TortsProf Blog

Harvard Symposium on the "New Private Law"

The symposium, held last year, includes Tortsprofs Richard Epstein, John Goldberg, Keith Hylton, John Oberdiek, and Ben Zipursky and can be accessed here.

--CJR

Ben-Shahar & Logue on Insurance as Regulation

Omri Ben-Shahar (Chicago) and Kyle Logue (Michigan) have posted to SSRN Outsourcing Regulation:  How Insurance Reduces Moral Hazard.  The abstract provides:

This article explores the potential value of insurance as a substitute for government regulation of safety. Successful regulation of behavior requires information in setting standards, licensing conduct, verifying outcomes, and assessing remedies. In some areas, the private insurance sector has technological advantages in collecting and administering the information relevant to setting standards, and could outperform the government in creating incentives for optimal behavior. The paper explores several areas in which regulation and other government-oriented forms of control are replaced by private insurance schemes. The role of the law diminishes to the administration of simple rules of absolute liability or of no liability, and affected parties turn to insurers for both risk coverage and safety instructions. The paper illustrates the existing role of regulation-through-insurance in various areas of risky activity, and then explores its potential application in additional, yet unutilized, areas: (1) consumer protection; (2) food safety; and (3) financial statements.

Via Keith Hylton's Torts & Products Liability e-Journal.

--CJR

Missouri Senatorial Candidates Spar Over Tort Reform

St. Louis businessman John Brunner and former State Treasurer Sarah Steelman, both candidates for the U.S. Senate Republican nomination, sparred over tort reform in a debate last week.  The News-Leader has more. 

- SBS

Happy Memorial Day!

Happy Memorial Day! 

Memorial Day was originally known as "Decoration Day," a reference to the practice of decorating the graves of war veterans.   In 1971, Congress declared Memorial Day a federal holiday to be celebrated on the last Monday in May.  On May 2, 2000, then-President Bill Clinton issued a memorandum calling on Americans "to pause for one minute at 3:00 p.m. (local time) on Memorial Day, to remember and reflect on the sacrifices made by so many to provide freedom for all."

You can find more information about the history of Memorial Day from the History Channel. 

- SBS

PA: Court Rejects "Any Fiber" Theory of Causation for Asbestos

The opinion (pdf) is here:  Download DC-#375579-v1-Pa__Betz_Simikian_Supreme_Court_opinion_pdf[1].

--CJR

Culhane on "Duty Per Se" in Child Abuse Cases

John Culhane (Widener) has posted to SSRN Duty Per Se:  Reading Child Abuse Statutes to Create a Common Law Duty in Favor of Victims.  The abstract provides:

This article examines recent high-profile cases involving the sexual abuse of children. It focuses on a case involving a Delaware pediatrician convicted of sexually molested hundreds of children, and also discusses cases of alleged abuse by priests and by a Pennsylvania State University football coach, Jerry Sandusky. The article proposes that courts use "duty to report" statutes to recognize a common law duty for medical professionals who know or suspect abuse to report it. Failure to discharge that duty should result in liability where the causal connection between that failure and subsequent abuse can be established.

The article introduces the concept of duty per se, and, building on insights from the Restatement (Third) of Torts, distinguishes cases of affirmative duty to act from cases of misfeasance that are considered under a negligence per se analysis. It proposes that courts consider four questions in deciding whether a statutory duty to act should create a corresponding duty under common law: (1) How important is the state’s interest in preventing the harm the statute covers? (2) How closely connected is the class of actors upon whom the duty is imposed to the harm suffered? (3) Is the prospect of tort liability for failure to follow the statutory directive likely to cause unintended consequences for those upon whom the duty is imposed? (4) How likely is it that this harm will be adequately addressed by other means?

In the case of child abuse statutes, the answers strongly counsel courts to recognize a duty by medical professionals to report child abuse, under penalty of tort liability for failing to do so.

--CJR 

Reforming the Reform: No-Fault Auto Insurance

A couple of weeks ago (while I was busily grading papers and exams), Susan Ladika published a piece at Carinsurance.com that was picked up by Fox Business News entitled Reforming Reform:  Fixing no-fault insurance. 

In the article, the author discusses current efforts to reform no-fault insurance, given its greater-than-expected costs.  No-fault has been successful in some ways.  The article often relies on a 2010 RAND study by James M. Anderson, Paul Heaton, and Stephen J. Carroll, The U.S. Experience with No-Fault Automobile Insurance.  That study, at pages 96-97, found that "no-fault systems provide reimbursement for a larger proportion of economic losses, greater satisfaction with the speed of payment, and faster resolution of third-party claims."  However, no-fault was advertised as being cheaper than liability insurance.  Instead, in most states, it has been just as expensive, if not more so.  As a result, no-fault, which once seemed on the cusp of becoming the law of nearly every state, has lost traction.  What went wrong and how can it be fixed?

