Wednesday, October 5, 2016
South Dakota physician Lars Aanning admits he lied to protect a colleague in a med mal case 15 years ago. He then takes it a step further:
“In essence, no supporting testimony from a defendant physician’s colleagues can ever be deemed trustworthy, truthful or true—because those colleagues have essentially sworn an oath of loyalty to each other” in their employment contract, Aanning wrote.
The ABA Journal has the story.
Tuesday, October 4, 2016
Monday, October 3, 2016
Jennifer Arlen has posted to SSRN Economic Analysis of Tort Liability for an Imperfect World. The abstract provides:
Tort liability generally is not justified by the presence of risk-producing activities alone. It tends to be justified by the combination of risk-producing activities and information costs that impede alternative solutions, such as private contracting or ex ante regulation. The observation that tort liability is justified by information costs impacts economic analysis of tort liability. It highlights that economic analysis of optimal tort rules should employ economic models where information is costly. In addition, it reveals the goals of optimal tort liability often should include providing optimal incentives to risk-imposers and others to invest in information needed to identify and provide optimal level of care. This chapter presents economic analysis of optimal tort liability focusing on the use of liability where information is costly. It shows that incorporating endogenous costly information alters tort liability’s optimal structure and incentive effects, both as applied to individual injurers and risk-imposers operating within organizations.
Friday, September 30, 2016
Autonomous vehicles have made it to Harrisburg. PennDOT, the City of Harrisburg, and Carnegie Mellon hosted the Pennsylvania Safety Symposium at the Capitol Complex to highlight safety and technology advances. Fox 43 has the story. Carnegie Mellon is conducting a lot of research and Pittsburgh is where Uber is piloting its autonomous initiative. I saw one of their vehicles in a trip to Pittsburgh earlier this month.
Also, NHTSA has just released guidelines for autonomous vehicles. Business Insider has the story. Key takeaways include:
- Three barriers have been preventing fully autonomous cars from hitting the road: 1) high technological component prices; 2) varying degrees of consumer trust in the technology; and 3) relatively nonexistent regulations. Howev
er, in the past six months, there have been many advances in overcoming these barriers.
- Technology has been improving as new market entrants find innovative ways to expand on existing fully autonomous car technology. As a result, the price of the components required for fully autonomous cars has been dropping.
- Consumer trust in fully autonomous vehicle technology has increased in the past two years.
- California became the first US state to propose regulations. California's regulations stipulate that a fully autonomous car must have a driver behind the wheel at all times, discouraging Google's and Uber's idea of a driverless taxi system.
Thursday, September 29, 2016
John Goldberg & Ben Zipursky have posted to SSRN The Supreme Court's Stealth Return to the Common Law of Torts. The abstract provides:
In its famous 1938 Erie decision, the U.S. Supreme Court deemed itself without power to make general common law. Yet while the rule of Erie remains, the Court has strayed from its spirit. Using two lines of cases as representative of a larger trend – one involving First Amendment limits on claims for defamation, invasion of privacy, and infliction of emotional distress, the other concerning the preemption of state products liability law – we explain how the Court has increasingly empowered federal courts to serve as fora in which repeat-player defendants are offered a ‘second bite at the apple.’ This is precisely the role for federal courts that Erie rejected.
Wednesday, September 28, 2016
Charles Silver, David Hyman, Bernard Black, and Myungho Paik have posted to SSRN Policy Limits, Payouts, and Blood Money: Medical Malpractice Settlements in the Shadow of Insurance. The abstract provides:
We now revisit our findings, using an extended dataset (1988–2005) that lets us study policies purchased through 2003, which encompasses the period during which Texas experienced a med mal insurance crisis (1999–2003) and adopted tort reform to limit med mal lawsuits (2003). Our updated findings are largely consistent with our original findings: policy limits continue to cap recoveries; physicians still rarely make OOPPs; most OOPPs are modest; and real policy limits continue to shrink. We also find evidence that, at the end of the extended period, physicians often purchased less coverage (i.e., policies with limits of $100,000–$200,000 instead of $500,000–$1 million).
