TortsProf Blog

Fund to Be Created for BP Plaintiffs' Attorneys

More from George Conk at TortsToday on BP.  Judge Barbier has ordered the creation of a fund that may be used to pay "common benefit fees" to plaintiffs' lawyers in BP oil spill cases (and compensation fund payments), though those fees have not yet been awarded. 

--CJR

Evaluating Ken Feinberg's BP Compensation Process

DOJ has selected a firm to evaluate BP's oil spill compensation process.  Kenneth Feinberg, who led the process, welcomes the scrutiny.  George Conk (Fordham) has the story at TortsToday.  George has a piece on the issue from a symposium at Roger Williams that will be published in January:  Download Conk.diving.11.25[1].

--CJR

Reconciling Punitive Damages With Tort Law

A new student note, Reconciling Punitive Damages with Tort Law's Normative Framework, in Yale Law Journal may be of interest to readers. The abstract provides:

As punitive damages have gained greater visibility in Supreme Court jurisprudence, the need for principles explaining punitive damages and guiding their application has grown. Corrective justice would seem suited to providing guidance in this arena of tort law, but unfortunately it has never satisfactorily accounted for punitive damages. This Note seeks to answer that deficiency with what the Note calls tort law’s moral accounting interest. This interest reconciles punitive damages with corrective justice within a unified theory of accountability in tort law. The Note shows how this unified theory adds practical value to the explanation and application of punitive damages. .

Thanks to François-Xavier Licari for the tip.

- SBS

Omitting Claim for Economic Damages Pays Off - $10M Verdict in Segway Fall Case

The Connecticut Law Tribune reports on an interesting trial strategy in a Segway fall case:

In the case of former Southern Connecticut University student John Ezzo, [Robert B.] Adelman and his partner, Neil Sutton, decided to take a calculated risk. They omitted any claim for treatment costs, lost income or future earnings.

Instead, they only focused on the pain and suffering “non-economic” damages, and the alleged recklessness of Segway Inc., the maker of two-wheeled, scooter-like vehicles that carry riders in an upright position.

The focus on non-economic factors paid off handsomely, in the form of a $10 million verdict on Dec. 14. The jury found Segway acted recklessly when its employees failed to provide Ezzo with a helmet during a test drive. “It’s a unique, almost never-seen-before strategy,” said a lawyer for Segway, which is currently attempting to get the verdict reduced or thrown out.

Thanks to Lisa Smith-Butler for the alert.

- SBS

Santa & Elves Guilty of Negligence in U.K.

From Andrew Dickinson at the University of Sydney comes news of Santa's legal troubles:

On December 14, 2011, the London Civil Court of Appeal in Ducasse v Melbry Events held that Santa and/or one of his Elves had been negligent in failing to spot an icicle on the floor of his workshop over which the plaintiff grandmother tripped, causing a leg injury. The grandmother was visiting Santa's workshop at the London store, Selfridges's, with her son, daughter-in-law and two grandchildren.

Neil Foster (Newcastle) sent the following link regarding the case.

Happy Holidays to all!

- SBS

Insurance Fraud in Rhyme

Yesterday the Supreme Court of Pennsylvania released an insurance fraud opinion authored by Justice Eakin, who disposed of the case in rhyme.  Here's a taste of Commonwealth v. Goodson:

In January, 2001, appellant’s car was in a collision.

His insurer totaled the aging New Yorker, then made a just division

of the value of the insurance claim, sending $6,289 to the lender;

the balance of $135, to appellant they made tender.

And thus the matter terminated, or so one might have thought,

but that was not to be, when Goodson’s later schemes were caught.

The entire opinion (pdf) is here.

Thanks to Alexander Langan, my former student and current Justice Eakin clerk, for the tip.

--CJR

Hylton on Third-Party Financed Litigation

Keith Hylton (Boston University) has posted to SSRN The Economics of Third-Party Financed Litigation.  The abstract provides:

This paper examines the law and economics of third-party financed litigation. I explore the conditions under which a system of third-party financiers and litigators can enhance social welfare, and the conditions under which it is likely to reduce social welfare. Among the applications I consider are the sale of legal rights (such as contingent tort claims) to insurers, to patent trolls, and to financiers generally.

--CJR

Calnan: Four Quandaries for Civil Recourse Theory

Alan Calnan (Southwestern) offers the following post on civil recourse theory:

At the upcoming AALS conference, the Torts and Compensation Section will host a panel discussion on civil recourse theory entitled: Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory. In short, civil recourse theory holds that Torts is a system of constitutionally mandated (due process) rights permitting victims to sue for remedies to rectify legal wrongs. Although the proponents of this theory have elaborated its features in copious detail, they have yet to address several questions essential to its sustainability. Four questions, in particular, create especially troublesome quandaries. I pose these quandaries below in the hope of stimulating thought and discussion at January’s conference.

