TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Saturday, June 30, 2012

Does Early Offers Cover Future Lost Wages? Yes.

Over at Litigation & Trial, Max Kennerly has found a problem with the early offer law, but it is not as serious as he first believed. 

Kennerly argues that early offers do not cover future lost wages.  He arrives at this conclusion by noting that the definition of "economic loss" includes wages, but does not include "earning capacity."  His conclusion is that "wages" only means wages that would have been earned at the time the claim is filed.  He then provides an example of someone who lost $50,000 in past lost wages and Kennerly is concerned that he will only receive the $50,000 in lost wages. 

The statute makes it clear that future lost wages are included.  Section 5:19-C:5 provides that future lost wages will be paid.  That section divides payments by the health care provider into section I, covering economic losses previously incurred, and Section II, covering future economic losses.  Subpart b to Section II covers lost wages, and states:  "Payment of lost wages shall be made weekly."  Moreover, the payments are adjusted annually to keep up with inflation. 

What then does "earning capacity" mean?  Kennerly is right that it should have been defined in the statute.  However, I think he arrived at the answer in his updated post that responded to my comment.  Moreover, in so doing, I think he sheds light on the nature of early offers.  He says that "earning capacity" includes "estimates of increased wages due either to individual career advancement or advancement of wages as a whole in a particular sector."  Early offers does include increased wages due to inflation.  What it doesn't include, what it can't include, based on its very nature, is the individualized treatment that Kennerly wants.  

This is the tradeoff.  Tort law generally provides individualized justice.  If you want to push your case far enough, a jury will decide whether the health care provider was liable and how much pain and suffering that the claimant, this particular claimant, suffered.  As a result, it can be slow, averaging about 5 years per med mal case, and expensive, chewing up a lot of transaction costs.  Early offers is based more on an insurance premise.  The claimant gives up the possibility of having a jury take all of her particular circumstances into account for recovery that is certain and much swifter.  Especially when one considers that the most seriously injured claimants often recover only a fraction of their economic loss and claimants lose a large portion (around 80%) of tried med mal cases, the tort route can be daunting for claimants who understand it. 

As I have said before, early offers is not for everyone.  Kennerly proffers a college student client who had no lost wages, but the potential to earn $3 to $5 million.  Absent more information, I would say this client should not request an early offer if one were possible.  But there are claimants for whom it makes sense.  I was a plaintiffs' lawyer, and I can recall any number of clients for whom it would have made sense.  I hope plaintiffs' attorneys in New Hampshire will give it fair consideration as an alternative for those types of clients.


June 30, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Thursday, June 28, 2012

Early Offers

                On Wednesday, the legislature in New Hampshire voted to override Governor Lynch’s veto of the early offers bill.  Despite some imperfections in the bill, it was a good decision.  Because all of the criticism is coming from the claimants’ perspective, I specifically state that the early offers law is good for claimants.  I defended an earlier version of the bill from the claimants’ perspective here.

                In a post on Wednesday, The Pop Tort pronounced early offers “horrendous.”  Unlike the editors of many torts-related blogs, I don’t know the people who write for The Pop Tort.  I don’t always agree with their positions, but I admire their dedication to victims of tortious conduct.  This is a major reason why I want to respond to their early offers post.  I would like those typically supportive of claimants to seriously consider endorsing early offers.

                Because the bill has changed since I last defended it, I will start by briefly explaining the version that is now the law of New Hampshire.  Pursuant to the bill, a patient who believes she is the victim of malpractice may send a notice of injury to the heath care provider requesting an early offer.  The provider has 90 days to decide to extend an early offer and can ask the patient to undergo a physical exam.  If extended, the offer must cover all economic loss—medical bills and lost wages.  There are modest amounts of pain and suffering damages included based on classification of the injury as determined using the National Practitioner Data Bank severity scale.  Moreover, the offer includes payment of the claimant’s attorney.  The patient then has 60 days to accept or reject the early offer.  If she accepts the offer, the case is over.  However, if she rejects the offer and pursues a tort claim, she must be awarded at least 125 percent of the early offer or have to pay the defendant’s attorney’s fees.  To ensure these fees can be paid, a bond must be posted.