Our findings have important policy implications. If physicians carry less real coverage over time, lawsuits should become less profitable. This will make it harder for injured patients to find plaintiffs’ lawyers willing to handle their cases; shift the cost of medical injuries away from providers and toward patients and first-party health insurers; weaken liability insurers’ incentives to monitor providers; and diminish the (already modest) deterrent effect of tort law. If these findings are representative, they may help explain the nationwide decline in med mal claiming that we document elsewhere. Finally, our findings raise questions about the explanatory power of Baker’s “blood money” norm, at least for med mal litigation.
Tuesday, September 27, 2016
The family of an 18-year-old killed when his motorcycle crashed into a bean field has filed a tort claim notice against the town that once employed the off-duty reserve officer who chased the teen. The teen was allegedly driving 120 miles per hour on a motorcycle without a license plate. According to the town, the off-duty reserve officer, who has since resigned, had no authority to pursue him. The plaintiff's lawyer made the following statement:
“To hold the Town of Nashville liable, we must show that Burch was acting in the ‘course of his employment.’ Knowing this and in anticipation of a lawsuit, Nashville is disavowing Leonard Burch and throwing him under the proverbial bus.”
Fox59 has details.
Monday, September 26, 2016
Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race-based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to undercompensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship.
Friday, September 23, 2016
The Parr family in Texas won a $3M verdict alleging they were sickened by fumes from natural gas wells. They sued using a nuisance theory. At oral arguments in the Fifth Circuit last week, the defendant driller argued the case did not lie in nuisance, but instead was a toxic tort case. The key difference between the two is the lower evidentiary burden; the plaintiffs conceded they could not meet Texas's toxic tort standards. Defendant noted:
[T]he family didn’t introduce expert testimony or other evidence supporting its claim of toxic exposure, didn’t have a doctor testify that their injuries were caused by the alleged pollutants and couldn’t prove their property was irreparably damaged by nearby drilling.
Law 360 has the story (behind a free registration wall).
Thursday, September 22, 2016
A suit filed in California alleges some of Ford's sunroofs are dangerous and Ford has been aware of it for nearly a decade. The suit specifically alleges that as sunroofs have expanded over larger portions of the roof of cars, they have become less safe:
At least 70 owners of Ford vehicles have reported to the National Highway Traffic and Safety Administration that at least 80 panoramic sunroofs have shattered. The complaint alleges Ford has known about this problem since at least 2008 due to complaints to the NHTSA about defective sunroofs shattering in the Ford Edge. Ford has been the subject of an ongoing investigation by the NHTSA on this issue since May 2014.
AdvantageNews.com has the story.
Wednesday, September 21, 2016
Governments often require that products carry warnings to inform people about risks. The warnings approach, as opposed to the command and control approach to risk regulation, functions as a decentralized regulatory mechanism that empowers individuals to make decisions that take into account their own circumstances and preferences. Thus, individuals will be aware of the risks and the value of taking precautions, and they may avoid a product that others consume if they find the risk unacceptable. Ideally, warnings would allow individuals to assess both their personal level of risk and the benefits they will receive from another unit of consumption. Then those receiving positive expected benefits will consume more; those receiving negative net benefits will curtail their consumption. Only Pangloss would be happy with the current warning system. It fails miserably at distinguishing between large and small risks; that is to say between wolves and rabbits. Such a system is of little value, since people quickly learn to ignore a warning, given that rabbits, which pose little danger, are many times more plentiful than wolves. When a wolf is truly present, people all too often ignore the warning, having been conditioned to believe that such warnings rarely connote a serious threat. We illustrate the clumsy-discrimination issue with examples related to cigarette labeling, mercury in seafood, trans fat in food, and California’s Proposition 65. We argue that the decision to require a warning and the wording of the warning should be designed in a manner that will lead consumers to roughly assess their accurate risk level, or to at least distinguish between serious and mild risks. Empowering individuals to make appropriate risk decisions is a worthwhile goal. The present system fails to provide them with the requisite information.
