TortsProf Blog

Monday's Guest Blogger: Jay Feinman

 
Jay M. Feinman is Distinguished Professor of Law at Rutgers, The State University of New Jersey, School of Law at Camden.

 Feinman is a well-known expert on contract law, tort law, insurance law, and legal education.  His many publications include Delay, Deny, Defend: Why Insurance Companies Don’t Pay Claims and What You Can Do About It (Portfolio/Penguin 2010);  Un-Making Law: The Conservative Campaign to Roll Back the Common Law (Beacon Press, 2004; paperback 2005); Law 101: Everything You Need to Know About the American Legal System (Oxford University Press, 2000; 2nd ed. 2006; 3rd ed. 2010) (also published in English edition in China and in translation in Spanish, Arabic, Japanese, Dari, Pashtu, Urdu, and Bulgarian); 1001 Legal Words You Need to Know (Oxford University Press, 2003; paperback 2005) (also published in Chinese-English edition); Professional Liability to Third Parties (American Bar Association, 2000; 2nd ed. 2007); Economic Negligence (Little, Brown, 1995); and more than fifty scholarly articles. His scholarly work has been widely cited in the academic literature and by courts, including the United States Supreme Court.

 Among his professional activities, Feinman is an elected member of The American Law Institute and a member of the Board of Legal Scholars of the Academy of Trial Advocacy. He has served as Chair of the Association of American Law Schools Section on Contracts and Section on Teaching Methods. At Rutgers, he has served as Associate Dean and Acting Dean of the law school. He is a member of the New Jersey bar.

 Feinman has received every teaching prize awarded at Rutgers, including the Lindback Foundation Award for Distinguished Teaching (2005), the Warren I. Susman Award for Excellence in Teaching (2004), and the Provost’s Award for Teaching Excellence (1999).

 Feinman received his B.A. degree summa cum laude from American University and his J.D. degree cum laude from the University of Chicago, where he was a member of the Order of the Coif and Comment Editor of the University of Chicago Law Review.

Swett on Establishing Reasonable Contingency Fees

Jeffrey Swett (Student/Tennessee) has posted his note to SSRN.  Entitled Determining a Reasonable Percentage in Establishing a Contingency Fee:  A New Tool to Remedy an Old Problem, the abstract provides:

The indiscriminate use of contingency fee contracts providing for a one-third fee paid contingent upon either damages awarded to and received by the plaintiff or settlement amounts paid to the plaintiff is an important issue. This article first describes what is wrong with the one-third model, the response of the legal system to unreasonable contingency fees, and the mixed beliefs on obtaining a reasonable contingency fee percentage. The article then uses mathematics and law to construct a computerized, mathematical model that can be used to calculate a contingency fee tailored to each client’s case. The author uses statistical analysis to estimate the pertinent factors to determine a contingency fee: projected hours, hourly wage, projected costs fronted, risk multiplier, and projected recovery. Before concluding, the article assesses the benefits and drawbacks of this new mathematical model.

--CJR

"The Torts Scholarship of Richard Epstein"

The current issue of the Journal of Tort Law is now available.  The issue is a tribute to the torts scholarship of Richard Epstein.  With an introduction by editors Jules Coleman and John Goldberg, the issue features articles by Joshua Getzler, Jill Horwitz, and Benjamin Zipursky, and a comment by David Owen, as well as a reply by Professor Epstein that revisits and restates the hugely influential account of tort law that he has developed since the publication of his landmark 1973 article, A Theory of Strict Liability.

Thanks to John Goldberg for the info.

- SBS

 

 

 

Paul Steven Miller

The New York Times reports that law professor and disability rights advocate Paul Steven Miller passed away at home last Tuesday.  The obituary there does a better job than I can at describing his many accomplishments, both within and outside the academy.

Professor Miller started teaching at the University of Washington at the same time I started teaching, as I recall, and we met at a new law teacher's seminar put on by AALS, I think.  We exchanged e-mails periodically talking about teaching Torts -- he was an innovative teacher, developing extensive wikis for his classes, among other things -- and about life as a law professor.  While he was certainly best-known for his work in the arena of disability law, he was an enthusiastic Torts prof and utterly dedicated to his teaching.  I was pleased when he took a position with the Obama administration, and even happier when he returned to teaching.  Getting a drink with Paul was something I looked forward to every year at AALS. 

