TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, February 8, 2006

Beware the Lettuce

An interesting salad bar slip-and-fall case argued in Connecticut recently.  The court is considering whether to abandon the requirement of actual knowledge in such cases.

The case in point revolves around a piece of lettuce, said to be the cause of dental hygienist Maureen Kelly's nasty fall while pivoting to get a lid for her salad tin at a Fairfield Stop & Shop salad bar on Nov. 2, 1999.

Kelly landed hard on her left shoulder, tearing her rotator cuff, and now suffers chronic pain. The attorney for Stop & Shop countered Tuesday that there was no firm evidence that the piece of lettuce apparent on the side of Kelly's shoe even caused the fall.

February 8, 2006 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

No Negligence Per Se for that Chop Block

Via Tuesday Morning Quarterback (pointed out to TMQ by Stephen Carter of Yale Law School), an excerpt from the 2005 Official Playing Rules of the National Football League:

Where the word 'illegal' appears in this rulebook, it is an institutional term of art pertaining strictly to violations of NFL rules. It is not meant to connote illegality under any public law ... The word 'flagrant,' when used here to describe an action by a player, is meant to indicate the degree of violation of the rules ... 'flagrant' in these rules does not necessarily imply malice on the part of the fouling player.

I'm sure the courts will be pleased to know that they, and not NFL referees, continue to determine what conduct is illegal under the law.

(Incidentally, that purported block below the waist wasn't.)

February 8, 2006 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 7, 2006

Conference: Emerging Issues in Tort Law (Canadian)

From the announcement:

June 9-10, 2006
The University of Western Ontario

On June 9-10, 2006 the Faculty of Law of the University of Western Ontario will be hosting a conference, the theme of which is “Emerging Issues in Tort Law”.  The purpose of the conference is to bring together academics, lawyers and judges to analyze and discuss undertheorized and underexplored areas of tort law that are likely to examined by the courts in the near future.

Over the coming years the number, and intellectual complexity, of tort actions is likely to increase. This conference is an excellent opportunity to learn the details of these emerging issues from leading academics and practitioners from Canada, the United Kingdom, the Commonwealth and the United States. Each panel will be moderated by an appellate judge with an interest in the area. The high quality of the presenters makes this a must-attend event for those teaching and writing in this area of the law.

Registration forms for the conference, as well as a complete programme of the event, can be found at the conference website.

Confirmed conference participants include:

Justice W. Ian C. Binnie (Supreme Court of Canada)
Chief Justice Lance Finch (British Columbia Court of Appeal)
Chief Justice Michael MacDonald (Nova Scotia Court of Appeal)
Chief Justice  Richard J. Scott (Manitoba Court of Appeal)
Chief Justice  Clyde K. Wells (Newfoundland Court of Appeal)
Justice Eleanore A. Cronk (Court of Appeal for Ontario)
Justice  Susan Lang (Court of Appeal for Ontario)         
Justice Allen Linden  (Federal Court of Appeal)
Justice  Kathryn Feldman (Court of Appeal for Ontario)
Justice Stephen Goudge  (Court of Appeal for Ontario)
Justice Robert Sharpe (Court of Appeal for Ontario)
Elizabeth Adjin-Tettey (Victoria)
Kumar Amirthalingam (National University of Singapore)
Peter Benson (Toronto)
Vaughan Black (Dalhousie)
Peter Cane (Australian National University)
Ken Cooper-Stephenson (Saskatchewan)
David Cheifetz (Bennett Best Burn LLP)
Israel Gilead (Hebrew University)
Paula Giliker (Oxford)
Michael Jones (Liverpool)
Lara Khoury (McGill)
Lewis Klar (Alberta)
Richard Lewis (Cardiff)          
Mayo Moran (Toronto)
John Murphy (Manchester)
Ken Oliphant (Cardiff)
David F. Partlett (Washington and Lee)
Stephen Perry (New York University)
Denise Réaume (Toronto)
Geneviève Saumier (McGill)
Lionel Smith (McGill)
Stephen Smith (McGill)
Robert Stevens (Oxford)
John Swan (Aird & Berlis LLP)
Andrew Tettenborn (Exeter)
Stephen Todd (Canterbury)
Shauna Van Praagh (McGill)
Stephen Waddams (Toronto)
David Wingfield (WeirFoulds LLP)
Richard Wright (Chicago-Kent)

The cost to attend the conference is C$150 for legal academics which includes a continental breakfast and lunch on both days.  A dinner will be held during the conference and the cost to attend is a further C$50.

