TortsProf Blog

Sebok on Williams

Tony Sebok has a Writ piece on the Williams case that makes close to the same argument I made ("I would wager it will make exactly zero difference in the outcome.") -- that is, that the result of Williams may be minimal, and certainly far less important than the more problematic hard cap.  As he puts it:

In the future, when issues of punitive damages return to the Court, a lot will depend on whether the "nuance" identified by Breyer is real or illusory. The Court sent Philip Morris back to the Oregon Supreme Court for further proceedings consistent with its decision. As noted above, a new trial for damages seems overwhelmingly likely, if settlement is not reached. The question at that next trial will be whether it will make a practical difference to the jurors whether they are asked to assess punitive damages against Philip Morris based on the reprehensibility of the firm's defrauding an unknown number of Oregon smokers, and being asked to punish Philip Morris for defrauding an unknown number of Oregon smokers.

It is easy to see, then, why corporate America is nervous about the victory it achieved in Philip Morris. Granted, it is theoretically possible to imagine that a jury that returned $80 million in order to punish would return less than that in order to measure the reprehensibility of the same corporate act. Still, I doubt that many defense lawyers for the automobile and pharmaceutical industries want to be the guinea pigs to find out whether this possibility might also be a practical reality.

The End of Punitive Damage Class Actions?

That's what Beck & Herrmann think, due to the Williams case.  The basic jump they propose -- and it has some appeal -- is that if you can't get punitives for people who really aren't before the court, you shouldn't be able to get punitives for people who for all realistic purposes aren't before the court. 

Of course, we at least pretend in class litigation that the class members are represented and thus, in some sense, present.  That makes to me a shift to the outright end of punitives in class action to be more of a leap than they would suggest.

B&H also note the potential problem -- now Constitutional -- of being precluded from presenting all possible defenses, and its special applicability in bifurcated class actions (where individualized issues are left to a secondary phase). 

I think they may put a bit more weight than warranted on a particular "first" -- so long as final judgment comes after an opportunity to present defenses, my guess is that it's okay -- but it's an interesting argument, especially if there's a case where the first phase of the trial doesn't just consider the availability of punitive damages but also the amount of them.

Both arguments (and others they note) will certainly be popping up and may have some traction.

Doctors, Apologies & the Law

Marlynn Wei (a joint degree student at Yale Law & Yale Medicine) examines the variety of apology bills that have been proposed at the federal and state level in a forthcoming Journal of Health Law article up on SSRN.  The abstract:

This article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians' reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients' families, and even other physicians. Some states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This piece examines potential barriers to physicians' disclosure of medical mistakes and demonstrates how the underlying problem may actually be rooted in professional norms - norms that will remain outside the scope of law's influence. The article also considers other legal and policy changes that could help to encourage disclosure.

Lead Paint Post-Trial Motions Denied

Story here, quoting me.  The quotes are accurate; I'm not positive I said what I meant very precisely, but so it goes sometimes.  Certainly the key idea -- that I'm not altogether comfortable with the use of nuisance law on these facts -- is stated accurately.  I could likely have been clearer that the court (and jury) presumably found some level of fault by the defendants; my efforts to emphasize my lack of knowledge of the facts obscured that point.

Virginia Doctors Seek Charitable Immunity

That's pretty bold.

The state Supreme Court is being asked to decide whether hundreds of doctors are immune from negligence suits in the care they provide at Virginia's three teaching hospitals.

At issue is the largely abandoned, decades-old protection of charitable immunity, remnants of which are being used by tax-exempt foundations and the doctors they employ to plead immunity from malpractice suits. Lower courts across the state have issued opposite opinions on the defense.

