TortsProf Blog

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Friday, May 15, 2015

Nondisclosure Agreements in Med Mal Settlements

William Sage is lead author on a study of nondisclosure agreements in med mal settlements.  Using the Texas closed-claim database, the authors determined nondisclosure clauses were included in 88.7% of settlements.  This is not surprising to me, but the authors also concluded the clauses were broader than necessary to protect the doctors and hospital, and even broader than needed to avoid attracting other claimants.  Monthly Prescribing Reference has a story, with links to the study.

May 15, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, May 14, 2015

Twerski & Henderson on Comment K

Aaron Twerski & James Henderson have posted to SSRN Drug Design Liability: Farewell to Comment K.  The abstract provides:

Half a century ago the reporter for the Second Restatement of Torts, William Prosser, drafted Comment k to § 402A, defining the liability of drug companies for defective prescription products.  Prosser’s attempt to shelter drugs from design defect liability has confused courts and commentators alike.  Courts at first interpreted Comment k to immunize drug manufactures from design-based liability; more recently, a growing number have begun to interpret the Comment to allow such actions.  However, there is wide disagreement regarding the conditions under which courts should permit drug design claims.  Courts have articulated no fewer than eight different tests, all relying on Comment k.  This article examines the historical origins of Comment k and explains why it has confused so many judges and academics.  The authors argue that the tests adopted by courts in reliance on Comment k are seriously flawed.  In its stead, the article advocates that a drug manufacturer should held liable for defective drug design only when the drug is not fit for use by any class of patients.  All other drug-related claims should be based on findings that the drug either contained a manufacturing defect or was marketed with inadequate warnings.

May 14, 2015 in Products Liability, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 13, 2015

IL: Court to Decide Duty Question for 911 First Responders

Kirk Jenkins at JD Supra has analysis here.

May 13, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 12, 2015

PA: Med Mal Cases Decline Again

Pennsylvania med mal cases filed in 2014 have hit an all-time low since tracking began in 2000, and are down 46.5% from the base years of 2000-2002.  Only 1463 cases were filed across the Commonwealth last year.  In a separate category, of the 2014 verdicts in med mal cases, 81% were for the defense. 

Central Penn Business Journal has the story.

May 12, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2015

TX: No Design Defect in Case of Intentional Misuse

From Friday's Genie Industries v. Matak:

In this case, the users of an aerial lift supporting a worker 40' in the air attempted to move

the machine. Signs on the machine and instructions in the user manual warned of the obvious danger:

the machine would tip over and the worker would fall to the ground. And that is what happened. So

obvious was the danger that although over 100,000 lifts of the same general model have been sold

all over the world, the jury was provided with evidence of only three similar accidents involving

similar AWP lifts over the past decade—none of which involved the intentional destabilization

of a fully-extended 40' lift.  The lift cannot be said in any sense to be unreasonably dangerous.


Deborah LaFetra, of Pacific Legal Foundation, comments here.

May 11, 2015 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2015

MO: Governor Signs Med Mal Caps Bill

Missouri Governor Jay Nixon signed the med mal caps bill passed by the legislature (earlier coverage here):

The limits apply only to noneconomic damages, not medical costs or lost wages.

Most noneconomic damages would be capped at $400,000. For catastrophic cases, including paralysis or brain injury, the cap would be $700,000.

The bill also doubles the limit in wrongful death cases to $700,000. has details.

May 8, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

JOTWELL Torts: Zipursky on Oberdiek on Contractualism and Tort Law

At JOTWELL, Ben Zipursky has posted a review of John Oberdiek's Structure and Justification in Contractualist Tort Theory.

May 8, 2015 in Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2015

Perry on Pluralism

Ronen Perry (Haifa) has posted to SSRN Pluralistic Legal Theories:  In Search of a Common Denominator.  The abstract provides:

This Essay embarks on a meta-theoretical project to provide a unifying philosophical framework for pluralistic legal theories. Put differently, it seeks to identify a structural common denominator for all pluralistic theories of law, with a particular emphasis on private law (torts and contracts). The Essay first rejects the notion of complementarity coined by Nobel Prize laureate Niels Bohr, and applied to legal theory by Izhak Englard. It then advocates the allegedly Thomist aphorism hominem unius libri timeo (“I fear the man of a single book”), and connects it to Isaiah Berlin’s renowned distinction between the hedgehog and the fox.

May 7, 2015 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 5, 2015

Welcome to the Blogosphere: New Private Law

John Goldberg and Henry Smith have launched New Private Law:  Project on the Foundations of Private Law as a group blog.  As advertised, private law broadly, including contracts and property, is covered.  Torts enthusiasts should be cheered by the presence of not only Goldberg, but Keith Hylton, Tony Sebok, and Ben Zipursky as well.  Check it out!

May 5, 2015 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, May 4, 2015

AL: Bill to Overturn "Innovator Liability"

Last year, the Alabama Supreme Court let stand its holding that name-brand manufacturers can be liable for misrepresentations or failures to warn in regard to generic drugs they did not manufacture or distribute.  (Coverage here)  Now the legislature has sent a bill to the governor that would overturn the result.  The bill passed the Senate 32-9 and the House 86-14.  Legal Newsline has the story.

