Civil Procedure & Federal Courts Blog

Paik, Black, and Hyman on Decline of Medical Malpractice Litigation

Myungho Paik, Bernard S. Black, and David A. Hyman have posted on SSRN their recent article, "The Receding Tide of Medical Malpractice Litigation Part 2: Effect of Damage Caps," which is forthcoming in the Journal of Empirical Legal Studies.

Abstract:

We study the effect of damage caps adopted in the 1990s and 2000s on medical malpractice claim rates and payouts. Prior studies found some evidence that caps reduce payout/claim, but mixed and weak evidence on whether caps reduce paid claim rates and payout per physician. However, most prior studies do not allow for the gradual phase-in of damage caps, which usually apply only to lawsuits filed after the reform’s effective date, or only to injuries after the effective date. Once we allow for phase-in, we find strong evidence that damage caps reduce both claim rates and payout per claim, with a large combined impact on payout per physician. The drop in claim rates is concentrated in claims with larger payouts – the ones that would be most affected by a damages cap. Stricter caps have larger effects. Some prior studies also find a large impact of tort reforms other than damage caps. Once we allow for phase-in, we find that these other reforms have no significant impact on either claim rates or payout per claim.

A companion article, The Receding Medical Malpractice Part 1: National Trends, is available at http://ssrn.com/abstract=2109679.

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Engstrom on Twiqbal and the Empirical Study of Civil Procedure

David Freeman Engstrom of Stanford Law School has posted on SSRN his essay, "The Twiqbal Puzzle and Empirical Study of Civil Procedure."

Abstract:

This essay, written for a Stanford Law Review issue exploring “The Empirical Revolution in Law,” offers a critical assessment of the large body of empirical scholarship examining the effect of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on judicial and litigant behavior and then uses the critique to make some broader observations about the past, present, and future of empirical study of civil procedure.

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Sixth Circuit Reaffirms Certification of Whirlpool Washing Machine Class Despite Comcast v. Behrend

The Northern District of Ohio, supervising multidistrict litigation alleging that Whirlpool's front-loading washing machines allow mold and mildew to grow in the machines, certified a class of Ohio purchasers for liability purposes.  The Sixth Circuit affirmed.  The Supreme Court granted Whirlpool's petition for certiorari, vacated, and remanded to the Sixth Circuit for reconsideration in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).

The Sixth Circuit just reaffirmed the class certification, despite Amgen and Comcast.  Glazer v. Whirlpool Corp., No. 10-4188 (6th Cir. July 18, 2013).

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AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

The AALS Section on Federal Courts is pleased to announce the second annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2014 AALS Annual Meeting in New York.

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members.  To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2013 (date of actual publication determines eligibility).  Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2013), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.

Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School ([email protected]), Chair-Elect of the AALS Section on Federal Courts. Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2013. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Judith Resnik (Yale), and Steve Vladeck (American), with the result announced at the Federal Courts section program at the 2014 AALS Annual Meeting.

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Cohen on Civil Cases in State Intermediate Appellate Courts

Thomas H. Cohen, of the Administrative Office of the U.S. Courts, has posted on SSRN "Litigating Civil Cases in State Intermediate Appellate Courts: Analyzing Decisions to Appeal Civil Trial Verdicts or Judgments and the Impact of Appellate Litigation on Trial Court Outcomes."

Abstract:

In the civil justice system, litigants can file appeals as a means of challenging or modifying trial court verdicts or judgments. In most states, intermediate appellate courts represent the first, and in many cases, final arbiter of review for civil cases decided by bench or jury trial. While prior research on state appellate courts has focused primarily on civil appeals in state courts of last resort, there have been few attempts to examine the appeals process in state intermediate appellate courts. The current research attempts to address this gap by examining a national sample of tort and contract trials concluded in 2005 that were subsequently appealed. Specifically, this paper explores the factors that are related to (1) the rates in which civil trials are appealed to intermediate appellate courts, (2) the likelihood that a civil appeal will be decided on the merits, and (3) the probability of trial court outcomes being reversed at the intermediate appellate court level. The paper provides a roadmap for better understanding the case and litigant level characteristics that drive key decisions in intermediate appellate courts.

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Appeal from Remand of Nineteen-Plaintiff Products Case Dismissed

Nineteen plaintiff families filed a single complaint against Pfizer and other pharmaceutical companies in state court in West Virginia, alleging that Zoloft caused birth defects to children born of women ingesting it.  Only one of the plaintiff families was nondiverse from the defendants.  A West Virginia state rule required each family to be docketed separately and to pay a separate filing fee, but did not required them to fiile separate complaints. 

The pharmaceutical companies removed eighteen of the nineteen families to federal court, alleging diversity jurisdiction.  The district court remanded, holding that the action was really one civil action lacking complete diversity, and that the one nondiverse family was not fraudulently joined.

The Fourth Circuit held that the remand order was within the scope of 28 U.S.C. 1447(c) because it was based on the district court's lack of subject matter jurisdiction.  Therefore, the remand order was not reviewable on appeal under 28 U.S.C. 1447(d).

Retired Justice Sandra Day O'Connor, sitting by designation, joined the opinion.  E.D. v. Pfizer, No. 12-2188 (4th Cir. July 12, 2013).

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The Sequester's Effect on Federal Courts

The Atlantic online has posted an essay entitled "How the Sequester is Holding up Our Legal System" by Andrew Cohen.  It describes federal judges' concerns about issues raised if the budget cuts reach into the next fiscal year.  "The sequester . . . represents an assault by the legislative and executive branches upon core judicial functions. . . . The Administrative Office of the United States already has indicated that it may be forced to eliminate civil jury trials in the month of September . . ." 