Monday, September 19, 2016
On December 3, 2016, Duquesne Law will host the Fifth "Colonial Frontier" Legal Writing Conference. Entitled "Drafting Statutes and Rules: Pedagogy, Practice, and Politics", the flyer is here: Download The Fifth Colonial Frontier Legal Writing Conference, Description.
Friday, September 16, 2016
Emory's Joanne Shepherd has authored a study, commissioned and funded by the American Tort Reform Foundation, finding Louisiana's consumer protection laws need to be revamped. She concludes the combination of vagueness and expansive damages has resulted in exploitation by trial lawyers, leading to litigation that costs the consumers the laws were designed to protect. Louisiana Record has the story.
Mark Geistfeld has posted to SSRN The Contractually Based Economic Loss Rule in Tort Law: Endangered Consumers and the Error of East River Steamship. The abstract provides:
The rule of strict products liability has been widely adopted in the U.S., subjecting manufacturers and other product distributors to strict tort liability for physical harms proximately caused by defective products. The scope of strict products liability has also been widely limited to bar tort recovery for cases in which the defect only damaged the product itself, causing pure economic losses such as repair costs and lost profits. In these cases, a growing majority of courts have followed the approach charted by the U.S. Supreme Court in East River Steamship Corp. v. Transamerica Delavel Inc., which barred tort recovery for stand-alone economic harms to ensure that contract law does not “drown in a sea of tort.” Relying on this reasoning, other courts have applied the rule to dismiss tort claims for pure economic losses caused by the negligent performance of a service contract.
As specified by East River Steamship, the economic loss rule is fully defined by two formal properties. If the form of the parties’ relationship permits the allocation of loss by contracting, and if the form of the alleged injury is for pure economic loss, then the rule bars tort recovery. Across the full range of tort cases, however, these two formal properties do not always determine whether tort law permits recovery for pure economic loss, creating a body of case law that appears to be in considerable disarray.
The economic loss rule is routinely justified with a contracting rationale, yet that rationale has never been substantively developed. Doing so shows that the availability of tort recovery for pure economic losses depends on whether the ordinary consumer has the requisite information to protect the relevant set of interests by contracting. In considering the allocation of liability for economic losses that only implicate economic interests in lost profits and the like, the ordinary consumer is sufficiently well informed to protect these interests by contracting. But as established by the substantive rationale for strict products liability, the ordinary consumer is unable to make informed contractual decisions about product risks threatening physical harm. The same contracting problem extends to certain types of pure economic loss, including the financial costs of medical monitoring and asbestos abatement. Consequently, the substantive contracting rationale justifies an intermediate economic loss rule that permits endangered consumers to recover tort damages for these types of pure economic loss while otherwise denying tort recovery for disappointed product users. The same conclusion applies to service contracts. This contractually based intermediate economic loss rule explains the full body of case law while being substantively consistent with the widely adopted rule of strict products liability, unlike the East River Steamship formulation.
Wednesday, September 14, 2016
This November, Arkansawyers/Arkansans (not entering this debate!) are voting on a proposed amendment to the state constitution which would allow the legislature in medical lawsuits to set a cap on damages of at least $250,000 and to limit attorney's fees to one-third of the recovery. Governor Hutchinson has remained neutral on the issue. He says he will likely tell voters how he will vote on the measure, but not anytime soon. Arkansas Online has the story.
Tuesday, September 13, 2016
Monday, September 12, 2016
I missed this initially, but about 3 weeks ago, the ABA Journal reported that a battery claim between law professors has been dismissed. The dispute arose out of an encounter in which one professor (and associate and/or interim dean) wanted to speak to another (Torts) professor about a dispute between the Torts professor and a librarian. Descriptions of the touching that started the encounter differed. The dean/professor said he placed his hand on the shoulder of the Torts professor; the Torts professor said the dean/professor grabbed his shoulder and began berating him. The Torts professor filed a battery claim, but the judge dismissed it because the contact was not harmful or offensive. The story is here.