Paul was 49 years old and is survived by his wife and two young daughters.

--BC

Guest Blogger James R. Hackney, Jr. on "Risk Management, Torts and Corporate Finance"

Today's guest blogger is James R. Hackney, Jr., Professor of Law and Faculty Director of Research at Northeastern University School of Law.

Risk Management, Torts and Corporate Finance

My guess it that I am one of the few American law professors who teach both torts and corporate finance.  This coincidence has as much to say about my educational and professional background as it does the about the curriculum needs of my institution.  At first blush, one might assume that the two fields could not be further apart.  However, there is one very important unifying characteristic—both are concerned with risk management.  Of course, torts scholarship and doctrine focus on how we should distribute the economic consequences of accident risks, and by extension what constitutes an ideal level of risk (and accidents).  In corporate finance, risk is a central concept in theories dealing with diversification, asset valuation, the efficiency of markets, and the valuation of derivatives (options).  The other commonality between corporate finance and torts is that they both rely on science (or the practical application of scientific techniques) in the effort to manage risk.  Two recent events, the Gulf oil spill and the financial crisis, illustrate the conjunction between risk management and science in both the tort and corporate finance arenas.  They also illustrate the dangers in placing too much belief in the science or methods of risk management.

The Gulf oil crisis was an environmental catastrophe of monumental proportions.  One of the interesting features of the crisis is that it illustrated the failure of a major institution, British Petroleum (“BP”), to adequately account for the risks of its activities.  It also highlighted that government regulators had obviously failed at the risk calculus as well.  The science of cost/benefit analysis (Learned Hand) is appropriately called into question.  Of course, this is a reoccurring theme—the actual catastrophic event causes us to either second guess our risk calculus or want to do away with risk calculus all together.  Guido Calabresi aptly described this phenomenon in Tragic Choices. 

Similar to our belief that cost/benefit analysis will adequately manage risks in the torts arena, there was a belief that the science of corporate finance could manage risks in the financial arena.  The financial sector was allowed to produce a plethora of exotic financial products over the last few decades that were designed to manage or minimize risk.  Collateralized debt obligations are bundles of risky assets (most notably, in relationship to the most recent crisis, real estate mortgages).  The science of diversification, as articulated by the Nobel Prize winning economist Harry Markowitz, would suggest that holding this diverse bundle of assets would minimize the risk.  (Of course, the science of diversification also includes the caveat that systematic risk, such as the wholesale collapse of the real estate market, cannot be diversified away.)  In addition, players in the market, such as Goldman Sachs, further hedged their bets (or simply just bet) regarding real estate through the purchase of credit default swaps (CDSs).  The CDS phenomenon is a perfect example of the strategy of hedging (via derivatives) in action.  Just as the science of cost/benefit analysis failed us in avoiding the Gulf disaster, theories of diversification and hedging deployed in the praxis of finance failed us in the lead up to the financial crisis.  This is nothing new.  Asset bubbles have been a consistent phenomenon in recent decades, and indeed throughout human history.  

A big part of the cultural malaise that we associate both with the Gulf disaster and the financial crisis (apart from the natural and economic consequences) is that once the events occurred and there was an obvious need to clean up the mess, the science and technologies that BP, Wall Street, and the government chose to deploy again seemed woefully inept.  The repeated attempts by our most brilliant scientists and engineers to “cap” the spill to no avail seemed to deflate the nation.  Our continued inability to stem the tide of foreclosures and unemployment continue to frustrate the body politic.  The science of macroeconomic policy, even in the hands of an expert on the Great Depression, Federal Reserve Chairman Benjamin Bernanke, is obviously coming up short or not working quickly enough to satisfy our quick thirst for results.  (Of course, in both the BP and economic crisis contexts any critique of the expertise deployed must be limited to those actually relied upon to render advice.  As in most situations, there were those within the scientific community whose voices may not have been heeded.)  It is difficult to measure the long-term effects the Gulf and financial crises will have on our society.  My hunch is that it will make us a bit more skeptical regarding our capacity to manage risks and rely on private actors (as well as the government) to do so. It may also make us less sanguine with regard to the scope and application of science.

