TortsProf Blog

"Not On My Watch"

Kimberly-Clark Healthcare has launched a website addressing the problem of hospital acquired infections (HAI).   The website, Not On My Watch, is a useful resource for news, research and reports on HAI.

- SBS

Personal Injury Roundup No. 78 (5/28/2010)

Note: The Roundup will take the summer off due to our varied and crazy travel schedules.  But, based on the recent survey, we know it's an important feature, and it will return just as soon as is feasible.  In the meantime, happy summer!

New Suits

• Civil suits seek to go after creators and distributors of child pornography (Minnesota Public Radio)
• Deluge of lawsuits filed after removal of Hackensack police chief (NorthJersey.com) 
• Gene Simmons sued for allegedly assaulting a makeup artist (AP via Google)

Appeals

• Suit brought by mom over a hospital's retention of her son's heart after his death dismissed by intermediate appellate court (SFGate.com)
• Appellate court finds that running a car in an enclosed garage isn't a sufficiently obvious risk to support granting a motion to dismiss pre-discovery (Overlawyered, and links and comments therein)

Policy, etc.

• Preemption (or lack thereof) in the new motor vehicle safety bill (Point of Law)

Trials, Settlements and Other Ends

• Suit against Tom Brady & Gisele alleging that bodyguards shot at photographers dismissed for lack of jurisdiction (Reuters)

Miscellaneous

• Woman describes the aftermath of an injury that made her speak with a foreign accent, including discussing mockery of her suit in the media (Washington Post)
• Chinese drywall suits get class status (Miami Herald, more updates at The Pop Tort)

--BC

Andy Popper Named American University Scholar-Teacher of the Year

American University President Neil Kerwin has recognized TortsProf Andy Popper as the university's Scholar-Teacher of the Year for 2010.  Congratulations to Andy!

--CJR

PA Considers Rejecting Castle Doctrine, Adopting "Stand Your Ground"

The PA House Judiciary Committee is debating whether to replace the "Castle Doctrine" with a "Stand Your Ground" law.  In essence, the Castle Doctrine allows a homeowner to defend the home (and its "curtilage") with deadly force if the homeowner is attacked there.  By contrast, Stand Your Ground laws, which have been passed in 18 states, allow homeowners to use firearms against intruders whether the intruder directly threatens the homeowner or not.  In addition, Stand Your Ground laws eliminate the duty to retreat if possible when attacked in a public place.  PennLive has the story.  When the Stand Your Ground laws first began to circulate five years ago, Tony Sebok (Cardozo) wrote a column discussing the differences between them and the Castle Doctrine.  His Findlaw's Writ column is here.

--CJR

Perry on Empowerment

Ronen Perry (Haifa) has posted to SSRN Empowerment and Tort Law.  The abstract provides:

Empowerment, a somewhat nebulous construct, has been a key concern in many disciplines in recent decades. It may be generally defined as an increase in individuals’ control over their lives, and may operate on two interdependent levels: personal and societal. This article advocates the utilization and optimization of tort law and practice as an empowering mechanism in cases of power abuse. It systematically analyzes the empowering and disempowering effects of the law and the legal process and explains how to enhance the former and diminish the latter.

Via Solum/Legal Theory Blog.

--CJR

Popper's "Tort Reform" in Text Format

Earlier Andrew Popper's "Tort Reform" book received publicity both here at TortsProf (Sheila) and at the VC(Todd Zywicki).  West has now announced that it will be available not only in electronic format (as originally advertised), but also as a traditional text (in paperback).  It will be available in time for the fall semester.

--CJR

Pretty Please! Reader Survey - We Need Your Input!

If you have not already done so, please take our brief reader survey.   It is only five short questions.  

Click here to take the short survey.  We appreciate your feedback.

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- SBS

Soda Tax News From Philly and NY

The New York Times reports that New York Governor Patterson is trying to move his proposed soda tax through the legislature by pairing it with a sales tax exemption for bottled water and diet soda.

