TortsProf Blog

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Monday, March 16, 2015

Wells on Constitutional Remedies

Mike Wells (Georgia) has posted to SSRN Constitutional Remedies:  Reconciling Official Immunity with the Vindication of Rights.  The abstract provides:

A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, or fired people on account of protected speech, or deprived them of liberty or property without due process of law, or discriminated against them in violation of equal protection. Because these backward-looking suits bear some resemblance to ordinary tort law, the doctrine is often called “constitutional tort.”

This Article examines a well-settled and routine — but destructive and quite unnecessary — consequence of the interplay between the liability rule and the official immunity doctrine. Consider two plaintiffs, Alice and Bob, each of whom sues for damages under § 1983. Suppose that both plaintiffs lose, but for different reasons. Alice establishes a violation of her constitutional rights, but fails because the defendant successfully asserts official immunity. Bob cannot show that his rights were violated in the first place. Despite the difference between their cases, current Supreme Court doctrine directs that Alice and Bob be treated the same. Both go away empty-handed. Under the Court’s approach, the competing goals behind liability and immunity are balanced in the following way: On the one hand, the aim of constitutional tort law is to compensate the plaintiff and to deter violations of rights. But on the other side of the balance, official immunity carries enough weight to override the compensation and deterrence goals. Thus, the official’s successful immunity defense carries the same force as a successful defense on the merits. Both result in total victory for the defense.

In this Article, I argue for a different conception of constitutional tort law, in which it is recognized that Alice’s case differs fundamentally from Bob’s. The point is not to question official immunity, a doctrine that has broad support from the Supreme Court. My project is to reconcile official immunity with Alice’s legitimate claim for a remedy.

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

Sunday, March 15, 2015

MO: Med Mal Caps Pass Senate

On Thursday, I reported the Missouri Senate had given preliminary approval to med mal caps.  Here is an update:

The Senate voted 28-2 on Thursday to approve a measure limiting awards for pain and suffering in most personal injury cases arising from botched medical procedures to $400,000.

In catastrophic injuries, the limit would be $700,000. The measure also raised the existing cap on wrongful death cases form $350,000 to $700,000.

The bill will have to be reconciled with the House bill, which is a single noneconomic damages cap of $350,000.  The Kansas City Star has the story

Read more here:

March 15, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2015

JOTWELL Torts: Engstrom on Zabinski & Black

At JOTWELL, Nora Engstrom (Stanford) reviews Zenon Zabinski and Bernard Black's The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform.

March 13, 2015 in Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, March 12, 2015

MO: Senate Gives Preliminary Approval to Med Mal Caps

Last week, I reported the Missouri House had given preliminary approval to a $350,000 noneconomic damages cap in med mal cases.  The Senate has now given preliminary approval to a med mal noneconomic damages cap, but the details are different:

In most cases, a cap of $400,000 would apply. In more serious "catastrophic" injuries specifically defined in the bill — including paralysis, brain injury or a loss of vision — the cap would be $700,000. The bill also raises an existing $350,000 cap on noneconomic damages in wrongful death cases to $700,000.

All three of these caps would increase each year by 1.7 percent under the bill.

AP has the story.

March 12, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 11, 2015

Grey on Emotional Harm

Betsy Grey (Arizona State) has posted to SSRN The Future of Emotional Harm.  The abstract provides:

Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims — like evidence of physical harm — should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims.

March 11, 2015 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 10, 2015

TN: Circuit Judge Holds Noneconomic Damages Cap Unconstitutional

A Tennessee circuit court judge ruled yesterday that the state's cap on noneconomic damages is unconstitutional, likely triggering review by the Tennessee Supreme Court.  Unlike caps in many states, this one is not limited to medical malpractice cases.  The Chattanooga Times Free Press has the story.

March 10, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Sunday, March 8, 2015

CA: Release of Liability for Negligence Upheld for Gym

In Grebing v. 24 Hour, a California  Court of Appeal upheld a release signed by a gym member for the ordinary negligence of the gym.  Moreover, the court reaffirmed that a company that predominantly provides services, rather than goods, cannot be held liable for products liability.  J.D. Supra has the story.

March 8, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, March 6, 2015

MO: House Gives Preliminary Approval to Med Mal Cap

The Missouri House provided initial passage of a bill to reinstate a $350,000 non-economic damages cap in medical malpractice cases.  One more vote is needed before the bill goes to the Senate.  The bill received 101 votes, not the 109 it would need to override a veto. has the story.

