR and AR environment operators, outsiders (such as copyright owners whose works are being copied by users) against users, and outsiders against the environment operators?
(3) How might the law treat users’ alteration of other users’ avatars, or creation of their own avatars that borrow someone else’s name and likeness?
(4) How might privacy law deal with the likely pervasive storage of all the sensory information that VR and AR systems present to their users, and that they gather from the users in the course of presenting it?
(5) How might these analyses reflect on broader debates even outside VR and AR, especially order without law and the speech-conduct distinction?
Volokh has also published this column in WaPo.
Monday, April 3, 2017
In Volusia County, Florida, a jury has awarded $8 million to a woman hit by a drunk driver. The plaintiff was represented by Morgan & Morgan. From the press release:
As a result of the crash, Tamara Roundtree sustained extensive injuries, including several disc herniations, requiring her to undergo surgical procedures. She has had to endure a lumbar decompression procedure, after exhausting other more conservative medical measures. She is also in need of a cervical surgical procedure. Ultimately, the total past medical bills at the time of trial were about $188,000.
Large verdicts are often altered on appeal, so it will be interesting to see if this one stands.
Friday, March 31, 2017
James Goudkamp and Donal Nolan have posted to SSRN Contributory Negligence on Appeal. The abstract provides:
Contributory negligence is a private law doctrine of considerable practical importance, and trial court decisions applying the doctrine are frequently the subject of appeals. In this article, we report the key findings of an empirical study of the operation of the contributory negligence doctrine in the Court of Appeal. A fuller report of the results of our study can be found in James Goudkamp and Donal Nolan, “Contributory Negligence in the Court of Appeal: An Empirical Study” (2017) 37 Legal Studies (forthcoming). This study builds upon an earlier exploration of the handling of the contributory negligence doctrine at first instance: James Goudkamp and Donal Nolan, “Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions” (2016) 79 Modern Law Review 575.
Wednesday, March 29, 2017
Defendant was sued after shooting plaintiff's drone out of the sky when it was over defendant's property. Plaintiff sued in federal court claiming the drone was an aircraft, and, thus, under the regulation of the FAA. Senior U.S. District Judge Thomas Russell, based in Louisville, disagreed:
Russell wrote in a March 21 opinion that the suit was essentially a garden-variety state tort claim that should not be in federal court. Although the Federal Aviation Administration has an interest in enforcing regulations governing federal airspace, “its interest in applying those regulations in the context of a state tort law claim for trespass to chattels is limited or nonexistent,” Russell said. At most, the FAA regulations are ancillary issues in the case, he concluded.
ABA Journal has the story.
Tuesday, March 28, 2017
Mark Geistfeld has posted to SSRN A Roadmap for Autonomous Vehicles: State Tort Liability, Automobile Insurance, and Federal Safety Regulation. The abstract provides:
The vast majority of motor vehicle crashes are now caused by driver error. Autonomous vehicles will eliminate driver error and prevent thousands of fatalities and serious bodily injuries, making a compelling safety case for policies that foster the rapid development of this technology. Considerable technological advances have occurred over the past decade, but there is widespread concern that the rate of development is hampered by substantial uncertainty about potential manufacturer liabilities for the crash of an autonomous vehicle. This uncertainty is compounded by apparent variations in the requirements of state tort law across the country, which make it even more difficult for manufacturers to assess their liability exposure in the national market. The considerable uncertainty and potential patchwork of state laws has prompted calls for the federal safety regulation of autonomous vehicles.
The uncertainty stems from the complexity of driving behavior. Autonomous vehicles will not be perfectly safe; in this respect, they will inevitably fail at times. Given the complexity of driving and the inherent limitations of coding that behavior, how can courts reliably determine whether such a failure — the crash of a fully functioning autonomous vehicle — subjects the manufacturer to tort liability?
Framing the liability problem in this manner masks one central behavioral factor that considerably simplifies matters. Autonomous vehicles will transform the individualized behavior of human drivers into a collective, systemized form of driving. In effect, the entire fleet will be guided by a single driver — the operating system comprised of the hardware and software that determines how this class of autonomous vehicles executes the dynamic driving task. Systemized driving is properly evaluated in relation to the performance of an entire fleet of autonomous vehicles with the same operating system, an inquiry that is often quite different from the case-by-case analysis of crashes involving conventional motor vehicles.
When a crash was caused by the fully functioning operating system, the autonomous vehicle was engaged in systemized driving performance that should be evaluated with aggregate driving data for the fleet. Regardless of the particular circumstances of the crash, the programming or design of the operating system would be reasonably safe under widely adopted rules of products liability if the aggregate, premarket testing data show that the autonomous vehicle performs at least twice as safely as conventional vehicles. To avoid liability for the crash of a fully functioning autonomous vehicle, the manufacturer must also adequately warn consumers about this inherent risk. Once again, the risk involves systemized driving performance, and so aggregate driving data provide the appropriate measure. Based on these data, auto insurers can establish the risk-adjusted, annual premium for insuring the vehicle. By disclosing such a premium to consumers, the manufacturer would satisfy its obligation to warn about the inherent risk of crash, eliminating this final source of manufacturer liability for crashes caused by a fully functioning autonomous vehicle.
The collective learning of state tort law can then inform federal regulations governing the reasonable safety of automated driving technologies. The foregoing analysis is based on tort rules that have been widely adopted across the country. States that do not follow the majority approach might reach different conclusions. To ensure that manufacturers face uniform obligations within the national market, the National Highway Transit Safety Administration could adopt two federal regulations that clearly fit within its recently announced regulatory approach, each respectively derived from the associated tort obligations concerning adequate premarket testing and disclosure of the inherent risk of crash. These regulations would largely retain the role of tort law, because regulatory compliance would also satisfy the associated tort obligations in most states. The regulations would promote the federal interest in uniformity in a manner that minimizes the displacement of state tort law, thereby optimally solving the federalism problem.
The federal regulations would be supplemented by state tort law in important instances, yielding a comprehensive regulatory approach. Within this legal framework, a regulatory compliant autonomous vehicle would subject the manufacturer to tort liability only for crashes caused by malfunctioning physical hardware (strict products liability); malfunctions of the operating system due to either programming error (same) or third-party hacking (strict liability again, with an important caveat); or the manufacturer’s failure to adequately warn about safe deployment of the vehicle (an ordinary products liability claim). A manufacturer would also be subject to tort liability for not complying with the federal regulations (negligence per se).
By eliminating driving error and otherwise reliably performing in accordance with system standards, autonomous vehicles will not subject manufacturers to tort liability. Autonomous vehicles can be regulated in a manner that ensures reasonably safety without impeding the rapid development of this life-saving technology.
Friday, March 24, 2017
Jill Wieber Lens has posted to SSRN Defective Punitive Damage Awards. The abstract provides:
Private redress theories of punitive damages recognize an individual victim’s right to be punitive. That right exists because the defendant knew its conduct would probably cause the victim a severe injury, yet the defendant still acted, willfully injuring the victim. The injured victim can seek and obtain punitive damages to punish the defendant for disrespecting her rights.
This Article is the first to apply private redress theories of punitive damages to claims involving a defective product. This application is unexpectedly difficult because of the importance of evidence of harm to nonparties in establishing defect, and because the defendant’s knowledge of the probable injury was not specific to the injured victim but instead general to all potential victims.
Absent special circumstances, the manufacturer disrespected each of the injured victims in the same way. Consistent with private redress theories, each injured plaintiff can seek punishment for that disrespect. But the disrespect is not unique and each injured plaintiff should receive an identical punitive damage award.