                I begin by examining the specific points of opposition in the post. 

Continue reading

June 28, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (4) | TrackBack (0)

Assumption of the Risk - Alligators on Golf Courses...

There's a great hypo in here:  The Georgia Supreme Court recently ruled that a golf club and homeowners' association was not liable for the wrongful death of an elderly woman killed by an alligator in 2007.  Although the Court of Appeals had allowed the suit, the Georgia Supreme Court reversed.

The Supreme Court's majority decision, written by Justice Harold D. Melton, stated that even though no warning signs were posted at the lagoons, the homeowners association had warned residents in its publications and on its website that alligators were present and could be dangerous. Thus, Williams assumed the risk when she went out for an evening walk near the lagoons.

More from Daily Report.


June 28, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 27, 2012

NH: Early Offers Veto Overridden

It is not yet being confirmed by the media, but it appears that the legislature has overridden Governor Lynch's veto, making New Hampshire the first state to adopt an early offers law.

Updated:  The veto override is confimed by the New Hampshire Union Leader.


June 27, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 26, 2012

Oberdiek on Combining Formalism and Instrumentalism

John Oberdiek (Rutgers-Camden) has posted to SSRN Method and Morality in the New Private Law of Torts.  The abstract provides:

The just-christened New Private Law is especially intriguing, for it self-consciously aspires to draw insight from both instrumentalism and formalism. In his ambitious and illuminating "Palsgraf, Punitive Damages, and Preemption," for example, Benjamin Zipursky could not be any more forthright in combining instrumentalist and formalist themes. On his view, the New Private Law’s methodology is sensitive to both the functions and the concepts internal to law. Thus the New Private Law promises to be the elusive third way. And in Zipursky’s hands, it seems to me, the New Private Law of Torts makes good on that promise, offering a sound approach to the adjudication of vexing questions at the frontier of tort law. But Zipursky nevertheless falters in eschewing consideration of the approach’s moral foundations. In addition to explicating just what a commitment to the New Private Law of Torts comes to, then, it is the aim of this essay to assess where normative and specifically moral considerations do, should, and must come into play in the New Private Law of Torts.


June 26, 2012 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

A Slip and Fall Case "Worthy of Jerry Springer"

A woman chasing her ex-husband for unpaid alimony slipped and fell at the motel where she found him "holed up" with his girlfriend.  The ensuing lawsuit returned a defense verdict.

Daily Report has the full story (which includes outstanding warrants and a pick up truck).

Thanks to Lisa Smith-Butler for the alert. 


June 26, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, June 25, 2012

Solomon on a Normative Basis for Civil Recourse Theory

Jason Solomon (W&M) has posted to SSRN Civil Recourse as Social Equality.  The abstract provides:

In the past decade, civil recourse theory has emerged as an important way of thinking about tort law as individual justice, and private law more broadly. But it has also been criticized as lacking an adequate normative foundation. On its face, the right to civil recourse seems like a form of retaliation or vengeance, and it seems unlikely that this is an appropriate part of a modern liberal state.

In prior work, I explained how the idea of equal accountability was an attractive moral norm and conceptual foundation for the right to recourse. This paper explores whether there are conceptions of equality that might support the right to recourse as a matter of political theory. Specifically, I argue that the right to recourse can be justified by drawing on two related notions of equality — a distributive one and a relational, or social, one.

I argue that these two conceptions of equality relate in the following way. The right to hold accountable those who have wronged you is a good subject to principles of distributive justice. And this good is something that the state provides to help constitute a community that aspires to social equality — where individuals relate to one another as equals. My task here is to explain what I mean in drawing on these two conceptions of equality, and how they relate to civil justice.


June 25, 2012 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, June 22, 2012

Study: TX Tort Reform Did Not Lower Medicare Costs

A new study conducted by a group of researchers including Charles Silver (Texas) concludes that Texas's 2003 tort reforms did not lower health care costs.  The Austin American-Statesman has the details.