March 6, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, March 5, 2015

Rabin on O'Connell

Bob Rabin (Stanford) has posted to SSRN his contribution to the JTL's O'Connell tribute.  Entitled Jeffrey O'Connell and the Compensation Principle in Accident Law:  Institutional and Intellectual Perspectives, the abstract provides:

In this essay, I locate the principles that animated the career of Jeffrey O’Connell in a larger context of examining the role of compensation in accident law. I provide a short historical excursion to set the stage. Next, I discuss how O’Connell followed his initial venture involving auto no-fault with a more expansive scheme of elective no-fault coverage for products and medical mishaps, which in turn was followed by his early offers proposal. Then, I briefly trace the legacy of O’Connell in the present era of mass tort and disaster relief claims. A final section offers a concluding note.

March 5, 2015 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

IA: Med Mal Early Offer Program Proposed

In Iowa, the medical community and trial lawyers have agreed to a voluntary early resolution program for medical malpractice cases; a Senate subcommittee has recommended passage.  The bill's "Explanation" section provides:

This bill allows a physician, or a physician jointly with a health facility, to engage in an open, confidential discussion with a patient related to an adverse health care incident.

If an adverse health care incident occurs, the bill allows a physician, or a physician jointly with a health facility, to offer to engage in an open discussion with the patient. The notice of an offer to engage in an open discussion must be sent to the patient within 180 days after the adverse health care incident. If the patient agrees to proceed with an open discussion, the physician or health facility may investigate the adverse health care incident, disclose the results to the patient, and discuss steps the physician or health facility will take to prevent similar adverse health care incidents.  The physician or health facility may also communicate to the patient that either the physician or health facility has determined that an offer of compensation is not warranted or that an offer of compensation is warranted. An offer of compensation may be conditioned upon the patient executing a release of future liability as to the adverse health care incident. All communications made under the Code chapter are privileged and confidential, are not subject to discovery, subpoena, or other means of legal compulsion for release, and are not admissible in evidence in a judicial, administrative, or arbitration proceeding.  

The Gazette has the story

March 4, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

GA: Workers Comp-Style Med Mal Reform Bill Re-Introduced

Last year, Georgia debated becoming the first state in the country to reform med mal along the lines of workers comp.  The bill failed.  Sen. Brandon Beach is introducing a similar bill, Senate Bill 86:

Under the proposal, the new system will be governed by an 11-person panel consisting of physicians, attorneys, accountants and patient advocates. The board will set maximum injury compensation rates and approve medical review panelists. 

Complaints will be handled by independent panels, comprised of representatives from practices or specialty areas similar to the provider. If a claim is found to have merit, the plaintiff will receive a monetary award to be determined by a compensation committee. has the story.

March 3, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

Robinette on Party Autonomy in Tort Theory and Reform

I have posted to SSRN my contribution to the Journal of Tort Law's Jeffrey O'Connell tribute.  Entitled Party Autonomy in Tort Theory and Reform, the abstract provides:

Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.

March 2, 2015 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Friday, February 27, 2015

JTL: "Tort, No-Fault and Real-World Compensation," A Volume in Honor of Jeffrey O'Connell

The next issue of the Journal of Tort Law is a tribute to Jeffrey O'Connell, who died in January of 2013.  From the Introduction:

O’Connell’s overriding goal was to make compensation more readily available to the injured. He saw traditional tort law as dilatory, unfair, inefficient and hence inadequate to address the pressing needs of injury victims. In pursuing reform, he necessarily took a stand in the theoretical debate about the purposes of tort law. In the typical case, he believed, tort should be compensatory; matters of individualized justice or deterrence were secondary. Given the realities of tort litigation as he saw them, O’Connell believed justice and deterrence goals were both harder to accomplish and harder to measure than a compensation objective. On this understanding, tort law is best justified as insurance and yet, for that very reason, was ripe for radical reform, given its deficiencies. At heart, O’Connell was deeply practical and pragmatic. He wanted his ideas to matter for the world and he valued the tangible good of victim compensation over what he took to be more speculative goods.

The papers that follow reference O’Connell’s pragmatism, but also branch out to touch on many different aspects of his work. Robert Rabin finds that mass tort and disaster relief claims are today being handled on terms congruent with O’Connell’s efforts to realign the tort system to focus on compensation. Kenneth Abraham and G. Edward White combine O’Connell’s love of biography with his interest in tort law to study the life and influence of a scholar who was in many ways a forerunner and kindred spirit: William Prosser. Nora Freeman Engstrom, in the spirit of O’Connell’s critiques of tort, turns the tables by subjecting no-fault programs to careful analysis. Anthony Sebok finds one of O’Connell’s early first-party insurance proposals relevant to currently heated debates over litigation finance. Zoë Sinel challenges O’Connell’s claim that tort is properly understood and assessed by its ability to deliver compensation. Finally, Christopher Robinette finds in O’Connell’s scholarship guidance as to how to begin distinguishing those tort suits worthy of individualized justice treatment from those better suited to serve a compensatory objective.