May 4, 2015 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2015

Burch on Issue Classes

Elizabeth Chamblee Burch (Georgia) has posted to SSRN Constructing Issue Classes.  The abstract provides:

As government budgets shrink each year, enforcement responsibilities in products liability, consumer protection, and employment discrimination fall increasingly to private attorneys.  But defendants have successfully layered new objections about noncohesive classes and unascertainable members atop legislative and judicial reforms to cripple plaintiffs’ attorneys’ chief weapon — the class action.  The result?  Courts deny class certification and defendants escape enforcement by highlighting the differences among those affected by their misconduct.  At the other end of the regulatory spectrum lies the opposite problem.  Some defendants’ actions are so egregious that hordes of public and private regulators can’t help but get involved — think the GM ignition switch debacle or the BP Oil Spill, for example.  Whether regulators are chasing splashy headlines, easy money, or public support, the result is a cacophony of litigation in dispersed fora that risks inefficient resource use and inconsistent verdicts regarding a defendant’s conduct.

A one-line sentence buried within Rule 23 offers a partial elixir for problems at both ends of the enforcement spectrum.  That sentence, Rule 23(c)(4), allows courts to certify certain issues for class treatment.  While issue certification is experiencing a renaissance in the courts, scholarship has stagnated.  Commentators have fixated on the technical to-be-or-not-to-be question of how to read Rule 23(c)(4) within the rule’s predominance requirement.  But they have offered strikingly little theory or guidance on how issue classes might revive private enforcement and coordinate fractured regulatory responses through issue preclusion.

This Article aims to fill that void with an alternative theory of class cohesion — a term that appears nowhere in Rule 23, but has emerged at the center of Supreme Court jurisprudence.  This theory not only informs the class-certification calculus by identifying core questions ripe for issue-class adjudication, but also simplifies vexing questions over the sufficiency of aggregate proof and class members’ ascertainability.  Shedding anachronistic, stereotypical notions that immutable characteristics like gender and race fuse members into a cohesive class can reveal what often unites groups for adjudication purposes: defendant’s uniform conduct.  When a defendant’s actions are non-individuated (GM’s failure to take appropriate safety precautions, for example), litigating the components within a claim or defense that regulate defendant’s conduct on a classwide basis can revive private enforcement and stymie inconsistent outcomes through preclusion.

May 1, 2015 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 30, 2015

Lim on Civil Damage Awards & the Media

Claire Lim (Cornell-Economics) has published Media Influence on Courts:  Evidence from Civil Case Adjudication

The study’s findings include:

  • As the “liberalness” of a district increases, so too does the likelihood of higher civil trial awards. In other words, liberal districts tended to adjudicate larger final damage awards to plaintiffs. (This general finding is supported by other academic research, as well.)
  • More specifically, a one standard deviation increase in the liberalness of political orientation in a district is associated with a 33% increase in the amount of final award in districts with average newspaper coverage.
  • However, the influence of political orientation on final awards becomes smaller as media coverage increases.
  • Neither the volume of media coverage alone, nor having elected judges, has a statistically significant impact on the amount of final award in civil adjudications.
  • Coverage appears to have no statistically significant impact on plaintiff win rates — only on the amount of damage awards adjudicated.

Journalist's Resource has more details.

April 30, 2015 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2015

CT: Bill to Extend SoL

In Connecticut, Senate Bill 1028 would allow people who turn 18 to sue for personal injuries they suffered when they were minors and unable to sue in their own name.  It would allow recovery for negligence, including med mal, and reckless misconduct.  Trial lawyers and doctors are squaring off over the bill.  The Hartford Courant has the story.

April 29, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

CA: Janitorial Mistake is Not Professional Negligence

A California court of appeal has overturned a trial court holding that a woman who slipped on a wet floor in a hospital was subject to MICRA's one-year statute of limitations.  Holding that a janitor's conduct is not "professional negligence," the court of appeal applied the two-year statute for ordinary negligence suits.  The Metropolitan News-Enterprise has the story.

April 28, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, April 27, 2015

Blum on Section 1983

Karen Blum (Suffolk) has posted to SSRN Section 1983 Litigation:  The Maze, the Mud, and the Madness.  The abstract provides:

This piece reflects on what I perceive to be the major analytical and practical failures of Section 1983 jurisprudence as it has been shaped by the Supreme Court since the watershed case of Monroe v. Pape. Based on 40 years of academic involvement with both judges and lawyers who struggle with the various doctrines the Court has promulgated in the wake of Monroe, I highlight those areas that have become truly unintelligible, nonsensical, and incoherent.  There is a growing consensus among practitioners, scholars, and judges that Section 1983 is no longer serving its original and intended function as a vehicle for remedying violations of constitutional rights, that it is broken in many ways, and that it is sorely in need of repairs. The primary focus of this article is on the befuddled jurisprudence, “the madness,” surrounding the defense of qualified immunity.  I begin, however, with some brief observations about “the maze” built to sustain the direct vs. vicarious line drawn in the context of municipal liability and “the mud” that Iqbal has deposited with respect to issues of liability of supervisors. Problems plaintiffs have manipulating through the maze of municipal liability doctrine and wading through the mud of liability standards for supervisors underscore the importance of overcoming the madness of  qualified immunity if plaintiffs are to have a viable damages remedy for the violation of their constitutional rights. In the end, however, I come back to where I started in 1978, to the position I advocated following the decision in Monell, and urge the Court to relinquish its dogged adherence to the doctrine of no respondeat superior for claims brought under Section 1983.

