Friday, June 10, 2016
Over at JOTWELL, Keith Hylton reviews James Hackney's Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History.
Thursday, June 9, 2016
The Pittsburgh Post-Gazette has a Pennsylvania-focused story on 3-D printing. The disruptive nature of the technology for products liability has been obvious for several years. There are very few cases, but attorneys have started to ponder the issues. The story has several takeaway points. First, attorneys expect the early cases to focus on medical and auto parts. Second, the role of computer-aided design (CAD) software as a blueprint for designs will be important:
Products liability attorney Mihai M. Vrasmasu of Shook, Hardy & Bacon said that, when dealing with companies that use 3-D printing, liability issues can generally be broken down to three categories: when a manufacturer buys or licenses a design that is used to print the product, when a manufacturer modifies that file before printing the product, and when a manufacturer designs the file.
Finally, especially in the early period of uncertainty, it is crucial to use contracts to manage liability.
Wednesday, June 8, 2016
Tuesday, June 7, 2016
For several years, I have reported the decline in med mal claims in Pennsylvania from the base rate of 2000-2003. Once again, a new low has been set. In Allegheny County, of which Pittsburgh is the county seat, cases have fallen from 49 per year in 2000-2003 to 10 in 2015. The Pittsburgh Business Times has the story.
The family of a 6-year-old girl who is allergic to peanuts is suing Panera Bread for negligence, based on an incident in which the restaurant added peanut butter to a grilled cheese sandwich despite a warning the girl had a peanut allergy. The restaurant blamed the incident on a language issue. The family heard of a similar incident in a Panera Bread not far from them. The Boston Globe has the story.
Monday, June 6, 2016
On April 3, an Amtrak train traveling from New York to Savannah collided with a backhoe in Chester, PA. The man operating the backhoe, 61-year-old Joseph Carter, was killed. Kline & Specter's Tom Kline has filed suit on behalf of Carter's adult children. The Delaware County Daily Times has the story.
Friday, June 3, 2016
Malaysia's Federal Court introduced the tort of harassment, covering sexual harassment, into the legal system this week:
“After mulling over the matter, we arrived at a decision to undertake some judicial activism exercise and decide that it is timely to import the tort of harassment into our legal and judicial system, with sexual harassment being part of it,” the apex court bench led by Chief Judge of Malaya, Tan Sri Zulkefli Ahmad Makinudin said in the judgement.
MalayMailOnline has the story.
Tuesday, May 31, 2016
In the Claims Journal, Gary Wickert discusses potential changes to auto accident litigation due to the transition to autonomous vehicles. He notes the 2017 Mercedes E-Class Sedan will offer the following features:
- Drive Pilot‘s adaptive cruise control (Distronic) and Steering Pilot (lane keep assist) track the car in front at speeds up to 130 mph (210 kph) and can stay lane-centered at up to 81 mph (130 kph). It tracks nearby vehicles and senses highway lane markings.
- Active Lane Change Assist is a radar- and camera-based system that semi-automates lane changes. Flip the directional signal and the car waits two seconds and then changes lanes on its own.
- Active Brake Assist with cross-traffic function similarly has “extended speed thresholds” for detecting cars and pedestrians. The car brakes if it detects crossing traffic that you aren’t slowing for and will initiate advance braking if it senses you’ve come upon the tail end of traffic jam, where there’s no room to maneuver.
- Evasive Steering Assist works with pedestrian detection to help the driver steer around a pedestrian and then apply steering wheel torque (force) to recover and get the straightened out afterwards.
- Active Blind Spot Assist (blind spot detection), in addition to highway speed warning, can warn of possible city-speed lateral (side) collisions.
- Pre-Safe Sound emits a sharp “interference signal” through the sound system if it detects an impending collision. It triggers a biological reflex in the human ear that prepares the occupants for the sound of the collision if it happens.
- Remote Parking Pilot pulls the car out of a garage or parking space using a smartphone app, with the driver outside. This lets big cars park in narrow spaces and tiny garages.
- Car-to-X communication is the first car with integral car-to-X, meaning car-to-anything communications where a connected car ahead helps cars behind “see” around corners or through obstacles.
As noted elsewhere, the most significant potential change appears to be a migration from negligence to products liability for auto accidents.
Monday, May 30, 2016
Friday, May 27, 2016
A recent conference at the James Humphreys Center for Complex Litigation at George Washington addressed the complex issue of liens for medical expenses and subrogation. The conference chairs, Alan Morrison and Roger Trangsgrud, issued a report entitled "Subrogation of Medical-Expense Claims: A Proposal for Future Study", available here: Download GW Law Roundtable Subrogation Proposal Final Thanks to Michael Kaplen for the tip.