The pieces are available at De Gruyter's "Ahead of Print" section, though I believe Tony's and Nora's articles are not yet included.

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

Thursday, February 26, 2015

Thomas on GM, Discovery, and Juries

Over at Save Our Juries, Suja Thomas (Illinois) has a post about the role of discovery in the GM ignition litigation and a proposal to change the discovery rules.  Pursuant to the proposed rule, parties would be able to resist discovery on the grounds that the request is not "proportional" to "the needs of the case."

February 26, 2015 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 25, 2015

VT: "Spite Fence" Standard Established

In a case of a boundary dispute turned ugly (mooning, public urination, etc.), the Vermont Supreme Court adopted the dominant-purpose test for determining the existence of a spite fence.  Moreover, the standard was met when the fence blocked the view of a mountain (from a bed-and-breakfast property), caused backed-up drainage, and contained signs on the side facing the neighbor's property.  The case is Obolensky v. Trombley.  Coverage from Roger McEowen at the Iowa State Center for Agricultural Law and Taxation is here.

February 25, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 24, 2015

IL: Bill Seeks to Limit "Open and Obvious" Premises Exception

The West Virginia Senate recently passed a bill reinstating the "open and obvious" doctrine in premises liability.  In Illinois, a bill introduced in the House would go in the opposite direction, restricting consideration of open and obvious conditions to the trier of fact on the issue of comparative fault.  Thus, a judge would not be able to consider open and obvious on the duty issue.   The National Law Review has the story

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

Monday, February 23, 2015

IN: Civil Immunity for Medical Volunteers

Current law in Indiana restricts medical providers from volunteering their services unless they have malpractice insurance.  Similar to laws in several other states, House Bill 1145:

would establish a licensing procedure for both volunteers and locations at which medical services can be offered. Volunteers must sign a waiver and be working without compensation at a licensed facility in order for civil immunity to be applicable.

Exceptions to the malpractice immunity will be made in instances where gross negligence or willful misconduct has taken place or if a nonapproved procedure is performed by a volunteer.

Indiana Daily Student has the story.

February 23, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Sunday, February 22, 2015

WV: Senate Reconsiders Punies Cap

On Wednesday, on an 18-16 vote, the Senate defeated a punitive damages cap.  On Thursday, on a 26-8 vote, the Senate passed a bill that capped damages at $500,000 or four times compensatory damages (up from 3x in the bill defeated a day earlier), whichever is greater.  WV MetroNews has the story.

February 22, 2015 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Saturday, February 21, 2015

Defences in Tort by Dyson, Goudkamp, & Wilmot-Smith

Defences in Tort

Edited by Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith 

This book is the first in a series of essay collections on defences in private law. It addresses defences to liability arising in tort. The essays range from those adopting a primarily doctrinal approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while some are concerned with the links between defences, or with how defences relate to the structure of tort law as a whole. A number of the essays also draw upon concepts and literature that have been developed mainly in relation to the criminal law and consider their application to tort law. The essays make several original contributions to this complex, important but neglected field of academic enquiry.

The Editors

Andrew Dyson is an Assistant Professor in Private Law at the London School of Economics and Political Science.

James Goudkamp is a Fellow of Keble College, Oxford and an Associate Professor in the Oxford Law Faculty.

Frederick Wilmot-Smith is a Prize Fellow at All Souls College, Oxford and Lecturer in Law at Balliol College.

Book Details

February 2015    452pp   Hbk   9781849465267    RSP: £75 / US $150

20% DISCOUNT PRICE: £60 / US$120

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

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If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’. 

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February 21, 2015 in Books | Permalink | Comments (0) | TrackBack (0)

Friday, February 20, 2015

Barnes & Burke on How Policy Shapes Politics Regarding Compensation

Jeb Barnes (USC-Political Science) and Thomas Burke (Wellesley-Political Science) have published How Policy Shapes Politics:  Rights, Courts, Litigation, and the Struggle Over Injury Compensation

How Policy Shapes Politics analyzes the politics of injury compensation in the United States, a field in which judicialized policies operate side-by-side with bureaucratized social insurance programs. The authors conclude that the choice between judicialized and bureaucratized injury compensation policies can have powerful political consequences.  

Litigation, by dividing social interests into victims and villains, winners and losers, generates a fractious, chaotic politics in which even seeming allies-business and professional groups on one side, injured victims on the other-can become divided amongst themselves. By contrast, social insurance programs that compensate for injury bring social interests together, narrowing the scope of conflict and over time producing a more technocratic politics. 

By comparing the political trajectories of different types of policies, some more court-centered, others less so, the authors probe the consequences of arguably one of the most significant developments in post-World War II government, the increasingly prominent role of courts, litigation, and legal rights in politics.

February 20, 2015 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)