First, the thresholds were set poorly.  No-fault was designed to compensate the injured for small and moderate injuries and leave tort for serious injuries.  This would be more efficient and would leave the full (and expensive) tort system for those claims that were sufficient to merit it.  The key is to separate small and moderate claims from serious ones.  This was done by thresholds.  However, monetary thresholds were set too low and verbal thresholds were too vague.  The Ladika article points to three jurisdictions, Georgia, Connecticut, and Colorado, that moved back to liability insurance from no-fault.  In all three jurisdictions, costs were reduced when the state reverted to liability insurance.  However, each jurisdiction had a monetary threshold (as part of a combination threshold) that was miserably low:  Georgia's was $500, Connecticut's was $400, and Colorado's was $500 (though raised to $2,500 before it was repealed in 2003).  Almost any auto accident will create $500 in costs, which means that the tort system will operate in addition to the no-fault system for such claims.  As such, costs are bound to increase.   

In addition to being set too low, monetary thresholds, even if part of a combination threshold, created incentives for padding medical bills, inequitably treated those living in low cost areas, and provided an easy way for no-fault opponents to undermine the law.  Instead, jurisdictions should use a verbal threshold that is sufficiently limited and clear to reduce litigation. 

Second, protections against fraud were not included.  This may be understandable.  No one thought that no-fault would have fraud problems; tort, with its payment for pain and suffering, was supposed to be the favored target for fraud.  However, that was overly optimistic.  No-fault has attracted considerable fraudulent claims in many jurisdictions, and it must be dealt with to keep costs under control.  This may be jurisdiction-specific, but New York has proposed legislation that would:  (1) modify the requirement that insurers pay claims within 30 days if there is a suspicion of fraud; (2) allow the insurance department to review and decertify unscrupulous medical providers from billing and collecting no-fault benefits; and (3) increase penalties and enforcement for insurance fraud.

Third, no-fault insurers did not implement the same restrictions that health insurers routinely use.  The RAND study found that a major problem with no-fault was spiraling health care costs.  However, it was not clear whether total costs increased or there was a reallocation of costs from health insurance to auto insurance.  No-fault insurers need to implement restrictions, such as fee schedules and medical protocols, that are already used by health insurers.  For example, New Jersey recently implemented precertification medical guidelines or "Care Paths."  Care Paths set forth the particular paths of treatment that are acceptable for specified injuries; when the treatment plan deviates from the Care Paths, the treatment will be reimbursed only where demonstrated to be reasonable and necessary. 

Another improvement would be to make no-fault into a choice plan.  Allow motorists to choose between tort and no-fault.  Evidence from Kentucky, New Jersey, and Pennsylvania suggests that a large number of motorists will choose no-fault if given the option.

--CJR

 

Facebook Settles Privacy Class Action

The Recorder reports that Facebook has settled a putative class action that alleged that Facebook's "Sponsored Stories" feature violated the right to publicity under California law.  According to the story, " 'Sponsored Stories' are paid advertisements that appear on someone's Facebook page when a friend "likes" an advertiser, complete with that person's name and photograph."  As a putative class action, the settlement requires judicial approval.

- SBS

47% Decrease In Med Mal Cases in PA

The Pittsburgh Post Gazette reports that the number of medical malpractice cases have dropped 47% in the ten years since two reform measures took effect.  In particular, Pennsylvania requires that "cases be brought in the venue only where the cause of action arose and that a certificate of merit be obtained from a medical professional to certify the lawsuit before complaints are filed."   The Gazette reports:

Despite the 10-year downward trend, there was a small uptick in the number of medical malpractice filings in Pennsylvania between 2010 and 2011. There were 1,528 filings in 2011 and 1,491 filings in 2010; 2010, meanwhile, had the lowest number of filings since the rule changes

- SBS

Prosser Award Nominations--Second Call

Andy Klein, a member of the AALS Torts & Compensation Systems Section's Executive Committee, writes:

This is a "second call" for nominations for the 2013 William L. Prosser Award.  The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ... ."   Recent recipients are Richard Posner, Guido Calabresi, Oscar Gray, Dan Dobbs, and Robert Rabin.  Past recipients also include luminaries such as Leon Green, Wex Malone, and John Wade.

As my previous announcement explained, any law professor is eligible to nominate another law professor for the award.  Nominators can renew past nominations by resubmitting past nominations and materials.  Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section, based on the recommendation of a special selection committee. The announcement of the award will be made at the annual AALS meeting in January, 2013.