The University of Western Ontario is located in London, Ontario, which is approximately 200 kilometres south-west of Toronto. London is well-served by frequent bus, rail and air connections from Toronto.
For further information contact:
Jason Neyers
Assistant Professor of Law
Phone:  (519) 661-2111 x. 88435
E-mail: jneyers@uwo.ca

February 7, 2006 | Permalink | Comments (0) | TrackBack (0)

Philip Morris to (Surprise!) Appeal $79.5 Million Punitives Verdict

(Here's my original post with some excerpts from the opinion.)

The AP story quotes torts prof Carl Tobias (Richmond) as suggesting that the Supremes will take the case.  I'm less certain of that, unless it's just to remand with directions to read State Farm, real slowly and carefully this time.

(I kid, I kid.  The Oregon court did read State Farm and Gore and so on, and just concluded that the facts here supported a huge ratio of punitives to actuals ("Philip Morris's conduct here was extraordinarily reprehensible, by any measure of which we are aware.").  If the Supremes do take it, it'll be an interesting test of just how definitive that single-digit-multiplier is.)

February 7, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, February 6, 2006

South Korea Considers Punitive Damages

...and the arguments seem rather familiar:

The Presidential Committee on Judicial Reform will soon introduce a punitive damages system. It could be way to deter antisocial crimes such as kidnapping, embezzlement, drunk driving and violent demonstrations. However, a pharmaceutical company, for instance, might be discouraged from developing new medicine, such as an AIDS vaccine, for fear of being sued. The committee should consider that consumers might be the ones to suffer damage.

The article also cites Erin Brockovich and O.J. Simpson for good measure.

February 6, 2006 | Permalink | Comments (0) | TrackBack (0)

Torts and the SOTU

[Some new entries below; also check out the comments.]

I'll try to update this throughout the day as I come across reactions to the State of the Union speech that are tort-related.  In case you missed it, the main (only?) reference in the speech was this:

And because lawsuits are driving many good doctors out of practice – leaving women in nearly 1,500 American counties without a single OB-GYN – I ask the Congress to pass medical liability reform this year.

Some (excerpted) reactions from around and about:

  • Day on Torts: "How can anyone with a lick of sense suggest that OB-GYNs do not practice in rural American because of medical negligence lawsuits? Doctors practice medicine where there are patients and where there are hospitals."
  • Federal Disability Claims Blog: "How much of the President’s claim [about problems of litigation] is supported in fact? [paragraph] Not much according to none other than the very people at the heart of the matter: the Judges in the Courts themselves."  [Note: Written before the SOTU, so not entirely on the mark about what Bush in fact said.]
  • SOTU Drinking Game (Elfstar): Mentioning malpractice reform means take one drink.
  • Talking Points Memo Cafe: "The effects of malpractice lawsuits on our medical system are way overblown.  Research shows that less than one half of one percent of medical spending goes toward defending lawsuits, paying premiums, and giving malpractice awards.  Tort reform can't control rising health costs. [paragraph] In terms of 1,500 U.S. counties without ob-gyns, that has to do with population distribution.  16.1% of counties have more than 100,000 inhabitants, while 83.9% of counties had less than 100,000 inhabitants.  There aren't enough doctors in rural practice, but that has nothing to do with malpractice, and tort reform won't solve that problem."  (Post by Kate Steadman)
  •   ATLA Press Release: "In his State of the Union address tonight, President George W. Bush continued his habit of attacking the civil justice system to provide yet another giveaway to his corporate contributors. Specifically, Bush called for legislation that would do nothing to provide quality health care to the 45 million Americans who do not have access or lower health care costs but would pad the profits of his contributors in the insurance industry."
  • NAM has provided the White House talking points [PDF]: "The President Calls On Congress To Make The Medical Liability System Fairer And More Predictable While Reducing Wasteful Costs.  Frivolous lawsuits and excessive jury awards limit access to health care by driving health care providers out of many communities and increase costs by forcing doctors to practice defensive medicine.  Because lawsuits are driving many good doctors out of practice, women in nearly 1,500 American counties are left without a single OB-GYN.   Medical liability reforms would secure an injured patient's ability to get quicker compensation for economic losses, while reducing frivolous lawsuits against doctors that raise the cost of health care for all.  [Ed. Note: presumably the lawsuits raise the costs, not the doctors.]  The President has proposed proven, common-sense reforms that reserve punitive damages for egregious cases where they are justified, limit non-economic damages to reasonable amounts, ensure that old cases cannot be brought to court years after an event, and provide that defendants pay judgments in proportion to their fault."
  • [New] The Center for Justice & Democracy: "The medical malpractice legislation that Bush will advocate during the 2006 State of the Union would take away legal protections that have saved thousands of lives.  These laws have protected us from drugs and medical devices like Vioxx, the Dalkon Shield and Copper-7 IUDs, an antibiotic that caused cancer, a pregnancy test that led to false-positives for cancer, and many others.  [paragraph]  The Administration’s plan will result in Americans dying so that the drug companies can make even more money.  Moreover, arguing that limiting the legal rights of patients injured by medical malpractice will lower health care costs is a blatant misrepresentation of facts."  This press release also cites FactCheck.org on the costs of the current system (this search will get you all articles mentioning "malpractice").