Friday, September 9, 2016
Yonathan Arbel & Yotam Kaplan have posted to SSRN Tort Reform through the Backdoor: A Critique of Law & Apologies. The abstract provides:
In this Article we show how the biggest tort reform of the last decade was passed through the backdoor with the blessing of its staunchest opponents. We argue that the widely-endorsed apology law reform — a change in the national legal landscape that privileged apologies — is, in fact, a mechanism of tort reform, used to limit victims’ recovery and shield injurers from liability. While legal scholars overlooked this effect, commercial interests seized the opportunity and are in the process of transforming state and federal law with the unwitting support of the public.
Thursday, September 8, 2016
University of Alberta Professor Lewis N. Klar is the 2016 recipient of the prestigious John G. Fleming Award in Torts, according to an announcement yesterday by UC Berkeley Law School. A giant in the world of Canadian tort law, Klar will deliver the fourth Fleming Lecture at Berkeley Law on Wednesday October 26, 2016 at 11:20 a.m. in room 105 of the law school.
John Fleming was the 20th century’s leading scholar of comparative tort law, as perhaps befitting someone who was born in Germany, educated in England, served as a law dean in Australia and spent the bulk of his illustrious career at Berkeley. Professor Fleming’s treatise on The Law of Torts, drawing on the common law of a wide range of countries, is currently in its 10th edition. Fleming served for many years as the editor-in-chief of the Berkeley-based American Journal of Comparative Law.
Upon Professor Fleming’s death in 1997, the Fleming prize was created in his honor to be awarded bi-annually to an international scholar in tort law. Professor Klar is the 10th winner of the prize. Previous recipients include law professors Harold Luntz of Melbourne, Guido Calebresi of Yale, Stephen Todd of New Zealand’s UC Law, Basil Markesinis of Univ. College London, Robert Rabin of Stanford, Mike Green of Wake Forest Univ., Bill Powers of Texas, Helmut Koziol of Univ. of Vienna and Judge Allen Linden of Canada. Linden will travel to Berkeley to present the Prize to Professor Klar.
More recently, owing to the generosity of the Fleming family and Joe and Cathy Feldman of Chicago, Berkeley Law created the Fleming Lecture, to be delivered by the Fleming Prize winner. Professor Klar’s lecture is titled “The Ebbs and Flows of Tort Law: Reflections on a Half Century of Tort Law.” The Fleming Lecture is open to the public.
Professor Klar served as Dean of the Faculty of Law at the University of Alberta from 1997 to 2002. He was admitted to the Bar of the Province of Quebec in 1971 and the Law Society of Alberta in 2000. He was awarded a Queen’s Counsel in 2002, and received the Distinguished Service Award for his contribution to legal scholarship from the Law Society of Alberta and the Canadian Bar Association (Alberta) in 2005. In 2007, Professor Klar received the J. Gordin Kaplan Award for Excellence in Research from the University of Alberta. This is the university’s most senior and prestigious research award. In 2008, Professor Klar received the Hon. Tevie H. Miller Teaching Excellence Award from the Faculty of Law.
Professor Klar is the author of Tort Law, 5th edition, 2012, and a co-author of Canadian Tort Law: Cases, Notes & Materials, 14th edition, 2014. In recognition of Professor Klar’s contributions to tort law, a Special Edition of the Alberta Law Review has just been published in his honour. Professor Klar was a contributor to the 10th edition of Fleming’s The Law of Torts (2011) as well as to Torts Tomorrow: A Tribute to John Fleming (1998). Professor Klar is an elected member of the American Law Institute. His works have been cited hundreds of times by the courts in every province in Canada, including the Supreme Court of Canada.