TortsProf Blog

KS: Supreme Court Strikes Down Non-economic Damages Cap

On Friday, the Kansas Supreme Court declared that state's cap on non-economic damages in personal injury cases unconstitutional as violating a person's right to a jury trial.  The 4-2 decision affected a cap put in place in the 1980s.  At the time of the appeal, the cap was $250,000, but it has since risen to $325,000.  The Washington Post has the story.

Calnan on Reasonableness

Alan Calnan has posted to SSRN The Nature of Reasonableness.  The abstract provides:

Though the notion of reasonableness dominates Anglo-American law, its meaning has been clouded by traditional conceptual analysis. This Essay argues that greater clarity can be gained by taking a scientific approach to the subject, exposing the natural foundations beneath the concept’s varied interpretations.

Janecek on Vicarious Liability

Vaclav Janecek has posted to SSRN Vicarious Liability of Juristic Persons:  A Historical, Comparative and Philosophical Study.  The abstract provides:

This chapter advances two claims regarding vicarious liability. First, that every legal system must be capable of theoretically devising the idea of vicarious liability (as opposed to direct liability and responsibility). Second, that juristic persons and other artificial legal entities may be liable only vicariously for wrongs committed by other persons, who ultimately must be human beings. To cast new light on the concept of vicarious liability, this chapter analyses the changing relationship of the terms liability (in Czech: “ručení”) and responsibility (in Czech: “odpovědnost”) in the historical development of Czech law from the beginning of the 19th century until mid-20th century. This development was marked not only by radical changes in the posited law and by the problematic connections of the Czech legal terminology with the German one (especially with the terms Haftung and Verantwortung), but especially by the normative theory of law, internationally known especially thanks to Hans Kelsen’s writings. A peculiarity of the Czech tradition in the normative theory of law (analysed in this chapter primarily through the pioneering work of František Weyr, whose publications are mostly unknown in English-speaking countries) is that it has arrived at the concept of vicarious liability by analysing the abstract nature of legal duties, i.e. regardless of any positive legal system. This happened already in the 1930s, although the Czech normative theory of law did not take into account any developments in the common law systems with which the concept of “vicarious liability” is typically associated. This chapter presents and develops the “normativist” theory of vicarious liability to arrive at the two main claims as set out above.

IL: Suit Claims Jimmy John's "Freaky Fast" Delivery Slogan Led to Accident

A mother and daughter injured in an auto accident claim that Jimmy John's "freaky fast" delivery slogan is responsible.  The Madison-St. Clair Record has details.

Maliha on the Distortive Effect of the National Practitioner Data Bank on Medical Malpractice

George Maliha has posted to SSRN The Distortive Effect of the National Practitioner Data Bank on Medical Malpractice Litigation and Settlement.  The abstract provides:

Congress created the National Practitioner Data Bank ("NPDB") in 1986 to address a concern that medical liability cases were increasing throughout the nation. In order to prevent physicians from moving from state to state in order to escape a poor outcome, the NPDB was supposed to provide a central clearinghouse of information for every physician in the country-regardless of where they practiced. However, the NPDB distorts medical malpractice litigation and settlement-harming defendant-physicians, plaintiff-patients, and insurers. The NPDB's brooding shadow over medical malpractice has led many litigants and commentators to term it a "blacklist." Part II explores whether this term is appropriate by describing the NPDB in the context of insurer-physician relations. This discussion will connect the well-described model of insurer-insured relations to the prescient concerns raised about the NPDB's potential distortive effect on litigation and settlement as the data bank was being enacted in the late 1980s. Part III will explore mechanisms to alter reports-and place a physician's "side" into the record kept by the NPDB. Attempts to alter reports have triggered litigation against reporting entities and the NPDB itself, and although they have largely failed, these suits illustrate the unique problems that the NPDB causes physicians. In Part IV, these unsuccessful suits will be contrasted against a body of law surrounding the accuracy of another putative "blacklist"-credit scores. Part V will begin to sketch out some basic policy recommendations.

