TortsProf Blog

Hilden on Libel Tourism

Julie Hilden has a new Writ column exploring the phenomenon of "libel tourism," where plaintiffs exploit the relatively liberal defamation laws in Britain.  She ultimately recommends a treaty to permit judges in both the U.S. and the U.K to evaluate jurisdictional questions with more flexibility, given the problems engendered by such forum shopping.

--BC

(Sorry for the slowness in posting lately -- holidays, computer issues, attacks of rabid monkeys, etc., etc.  May be slow during AALS -- speaking of which, if anyone is interested in getting together there, let me know.)

Who Pays for Medical Errors?

An interesting abstract regarding externalities and payment for medical errors was recently posted on SSRN by Michelle M. Mello, David M. Studdert, Eric J. Thomas, Catherine Yoon, and Troyen A. Brennan.  The article is entitled "Who Pays for Medical Errors?  An Analysis of Adverse Event Costs, the Medical Liability System, and Incentives for Patient Safety Improvement."

Here is the abstract:

Patient safety advocates argue that the high costs of adverse events create economic incentives for hospitals to invest in safety improvements. However, this may not be the case if hospitals externalize the bulk of these costs. Analyzing data on 465 hospital adverse events derived from medical record reviews, we investigated the amounts that hospitals and other payers incurred in medical-injury-related expenses. On average, the sampled hospitals generated injury-related costs of $2,013, and negligent-injury-related costs of $1,246, per discharge. However, hospitals bore only 22% of these costs. Legal reforms or market interventions may be required to address this externalization of injury costs.

The entire article is available in the Journal of Empirical Legal Studies, Vol. 4, No. 4, pp. 835-860, 2007.

--CJR

Oregon's Tort Claims Act Ruled Unconstitutional As Applied

The Oregon Supreme Court ruled today that its tort claims act's elimination of a cause of action against public employees, coupled with a cap on damages payable by the state amounting to a tiny fraction of plaintiff's economic losses, is unconstitutional.  Like many states and the federal government, Oregon replaced complete sovereign immunity with a tort claims act.  Oregon's version made the state itself the exclusive defendant for claims involving public employees.  Furthermore, plaintiffs are severely limited in their ability to recover from the state. 

In Oregon those limits are:

"(a) $50,000 to any claimant for any number of claims for damage to or destruction of property, including consequential damages, arising out of a single accident or occurrence.

"(b) $100,000 to any claimant as general and special damages for all other claims arising out of a single accident or occurrence unless those damages exceed $100,000, in which case the claimant may recover additional special damages, but in no event shall the total award of special damages exceed $100,000.

"(c) $500,000 for any number of claims arising out of a single accident or occurrence."

In other words, if employees of a public hospital commit malpractice on a plaintiff, only the state may be sued.  The individual physicians, nurses, etc. may not.  Additionally, the state has to pay only a relatively small amount to a successful plaintiff.

In a case involving medical malpractice in which the plaintiff's economic damages exceeded $12 million, the court declared the limits in violation of the Oregon Constitution.  Under the tort claims act, the plaintiff was entitled to no more than $200,000.  The court held the tort claim limits left the plaintiff with no adequate remedy at law, contrary to Article I, section 10 of the Oregon Constitution.  The opinion is here.

--CJR

Torts at the Zoo

As you have probably heard, a tiger named Tatiana escaped from the San Francisco Zoo on Christmas day, killing a teenager and wounding two other people.  I haven't done the research into California law or even plotted out my own analysis, but the issues involved seem truly interesting (maybe even exam-worthy).

First, you have the escape of a wild animal, one of the few areas of law clearly governed by strict liability.  However, to complicate matters, some courts have been unwilling to use strict liability against a public zoo.  Because it is a public entity, there are also potential issues of sovereign immunity. 

Assuming you get by strict liability and sovereign immunity, a negligence analysis promises to be rich.  First, there is the issue of the height of the wall enclosing Tatiana.  It appears the wall is four feet below industry standards.  However, the zoo is accredited by the Association of Zoos and Aquariums, and the accreditation inspectors visiting three years ago did not note the wall as a deficiency. 

Then there is the fact that Tatiana attacked a zoo keeper and chewed flesh off of his arm during a public feeding last year.  Is this notice that Tatiana was dangerous?