In Philadelphia, however, the soda tax failed to move out of City Council and Mayor Nutter asserts the Council's budget will force layoffs.  The Philadelphia Inquirer has more.

- SBS

Ripstein on Tort Theory

Arthur Ripstein (Toronto) has posted to SSRN an entry into THE OXFORD HANDBOOK OF JURISPRUDENCE AND LEGAL PHILOSOPHY entitled Philosophy of Tort Law.  The abstract provides:

Tort law answers two of the most fundamental questions faced by any society: "how should people treat each other" and "whose problem is it when things go wrong". Tort law is striking because it supposes that the question of how people treat each other and the question of whose problem it is when things go wrong are at bottom the same question. If plaintiff is to recover from defendant, defendant must have breached a norm of conduct that governs the ways in which he may treat her. My aim in this chapter is to explain the way tort law brings the two questions together.

Via Solum/Legal Theory Blog.

--CJR

Personal Injury Roundup No. 77 (5/21/10)

New Suits

• Kirkland & Ellis will represent BP in oil-spill cases.  (ABA Journal)
• A DE physician is facing hundreds of tort and criminal actions based on molesting his patients.  Widener Law Dean Linda Ammons wrote a report to the governor detailing the incidents.  (Delaware Online; Bernabe/Torts)
• Family of MI child killed in raid sues police.  (CNN.com)

Appeals

• 4th Cir:  Trial judge erred in cutting a p.i. lawyer's fee from $6M to $600,000.  (ABA Journal)
• NY:  Med mal failure to monitor for lupus award vacated; new trial ordered.  (Hochfelder)
• Federal Circuit affirms dismissal of vaccine-autism claims.  (Copland/Point of Law)

Damages 

• NY:  $5M pain-and-suffering verdict for AA back injury modified to $800,000.  (Hochfelder)

Trials, Settlements and Other Ends

• Fort Worth agrees to pay $2M in damages for Taser death.  (WFAA.com)
• Judge rules against plaintiffs in "backyard smoking" case.  (KDAT.com)

Miscellaneous

• VT disputes report critical of its response time in 2007 shootings.  (CNN.com)

--CJR

Gender, Race, and Tort Law

In less than two weeks, The Measure of Injury:  Race, Gender, and Tort Law,  the new book by Martha Chamallas (Ohio State) and Jenny Wriggins (Maine), will be available from NYU Press. 

At Law & Society in Chicago next week, there will be an "Author Meets Readers" panel on the book.  Scheduled for Friday, May 28 from 4:30-6:15 at the Renaissance Hotel, the panel will be chaired by Anne Bloom (University of the Pacific).  Readers are:  Julie Davies (University of the Pacific), Lisa Pruitt (California, Davis), Catharine Wells (Boston College), and me. 

--CJR

Ellen Pryor's Scholarship

Ellen Pryor (SMU) has posted to SSRN several papers, including some older works.  First up is her 1998 piece (co-authored with Will Pryor) Concurrent Mediation of Liability and Insurance Coverage Disputes.  The abstract provides:

Tort litigation has yet to produce a satisfactory solution to a recurring and difficult problem: the presence of an undecided insurance coverage question when the underlying liability case is still pending. The possible litigation options have serious drawbacks. Resolving the coverage case while the tort suit is pending can in some contexts undermine the insured’s defense in the tort suit. Yet leaving the coverage claim unresolved throughout the underlying suit raises concerns of structural collusion and inefficient levels of indemnity insurance. This article explores the use of what we call “concurrent mediation” - mediation of both liability and coverage - as an alternative to these adjudicatory options. By working through a series of paradigmatic coverage-liability disputes, we examine whether, when, and how concurrent mediation can be effectively employed. Our aim is not to discuss mediation versus litigation as a general matter, but to illuminate the incentives, strategies, and doctrinal issues that can affect the feasibility and desirability of concurrent mediation.