Cortez on Technology and Patient Safety

Nathan Cortez has posted to SSRN A Black Box for Patient Safety?.  The abstract provides:

Technology now makes it possible to record surgical procedures with striking granularity. And new methods of artificial intelligence (A.I.) and machine learning allow data from surgeries to be used to identify and predict errors. These technologies are now being deployed, on a research basis, in hospitals around the world, including in U.S. hospitals. This Article evaluates whether such recordings – and whether subsequent software analyses of such recordings – are discoverable and admissible in U.S. courts in medical malpractice actions. I then argue for reformulating traditional "information policy" to accommodate the use of these new technologies without losing sight of patient safety concerns and patient legal rights.

OR: Senate Narrowly Defeats Bill to Eliminate Non-Economic Damages Cap

On Tuesday, the Oregon Senate, in a close vote, defeated a bill that would have eliminated the state's $500,000 cap on non-economic damages in personal injury cases.  An alternative proposal would have raised the cap, established in 1987, to $1.5M, with increases over time.  That bill was also voted down, with the support of lawmakers who want to completely eliminate the cap.  OregonLive.com has the story.

PA: J&J Subsidiary Loses Motion to Move Mesh Mass Tort Cases from Philly

Citing media coverage, Ethicon, a subsidiary of Johnson & Johnson, filed a motion to move consolidated pelvic mesh cases outside of Philadelphia and the five counties surrounding it.  In the past few months, several large verdicts have been returned against Ethicon in Philly.  Court of Common Pleas Judge Arnold New denied the motion in a one-page order that did not provide reasoning.  The Legal Intelligencer has the story.

Patti on Autonomous Vehicles in Europe

Francesco Paolo Patti has posted to SSRN The European Road to Autonomous Vehicles.  The abstract provides:

The present contribution intends to outline a “European regulatory strategy” in order to address technological and legal challenges posed by autonomous vehicles. Starting with a recent communication of the EU Commission, the paper provides a critical analysis of the EU policies on the legal issues of liability related to autonomous vehicles. The ongoing discussions within national jurisdictions demonstrate that a comprehensive plan to tackle the aforementioned problems is missing. The efforts made by national legislators and scholars reveal a patchwork of solutions, whereby everyone tries to find their own way to balance innovation with the need to protect the interested persons. It is however clear that the possible evolutions in the automotive sector will mainly affect three branches of private law: traffic accident liability, product liability and insurance law. It is thus necessary to understand whether private law needs to adapt its paradigms to the technological developments under examination. In this respect, the contribution tries to examine the main problematic aspects of the actual legal framework at the national and European level. It goes then further in presenting, through a two-steps approach, how traffic liability might look like in the future, both in the short and in the longer term. The main findings of the article are that in the near future no dramatic changes are required, but just some minor amendments to adapt the product liability regime to the technological changes; in the more distant future, when users will demand autonomous vehicles through their devices, there will be the need to fashion a new system of traffic liability with compulsory insurance on manufactures, which will become a prerequisite for the vehicle being in motion. Finally, the paper advances some conclusions about the need to foster comparative research on the examined issues. 

Bagchi on Production Liability

Aditi Bagchi has posted to SSRN Production Liability.  The abstract provides:

It is well known that many consumer goods are produced under dangerous working conditions. Employers that directly supervise the production of these goods evade enforcement. Activists and scholars have argued that we must hold the manufacturers and retailers that purchase goods made in sweatshops accountable. However, there has been little movement toward such accountability.

Responsibility for the conditions under which goods are made — what I call “production liability” — entails assigning responsibility for workers to firms that do not directly employ them. Production liability, therefore, conflicts with deep intuitions about the boundaries of individual responsibility.