Finally, the investigation is looking into the possibility that Tatiana escaped by climbing up a leg or other body part to get over the wall.  There are unconfirmed rumors that the victim may have been dangling his legs over the wall and taunting Tatiana.  Whether that is true or not, it would make for an interesting comparative negligence discussion.   

Your thoughts?

--CJR

Ohio Supreme Court Upholds Caps

The Ohio Supreme Court upheld the state's 2005 caps on noneconomic damages and limitations punitive damages.  The opinion, which was decided 5-2, is here [PDF].

The decision came from a birth control patch blood clot suit against Johnson & Johnson that had been consolidated in a federal MDL; the judge overseeing that MDL certified four questions regarding the measures in question.  The measures capped non-economic harm at $250,000 or three times economic harm, whichever is larger, but not to exceed $350,000 (with a cap buster provision for major or permanent injuries); additionally, they capped punitives at two times compensatory damages.  The legislation also made collateral source payments admissible, but the court found that the plaintiffs lacked standing to challenge that provision and thus punted.

The majority starts with the notion that it is tough to prove a statute unconstitutional on its face and, unsurprisingly given that starting tone, approves the statute.  The majority does at least hint that an as-applied challenge might be more successful when it concludes:

We appreciate the policy concerns Arbino and her amici have raised.  However, the General Assembly is responsible for weighing those concerns and making policy decisions; we are charged with evaluating the constitutionality of their choices.  Issues such as the wisdom of damage limitations and whether the specific dollar amounts available under them best serve the public interest are not for us to decide.  Faced with a highly deferential facial challenge to these statutes, our review causes us to conclude that the General Assembly has responded to our previous decisions and has created constitutionally permissible limitations.

(Emphasis in original.)

--BC 

Consistency is a Hobgoblin, Right? Remember That...

Meet Laurence Dry, M.D., J.D., a med-mal lawyer in Kentucky, and proud owner of two judgments against him -- one for losing a purportedly sure-winner case, and one for bringing that same case, this time purportedly frivolous.

On the one hand: His (legal) malpractice insurer recently paid $750,000 to a former client, John Conley, for losing a can't-miss lawsuit against one Dr. John Johnson.  Conley lost much of his vision and alleges that it was the result of (medical) malpractice by Johnson in performing back surgery. 

Dry initially reviewed the case and found it not worth bringing, but then, later, without realizing he'd previously reviewed it, he changed his mind and brought it...but he was coming up against the statute of limitations and brought it without experts.  Once he did get experts, there were further problems:

[O]ne of the expert witnesses he claimed he found later to support his theory insisted in a deposition for Johnson's case that he had said no such thing. The other expert witness had Alzheimer's disease and couldn't be interviewed, Sitlinger said.

So he dropped the suit, and was sued by both Conley for losing the case (by ignoring what he identified as a better factual theory targeting the anesthesiologist) and Dry for bringing it at all.  A jury awarded Johnson $80,000, and Dry paid that judgment earlier this year, calling it a "love tap."

--BC

Another Skiing Case

'Tis the season for skiing cases.  A week before Christmas, the Utah Supreme Court, by a 3-2 vote, held that waivers of the right to recover for the negligence of ski resorts are void as against state public policy.  Utah follows the familiar two-step inquiry in analyzing waivers (express assumption of risk).  First, is the language of the waiver clear?  Second, even if the language is clear, does the waiver violate public policy? 

The court acknowledged that public policy can be difficult to discern:

[P]ublic policy is a protean substance that is too often easily shaped to satisfy the preferences of a judge rather than the will of the people or the intentions of the Legislature.

However, the court stated it had found clear public policy in a statute that provided ski resorts are not liable for the inherent risks of skiing, so that the resorts would be able to acquire insurance at reasonable rates:

The bargain struck by the Act is both simple and obvious from its public policy provision:  ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.  By extracting a preinjury release from [plaintiff] for liability due to their negligent acts, [defendant] breached this public policy bargain.

The dissent stated that the majority had read into the statute more than was there:

Nowhere does the text suggest that ski area operators may not contractually further limit their liability for risks that are not inherent to skiing.

The full opinion [pdf] is available here.  Thanks, again, to Alberto Bernabe for the tip.