Punitives & Multiple Damages

Nicely-timed, thanks to the Williams case, comes this article on SSRN (actually several years old, published in the Minnesota Law Review, but just posted) from Thomas Colby (GWU).  The abstract:

The practice of using punitive damages to punish a tort defendant, in a single case brought by a single one of many victims, for the full scope of societal harm caused by its entire course of wrongful conduct has become increasingly common in modern tort cases. This practice presents the troubling possibility that more than one victim will recover punitive damages awards that were each designed to punish the defendant fully for the same course of wrongful conduct, resulting in unjustly severe cumulative punishment. Many courts and commentators have responded to this “multiple punishment” problem with complex and far-reaching proposals designed to protect against it. This Article argues that these observers have been asking the wrong question. The proper question is not whether awarding these “total harm” punitive damages to more than one victim can sometimes lead to unconstitutional results, but rather whether awarding these damages to even a single victim is itself unconstitutional. This Article argues that it is.

These “total harm” punitive damages awards are a product of the modern conception of punitive damages, which imagines them as punishment for public, societal wrongs. This Article challenges the historical accuracy of this modern theoretical account, and reveals that historically, punitive damages were considered to be punishment only for the distinct, private legal wrong done to the individual victim. When the same conduct harmed more than one victim, the courts limited each plaintiff's recovery of punitive damages to the amount necessary to punish the defendant only for the private wrong done to the individual plaintiff. This Article argues that both historically and presently, the constitutionality of punitive damages is dependant [sic] upon their existence as punishment for individual, private wrongs, rather than public, societal wrongs. Thus, the revolutionary proposals offered by commentators seeking to solve the multiple punishment problem go both too far (by declaring that the Constitution requires radical alterations to traditional punitive damages practice) and not far enough (by assuming that the constitutional infirmity of “total harm” punitive damages lies only in multiple awards of them). This Article argues that the constitutional concerns are best addressed by returning to the roots of punitive damages doctrine and re-implementing the historical conception of punitive damages as punishment for the private wrong done to the individual plaintiff.

Discounting Future Pain

There's an interesting Note in a recent Virginia Law Review issue challenging part of the fundamental idea of the per diem approach to future pain and suffering.  The summary:

Outside the legal academy, the debate over tort reform rages on. In the political arena, advocates on both sides of the aisle often use empty rhetoric in an attempt to persuade voters that tort reform as a whole is “good” or “bad.” Of course, this over-simplistic view of tort reform does not take into account the multifaceted nature of tort law. This Note examines one method of calculating noneconomic damages and attempts to provide a theoretical justification for why a plaintiff’s use of the per diem (or time-unit) method to compute future pain and suffering damages cannot be justified under any reasonable theory. The debate over the per diem method to calculate these damages has largely stagnated in the past forty years. During this same time period, nothing less than a revolution has occurred in the understanding of pain and pain management therapy in medical and psychological fields. However, these advances have not been incorporated into the per diem discussion. This Note analyzes and introduces the “cognitive-behavioral treatment” (CBT) model of pain to the legal literature with the hope of supplying a theoretical foundation for why the per diem argument should be impermissible in the many jurisdictions that allow such a method. The basic flaw of the time-unit perspective is that it improperly assumes a constant dollar unit for future pain and suffering without discounting for either future advances in pain management therapy or an individual’s future and likely ability to psychologically and physically cope with chronic pain.

The full PDF is here.

Prawfsblog on Williams

Ethan Leib has a useful look at the Williams case.

Insurance Companies Heart Williams Case

Surprise!  Insurers like restrictions on punitives.

So here's my question.  Would this jury instruction pass muster?

[Members of the jury, e]vidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible. . . .  [But you] may not go further than this and use a punitive damages verdict to punish [the] defendant directly on account of harms it is alleged to have visited on nonparties.

Maybe it's not so confusing as I thought on first reading and as I wrote yesterday.  Chant the magic language (taken, as you presumably recognize, directly from the opinion), and you're golden.  This is despite the fact that I would wager it will make exactly zero difference in the outcome.  Go back in time (you can make your own Wayne's World sound effect), tell the jury hearing the story of Jesse Williams's death that language above, and I betcha we'd be back in the same case with the same 100-to-1 ratio.  And obviously others disagree, but I think the Oregon court did a pretty good job of at least saying the right words to make that ratio fit within the State Farm guideposts, including the 9-to-1 ratio.