This Article offers a moral and economic defense of production liability that is responsive to that challenge. The Article identifies the particular moral responsibility that manufacturers bear as a public form of complicity. It further considers the economic logic of assigning legal liability to such firms and the optimal form that liability should take. This Article makes the case that production liability can update our legal regime for employment in the way that products liability did for consumer law.

Faure on an Economic Analysis of Product Liability

Michael Faure has posted to SSRN An Economic Analysis of Product Liability.  The abstract provides:

This chapter in a book on European product liability provides a summary of the economic approach to product liability. The economic theory of product liability based on the Coase Theorem is explained. Next, product liability when damage is suffered by third parties is analyzed. Specific attention is paid to the EU Product Liability Directive and to more recent literature.

JOTWELL Torts: Engstrom on Kachalia et al. on Med Mal Communication-and-Resolution Programs

At JOTWELL, Nora Engstrom reviews Allen Kachalia et al., Effects of a Communication-and-Resolution Program on Hospitals' Malpractice Claims and Costs. 

CA: Family Injured in Amusement Park Incident

On Saturday, at Castle Park in Riverside, a family of three was injured--the mother critically--on a log flume ride.  According to reports, the ride malfunctioned and the family's log flipped, throwing the family into the water:

"What it appeared is that there was no water flowing on the ride. There was a pump that had malfunctioned on the ride that caused that one car to come down the descent rapidly," Fire Captain Brian Guzzetta told KTLA-TV.

Castle Park stated that each of their rides is tested every day.  USA Today has the story.

Florida Becomes a Daubert Jurisdiction

The Florida Supreme Court has adopted the Daubert standard pursuant to its rulemaking authority, reversing a recent reaffirmation of the Frye standard.  

The decision is here:  Download 2019-107_disposition_146334_d29

Thanks to Mark Behrens for the tip.

Feinman on Contract and Claim in Insurance Law

Jay Feinman has posted to SSRN Contract and Claim in Insurance Law.  The abstract provides:

This article offers a new perspective on insurance law by examining and combining two basic features of insurance and insurance law: the nature of the insurance contract and the fact that most insurance law issues concern a disputed claim. Insurance law scholars are fond of reconceptualizing their subject. Insurance policies and insurance law have been likened to a means of public utility regulation, a product warranty, a social institution, or, perhaps mostly simply, a thing. This article represents another conceptualization of the subject, and one that may be less foreign to the subject and closer to the reality of the formation and performance of insurance relationships.

Every insurance policy is a contract between the policyholder and the insurer. Fundamentally, however, almost every insurance law problem, dispute, or doctrine is really about paying or not paying claims. These two features — contract and claim — are at the heart of most insurance law disputes. The significance of insurance as contract is generally recognized, but the centrality of claims, less so. The article examines each of them separately and then combines them. Doing so provides a perspective on a large number of insurance law issues, and that perspective should change the courts’ approach to a number of issues and doctrines. The focus is on personal lines, particularly first-party insurance, but the analysis also has implications in other settings.

The article first presents the contract and claim analysis. It then applies the analysis to several common issues in insurance law. The illustrations come from three different points in the life of an insurance policy. The first concerns a formation issue: when an insurer may use misstatements by a policyholder in the application process to avoid coverage. The second, and most general, addresses interpretation issues that concern the insurer’s performance of the insurance contract. The third concerns issues of policyholder and insurer performance after a claim is filed — the false swearing rule and the law of insurance bad faith. All three reinforce the insight that every doctrinal issue involves a conception of the insurance contract and arises because of a disputed claim. The discussion demonstrates that courts sometimes use similar analysis, describes those tendencies, suggests why they are incomplete, and uses the contract and claim analysis to make them explicit and more comprehensive. Other courts take quite different approaches; contrasting those approaches with the contract and claim analysis demonstrates what they get wrong. The result is both a demonstration of the usefulness of the article’s analysis and a beginning catalog of how it can reshape insurance law doctrine.