Nominations, accompanied by a brief supporting statement, should be submitted no later than July 2, 2012.   E-mail submissions to anrklein@iupui.edu are preferred.   If you would rather mail hard copies of nomination materials, please use the address in the signature line below.  If you prefer to mail the nominations, please send them to the address below. 

Let me know if you have any questions, and thanks.

-Andy

Andrew R. Klein
Paul E. Beam Professor of Law
Indiana University Robert H. McKinney School of Law 
Chief of Staff
Office of the Chancellor 
IUPUI Campus
355 N. Lansing Street
Indianapolis, IN 46202 

Congratulations Class of 2012!

I wanted to take a moment to wish all the best to the Charleston School of Law Class of 2012!  One of the hallmarks of our students is their dedication to pro bono.  The Class of 2012 contributed 24,557 hours of pro bono service to the local community.

 

 

Congratulations!

- SBS

NH: Early Offers Bill Approved by House; Goes to Conference Committee

Last week, the House version was amended.  Under the Senate bill, if the claimant requested an early offer and then declined it, the claimant would have to prove gross negligence to a clear and convincing standard.  In the House version, if the claimant requested an offer and then declined it, the claimant would have to pay the health care provider's attorney's fees if the claimant lost or recovered approximately the same amount of money that was in the early offer.  Both bills passed with veto-proof majorities.  The Concord Monitor has the story here (scroll down past the first section on sealed bids).

--CJR

Magliocca on the NFL Concussion Suit

Over at CoOp, Gerard Magliocca examines the suit against the NFL.

--CJR

Malicious Prosecution and Insurance Coverage

The Eighth Circuit recently considered when the tort of malicious prosecution occurs regarding personal injury coverage in a general liability policy.  In construing Iowa law, the court followed the majority rule that the tort occurs when the case was prosecuted, not at the time any convictions are overturned.  At J.D. Supra, the law firm of Traub Lieberman Strauss & Shrewsberry LLP comments:

In reaching its decision, the court considered and rejected the insured’s argument that the Genesis policies were triggered based on allegations of “continuing misconduct and continuing personal injury” through the time underlying plaintiffs were released from prison.  The court refuted the contention that “the tort of malicious prosecution constitutes a continuing injury,” and concluded instead that a claim for malicious prosecution does not trigger multiple policies, but instead triggers only the policy in effect at the time the charges are filed.

The case is Genesis Ins. Co. v. City of Council Bluffs, et al., 2012 U.S. App. LEXIS 9577 (8^th Cir. May 11, 2012); the full column at J.D. Supra is here.

--CJR

Gerber Probiotic Suits Consolidated in NJ

U.S. District Judge Jose Linares (NJ) consolidated five separate putative class actions against Gerber last week.  The suits allege that Gerber misrepresented the benefits of its probiotic baby food.  New Jersey Law Journal has more behind a free registration wall.

- SBS 

Philadelphia Duck Boat Suit Settles

In July 2010, a tugboat ran over one of those tourist "duck boats" that show the Delaware river sights to visitors in Philadelphia.  The Legal Intelligencer reports that the defendant boat operators have now settled the resulting law suits.  According to the Legal, the families of the two deceased victims will receive a $15 million settlement, while the remaining 18 passengners will split $2 million.

The Legal has more behind a free registration wall.

-SBS

Jeffrey O'Connell Retires from Teaching

Legislatures are still debating his ideas, but long-time UVa law professor Jeffrey O'Connell has retired from teaching.  I had the pleasure of having his Torts class in the fall of 1993.  He was truly a virtuoso classroom teacher.  Mary Wood has written a wonderful retrospective post for the UVa Law website.

--CJR

All Time Top SSRN Torts & Products Liability Downloads

ALL TIME HITS (for all papers in SSRN eLibrary)
TOP 10 Papers for Journal of Torts & Products Liability Law eJournal
January 2, 1997 to May 10, 2012