I'm not as skeptical as some about a jury's ability to follow instructions.  I think they try.  But this case has the apparent result that harm to others will generally be admissible.  And so the jury will hear about the harm to other smokers (or patients or residents or whatever) and then they'll be told that they are only to use that evidence of the fact of reprehensibility, not as a basis for calculating harm.

Uh-huh.  Good luck with that.  State Farm, I'm fairly certain, has had an actual effect (whether good or ill - I'm not a fan, but that's for a different day).  This seems to me more likely to create some short-term litigation over what magic phrase works to inform the jury -- I see no reason why the one above won't work just fine, but I'm open to hearing differently -- and then it's just a check-box when drafting jury instructions.

More on Williams

Fortune's Legal Pad has a good look at it.  The lede:

Whenever the U.S. Supreme Court sets aside a punitive damages award on constitutional grounds, I suppose it must be seen as a victory for business. Still, while the Court's 5-4 ruling today in Philip Morris v. Williams definitely qualifies--the Court set aside a $79.5 million punitive damage award that an Oregon state jury had tried to award the widow of one individual smoker--it's a narrow ruling and, frankly, a confusing one.

I've read it another couple of times since this morning and continue to find it similarly confusing.  Or maybe "confusing" isn't the right word -- how about "prone to causing confusion and difficult to imagine trial courts finding helpful"?  That's not bad, though it doesn't have much rhythm to it.

Phillips Out - Award Reversed 5-4

In a Breyer opinion, the Supreme Court vacated a $79.5 million punitive damage award.  Key points at first reading:

• Punishing defendants for harm to nonparties is a due process violation.  Evidence of harm to nonparties can be relevant to determine reprehensibility, but not as a basis for a punishment increase.
• Let me say that again: harm to others cannot be a basis for punishment.  This is new, and a big deal.
• So if a state is going to allow harm to others into evidence, it also has to create procedures to ensure that it only goes to determining the risk of harm to others (= reprehensibility), but not to the amount of damages awarded.
• Because the remand on this issue will probably result in a different award, the Court doesn't deal with whether the amount is unconstitutionally excessive.

Stevens, Thomas, Ginsburg, and Scalia dissented in a total of three opinions.

Tort Theory and Reform

The Vanderbilt Law Review published last year an interesting piece, "What Are We Reforming?:
Tort Theory’s Place in Debates over Malpractice Reform," by John C. P. Goldberg (Vanderbilt) about the role of theory in malpractice reform debates.  The abstract:

This Essay explains why lawyers, policy-makers and scholars interested in medical malpractice reform and tort reform more generally must attend to tort theory.  Theory does not provide answers to policy questions.  Rather, it frames and guides analysis.  The Essay uses two examples to make its point. 

The first concerns the phenomenon of “underlitigation,” which is typically treated by commentators as a symptom of tort law’s deficiencies as a scheme for deterring undesirable behavior and/or compensating injury victims.  This evaluation presupposes, of course, that tort law is properly theorized as a scheme for deterring and/or compensating.  An alternative and more satisfactory conception of tort treats it as a law that empowers victims of wrongs to respond to those wrongs by seeking redress from their wrongdoers. Given this alternative conception, we will want to know much more about why malpractice victims tend not to sue.  For if they are knowingly and voluntary choosing not to pursue claims that the law has made available to them, then, on a wrongs-and-redress theory, there is nothing at all wrong with the tort system.

The second example concerns the constitutionality of reform measures that cut back on malpractice liability in the name of making medical services more readily available or cheaper.  If tort law is conceived as public regulation of bad medical practices -- i.e., enforcement actions brought by plaintiffs playing the role of private attorneys general -- then courts probably should assess the constitutionality of malpractice reform measures under toothless rational basis analysis.  If, by contrast, tort is understood as a law for the redress of wrongs, courts will be entitled to deploy a more robust form of judicial review.

The SSRN version is here.

More Station Documents Released

Today is the anniversary of the fire at the Station Nightclub in Warwick, Rhode Island, that killed 100 people attending a Great White concert.  Civil litigation remains pending, after criminal pleas were entered last fall.  A couple of weeks back, the Rhode Island attorney general, in response to press requests, released thousands of pages of more documents and is in the process of releasing some audio and video.  The AG's page is here. 