USSC Clarifies "Clear Evidence" for Preemption

Yesterday, in Merck Sharpe & Dohme v. Albrecht, the Court held that judges, not juries, should decide whether FDA actions preempt state tort suit alleging failure to warn.  The opinion explained that Wyeth v. Levine's "clear evidence" standard contemplates an irreconcilable conflict between federal and state law, rather than a heightened standard of evidentiary proof:

This point of procedural clarity has enormous strategic value for products-liability defendants because it confirms that courts may conclusively rule on the pre-emption defense as early as a pre-answer motion, though the factual complexity of FDA communications likely will push the issue in many drug-pre-emption cases to summary judgment. 

Elizabeth McCuskey at SCOTUSblog has details.

USSC Refuses to Reconsider Feres Doctrine

Yesterday the Court refused to hear a case reconsidering the Feres Doctrine.  Justices Ginsburg and Thomas dissented from that decision.  ABA Journal has the story.

UVa Podcast: Abraham & Raschid on Autonomous Vehicles and Liability

UVa Law has a podcast, "Common Law," which is co-hosted by tortsprof Leslie Kendrick (she is Vice Dean).  The most recent version features Ken Abraham and alum Michael Raschid, chief legal officer and vice president of operations at Perrone Robotics, discussing the effect of autonomous vehicles on tort and insurance.

Viscusi on Med Mal Reform

Kip Viscusi has posted to SSRN Medical Malpractice Reform:  What Works and What Doesn't.  The abstract provides:

Concerns with medical malpractice liability costs have been a principal factor leading states to adopt a series of tort liability reforms. Medical malpractice premiums have been declining, creating less of a cost-based impetus for additional reforms. The most consistent empirical evidence indicating statistically significant effects of medical malpractice reforms has been for caps on non-economic damages. Damages caps reduce insurance losses and foster insurer profitability, consistent with the objective of caps. The impacts of caps are greatest for insurance companies that otherwise would have experienced the greatest losses in the state. However, caps may reduce payouts to plaintiffs, potentially reducing the funds available to cover economic losses and attorney fees. A more recent medical malpractice reform, apology laws, may have a counterproductive effect by encouraging apologies that have the unintended consequence of increasing litigation and damages payments. There is also evidence that medical malpractice reforms affect the delivery of medical care and the supply of physicians, but these effects are not as prominent as the impacts on payouts. Medical malpractice liability remains an inefficient way to transfer funds to injured patients. The share of litigation and defense expenses relative to costs remains high. The early offer reform proposal is one approach that is directed at reducing these costs.

Sawicki on the Conscience Defense in Med Mal Cases

Nadia Sawicki has posted to SSRN The Conscience Defense to Malpractice Cases.  The abstract provides:

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in the provision of reproductive health services – including abortion, sterilization, contraception, and emergency contraception. 

Scholarship and public debate about law’s role in protecting health care providers’ conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate – that is, the precise procedural mechanisms by which they protect those who decline to provide medical services that violate their deeply-held conscientious beliefs. 

This Article demonstrates that state laws vary dramatically in the types of conscience protections they offer. States may immunize health care providers from a wide range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in education, and denial of public or private funding, among others. Of these, immunity from civil liability is by far the most common procedural protection. In a majority of states, this immunity is absolute – providing no exceptions in cases of malpractice, denial of emergency treatment, or patient death. In practice, these laws eliminate patients’ common law right to recover monetary damages when they suffer physical injury as a result of a health care provider’s conscience-based deviation from the standard of care.

While many scholars have examined the impact of conscience laws on patient access to medical care, there has yet been no comprehensive analysis of these laws’ impact on patients’ right to a tort law remedy when they are denied such care. This Article not only raises awareness of the previously-unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law’s ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws. This Article highlights opportunities for future research on the question of whether conscience-driven health care providers should be granted legal immunity from all possible adverse consequences of their actions, or whether these protections should be balanced against state interests in ensuring that patients who are injured by provider refusals are not denied opportunities for tort recovery.