--CJR

Next Year's Toys Might Be Safer

The House a week ago or so passed legislation to allow only trace amounts of lead in toys, increase inspections, and increase CPSC funding (this is the bill as to which the amusement ride amendment was rejected).  CPSC chair Nancy Nord, who had been a little ambivalent in the past, praised the legislation.

--BC

Sebok on MySpace Friendship Turned Suicide

In his latest Findlaw column, Tony Sebok analyzes the tort suit implications of the Megan Meier case, the thirteen year old girl who committed suicide after being taunted on-line by what turned out to be a "fake" friend - a profile created by the mother of a girl Megan knew.  In a thorough analysis, Sebok concludes that a negligence claim against the fake friend/mother is "not promising,"  but an IIED claim might succeed. 

- SBS

First Settlement Reached in Big Dig Death

The Globe has the details.  Powers Fasteners (which supplied epoxy) is paying $6 million to the family of the woman who died when the ceiling collapsed.  The plaintiffs alleged that Powers failed to properly warn regarding the use of a certain type of epoxy.

Fourteen other defendants remain in the suit.

--BC

Chuck Norris Cannot In Fact Do a Wheelie on a Unicycle, It Seems

Okay, I can't make this quite be a torts suit, since it seems solidly in the IP camp, but I can't resist it anyway.  Chuck Norris is suing Penguin Books and the TruthAboutChuck.com website for the satirical "facts" about him, such as the unicycle-wheelie one above and the like ("Chuck Norris counted to infinity.  Twice.").

"Some of the 'facts' in the book are racist, lewd or portray Mr. Norris as engaged in illegal activities," the lawsuit alleges.

Norris, who rose to fame in the 1970s and 1980s as the star of such films as "The Delta Force" and "Missing in Action," says the book's title would mislead readers into thinking the facts were true.

"Defendants have misappropriated and exploited Mr. Norris's name and likeness without authorization for their own commercial profit," said the lawsuit.

The suit, filed in Manhattan federal court, seeks unspecified monetary damages for trademark infringement, unjust enrichment and privacy rights.

There.  That's my Christmas gift to you.

--BC

Liptak on Hellhole Report

Adam Liptak in the NYT has a column today discussing ATRA's Judicial Hellholes report.  He points out that it's based largely on anecdotal evidence, and that, not shockingly, not everyone would agree that ATRA's goals are good ones.  ATRA responds to the first point:

“We have never claimed to be an empirical study,” said Darren McKinney, a spokesman for the association. “It’s not a batting average or a slugging percentage. It’s no more or less subjective than what appears in The New York Times.”

It's worth a read.

--BC

Holidays

As with most blawgs, our posting is going to slow some over the holidays. 

Happy holidays to all of our readers and thanks!

--BC

Suing Seven-Year-Olds for Fun and Profit

Wonkette notes the Boston.com AP story about the tale of a sixty-year-old lawyer for Reader's Digest suing a seven-year-old for injuries incurred on the ski slope.  The boy's parents say that all 48 pounds of him were skiing at perhaps 10 miles per hour.

--BC

Punitive Damages, Due Process & Jury Instructions

Anthony Franze and I have posted our forthcoming article on SSRN, "Instructing Juries on Punitive Damages:  Due Process Revisted After Philip Morris USA v. Williams."   From the abstract:

In this article, the authors consider the due process implications on punitive damages jury instructions in the wake of the U.S. Supreme Court's 2007 decision in Philip Morris USA v. Williams. In particular, the authors survey and categorize the model punitive damages jury instructions in every state and explain how most model instructions fail to reflect the substantive due process limits on punitive damages, and indeed, often direct juries to consider unconstitutional factors in imposing awards. The authors then navigate the complex waters of the Supreme Court's recent punitive damages jurisprudence and identify how juries should be instructed to properly perform the difficult and controversial task of punishing and deterring defendants through the imposition of monetary awards.

- SBS

AEI Panel on Vioxx Settlement

AEI and the Federalist Society are co-sponsoring a panel discussion on the recent Vioxx settlement on Monday January 7th:

In 2004, Merck withdrew its pain reliever Vioxx from the market because of new studies showing increased cardiovascular risk. Merck announced that it would not settle any of the tens of thousands of Vioxx lawsuits filed, and set aside over a billion dollars to litigate cases without reserving a penny for damages. After a $254 million verdict in the first Vioxx trial in 2005, some observers predicted over $25 billion in liability for the company. Fifteen trials later, Merck and the plaintiffs’ attorneys announced a settlement of the outstanding personal injury litigation—for under $5 billion. Merck stock rose after the announcement, and is now higher than before it withdrew Vioxx from the market. But some law professors are arguing that a new and unusual provision in the settlement raises ethical concerns.