June 22, 2012 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 20, 2012

Grace & Leverty on How Tort Reform Affects Insurance Markets

Martin Grace (Georgia State-Business) & Tyler Leverty (Iowa-Finance) have posted to SSRN How Tort Reform Affects Insurance Markets.  The abstract provides:

The impact of a law depends on both its current legal status and expectations about its future constitutionality. We investigate the effect of tort reform by segmenting reforms into those that are eventually declared unconstitutional (temporary) and those that are unchallenged or upheld (permanent). We find permanent tort reforms lower medical malpractice insurance losses and premiums and increase insurer profitability. In contrast, the effects of temporary reforms are never statistically significant. Measures that combine temporary and permanent reforms, the norm in the literature, significantly misestimate the impact of tort reform. Our results suggest that examining the effect of a current law without accounting for its future treatment produces misleading results.


June 20, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

NH: Lynch Vetoes Early Offers

This was not a perfect bill, but vetoing it for the sake of claimants was a mistake for reasons I explain here.


June 20, 2012 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 19, 2012

ADR Resources for Torts Courses

The ABA’s Legal Education, ADR and Problem Solving (LEAPS) Project has developed some materials to help law school faculty incorporate some instruction in practical problem-solving in various courses.  Many of the ideas would require little or no additional time for instructors or students.  For example, when discussing selected cases in doctrinal courses, faculty can frame questions in the context of client interviews or counseling or negotiation between lawyers instead of appellate arguments. 

The project has also assembled panels of consultants in eight subject areas to provide advice and materials specific to those subjects.  Torts is one of the subjects included.  

The website has a lot of useful information about teaching techniques generally and links to other resources:

Thanks to Sarah Cole (Ohio State) for the tip.


June 19, 2012 in Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Rapper Brawl Turns Into Lawsuits

If you like to use current events in your class, this might provide some good hypos:  Rappers Chris Brown and Drake were involved in an altercation at a SoHo nightclub.   Bystanders apparently were injured in the melee, and one now plans to sue.   

Details at NY Daily News.


June 19, 2012 in Current Affairs, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Monday, June 18, 2012

Judge Allows Privacy Claims Against Apple

The Recorder (via reports that:

Apple Inc. will face a proposed class action accusing the company of letting advertisers track users' activity without their permission, a federal judge ordered Tuesday.

Owners of Apple devices, including the iPhone, iPad and iPod Touch, may pursue claims under two California consumer protection laws, U.S. District Judge Lucy Koh said.


June 18, 2012 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Friday, June 15, 2012

Koenig & Rustad on the BP Oil Spill

Tom Koenig & Mike Rustad have posted to SSRN Reconceptualizing the BP Oil Spill as Parens Patriae Products Liability.  The abstract provides:

The April 20, 2010 explosion and sinking of the Deepwater Horizon created an immense environmental catastrophe in the Gulf of Mexico. This Article examines the products liability litigation by Gulf States attorneys general (AGs) against British Petroleum (BP) and BP’s products-related cross claims. Alabama’s and Louisiana’s multidistrict litigation claims for products liability, negligence, and punitive damages will be pursuant to their parens patriae sovereign powers.

This complex products defect case involves all the big issues in products liability: risk utility design tests, cause in fact, proximate cause, defenses such as state of the art, the economic loss rule, caps on damages, and punitive damages under federal maritime law. The state AGs bear the burden of demonstrating that Cameron International’s blowout preventer (BOP) was defectively designed or contained a manufacturing defect that led to their consequential damages, rather than a superseding cause such as operational errors by BP, Transocean, Halliburton, or some other oil industry defendant supplying equipment or expertise.

This will be the first test of the U.S. Supreme Court’s de facto cap that it placed on punitive damages in maritime cases in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008). The BOP, possibly the largest moveable object ever implicated in products liability litigation, will be at the center of an epic legal struggle between oil industry defendants over the limits of tort law to supplement deficient federal regulation. Our argument is that the states’ parens patriae products liability action against BP and other oil industry defendants is necessary so that BP and the other codefendants pay the true costs of deploying allegedly defective products in the perilous subsea drilling and oil exploration industry. Even if the state attorney generals’ litigation ultimately settles, Judge Barbier should be praised for creating a legal pathway for future governmental lawsuits to recover public welfare damages based upon products liability rather than the amorphous and ill-fitting nuisance paradigm.