Next is her 2002 article After the Judgment:

Tort judgments - whether entered after settlement or a trial - have traditionally been viewed as marking the end of tort law’s role in the plaintiff’s life. Yet developments over the past 25 years have rendered this view obsolete. Until several decades ago, tort judgments almost always resulted in a lump sum payment reflecting a jury’s findings or the parties’ assessment of the amount of damages incurred by the time of settlement as well as provable future damages. Aside from minors (for whom monies were deposited into an interest-bearing account until the minor reached adulthood and received the full sum), the non-taxable tort award was the plaintiff’s to spend or invest as he or she chose. Now, however, payment methods other than the lump sum are common for both minors and adults. Legislation in many states allows defendants to request an order for periodic payment. In settlement contexts, parties often make use of structured settlements - a package consisting of a present payment and a structured series of future payments. In addition, settlement trusts are more common now. These and other changes mean that the hand of tort law often extends beyond the judgment and affects the timing of, structure of, and decisionmaking about tort payments. This Article explains this shift and the reasons for it, and identifies and explores some of the most important questions it raises. These questions include the efficiency and justice of mandated and voluntary payout methods in various categories of cases; the proper approach for plaintiffs with diminished (or allegedly diminished) decisionmaking capacity; and the role of the lawyer as to both competent and diminished capacity clients.

And, finally, we have her 2008 piece Part of the Whole:  Tort Law's Compensatory Failures through a Wider Lens:

The injuries that give rise to tort cases usually implicate not just tort law but other strands of our society's compensatory fabric--Medicare and Medicaid, Social Security disability, workers' compensation, private medical insurance, and private disability insurance. This Article analyzes some of the intersections that especially warrant the attention of policymakers and analysts. One topic is how tort law interacts and coordinates with other payment strands in the compensation fabric. The two major legal standards bearing on coordination are the collateral source doctrine and the doctrine of subrogation. Both of these have changed substantially in recent years, leaving a coordination picture that is both more unstable and more complex than it was twenty years ago. In some states, the doctrines are incoherent or indefensible. The Article also discusses two emerging and unsettled issues relating to the calculation of pecuniary damages: how managed care reimbursement should be taken into account in a tort suit, and the proper role of annuity evidence in assessing future pecuniary loss.

--CJR

 

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- SBS

"Law & Order" as Tort Fable?

In the recent edition of The Atlantic, Garrett Epps (Baltimore) explains "Why We Will Miss 'Law & Order.'"  (If you missed the news, NBC has cancelled the 20-year series).   The reason we will miss the show, Epps suggests, is that "Law & Order" is a "fable about the field called tort law."

- SBS 

Joint Preliminary Report Filed in Toyota MDL

The parties have filed their preliminary report in the Toyota MDL.    A copy of the report is available at Mass Tort Defense.

- SBS

Personal Injury Roundup No. 76 (5/14/2010)

Graduation here at Western New England is just a week away.  Congratulations to graduates here and across the country!

Reform, Legislation, Policy

• Some Kagan links: Turkewitz hopes she's handed clients tissues (New York PI Law Blog); Overlawyered rounds up some links (Overlawyered); Victor Schwartz comments on her having an open mind on liability reform (Business Insurance).
• Center for American Progress criticizes damage caps for environmental damages. (Center for American Progress) 
• Damages the focus of insurer ad buys in North Carolina.  (BusinessWeek)

New Lawsuits

• Lord Jesus Christ hit by car in my little town of Northampton, Mass.; says he thinks it was an accident but has a lawyer anyway.  (MassLive.com)
• Media hears "Starbucks" and "hot beverage" in the same sentence, writes a story evoking Stella Liebeck and calls it a day.  (Turkewitz)

Damages

• $500 million in punitive damages to pharmaceutical companies for plaintiffs getting hepatitis C due to reuse of vials; allegation is, I guess, that the vials the pharma companies used were too big and thus encouraged (?) reuse.  (Google/AP, Daily Finance) 
• Family of eight-year-old killed by negligently installed and inspected carnival ride will receive no compensation on top of roughly $2 million already received (MassTort.org)