- James R. Hackney, Jr.
Professor of Law
Northeastern University School of Law
Boston, MA

 

Introducing Guest Blogger James R. Hackney, Jr.

Monday's Guest Blogger is James R. Hackney, Jr., Professor of Law and Faculty Director of Research at Northeastern University School of Law, where he teaches in the areas of torts, corporate finance, corporations, critical race theory, and law and economics. 

Professor Hackney’s research focuses on intellectual history, torts, the mutual fund industry, law and economics, and critical race theory. He is the author of the acclaimed book, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity (Duke University Press, 2007).   Selected publications include Book Review, “On Markets and Regulation: Richard Posner’s Conservative Pragmatist Evolution” (reviewing Richard Posner’s A Failure of Capitalism: The Crisis of ’08 and the Descent into Depression), 3 Law and Financial Markets Review 539 (2009); “Duties of Fund Directors Under State Law,” Fund Governance: Legal Duties of Investment Company Directors. Robertson, ed. Law Journal Press, 2005; “Ideological Conflict, African American Reparations, Tort Causation and the Case for Social Welfare Transformation,” 84 Boston University Law Review 1193 (2004); “Law and Neoclassical Economics Theory: A Critical History of the Distribution/Efficiency Debate,” 32 Journal of Socio-Economics 361 (2003); “Law and Neoclassical Economics: Science, Politics and the Reconfiguration of American Tort Law Theory,” 15 Law and History Review 275 (1997); “The Intellectual Origins of American Strict Products Liability: A Case Study in American Pragmatic Instrumentalism,” 39 American Journal of Legal History 443 (1995); and “A Proposal for State Funding of Municipal Tort Liability,” 98 Yale Law Journal 389 (1988).

In 1997-98, Professor Hackney was a Visiting Professor of Law and John M. Olin Fellow at the University of Southern California.  He also has taught as a Visiting Professor at Boston University School of Law and Harvard Law School.  Professor Hackney has served on the Executive Committee for the AALS Torts & Compensation Systems Section, and was Co-Chair of the AALS Socio-Economics Section.   In 2003 & 2005, he was named Teacher of the Year.  Prior to joining the Northeastern faculty, Professor Hackney was an associate with the Los Angeles law firm of Irell & Manella.

- SBS

 

 

Texas Jury Finds Nursing Home Negligent

Yesterday in San Antonio, a civil jury found a nursing home negligent in the care of a man who developed severe, infected bed sores.  The nearly $600,000 verdict will be reduced by a damage cap to $250,000.  In a newspaper interview, the plaintiff's attorney argued that such trials had become rare because of the cap.  My SA.com has the story.

--CJR

Vanderbilt Announces Memorial Arrangements for Professor Nagareda

As we all continue to mourn the loss of Professor Richard Nagareda, who passed away unexpectedly on Friday, October 8, 2010, Vanderbilt has announced a memorial to be held November 12th at Vandy:

Vanderbilt Law School is hosting a celebration of Richard Nagareda's life on Friday, November 12, at 4:00 p.m. in the Flynn Auditorium, with a reception to follow. We invite you to join us.

Parking for visitors who want to attend the memorial will be available in Lot 5B, which is located directly across from the law school at the intersection of 21st Avenue and Broadway.

Alumni, friends and former colleagues are invited to honor Professor Nagareda by sharing your memories of him with us. You may send your tributes via email to [email protected] for posting on a private web page set up for alumni and friends, or mail your tribute or a letter of condolence with a note indicating whether you’d like your tribute posted online or only forwarded to Richard’s family to us at:

Vanderbilt University Law School/Nagareda Memorials
Dean’s Office
131 21st Ave. South
Nashville, TN 37203

You may also honor Richard by donating to a memorial fund we have established at the family's request to support a student scholarship by clicking here by sending a check to us at the address above.

Vanderbilt also has provided a detailed obituary listing the many accomplishments of Professor Nagareda.

- SBS

Defedants Win Summary Judgment in Peanut Butter Salmonenlla Cases

A defense win on causation in the peanut butter salmonella cases filed against Con Agra.   Mass Tort Defense has the details.