Most of these include substantially more than what I've quoted above.  Send a note if you know a good one.  Folks like the Manufacturers Blog have been focusing on other aspects of the speech.

[Updated and moved to the top on Monday morning -- probably the last update of this post.]

February 6, 2006 | Permalink | Comments (3) | TrackBack (0)

Sunday, February 5, 2006

Woeful Lack of Donut Shops

Funny.

(And please note that it is satire, but relevant satire.)

February 5, 2006 | Permalink | Comments (1) | TrackBack (0)

Saturday, February 4, 2006

Oklahoma Targets Joint & Several Liability (Among Other Things)

Here's a pretty good overview, complete with anecdote and comeback, with nobody really citing Oklahoma-based numbers, but with an interesting survey of Oklahoma judges and a snippet from Texas.

The anecdote:

[An OB-GYN of retirement age] said she was forced to give up on her practice entirely because of rising medical malpractice insurance rates.

"I liked what I was doing, but when I found out my malpractice was going to be $50,000 a year, I decided I just couldn't do that,'' Davis said. "I couldn't just slow down like the doctors used to do, work and see their patients but not feel like they had to work all day long.

"If it hadn't been for the malpractice insurance, I'd still be practicing in my office right now.''

The comeback:

"My opinion ... is that it is a very good fundraising tool,'' said Brad West, a Shawnee attorney and president of the Oklahoma Trial Lawyers Association. "It's one of those things that (lawmakers) can say to their political base that motivates them to give money.

"But it's not that simple.''

The interesting survey:

Oklahoma judges apparently agree. According to a survey conducted by state Sen. Charlie Laster, the chairman of the Senate Judiciary Committee, more than 68 percent of judges said they consider less than 5 percent of cases to be frivolous. Almost 90 percent opposed a cap of $250,000 for non-economic damages.

(An odd way to summarize the results, incidentally.  Two thirds of judges think that less than five percent of the cases are frivolous.  What do the other third think?  I can't find the actual study, though I found this PowerPoint (see HTML version here).)

Finally, the snippet from Texas:

While lawsuit reform proponents say hard caps on non-economic damages will result in lower medical malpractice premiums for doctors and greater accessibility to health care, that isn't what happened in Texas, said Alex Winslow, executive director of Texas Watch, an Austin-based consumer advocacy and research group.

When Texas lawmakers approved a $250,000 cap for medical malpractice cases in 2003, there was a decrease in the number of lawsuits filed, but not much change in the cost of premiums, Winslow said.

"What we were told in 2003 is that doctors could expect significant rate reductions of somehwere between 15 and 18 percent,'' Winslow said.'' Rates across the industry have dropped by no more than 5 percent, and more than half of doctors have seen no reduction at all.

February 4, 2006 | Permalink | Comments (1) | TrackBack (0)

Friday, February 3, 2006

FDA Bootcamp

Lots of folks could use the information at this conference (including a lot of academics).  I do have to admit some amusement at the "bootcamp" title, though --

I don't know what I've been told,
But drug companies can change the label without permission through the CBE process so long as it increases safety information
Sound Off -- CBE!
Sound off -- NDA!

February 3, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 2, 2006

Oregon Upholds 151:1 Punitive: Compensatory Verdict

In the suit against what is now Altria, the court upheld $79.5 million in punitives on a $521,000 compensatory award (reduced from the jury's $821,000).  [Changed the story link to a better AP story on the Post site.]  Guess we'll see how solid that 9:1 ratio is. 