1. How can civil recourse theory be viewed as an accurate, complete, and unified description of tort law when it ignores both the numerous instrumental (nonwrongs-based) theories of strict liability, and the pervasive instrumental (nonwrongs-based) considerations actively shaping and transforming wrongs-based theories like negligence?
2. How can the right to sue (take recourse) in tort be premised on the existence of a legal wrong if (1) the determination of a legal wrong typically is not made until long after the action is filed, and (2) often (in at least 50% of tried cases) results in a finding that no wrong in fact was done?
3. How can tort law best be understood as empowering victims to rectify civil wrongs (as stated in the panel summary) when the very purpose of both the law’s substance (which specifies things the plaintiff MUST prove to rectify a wrong) and its procedure (which specifies things the plaintiff MUST do to pursue such rectification) is to create impediments for the party seeking recourse and protections for the party being sued?
4. How does the “constitutional” right to civil recourse square with the historic due process right to protect citizens from arbitrary state action, including presumably the state’s action of taking sides in a private dispute by hosting and facilitating one party’s unproven, liberty-infringing (civil) attack against another?

--CJR

Bloom & Davies Review Measure of Injury

Anne Bloom and Julie Davies (University of the Pacific) review Martha Chamallas's and Jenny Wriggins's book, The Measure of Injury in this SSRN posting.

--CJR

McDonald's & Tort Law

Professor Caroline Forell has posted “McTorts: The Social and Legal Impact of McDonald’s Role in Tort Suits" on SSRN.  The abstract provides:

McDonald’s is everywhere. With more than 32,000 restaurants around the world, its Golden Arches and “Mc” conjure up both the good and the bad about American capitalism. 

This article looks at McDonald’s, impact on public policy, and tort law from historical and social psychology perspectives, following McDonald’s from its beginnings in the mid-1950’s through today. By examining McDonald’s Corp. v. Steel and Morris (McLibel), Liebeck v. McDonald’s Restaurants (Hot Coffee), and Pelman v. McDonald’s Corp. (Childhood Obesity), I demonstrate that certain tort cases involving McDonald’s have had particularly important social and legal consequences that I attribute to McDonald’s special influence over the human psyche, beginning in childhood. In explaining McDonald’s extraordinary power over the public imagination and how this affects lawsuits involving it, I rely on the social psychology approach called situationism that recognizes the strong effect that environmental influences can have on individual decision-making. I conclude that lawsuits involving McDonald’s have had and will continue to have important social and legal consequences because of the unique role this corporation plays in our lives.

Thanks to The Situationist for the alert.

- SBS

ATRA Releases New "Judicial Hellholes" List

The American Tort Reform Association has released its annual "judicial hellholes" list.  Topping the list this year is Philadelphia, with California, West Virginia, South Florida, and Madison/St. Clair Counties, Illinois, rounding out the top five.

The American Association for Justice (the former Association of Trial Lawyer's of America) has issued a response and critique.

- SBS

"Announcing Remedies"

Samuel Bray (UCLA) has posted "Announcing Remedies" to SSRN. The abstract provides:

It is a familiar ideal that the remedy should fit the wrong – this wrong, by this wrongdoer, against this victim. Modern legal systems ordinarily pursue this kind of fit, at least in civil cases, by tailoring the remedy case by case. There is an alternative, though, which is for a legal system to announce in advance exactly what the remedy will be for all violations of a legal rule. This Article analyzes this alternative, and it offers a theory for when remedies should be announced.

Announcing has important social benefits. First, there is greater equality, because what a successful litigant recovers is not affected by her race, gender, or other characteristics. Second, announcing produces greater compliance with legal rules, because it assures the public that remedies are not being unfairly manipulated. Third, announcing reduces the “costs of telling.” When remedies are decided case by case, a plaintiff’s recovery depends on how successfully she tells her story. This telling has personal costs, such as impaired hedonic adaptation, that are avoided when remedies are announced.

In achieving these benefits, announcing does not operate as a unitary phenomenon. Sometimes it performs a cost-saving function, sometimes a communication function, and sometimes a precommitment function. Distinguishing between these functions is critical to proper use of announcing. Other important considerations include the interplay of rights and remedies, the need for future-proofing, and the way announcing one remedy can affect the entire system of remedies.