- SBS

 

Rapp on "Defense Against Outrage and the Perils of Parasitic Torts"

Geoffrey Rapp (Toledo) has posted his article, Defense Against Outrage and the Perils of Parasitic Torts, on SSRN.  The abstract provides:

In Snyder v. Phelps, the Supreme Court will soon weigh whether protestors at a slain soldier’s funeral committed the tort of Intentional Infliction of Emotional Distress (IIED) or engaged in protected speech. Imagine that Mr. Snyder, the IIED plaintiff and soldier’s father, had, rather than bring a tort claim, used physical force to defend himself from the arguably tortious conduct of Phelps and his crowd. Can force be used to defend against intentional extreme or outrageous conduct threatening a person with severe emotional distress? The answer in the case law and articulated doctrine appears to be “no.”

Two prominent narratives in tort law scholarship address the increasing recognition of claims for loss of emotional tranquility and the expanding privilege to use force in defense of self and others. This Article explores a puzzle in tort law that challenges these traditional accounts. The law permits the use of force to protect dignitary interests, in the case of offensive battery and assault, but seems to deny the use of force to protect against IIED. No basis for this distinction appears in the leading theoretical accounts of tort law – economics, corrective justice, and civil recourse theory. Rather, the basis of the rule seems to be the childhood maxim, “Sticks and stones…,” without strong theoretical or policy justification.

Two implications arise. First, the law continues to privilege physical security above emotional well-being. Second, although it is arguably the most successful “new” tort of the twentieth century, IIED remains a tort whose boundaries are murky and whose place in tort doctrine is unclear. The parasitic nature of IIED has complicated the effort to build clear doctrine around all but the most essential elements of the claim.

 

- SBS

 

Personal Injury Roundup No. 84 (10/15/10)

New Suits

• OH:  Woman badly burned in gynecological procedure sues hospital, doctor. (Justice News Flash)

Appeals

• Justice Sotomayor appears most sympathetic to state vaccine suit.  (ABA Journal); also Alberto Bernabe has the transcript.
• NY:  Brain damage from med mal at birth yields $56M verdict, including $22M for pain and suffering; will be resolved on appeal.  (Hochfelder/New York Injury Cases Blog)
• PA:  Lackawanna County doctor loses appeal after one of the largest med mal verdicts in northeast PA history.  (Scranton Times-Tribune)

Reform, Legislation, Policy

• Report:  Med mal costs expected to rise (Business Insurance)

Trials, Settlements and Other Ends

• PA:  2 teens receive $185K, lawyer receives $425K from school district in webcam spying settlement.  (ABA Journal)

Miscellaneous

• Podcast on med mal risk management (Bernabe)
• More Wacky Warnings (Frith/The California Civil Justice Blog, via Olson/Overlawyered)
• R.I.P. Richard Nagareda (TortsProf)

--CJR

Hershovitz on Harry Potter and Tort Theory

A few years ago, Ben Barton (Tennessee) authored a much-downloaded piece on Harry Potter and government bureaucracy.  Now there is a tort-specific Harry Potter article.  Scott Hershovitz (Michigan) has posted to SSRN Harry Potter and the Trouble with Tort Theory.  The abstract provides:

Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: They are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort’s substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law.

The problem is particularly acute for economists. They analyze the impact of tort’s substantive rules on accident and accident avoidance costs. Yet, the institution of tort law generates many other costs and benefits for society, and those costs and benefits affect the optimal arrangement of tort’s rules. The fact that economists have not factored these additional costs and benefits into their analyses calls into question their descriptive and normative claims about tort.

Corrective justice theory is not in as much trouble as the economic approach, but it is troubled still. Philosophers’ neglect of the procedural dimension of tort has caused them to overlook ways that tort does justice between wrongdoers and victims. And it has led them to make misleading claims about the nature of both corrective justice and tort law.

This article draws out the trouble with tort theory through a thought experiment, starring Harry Potter. Potter’s magic helps to highlight the features of tort that the leading theories overlook. Once they are in view, the article considers the ways in which the omissions cast doubt on the claims those theories make, investigates ways they might improved, and offers several observations about the choice between them.

--CJR

More on Snyder v. Phelps

Alan Garfield (Widener) has written an op-ed entitled "Hate Funeral Protests?  Then Ignore Them."  Here's a sample:

If Albert Snyder is going to win on appeal, he will have to convince the Supreme Court that Phelps' speech is somehow different from the many types of offensive speech we already tolerate.