Thursday, May 26, 2016
Yesterday I posted about New York's sexual assault statute of limitations. Another bill in front of the legislature involves the med mal statute of limitations, specifically whether the discovery rule should be adopted. Currently, New York's 2 1/2-year statute begins to run when the negligence is committed. The bill, named Lavern's Law after a woman who died in 2013, would toll the statute until discovery, but leave the length at 2 1/2 years. New York is 1 of only 6 states without the discovery rule for med mal cases. The New York Daily News has the story, focusing on a tragic case.
Wednesday, May 25, 2016
Last month, I reported that Pennsylvania was debating bills to remove or extend the statute of limitations for sexual assault cases. The same is occurring in New York, where current law requires a lawsuit to be filed by the time an alleged victim reaches the age of 23. On Monday, the state senate voted down (30-29) an amendment that would have forced a vote on eliminating the statute of limitations for sexual assault cases going forward and creating a 1-year window in which to bring expired claims. It sounds as though other bills may be considered this session. Syracuse.com has the story.
Tuesday, May 24, 2016
Over at Torts Today, George Conk is reporting that compensation in China for governmental rights violations has increased. Unlike the U.S., which has fairly strong doctrines of governmental immunity, China allows the government to be held liable with fewer formal obstacles.
Monday, May 23, 2016
Ben Shmueli & Yuval Sinai have posted to SSRN Victim Pays Damages to Tortfeasor: The When and Wherefore. The abstract provides:
Is there a reality in which the victim pays damages to the tortfeasor? This article analyzes Calabresi and Melamed’s liability rule for the damaging party (Rule 4), where the damaged party has the right to prevent pollution if the polluter is compensated first. Under the conventional application of this rule, the victim first collects the money and compensates the injurer, and only then is the injurer required to eliminate the nuisance (ex ante). There is no reference to a possibility of the injurer first eliminating the nuisance and only then receiving compensation (ex post). We argue that the timing of the payment should be changed when the activity causing the nuisance has social and economic value. Each version of the rule advances the aggregate welfare in some sense, but also harms it in another.
The primary aim of the present article is to introduce a new model for Rule 4 that would guide legislators, regulators, and judges in deciding when to order compensation as a condition for eliminating the nuisance and when to order the injurer to remove the nuisance first and only then collect the funds.
This article also introduces a comparative perspective that reveals the potential use of the ex post version of Rule 4, as manifest in sources of the Jewish legal tradition. This comparison further bolsters our proposal in favour of a division between ex ante and ex post versions of the rule.
Ultimately, offering two versions for the implementation of Rule 4 would better enable the adaptation of a suitable solution according to the circumstances and thus would widen the possibilities for the rule’s use.
Wednesday, May 18, 2016
Christopher Mueller (Colorado), who has a terrific Evidence casebook, has posted to SSRN Taking Another Look at MDL Product Liability Settlements: Somebody Needs to Do it. The abstract provides:
This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. The best way to do so is to allow collateral review of such settlements in suits brought by dissatisfied claimants.
Tuesday, May 17, 2016
Monday, May 16, 2016
The Argus Leader has compiled what it calls a first-ever glimpse at South Dakota med mal cases. It sounds very similar to med mal data from the U.S. as a whole:
The analysis of South Dakota data show that the vast majority of claims made against health providers are dismissed or withdrawn without any payment.
In 2014, insurers reported 163 claims that were either filed or closed. Of those, 28 were dismissed. Another 24 were closed with no payment amount recorded.
In 2015 there were 148 claims filed or closed with the Division, and 48 of those were closed without payment.
In 2014, insurers paid nearly $10.9 million on 27 settlements and one jury verdict. In 2015, that number dropped to nearly $6.4 million on 18 settlements.
In those two years, the largest settlement was $3 million. The average settlement was $367,654. The settlement amounts only reflect what insurance companies paid. They do not include additional amounts paid by health providers.
But getting those settlements can take years for injured patients or their surviving loved ones. The $3 million settlement, for example, took nearly four years from date of injury to settlement.
The full story is here.
Wednesday, May 11, 2016
Nathan Miller has posted to SSRN Human Rights Abuses as Tort Harms: Losses in Translation. The abstract provides:
This Article examines the normative challenges posed by bringing international human rights claims in state courts under the common law of torts. It argues that the normative structure of the private law of torts cannot adequately address the very different concerns at stake when addressing public harms. Torts address issues that arise between two parties and those parties alone. But public law addresses harms done simultaneously to individuals and to the body politic. Redress for public harms should encompass both individual and systemic remedies, but tort law offers only the former. Instead of advancing tort claims, advocates should urge state courts to exercise their concurrent jurisdiction over the customary international legal norms incorporated into the federal common law to hear claims for violations of international human rights.
Tuesday, May 10, 2016
Dr. Patrick McKenna, of the Wisconsin School of Medicine and Public Health, has published a study on the effect of apology immunity laws in med mal cases. He found:
that mean litigation length was 3.4 years in states with apology laws compared with 5.6 years in states without such laws. In the 38 states with apology laws, the mean litigation length was 4.4 years before apology laws were enacted and 4.1 years after the laws were enacted.
Renal & Urology News has the story.