--BC

Baker on Insurance Research

Tom Baker (Penn) has posted to SSRN Insurance in Sociolegal Research.  The abstract provides:

Insurance has a long history in socio-legal research, most prominently as a window on accident compensation and related tort law in action. Recent work has extended that research, with the result that tort law in action may be the best mapped of any legal field outside criminal law. Sociological research has begun to explore insurance as a form of governance, with effects in many legal fields and across the economy. This essay reviews developments in both bodies of work. Part one examines the relationship between liability insurance and tort law in action using the metaphors of window and frame. Part two reviews research on insurance as governance. The conclusion returns to insurance as governance in the context of liability insurance, arguing that this is an especially promising field for socio-legal research.

--CJR

Zipursky on Philip Morris

Benjamin Zipursky (Fordham) has posted to SSRN Punitive Damages After Philiph Morris USA v. Williams.  The abstract provides:

Philip Morris USA v. Williams has struck some commentators as hypertechnical, but it is in fact among the Court’s most significant pronouncements on the topic of punitive damages. At its center is the “Nonparty Harm Rule”: it is a violation of due process for a court to permit a jury in a tort case to use punitive damages to punish a defendant for harming persons who are not parties in the litigation. The holding is difficult to understand because the Court simultaneously stated that it is permissible to augment a punitive damages award in light of a defendant’s heightened reprehensibility and it is permissible to infer heightened reprehensibility from the numerosity of the persons injured by defendant’s conduct, including nonparties. It is surprising because it appears to sound more in process, while prior cases have focused on the magnitude of the award. For both of these reasons, it is challenging to lower courts, who must craft jury instructions implementing Williams’ mandate. This article tackles all three problems. At a theoretical level, it utilizes civil recourse theory and my prior theory of punitive damages to explain and justify the nonparty harm rule along with the possibility of augmenting punitives for reprehensibility. At an interpretive level, it conjectures that Chief Justice Roberts and Justice Alito wish to retain the Court’s punitive damages doctrine, but are more attracted to versions of constitutional punitive damages law that are visibly distinct from substantive due process. And at a practical level, it reviews several jurisdictions proposed jury instructions, post-Williams, and identifies those approaches to jury instruction that are most defensible.

(Via Solum/Legal Theory Blog)

--CJR

Reader Survey - Please Respond!

As we plan our programming for next year, we are very interested in your feedback on the blog.

UPDATE:   We fixed the survey.  Please click here to take the survey. 

Thank you!

- SBS

Our Thanks to the Spring 2010 Guest Bloggers

We really enjoyed hosting our Spring 2010 guest bloggers.  Our guests explored a wide array of topics: 

• Mike Green on "Let's Be Careful Out There"
• Richard Epstein on "Multiple Standards of Liability in Tort Law: Of context and categories"
• Kenneth Abraham on "Four Conceptions of Insurance"
• Alan Calnan on "Due Process, Probable Cause, Duty and Torts"
• Anita Bernstein on "Pervading"
• Ken Simons on "What can tort law (and tort law scholars) learn from criminal law (and criminal law scholars)?"
• Michael McCann on "'Game Presentation' and Torts: The Unappreciated Dangers of Flying Hotdogs"
• James Henderson on "The Moral Foundation of Tort"
• Richard Nagareda on "Developments in the Resolution of Mass Torts:  The New Face of Client Consent"
• David Owen on "Foreseeability in Accident Law"
• Alex Long on "Should Tort Law Be Tougher on Lawyers?"
• Phoebe Haddon on "Update on the UMD Clinic and Thoughts on Don Gifford's New Book"
• Jennifer Wriggins on "Torts, Insurance, and the Value of Injury"
• Andrew Klein on "Science, Causation, and Toxic Torts"
• Mark Geistfeld on "Tax breaks for bad behavior?  On the relation between income taxes, punitive damages and liability insurance"

Thanks to everyone who participated this spring.  Guest Blogger Monday will return in the Fall.

- Sheila & Chris