This is a difficult challenge, but not insurmountable. Snyder could convince the court that Phelps crossed the line when he exploited the Snyder family's private personal tragedy to publicize his cause. Or he could convince the court that our expansive tolerance for offensive speech has limits, and targeting funerals is one of them.

Given the facts, the court might be tempted to accept these arguments. But if it does, it will have to explain why every other person offended by harsh political speech can't also sue for damages.

We'll have to see what the Supreme Court says. But in the meantime, our society is already free to deal Phelps' speech the most fatal blow of all. Ignore it.

See also "Supreme Court case touches on complicated rights to free speech, privacy" (Harrisburg, PA's Patriot-News, quoting, among others, Widener's Bob Power).

--CJR

Plaintiffs' Steering Committee Appointed in BP Oil Spill Litigation; Professor McGovern Appointed Special Master

Judge Barbier has appointed fifteen lawyers to the plaintiffs' steering committee ("PSC") in In re Oil Spill:  Brian H. Barr, Jeffrey A. Breit, Elizabeth J. Cabraser, Philip F. Cossich, Jr., Robert T. Cunningham, Alphonso Michael Espy, Calvin C. Fayard, Jr., Robin L. Greenwald, Ervin A. Gonzalez, Rhon E. Jones, Matthew E. Lundy, Michael C. Palmintier, Paul M. Sterbcow, Scott Summy, and Mikal C. Watts.  In addition, four lawyers were appointed to the Plaintiffs' Executive Committee:  James Roy and Russ Herman, Brian Barr and Scott Summy.   Fox 10 News lists the lawyer's office affiliations.

Interestingly, of the seventeen lawyers, only two - Cabraser and Watts - were noted on Mark Behren's Top Plaintiffs' Lawyers List.  

As is typical, the Judge's order provides no reason for his selection of these seventeen lawyers from the 112 applicants.  And, as is also typical, the Judge's order vests the PSC with complete control over the course of the litigation.   According to the Judge's order, the PSC will conduct all pretrial discovery, appear as counsel at all pretrial hearings, submit and oppose all motions, and explore settlement, among other things.   

Finally, following up on last week's note in the Roundup, Judge Barbier did, in fact, appoint Professor McGovern as a special master in the MDL.

- SBS

Guest Blogger Lester Brickman on "Yes, Virginia, There Is A Litigation Explosion."

Today's guest blogger is Lester Brickman, Professor of Law and former Acting Dean at at the Benjamin N. Cardozo School of Law.

YES, VIRGINIA, THERE IS A LITIGATION EXPLOSION

The dispute over the growth of tort liability and whether this has resulted in a “litigation explosion” transcends mere statistical jousting.  Invariably, those who conclude that there has been explosive growth in tort litigation support reforms to roll back excessive tort liability expansion.  Conversely, those who reject the explosive growth thesis also reject tort reforms as unnecessary and unwise.  In the tort reform wars, the battle over whether there has been a substantial increase in the scope of tort liability and resulting “explosion” in litigation, as measured by the volume of tort litigation, looms large.  The accepted wisdom, of course, is that the claim of a “litigation explosion” is pure bunk.  Not so fast.  

The litigation explosion deniers mostly rely on empirical data on the numbers of tort lawsuits filed, collected by the National Center for State Courts or found in annual reports issued by the federal judiciary, as well as studies by the RAND Institute of Civil Justice.  Based solely on this published data, I concur that there is no factual basis for a litigation explosion.  But the published data suffers from many critical infirmities which I describe in my forthcoming book, Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge Univ. Press, Jan. 2011).

Furthermore, the tort filing statistics measure ignores increases in tort claim valuation and the total amounts of wealth transferred through the tort system, and as a result, does not a provide a meaningful account of what is occurring in the tort system.  Consider, for example, the experience of New York City.  While the number of tort claims filed against the city grew by 50 percent between 1984 and 1994, the dollar value of the settlements and judgments in the same time period increased by over twice that amount, from an average of $14,386 per claim to $29,894, up 108 percent.  Even when the aggregate number of tort claims filed against the city dropped by 18.5% between 1995 and 2004, the dollar amount of settlements and judgments increased by 122%, from $241.5 million to $536.8 million.