April 27, 2015 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2015

MO: Legislature Passes Med Mal Cap

In 2012, the Missouri Supreme Court struck down that state's med mal damage cap.  The legislature has passed a replacement, and it is now awaiting Governor Jay Nixon's decision whether to sign it.  In sum:

The bill, if signed into law, would place a $400,000 cap on noneconomic damage awards in medical malpractice cases. The cap would be raised to $700,000 for catastrophic and wrongful death cases. Both caps would then increase by 1.7 percent each year.

There is a catch to the law. A jury would still be able to award an amount greater than the allowed caps. If a motion is then made contesting the award, the trial court will determine whether the limitations apply in that case.

The St. Louis Business Journal has the story.

April 24, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 23, 2015

DeVito & Jurs on Tort Reform

Scott DeVito (Florida Coastal) & Andrew Jurs (Drake) have posted to SSRN An Overreaction to a Nonexistent Problem:  Empirical Analysis of Tort Reform from the 1980s to 2000s.  The abstract provides:

Proponents of tort reform have suggested it is a necessary response to rising personal injury litigation and skyrocketing insurance premiums. Yet the research into the issue has mixed results, and the necessity of tort reform has remained unproven.

We decided to research an underdeveloped area by empirically testing the real world effects of noneconomic damages caps. To do so, we assembled a database of nearly fourteen million actual cases filed between 1985 and 2009 and then measured how damages caps affect filing rates for torts. Not only could we analyze the change in filings after adoption of a cap but we could also measure the effect of elimination of a cap as well. When we did, we found something unique in the literature.

We found first that when a state adopts a noneconomic damages cap, there is a statistically significant drop in filings of all torts and for medical malpractice torts. We also found that in both the 1990’s and 2000’s, the rate of filings dropped consistently as well – both in states with tort reform but also in states without it. Therefore, our finding of a statistically significant reduction in filings in response to damages caps demonstrates a “doubling-down” effect: there is one drop in filings due to the damages cap, but there is another drop based on larger background forces.

Next, when assessing the change in filings after elimination of a damages cap, we found something initially counterintuitive but also new to the literature. While one might expect a sharp increase in filings when a cap disappears, our analysis could find no statistically significant change in the filing rate for all torts after elimination, while medical malpractice filings continued to decline overall. We believe that this finding demonstrates and quantifies, for the first time, the non-legal effect of tort reform measures discussed by commentators like Stephen Daniels and Joanne Martin.

We believe the combination of the “doubling down” on plaintiffs as well as the quantifiable non-legal changes in response to damages caps significantly modifies the cost-benefit analysis of tort reform. In Trammel v. United States, the Supreme Court stated: “we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change.” Based on our empirical assessment, we conclude that tort reform has reached that point and call upon state legislators to reconsider these measures.

April 23, 2015 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 21, 2015

CO: Commercial Tenant Not Liable for Slip-and-Fall

A woman tripped on an uneven area of sidewalk and was injured.  She settled with the owner of the commercial property and then sued one of the tenants.  The Colorado Supreme Court rejected the contention that the tenant in this case was also the landlord:

“The clinic was not in possession of the sidewalk because it had only a right of non-exclusive use and the landlord retained responsibility for maintaining that area,” the ruling said. “Second, the court concludes that, under the terms of the lease and the facts of this case, the clinic was not legally responsible for the condition of the sidewalk or for the activities conducted or circumstances existing there. It therefore holds that the clinic is not a landowner within the meaning of the Premises Liability Act.”

The Denver Business Journal has the story.

April 21, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, April 20, 2015

MD: Municipal Liability Cap Compromise Passed by Legislature

The current cap in place for Maryland's municipalities is $200,000 per claim/$500,000 per incident.  The House passed an increase to $300,000/$600,000 and the Senate passed an increase to $500,000/$1,000,000.  Perhaps not surprisingly, a conference committee approved $400,000/$800,000 and that passed 89-45 in the House and 33-14 in the Senate.  The bill also extends the filing period from 6 months to 1 year.  HB 113 awaits the governor's signature. has the story.

April 20, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 16, 2015

Katz on Domestic Violence and Privacy

Elizabeth Katz (Harvard-History) has posted to SSRN Judicial Patriarchy and Domestic Violence:  A Challenge to the Conventional Family Privacy Narrative.  The abstract provides:

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.

April 16, 2015 in Scholarship | Permalink | Comments (0) | TrackBack (0)