 

- SBS

Rhee on Economic Analysis of Punies

Robert Rhee (Maryland) has posted to SSRN A Financial Economic Analysis of Punitive Damages.  The abstract provides:

This Article provides a financial economic analysis of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather, it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economic theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement dynamics, this Article shows that punitive damages beget problematic risk arbitrage opportunities, which systemically produce under- and over-valuation of cases. These effects yield inefficient pricing in the litigation system. Properly conceptualized and applied, punitive damages can mitigate risk arbitrage that skews actual results from the prescriptions of optimal liability and deterrence. The modern Supreme Court jurisprudence is flawed because it is overbroad. Single-digit multiplier caps underdeter defendants in most cases of ordinary liability because punitive damages do not sufficiently offset a defendant’s risk arbitrage opportunity gained from a lower litigation risk exposure. When, however, liability is catastrophic, punitive damages overdeter defendants, even when it is limited to single-digit multipliers, because they impart severe economic cost of financial distress in addition to the monetary cost of the judgment. These additional economic costs must be credited toward the calculus of cost internalization and optimal deterrence. Thus, a calibrated risk-based theory is needed to support legal limitations on punitive damages.

--CJR

Rights and the Private Law

A new publication, Rights and Private Law , may be of interest to readers. The book contains a collection of essays examining rights-based analysis in private law schoalrship. You can sample the introduction (pdf) by Donal Nolan and Andrew Robertson. The table of contents is also available.

Thanks to Jason Neyers for the info.

- SBS

Plaintiffs Win $72M in Hormone Replacement Therapy Case

The Pennsylvania Record reports a Philadelphia jury awarded three women a collective $72.6 million against Pfizer; the plaintiffs alleged that their breast cancer was caused by hormone therapy medications manufactured by Wyeth since acquired by Pfizer.

- SBS

Texas Law Review Publishes Exchange on Indivisible Injury

R3's Co-Reporters, Michael Green (Wake Forest) and William Powers (Texas), defend the Restatement's treatment of indivisible injury in a response to a note by the editor-in-chief of the Texas Law Review, Michael Raupp.  You can find it all here.

--CJR

Indiana Offers Settlement To State Fair Stage Collapse Victims

ABC News/AP reports that the State of Indiana has offered various settlement amounts to victims of the state fair stage collapse. Victims have until Monday to accept the offers.  State law caps the state's liability at a total of $5 million.

- SBS

Some Context for Consent in Sports

In my Torts class, we discuss consent to intentional torts in, among other contexts, sports -- in particular hockey.  Given the interesting evident difference between what is technically prohibited and what is generally accepted as part of the game, it's a nice foundation for a conversation.  Add to that the New York Times extensively-researched look at hockey through the life, and death, of "enforcer" Derek Boogaard.  Certainly worth a read.

--BC

Pryor on Peculiar Risk in American Tort Law

Ellen Pryor (SMU) has posted to SSRN Peculiar Risk in American Tort Law.  The abstract provides:

American tort law includes a significant strand of liability tied to an intriguing concept variously termed “peculiar risk,” “special danger,” and “special risk inherent in the work,” among others. Peculiar risk presents a basis for liability different from other standards or actions that trigger liability in tort law - it is different from intent, recklessness, negligence, nuisance, and abnormally dangerous activity. Both England and the United States endorsed versions of the doctrine in the late nineteenth and early twentieth centuries. Yet, by 1965, American and English tort law had sharply diverged on the doctrine. American courts continued to apply it; meanwhile, the doctrine had been severely limited in England and rejected in several other common law countries.

The divide between the American approach and treatment of the doctrine outside the U.S. is a puzzle. In countries that have rejected or severely limited the doctrine, the critiques have included decisional indeterminacy and shaky historical and normative justifications. Yet a doctrine subject to these criticisms elsewhere has remained well accepted in the United States in the last thirty years - a thirty-year period characterized by extensive tort reform across the bandwidth of tort law.

This Article explores three points about this divide between American tort law and the tort law of other common law countries: when and how the divide occurred; why this doctrine - whose breadth and indeterminacy spelled its disfavor elsewhere - remained well-accepted in America despite the intensity and duration of American tort reform; and whether the American version of the doctrine offers lessons for tort law outside the United States.

--CJR

Summers v. Tice Background

Summers v. Tice is an iconic first-year Torts case. Kyle Graham (Santa Clara), guest blogging at Concurring Opinions, visited the California State Archive and reviewed the old case file.  His research provides interesting information on the case background:

Moreover, Tice argued that but for the plaintiff’s own negligence, he could have identified his assailant. Specifically, Tice testified that he had been using No. 6 shot, whereas Simonson had been using No. 7½ shot. The two pellets are of slightly different size, and capable of distinction.  Summers himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home.  These facts, if accepted, place a very different spin on the case. One could no longer say that the defendants were in a better position than the plaintiff was to identify who fired the injurious shot, which of course was a key ingredient to the Summers decision.

 

- SBS