Update: The opinion is now up on the Court's website.  The concluding paragraphs:

Of the three Gore guideposts, then, two support a very significant punitive damage award. One guidepost -- the ratio -- cuts the other way. In the end, we are left to use those competitive tools to assess whether the jury's punitive damage award was not "grossly excessive" and therefore should be reinstated.

The Gore guideposts are not bright-line tests.  See, e.g., Campbell, 538 US at 425 ("there are no rigid benchmarks that a punitive damages award may not surpass"); see also Gore, 517 US at 582 ("we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula"). In other words, the guideposts are only that -- guideposts.  Gore also referred to them as indicia. 517 US at 575 (reprehensability is "most important indicium"); id. at 580 (ratio is "second and perhaps most commonly cited indicium"); id. at 583 (comparable sanctions "provides a third indicium for excessiveness").  Campbell specifically contemplated that some awards exceeding single-digit ratios would satisfy due process.  See id. at 425 ("in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process"). Single-digit ratios may mark the boundary in ordinary cases, but the absence of bright-line rules necessarily suggests that the other two guideposts -- reprehensability and comparable sanctions -- can provide a basis for overriding the concern that may arise from a double-digit ratio.

And this is by no means an ordinary case. Philip Morris's conduct here was extraordinarily reprehensible, by any measure of which we are aware. It put a significant number of victims at profound risk for an extended period of time. The State of Oregon treats such conduct as grounds for a severe criminal sanction, but even that did not dissuade Philip Morris from pursuing its scheme.

In summary, Philip Morris, with others, engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others, even when Philip Morris always had reason to suspect -- and for two or more decades absolutely knew -- that the scheme was damaging the health of a very large group of Oregonians -- the smoking public -- and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million punitive damage award against Philip Morris comported with due process, as we understand that standard to relate to punitive damage awards. It follows that the Court of Appeals correctly held that the trial court should have entered judgment against Philip Morris for the full amount of the jury's punitive damage award.

More later.

February 2, 2006 | Permalink | Comments (0) | TrackBack (1)

Pieces of Emotional Distress

I don't think I've yet noted the various lawsuits about James Frey's book A Million Little Pieces; Overlawyered has done quite a bit on it.  Without getting into whether such lawsuits are a Good Idea (tm), one claim that I haven't seen yet -- suggested by one of my students -- is for intentional infliction of emotional distress.

Stay with me here for a bit.  Recall first that the intent standard for IIED is typically reckless disregard, not actual intent to cause distress.  Consider also the fact that the book was about addiction and marketed as an inspiring story, especially for people going through some of the same experiences Frey went through (whichever of those experiences were in fact true).  Given that marketing, there's knowledge of a particularly susceptible population who are relying upon the book and (maybe) knowledge of a risk of serious distress to readers who discover the fiction.

Of course the real question is whether the conduct of publishing fictional material as nonfiction is outrageous to the relatively high level required for IIED, and whether the plaintiffs in fact suffered the severe level of emotional distress required.  Most likely a small percentage (at most) of those who are bringing suit can support those factual allegations.  But it may be, for those plaintiffs, a better claim than many of the claims out there (value of time spent reading, etc.).

Update: This FindLaw piece by Anita Ramasastry (Washington) does a nice job of methodicall working through the claims that have been made in lawsuits filed thus far.

February 2, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 1, 2006

Whatever Happened to the Shrimp Case?

I check the Google News feed, I check Technorati, and there's no relief for those of us who want -- nay, need -- to know what happened with the Benihana shrimp case (first post and second post).  Instead, we get quarterly filings and someone discussing an old school cheerleading jam, whatever that might be.

Anyone hear what happened with the case?  Anyone?

February 1, 2006 | Permalink | Comments (1) | TrackBack (0)

Exxon Valdez Punitives Argument

The case about the Exxon Valdez punitives returned to the Ninth Circuit for approximately the 3,145th time last week, with the judges and parties continuing to bounce around how much is appropriate for punitive damages.  Exxon noted that it's spent $3 billion in cleanup already, suggesting that amount is sufficient for deterrence.  (The plaintiffs, meanwhile, are presumably hoping that the judges are at least aware, at least in the back of their minds, that the $5 billion verdict would represent the profits from half a quarter).

You can also listen to the argument here [WMA, I think that link will work].

February 1, 2006 | Permalink | Comments (2) | TrackBack (0)