The Globe has this twenty-minute video of the destruction:

Suits in Peanut Butter Salmonella Case

At least two have been filed thus far.  And, yes, some lawyers have picked up the AdSense words (click to enlarge):

The (Partial) Failure of Daubert

That's the conclusion David Bernstein (George Mason) in a new SSRN posting, "Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution."  The abstract:

This manuscript raises two questions that have been surprisingly missing from the voluminous law review literature on expert evidence since the landmark Daubert decision. First, what is the underlying rationale for the replacement of the old qualifications-only, let-it-all standard for expert testimony with Daubert/Federal Rule of Evidence 702's requirement that all expert testimony be subject to a stringent reliability test? Second, once we have identified this rationale, has the “Daubert revolution” succeeded on its own terms?

I conclude that the implicit rationale for the reliability test is to preserve the perceived advantages of the adversarial system, while mitigating the harms to the courts' truth-seeking function by the inevitable strong biases that accompany adversarial expert testimony. These biases include the conscious biases of hired guns, the unconscious biases of other paid experts, and the selection biases that result from the fact that attorneys “shop” for their experts from a large pool of qualified individuals.

Rule 702 thus attempts to serve a worthy goal, but it far from fully succeeds in efficiently achieving this goal. First, in the context of forensic expertise in criminal cases, Rule 702 does nothing to address the huge gaps in resources between the prosecution and most defendants that severely inhibit defendants' ability to challenge unreliable prosecution expert testimony.

Second, Rule 702, applied correctly, does succeed in barring “junk science” causation evidence in toxic torts cases. However, it does so at the expense of excluding speculative evidence supporting causation, even when most experts in the field would conclude that the relevant evidence is a sufficient basis from which to find causation by a preponderance of the evidence. While Rule 702 is easily preferable to the prior overly permissive regime, it likely goes too far in insisting on a reliability test that makes the courtroom stricter about causation evidence than is the scientific community itself. The way around this problem is to amend Rule 702 to allow courts to admit educated guesses about causation, but only when nonpartisan experts, not subject to adversarial bias, are willing to make such guesses.

Finally, Rule 702 puts severe restrictions on the testimony of experience-based testimony by connoisseurs. Such experts may only testify if their field of expertise is a legitimate one, and they have proven to the court that they truly have the expertise they claim. Rule 702 also properly prevents attorneys from shopping for outlier and hired gun connoisseurs, given that there is no objective way for a jury to determine whether an experience-based expert's views are correct or representative of other experts in the field. Therefore, in the context of connoisseur testimony, courts should either replace adversarial experts with a panel of nonpartisan experts, or only allow an adversarial expert to testify if his conclusions are consistent with those of a nonpartisan advisory panel.

OT: Orval Allen Childs

I hope you'll forgive an end-of-the-week bit of sentimentality.

My grandfather, Orval Allen Childs (left, with my grandmother Floy, who died some years earlier), died nine years ago today, a few months shy of my graduating from law school.  He was a farmer (meat cattle, mostly, some vegetables, and, before I was born, dairy) and a professor at Southern Arkansas University in Magnolia, Arkansas, where he chaired the agriculture department.

I knew that my grandfather was a good teacher in part by the school naming an Agri building after him, but more from the steady stream of former students coming by to see him years or even decades after they finished school.  We’d be sitting around watching college football and almost without fail, someone would come by who “went to school to” my grandfather.  They’d talk about how farming was going, or their kids, or whatever.

His example (and the example of his students, who were and are working farmers, like most of our graduates are working lawyers) is a substantial part of why I teach.  Seeing his former students come back and recognizing the difference he made in helping them achieve their vocation was a genuinely inspiring thing.  He didn't like many of my frolics and detours (running a record store, working on a Senate campaign, taking leaves of absence from college for both), and he told me so.  But he kept on being supportive.  And until he stopped farming (that's part of his farm in that picture to the right), I kept on getting to help at the farm, even if my "help" may well have slowed him down in the long run.  I can assure you that you don't really want me driving a tractor, even if I enjoyed it.