Why did Merck settle? And why was the settlement for so much less than originally anticipated? Is the Merck settlement different from the Wyeth fen-phen settlement, which was originally announced as a $3.75 billion settlement, but has so far cost more than $20 billion? Will the settlement stand up under legal challenge, and what will remain of the Vioxx litigation if it does?

At this event cosponsored by AEI and the Federalist Society, a panel of experts will explore these and other questions. Speakers include Vanderbilt law professor Richard Nagareda, author of Mass Torts in a World of Settlement; Virginia legal ethics professor George Cohen; author and leading pharmaceutical mass torts defense attorney Mark Herrmann; Andy Birchfield, a member of the Vioxx Plaintiffs’ Steering Committee; and Ted Frank, director of the AEI Legal Center for the Public Interest. AEI resident scholar John E. Calfee will moderate.

Registration details are available here.

- SBS

Texas Malpractice Changes: Who's Coming to Texas?

Overlawyered today did a post about stories that shouldn't get away, and noted my discussion about the data regarding what has happened since Texas implemented changes in malpractice liability law in 2003.  That reminded me that I had in fact let that issue get away, even though I have some more data to share.

As a refresher, the NYT had an article noting a correlation between the 2003 changes and an increase in doctor supply in Texas.  It raises various interesting questions about cause-and-effect (and Tony Sebok argues that it's more fundamentally flawed).  One response was to note, as Eric Turkewitz did, that disciplinary proceedings are up fairly significantly in the same time period, suggesting that perhaps that the changes brought more doctors to the state, but not the ones you want.  It's also possible that the increase in discipline resulted from more intense scrutiny by the state regulators.

At the time, I did a quick look at the most recent quality of care violations and found no disproportionate number of new doctors in the mix (which, if the 2003 changes were to blame, you'd expect).  Since then, my research assistant went through all of the August 2007 disciplinary actions (not just those for quality of care, as I did before).  The spreadsheet is here: Download TexasDoctors.xls

Of the 87 or so (there are a couple of ambiguous ones) actions against physicians with licenses, five are from the period from 2003 to 2007 (six if you count the "temporary permit, which I wouldn't since one would expect someone coming to take advantage of the new law to stick around).  That's about 6%.

If I'm reading the various stats on the medical board's website right, there are about 58,000 Texas-licensed doctors (some out of state).  In the years 2003 through 2007, there were just over 13,000 doctors licensed in Texas.  So about 22% of doctors licensed in Texas were licensed from 2003 to 2007.  22 > 6.

Now, there may be some apples and oranges there, and the sample is still small -- and I still hope to get my assistant to do a more comprehensive look -- but it does not, at this point, look like the doctors licensed since the liability modifications represent a greater than expected proportion of disciplinary actions.  Indeed, thus far, in one month's sample, it looks like the contrary may be the case.

--BC

Fourth BP Explosion Claim Settled

BP says they've now exhausted the $1.6 billion they set aside for the litigation and still face over a thousand cases, though no more wrongful death and few serious injury cases.

In this case -- brought by Mark Lanier, who made noises about seeking a billion dollars in punitives, pointing to an alleged violation in conflicts of interest in the permitting process -- the trial judge had ruled earlier that a discovery violation could bust Texas's punitive damages cap.  BP settled the case that started a couple of weeks ago.

Prior discussion of the BP litigation and the $1.6 billion litigation reserves is here.

--BC

A Contractual Alternative to Medical Malpractice

The National Center for Policy Analysis released a report yesterday recommending that medical injuries be handled by contract instead of tort.  The details are here.

--CJR

Judicial Hellholes 2007

The American Tort Reform Association has released the 2007 edition of Judicial Hellholes.  The full report is here.  The group's hellholes this year are:  (1) South Florida, (2) Rio Grande Valley and Gulf Coast, Texas, (3) Cook County, Illinois, (4) West Virginia, (5) Clark County, Nevada, and (6) Atlantic County, New Jersey.

--CJR