The essay also describes public apathy about the issue.

Hat tip: Howard Bashman, @howappealing.

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O'Connor and Drahozal on Carve-Outs and Contractual Procedure

Erin A. O'Hara O'Connor and Christoper R. Drahozal have posted on SSRN their article, "Carve-Outs and Contractual Procedure."

Abstract:

The burgeoning literature on private contractual choice of procedure has run up against a difficult empirical reality: the available empirical evidence reveals surprisingly little use of customized procedural rules in contracts between sophisticated parties. One likely reason for so little customization is that contractual relationships entail multiple risks, and it is very difficult to specify customized procedures that would optimally handle all potential disputes. In this article, we identify and analyze an alternative mechanism by which procedural customization commonly takes place in contracts: the use of carve-outs from arbitration. A carve-out is a contract provision by which the parties exclude (or carve out) certain claims or remedies from their arbitration clause. Carve-outs are a mechanism by which parties choose between court and arbitral bundles of procedures on a claim-by-claim basis. The claim-based choice makes more sense in that it enables the parties to choose procedures tailored to individual contractual risks. With such clauses, parties are able to obtain a more carefully calibrated procedural customization than provided by an arbitration clause or forum selection clause alone, but at a much lower overall cost than they would incur by attempting to develop customized procedural rules. This article sets out a model of the decision to use carve-outs and provides a detailed empirical examination of their use. Our analysis has a number of implications for the continued necessity of courts and their governing legal rules, the legal enforceability of carve-outs, and court treatment of the severability of claims from arbitration clauses more generally.

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Pennsylvania Court Upholds $500,000 Limit on Awards Against Governmental Entities

The Legal Intelligencer reports that a Pennsylvania lower court has upheld the statutory $500,000 limit on damages awards against governmental entities, reducing a $14 million award to a plaintiff for loss of her leg, and setting the stage for a constitutional challenge to the damages cap in the Pennsylvania Supreme Court.

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Eleventh Circuit Hands Plaintiffs a (Short-Lived?) CAFA Jurisdiction Win

In Scimone v. Carnival Corp., No. 13-12291 (11th Cir., July 1, 2013), two groups of 56 and 48 plaintiffs filed suit in Florida state court for damages arising out of the shipwreck of the Costa Concordia off the coast of Italy in 2012.  Defendant Carnival removed the actions to federal court, alleging diversity jurisdiction under CAFA's mass action section, 28 USC 1332(d)(11) ("'mass action' means any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly . . . ").  

The district court granted plaintiffs' motions to remand, and the Eleventh Circuit affirmed, distinguishing Standard Fire v. Knowles.  "Under the plain language of CAFA . . ., the district court lacked subject matter jurisdiction over the plaintiffs' two separate actions unless they proposed to try 100 or more persons' claims jointly."

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Scott Harris Named Clerk of the U.S. Supreme Court

Today the U.S. Supreme Court announced that Scott Harris has been appointed to be the twentieth Clerk of the U.S. Supreme Court, effective September 1. Congratulations!

Coincidentally, the new Clerk’s first and last names are the lead parties of a fairly recent Supreme Court merits decision. Readers will recall Scott v. Harris, 550 U.S. 372 (2007), the summary-judgment-by-car-chase-video case. (You can see the video here.)

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Ninth Circuit Allows Removal of Wage and Hour Class Action Under CAFA

Plaintiff filed a state-law wage-and-hour class action in California state court on April 27, 2011.  Plaintiff and an added plaintiff filed a first amended complaint on May 24, 2012, adding a new defendant, CHA. 

On September 4, 2012, CHA and the other defendants removed the action, alleging diversity jurisdiction under CAFA "based on the diverse citizenship of one would-be class member" and an amount in controversy in excess of $5 million.  The would-be class member submitted a declaration that she had moved to Nevada in late 2011, intending to live in Nevada for the foreseeable future.  (Although the opinion did not say, apparently all the defendants and all of the other class members are California citizens.)   

The district court granted plaintiffs' motion to remand to state court.  The Ninth Circuit reversed.  The court implicitly assumed that the defendants had shown diversity jurisdiction under CAFA and focused solely on the timing of the notice of removal.  Although the 30-day period for removal under 28 USC 1446(b)(3) had passed (if counted from the filing of the First Amended Complaint), the FAC had not explicitly contained information showing diversity of citizenship.  Using their superior knowledge of the whereabouts of employee class members, the defendants had found the Nevada citizen on their own.

The court noted that plaintiffs could protect themselves from gamesmanship by providing to the defendant "a document from which removability may be ascertained," which will trigger the 30-day removal period.  The court also noted that this case still might be remanded under CAFA's local controversy exception.  Roth v. CHA Hollywood Medical Center, L.P., No. 13-55771 (June 27, 2013).

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Second Circuit Vacates Class Certification in the Google Books Case

Here is the opinion in The Authors Guild, Inc. v. Google Inc. The opinion begins: 

We consider in this appeal whether the United States District Court for the Southern District of New York (Denny Chin, Circuit Judge, sitting by designation) erred in certifying the plaintiff class—authors claiming that defendant-appellant Google Inc. committed copyright infringement by copying and displaying “snippets” of millions of books in the Library Project of its Google Books search tool. On the particular facts of this case, we conclude that class certification was premature in the absence of a determination by the District Court of the merits of Google’s “fair use” defense. Accordingly, we vacate the June 11, 2012 order certifying the class and remand the cause to the District Court, for consideration of the fair use issues, without prejudice to any future motion for class certification.

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