Rank	Downloads	Paper Title
1	9449	Safe Storage Gun Laws: Accidental Deaths, Suicides, and Crime John R. Lott, John E. Whitley, University of Maryland Foundation, University of Maryland, University of Adelaide - School of Economics, Date posted to database: May 22, 2000 Last Revised: June 10, 2002
2	4438	The Cat in the Microwave? (Die Katze in der Mikrowelle?) Georg Wenglorz, Patrick S. Ryan, Independent, Google Inc., Date posted to database: January 3, 2004 Last Revised: January 29, 2004
3	3598	Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement Morgan Leigh Manning, University of Tennessee, Knoxville, College of Law , Date posted to database: June 10, 2011 Last Revised: June 12, 2011
4	3553	Cognition and Cost-Benefit Analysis Cass R. Sunstein, Harvard University - Law School - Faculty, Date posted to database: October 14, 1999 Last Revised: November 14, 1999
5	3472	A Brief History of Information Privacy Law Daniel J. Solove, George Washington University Law School, Date posted to database: July 10, 2006 Last Revised: May 5, 2008
6	2395	Event Studies and the Law - Part I: Technique and Corporate Litigation Sanjai Bhagat, Roberta Romano, University of Colorado at Boulder - Department of Finance, Yale Law School, Date posted to database: May 1, 2001 Last Revised: January 16, 2002
7	2376	Economic Analysis of Law A. Mitchell Polinsky, Steven Shavell, Stanford Law School, Harvard Law School, Date posted to database: November 29, 2005 Last Revised: February 7, 2007
8	2167	Privacy's Other Path: Recovering the Law of Confidentiality Neil M. Richards, Daniel J. Solove, Washington University in Saint Louis - School of Law, George Washington University Law School, Date posted to database: March 13, 2007 Last Revised: May 5, 2008
9	2223	The Death of Causation: Mass Products Torts' Incomplete Incorporation of Social Welfare Principles Donald G. Gifford, University of Maryland - Francis King Carey School of Law, Date posted to database: April 25, 2006 Last Revised: December 22, 2008
10	2216	A Model Regime of Privacy Protection (Version 3.0) Daniel J. Solove, Chris Jay Hoofnagle, George Washington University Law School, University of California, Berkeley - School of Law, Berkeley Center for Law & Technology, Date posted to database: February 7, 2006 Last Revised: May 5, 2008

--CJR

PA: Med Mal Claims Level Off After 6 Years of Decline

Pennsylvania Courts Public Information Unit:  News for Immediate Release
May 7, 2012
[cid:image002.png@01CD2C69.47106F20]BROADCAST EDITORS NOTE: For audio actualities from Chief Justice Castille, click here<http://mfile.akamai.com/13313/mp3/pennsylvan1.download.akamai.com/13313/ChiefJusticeMedMal050712.asx>.
EDITORS NOTE: Click here<http://www.pacourts.us/NR/rdonlyres/D61439B9-FE2D-47FB-B750-E697F8A7AAB2/0/050712MedMalStatsNR.pdf> for graphic.

Medical Malpractice Data Levels Off
as Court Rules Yield Results

HARRISBURG—Chief Justice of Pennsylvania Ronald D. Castille today announced a leveling off in the number of medical malpractice case filings statewide after a six-year decline.

Although the figures released today for 2011 show a slight increase in the total number of lawsuits filed, there remains a 44.1 percent overall decline in filings for the latest reporting period from the statistical “base years” of 2000-2002. (See Table 1<http://www.pacourts.us/NR/rdonlyres/466B0CA3-96DF-4081-9A20-CFF26728D4D4/0/Table1MedMalCaseFilings200011.pdf>) In Philadelphia, the judicial district with the largest caseload, the decline exceeded 65 percent during the same period.

The base years are the period just prior to two significant rule changes made by the Supreme Court. The first change required attorneys to obtain from a medical professional a certificate of merit that establishes that the medical procedures in a case fall outside acceptable professional standards. A second change required medical malpractice actions to be brought only in the county where the cause of action takes place—a move aimed at eliminating so-called “venue shopping.”

The figures also show that 2011 had the fewest number of jury verdicts in comparison to earlier years. (See Table 2<http://www.pacourts.us/NR/rdonlyres/2690202A-18C2-4EF9-9F26-2A717E258AA8/0/Table2JuryVerdicts.pdf>) The same data also shows more than 70% of the jury verdicts were for the defense. The number of non-jury verdicts for 2011 remained in single digits for a sixth consecutive year. (See Table 3<http://www.pacourts.us/NR/rdonlyres/11189F90-AD14-4F34-BFDB-8B7800DDB4B5/0/Table3NonJuryVerdicts.pdf>)

“What we’re seeing is essentially a leveling off in what had been a growing decline in numbers that is not surprising,” Chief Justice of Pennsylvania Ronald D. Castille said. “Although the numbers are likely to show slight changes in the years ahead, the pattern suggests a solid footing for the systematic tracking and rule changes initiated and instituted a decade ago by the Supreme Court to address concern over medical malpractice litigation.”

--CJR

Dechert Loses Products Partner to Shook Hardy

Sean Wajert, who blogs at Mass Tort Defense, has joined Shook Hardy & Bacon as a partner in the D.C. office.  Previously, Wajert was a partner at Dechert in Philadelphia.

BLT has more.

- SBS