These inadequacies pale when compared to the most glaring defect in case filing statistics: the omission of millions of tort claims that have resulted in tens of billions of dollars in wealth transfers.  Relying on case filings as a measure of what is going on to the tort system is like relying on U.S. census data, which omits California, New York and Texas, to measure the nation’s population growth. 

There are somewhere between 15,000,000 and 20,000,000 civil cases filed annually in state courts, including divorce, property, contracts, torts, and landlord-tenant cases.  An estimated 1,000,000 to 1,500,000 of these civil suits are tort cases.  In addition, there are approximately 50,000 to 70,000 tort filings a year in federal courts.  However, the actual number of plaintiffs who become claimants in state and federal courts is actually far higher than these numbers suggest.  Here is why: Each time a lawyer files a tort case, he pays a filing fee to the court.  In mass tort litigations -- such as asbestos -- tort lawyers came up with a clever ruse, which both saved money and materially increased the pressure on defendants to settle tens of thousands of mostly bogus claims.  In states such as Texas, Mississippi, West Virginia, and Illinois, lawyers filed complaints against dozens, if not hundreds, of asbestos defendants on behalf of a single plaintiff, let’s say John Smith.  They then added ten to fifty additional plaintiffs to the case.  However, the title of the case remained John Smith vs. [one hundred defendants listed by name], so the lawyer paid one filing fee.  For purposes of counting the number of case filings, John Smith and fifty other plaintiffs vs. one hundred defendants -- which added up to over 5,000 claims -- counted as one filing!  As many as 100,000 asbestos plaintiffs who filed suit against scores of defendants totaling millions of claims were thus omitted from case filing statistics.

A similar process occurred when asbestos and other mass tort cases were consolidated in state courts.  Here too, lawyers saved money on filing fees by listing only a handful of plaintiffs in a consolidated case and paying their filing fees, even when there were actually thousands of plaintiffs.

Another source of vastly undercounting civil case filings is the virtual omission of class actions and the substantial omission of bankruptcy trust claims filings.  These constitute an enormous and growing number of claims, generating billions of dollars in wealth transferred through the tort system and hundreds of millions dollars in contingency fees for lawyers. 

Class actions include millions of claimants who become eligible for billions of dollars of compensation annually but who are virtually all invisible when it comes to counting tort case filings.  Class action lawyers pay filing fees only for each of the named plaintiffs.  Since the number of civil cases filed is determined on the basis of the number of filing fees paid, the putative class action counts for statistical purposes as one or perhaps two or three civil actions.  This accounting is unchanged by the fact of certification of a class.  In addition, some states do not count a civil action as filed until a jury or first witness is sworn at the commencement of a trial -- events that rarely occur in class actions.

While some class action settlements incorporate thousands of individual claims filed in courts, other class action settlements include claims that are filed after a settlement has been reached and a trust or other mechanism has been created for payment of the settlement funds.  For example, when the silicone breast implant litigation settlement was reached, approximately 440,000 women filed claims to be paid out of the settlement. The vast majority of these claimants were recruited by lawyers after the settlement was reached and had not previously filed suit in a court.  Accordingly, these hundreds of thousands of claims were not counted in case filing compilations.

Another area of large-scale undercounting involves trusts or similar mechanisms for the payment of claims, which are created in the course of certain bankruptcy proceedings.  Assets are transferred from the debtor in bankruptcy to the trust for the payment of current and, in the case of latent injuries, future tort claimants.  While many of those filing claims with the trust have previously filed tort actions in federal or state court, filing a tort action in a court is typically not a prerequisite for filing a claim with the trust.  As many as hundreds of thousands of asbestos claimants, mostly generated by litigation screenings, who presented claims to the trusts and received and continue to receive, in the aggregate, billions of dollars of compensation, may never have brought suit in a court and are, therefore, not counted in tort claim filing data.

If joined cases, consolidated cases, class actions, mass tort settlements, and bankruptcy trust filings were included in tort claims filing data -- as they properly should be -- then there has indeed been a “litigation explosion.”  Nonetheless, as I discuss in Lawyer Barons, the fact that there has been a litigation explosion does not, in and of itself, mean that there is an excess of litigation that imposes social costs that far exceed benefits.

