Monday, October 17, 2016
Bruce Kaufman at Bloomberg has just completed a 4-part series on amusement park injuries. The links are below:
Sunday, October 16, 2016
A Connecticut judge dismissed the case filed by parents of children killed at Sandy Hook Elementary School against gun manufacturers. The parents alleged negligent entrustment in an attempt to get around the Protection of Lawful Commerce in Arms Act. The judge ruled the plaintiffs did not meet the exception. WaPo has the story.
Friday, October 14, 2016
Alberto Galasso (Toronto-Strategic Management) & Hong Luo (Harvard Business School) have published Tort Reform and Innovation. The abstract provides:
Current academic and policy debates focus on the impact of tort reforms on physicians’ behavior and medical costs. This paper examines whether these reforms also affect incentives to develop new technologies. We find that, on average, laws that limit the liability exposure of healthcare providers are associated with a significant reduction in medical device patenting and that the effect is predominantly driven by innovators located in the states passing the reforms. Tort laws have the strongest impact in medical fields in which the probability of facing a malpractice claim is the largest, and they do not seem to affect the amount of new technologies of the highest and lowest quality. Our results underscore the importance of considering dynamic effects in the economic analysis of tort laws.
Download here: Download GalassoHong_27Sept16 (1)
Thursday, October 13, 2016
The Arkansas Supreme Court has just killed the ballot initiative to amend the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. The court ruled the ballot title left critical elements, including "noneconomic damages", undefined. Arkansas Times has the story.
At Ralph Nader's "Breaking Through Power" conference two weeks ago, Margaret Jane Radin proposed a new tort: deceptive deprivation of core legal rights. Her focus is on the use of fine print boilerplate to take rights away from consumers and she offers a specific example:
“Pre-dispute arbitration clauses that erase class actions and jury trial would be a good candidate, because in cases of widespread small harms — such a $5 per month overcharge by a cable company, for example — no one party can get legal redress, and the company achieves large extra gains by aggregating small losses of a large number of people.”
Corporate Crime Reporter has the story.
Tuesday, October 11, 2016
Alex Stein has posted to SSRN The Domain of Torts. The abstract provides:
This Article advances a novel positive theory of the law of torts that grows out of a careful reading of the caselaw. My core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability. This finding is both surprising and innovative, since the operation of the doctrines that determine individuals’ liability for accidents — negligence, causation and damage — is universally believed to be driven by harms, not benefits. The key role of benefits in the operation of our tort system has eluded the searching eye of scholars, even though it is fully consistent with the caselaw, as I repeatedly demonstrate in the Article.
Specifically, I show that our tort system operates in two parallel modes — private and public — rather than just one, as conventional accounts erroneously suggest. Furthermore, the system’s mode of operation and the rules allocating liability for accidental harm are dictated by the type of the benefit sought by the alleged tortfeasor. If the benefit sought by the tortfeasor is purely private, she will be held liable for the harm resulting from her actions whenever she exposes her victim to a nonreciprocal risk. The tort system never allows actors to inflict harm on others when the benefit they seek to derive from their activity is purely private, no matter how significant that private benefit is relative to the victim’s harm. The system consequently does not hesitate to discourage the production of private benefits even when they are economically more valuable than the victim’s safety. That is, in cases of private benefit tort law excludes cost-benefit analysis in favor of the reciprocity and equality principles. When the benefit that accompanies the harm-causing activity is public, by contrast, tort law adopts a strictly utilitarian approach and focuses exclusively on minimizing the cost of accidents and the cost of avoiding accidents as a total sum. Liability in such cases is imposed based on the famous Learned Hand formula (and similar formulations). Accordingly, if the benefit from the harm-causing activity is greater than the expected harm and precautions are too costly, no liability will be imposed. The consequent reduction in the victim’s protection is counterweighted by society’s need not to chill the production of public benefits that the victim enjoys on equal terms with all other members of her community.
This insight has far-reaching implications for tort doctrine and theory. Contemporary scholarly debates about our tort system’s goals interpret the system as promoting fairness and corrective justice or, alternatively, economic efficiency. I demonstrate, however, that this dichotomous view is fundamentally mistaken. Careful analysis of the caselaw reveals that our tort system promotes fairness and corrective justice only when it operates in the private mode, and that when the system switches to the public mode it aims at achieving economic balance between victims’ safety and the production of public benefits. My analysis also demonstrates that tort doctrine is best understood as accident law because it focuses predominantly on individuals’ mutually unwanted interactions, identified as accidents, as opposed to mutually wanted and coercive interactions regulated, respectively, by contract law and criminal law. As I explain in this Article, switches between these regulatory regimes, and between torts and regulatory laws, only occur as a result of doctrinal migrations.
Monday, October 10, 2016
In November, the people of Arkansas are supposed to vote on a ballot measure amending the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. A special judge has determined there are flaws in the petition process; nursing home employees allegedly solicited signatures from nursing home residents. Family members of the residents question whether the residents were able to understand what they were signing. The issue now goes to the state supreme court. A big issue, however, is whether some of the judges should recuse themselves. The only member of the court not to receive campaign contributions from the nursing home industry is the chief justice. Arkansasmatters.com has the story.
Friday, October 7, 2016
A recent Washington Court of Appeals decision expanded the scope of duty owed by professionals designing structures. The court held an engineer's duty to developers and property owners includes "the prevention of safety risks" even if no personal injury or property damage has occurred. Ross Siler at Lexology has details.
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.