There's some sort of nice symmetry to the fact that I learned today that my colleagues have voted to promote me to associate professor, as of this fall.  To the extent I'm good at this stuff, I owe a lot to him and a lot of other family.

I'll be back to your usually-scheduled snark soon enough, promise.

JPML to Try to Avoid Falling in the Riverwalk

The hospitality industry in San Antonio is no doubt bracing for the arrival of the JPML hearing to be there in March.  Torts-related matters on the hearing agenda (excluding those being considered on the papers):

• MDL-1830 -- In re Air Crash at Lexington, Kentucky, on August 27, 2006
• MDL-1834 -- In re Helicopter Crash Near Zachary, Louisiana, on December 9, 2004

And that's it.  Lots of antitrust, and what seems (without checking) to perhaps be a lighter load than usual.

May I recommend the Emily Morgan Hotel to the JPML?  The weekend before my 1L finals at Texas, my wife and I won a very nice stay at the Emily Morgan Hotel on the Riverwalk, along with tickets to see Green Day and dinner at one of those tourist restaurants, either Hard Rock or Planet Hollywood.  (The concert and dinner were underwhelming, especially since I'd seen Green Day play an in-store for about 20 people at my record store back in '91 or '92.)  The hotel was lovely, though.

ConsumerAffairs.com - Front? Legit? A Front but Disclosed?

An interesting story from the Media Research Center-formed CNSNews.com (h/t B.S.) about the ConsumerAffairs.com website.  The main idea:

A self-described consumer watchdog website that forwards complaints to at least one plaintiffs' attorney has helped boost consumer lawsuits by trial lawyers and has been a source for negative media reports on various companies. The organization is now facing litigation from disgruntled firms that claim it is misrepresenting itself and its motives.

ConsumerAffairs.com, a for-profit website operating at least partly on ad revenue, appears to be a news site. It was started by former journalist Jim Hood and boasts a stable of accomplished contributors.

It looks like a typical website, but as consumer advocates often warn: Read the fine print. In this case, the fine print can be found at the bottom of certain pages on the site.

According to the organization's site, it works "in association with" lawyers, namely Horwitz, Horwitz & Associates in Illinois, but also with Joan E. Lisante in Washington, D.C. and Virginia, who according to Hood no longer practices law but frequently writes for the site.

Two lawsuits are pending or imminent alleging defamation and that the site misleads readers into believing it is purely a consumer-oriented news site.

The site's privacy policy, which is linked to fairly prominently throughout, does state that submissions may be shared with attorneys for possible consideration for suit, which makes the exposé a little less, well, exposing.  And the response page has this (and has since at least mid-2006), which mitigates it further:

We work with attorneys with specific expertise in many areas of consumer law. It is sometimes necessary for them to contact you in order to determine whether there is a legal remedy for your complaint. There is no charge for any such consultation. Check below if you DO NOT want to be contacted by an attorney.

That said, the site does have the distinct feel of a place that's trying to suggest that it's strictly news and information for consumers.  (It also has the feel of a place that's trying to see just how many Google ads can be fit on one screen.)

"Judicial Tort Reform"

That's the concept behind a new article, "Judicial Tort Reform in Texas," in the Texas Review of Litigation from David Anderson (Texas) (hook 'em), summarized helpfully by the blog of plaintiffs' firm Perlmutter & Schuelke. 

The article (not available for free online) examines tort opinions in 2004 and 2005 of the Texas Supreme Court, concluding that the Court is more defendant-friendly than average, in particular in its use of "no evidence" as a way to reverse a jury's factual findings.

CDA Blocks MySpace Suit

Via Overlawyered, the LA Times Story summarizes the Judge Sparks opinion [PDF via Bashman].  In addition to the CDA immunity, the Court also explicitly finds no duty under Texas law (making me flatly wrong (comments)), mostly addressing nonfeasance issues but particularly noting the context, where the plaintiff herself misrepresented her age.

Other MySpace posts.