Whether that is the case is the issue I tackle in my book.  Contrary to a broad academic consensus, I argue that the financial incentives for lawyers to litigate in many instances have become so inordinately high that they perversely impact our civil justice system and impose other substantial costs.  But that is a subject for another day.  

- Lester Brickman
Professor of Law
Benjamin N. Cardozo School of Law

In Memoriam: Richard Nagareda (1963-2010)

I am very sorry to report the untimely death of one of the great minds in mass tort litigation, Richard Nagareda.   According to the Vanderbilt notice, Professor Nagareda died suddenly at his home on Friday October 8, 2010.   Vanderbilt released the following statement:

“Richard was a personal friend as well as an esteemed colleague, and those of us who were fortunate enough to know him and work with him for the past several years are devastated by his death,” Dean Chris Guthrie said. “The legal academy has lost a gifted scholar, and our students an extremely talented teacher. Our faculty members have lost a good friend and exemplary colleague, and his family a beloved husband, father and son."

We were lucky to have Professor Nagareda guest blog here at TortsProf last spring.  His guest blog piece explored "Developments in the Resolution of Mass Torts: The New Face of Client Consent."

H/T to Legal Ethics Forum and Leiter Law School Reports.

- SBS

Personal Injury Roundup No. 83 (10/8/10)

New Suits

• Over a 100 negligence suits filed against St. Joseph Medical Center (Baltimore) on Tuesday alleging unnecessary heart-related procedures.  (WJZ 13)

Appeals

• Second Circuit issues summary affirmances in eight Zyprexa dismissals.  (Drug & Device)
• Eleventh Circuit "ruled that Medicare is not entitled to rely on its field manual and argue that a subrogation interest be reduced under a "made whole" type of analysis only if a judgment is entered in the case."  (Day on Torts)
• NJ Supreme Court upholds use of class action for consumer fraud claim against drug manufacturer based on allegedly deceptive advertising.  (Opinion, NJ Law Journal (via law.com), Drug & Device)
• Kentucky appellate court holds law barring punitive damages against dram shops is unconstitutional. (Cal Punitive Damages)

Reform, Legislation, Policy

• "Things Congress did and didn't do before leaving", Part I and Part II at Point of Law.
• On-going Foreign Corrupt Practices Act investigation of several major drug manufacturers. (WSJ)
• 9/11 compensation bill passed House last week, now moves through Senate.  (Point of Law)

Trials, Settlements and Other Ends

• Federal district court grants summary judgment to defendants in the Wii defective wrist strap class action.  (Mass Tort Defense)
• Federal district court judge reduces $8M Fosamax award as excessive, but denies new trial based on plaintiff's lawyer's improper conduct.  (Drug & Device, About Lawsuits, NY Law Journal/law.com) 

Miscellaneous

• Judge Barbier gave notice of intent to appoint Professor Francis McGovern as a special master under FRCP 53 in the In re Oil Spill MDL.  (Order, Mass Tort Defense)

--SBS

Introducing Guest Blogger Lester Brickman

Monday’s Guest Blogger is Lester Brickman, Professor of Law and former Acting Dean at the Benjamin N. Cardozo School of Law, where he teaches contracts and legal ethics.  He has written extensively on legal ethics and his writings have been widely cited in treatises, casebooks, scholarly journals and judicial opinions. Among his areas of specialty are contingency fees and their effect on the tort system, mass tort litigation, asbestos litigation, regulation of attorney fees in the tobacco litigations, fee arbitration, and class actions.

 Professor Brickman is publishing a book on contingency fees due out in January 2011:  Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge Univ. Press).  The book is a broad and deep inquiry into how contingency fees distort our civil justice system, influence our political system and endanger democratic government.  While the public senses that lawyers manipulate the civil justice system to serve their own ends, few are aware of the high costs that come with contingency fees.   This book, which distills 20 years of Professor Brickman’s research, sets out to change that, providing a window into the seamy underworld of contingency fees that the bar and the courts not only tolerate but even protect and nurture.  Contrary to a broad academic consensus, the book argues that the financial incentives for lawyers to litigate are so inordinately high that they perversely impact our civil justice system and impose other unconscionable costs.  It thus presents the intellectual architecture that underpins all tort reform efforts.

Professor Brickman also has written extensively on asbestos litigation.  His articles and testimony before the Senate Judiciary Committee and a subcommittee of the House Judiciary Committee have been influential in directing attention to critical asbestos litigation abuses. He has been acknowledged by four federal courts as an expert on the history of asbestos litigation, asbestos bankruptcy trusts and the effect of tort reform on future asbestos claim generation. In early 2005, President George W. Bush introduced Professor Brickman to an audience in McComb County, Michigan, as an expert on asbestos litigation issues and asked Professor Brickman to explain the need for a legislative solution for asbestos litigation abuses.

Professor Brickman has been widely quoted in the press on lawyer fee issues as well as on tort reform issues. He has testified before Congress on the delivery of legal services, asbestos litigation, contingency fee abuses generally and in tobacco litigation and on the constitutionality of congressional regulation of fees in tobacco litigation.  He has served on the professional responsibility committees of the New York State and City bar associations and on the Professional and Judicial Ethics committee of the Association of the Bar of the City of New York.  Professor Brickman is a graduate of Carnegie-Mellon University, the University of Florida Law School and has a Masters in Law degree from the Yale Law School.

- SBS

Top Plaintiffs' Lawyers

Mark Behrens and Cary Silverman (Shook, Hardy & Bacon) recently surveyed numerous defense counsel, in-house counsel, and individuals involved with civil justice reform efforts across the country to identify the plaintiffs' lawyers viewed by the defense bar as the top trial lawyers in America in terms of expertise and influence.  Here is the list of 75 lawyers:  Download DC-188012-v2-Trial_Lawyer_Kingpins(1) (Excel). 

The partner for whom I worked the most in practice, Thomas E. Albro (Tremblay & Smith), represented mostly plaintiffs.  He is a fantastic lawyer.

--CJR

Zipursky on "Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law"

Ben Zipursky (Fordham) has a forthcoming article on Snyder v. Phelps, which will be before the Supreme Court for oral argument tomorrow.   The abstract provides:

In Snyder v. Phelps, the United States Supreme Court will decide to what extent state tort law may impose liability for “intentional infliction of emotional distress through outrageous conduct” without running afoul of the First Amendment’s guarantee of freedom of speech.   The defendants, the Phelpses, picketed the funeral of a young Marine who died in the line of duty in Iraq; they carried signs with statements such as “God hates the USA,” “God hates you,” “Fag troops,” and “Thank God for dead soldiers.”   Sickened, depressed, and infuriated by the conversion of his son’s funeral into a media circus for an extremist group, the soldier’s father, Albert Snyder, successfully sued the defendants for the torts of intentional infliction of emotional distress through outrageous conduct and invasion of privacy.  Several important First Amendment scholars have argued that an emotional harm tort that depends on applying the vague, subjective, and malleable concept of “outrageousness” to political speech cannot withstand First Amendment scrutiny, and that the Court should therefore rule for the defendants.

This Essay examines Snyder v. Phelps from a tort scholar’s point of view and, in doing so, puts forward strong reasons for rejecting the outrageousness argument.   When one looks into the nature of the emotional distress tort carefully, as one must if one takes federalism seriously, three points become clear: first, that state tort law contains its own well-developed resources for scrutinizing such emotional distress claims and carefully filters out the vast majority of such claims; second, that the concept of outrageousness is used in part to insure that only a narrow range of kinds of cases can succeed; and third, that one of the most longstanding and best established paradigms for liability in emotional distress torts involves persons who have intentionally or recklessly interfered with a plaintiff’s efforts to grieve for a deceased child, parent, or spouse.  As a unanimous United States Supreme Court recognized only seven years ago in the privacy case National Archives and Records Administration v. Favish, the law does acknowledge that “[f]amily members have a personal stake in honoring and mourning their dead” and does not protect the activity of one who, by intruding on the family members’ grief, “tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.”  To suppose that Snyder’s tort claim cannot be permitted because “outrage” and “emotional harm” are too vague or mercurial is simply to invert legal reality.

 You can download a copy of Zipursky's paper here:  Download Zipursky on Snyder v. Phelps

- SBS