Via Solum/LTB.


June 15, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 13, 2012

Richard Nixon's Torts Note


As a law student at Duke, Richard Nixon published a note on tort law.  Entitled "Changing Rules of Liability in Automobile Accident Litigation," Nixon's note was published at 3 Law & Contemporary Problems 476 (1936).  Nixon argued that in applying tort law to automobile accidents, the principle of fault was being relaxed.  He examined four "fields" of auto accident law and found fault being relaxed in 3 of them, but strengthened in the fourth.  Fault was relaxed in the standard of care because specific standards created by judges (like Holmes's "stop, look, and listen") were being abandoned to allow cases to get to the jury.  Fault was being relaxed by the judiciary and legislature regarding contributory negligence.  Finally, vicarious liability was being expanded (family purpose doctrine, etc.).  However, in the area of guest liability, the principle of fault was actually strengthened by guest statutes requiring gross negligence to prevail.  Nixon concluded:

The history of liability in automobile accident litigation discloses a definite trend away from the strict fault concepts of the common law.  The courts, though speaking always in terms of fault, have at times stretched the traditional formulas to the breaking point in order to insure recovery to an injured plaintiff.  In this respect they have found an always willing ally in the jury.  Nor have the legislatures proved reluctant to aid them.  Yet the decisions and statutes restricting the rights of the automobile guest indicate that, where reinforced by the average man's dislike of the ingrate or of collusion in fraud, the concept of fault has gained, rather than lost, in vitality.


June 13, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 12, 2012

Goldberg on Tort History

John Goldberg has posted to SSRN Tort Law at the Founding.  The abstract provides:

In his influential History of American Law, Lawrence Friedman suggests that tort law was “totally insignificant” prior to the late Nineteenth Century. Implicit in this assessment is a judgment that a body of law is significant only insofar is it addresses a large-scale social problem as such. This criterion stacks the deck against tort law, which is not law of this kind. Rather, it is a law of civil recourse. In fulfillment of a governmental responsibility to its citizens, tort defines a certain kind of wrong and empowers victims of this kind of wrong to obtain redress from wrongdoers.

Written for a 2011 symposium held at Florida State University, this essay melds the insights of civil recourse theory with recent historical scholarship to demonstrate that tort law was central to American legal practice and legal thought long before the Industrial Revolution. In fact, the tort notion of civil recourse set the terms on which this nation was founded. Quite self-consciously, Jefferson cast the Declaration of Independence in the language of civil recourse; the Declaration is our founding lawsuit. The inclusion of the Alien Tort Statute in the Judiciary Act of 1789 and the emergence of the nineteenth-century congressional practice of indemnifying officials for their tort liabilities further demonstrate our early embrace of the core tort notion that government bears a responsibility to provide citizens with law for the recourse of wrongs.


June 12, 2012 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, June 8, 2012

MDL Complaint Filed in NFL Concussion Litigation

Plaintiffs have filed a master complaint in the MDL concerning the NFL concussion litigation.  The complaint was filed in the U.S. District Court for the Eastern District of Pennsylvania, and consolidates 86 suits involving 2,300 retired players.

WSJ and Philly Inquirer have more.

Update:  BBC News also has coverage. 

- SBS 

June 8, 2012 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Thursday, June 7, 2012

Goldberg & Zipursky on Civil Recourse Revisited

John Goldberg & Ben Zipursky respond to critics from last year's Florida State symposium on civil recourse theory in Civil Recourse Revisited.  The abstract provides:

This essay responds to the extensive and thoughtful commentary on civil recourse theory provided by Curtis Bridgeman, Julian and Stephen Darwall, John Gardner, Andrew Gold, Scott Hershovitz, Gabe Mendlow, Nathan Oman, Arthur Ripstein, Anthony Sebok, Emily Sherwin, Jason Solomon, and Ernest Weinrib, all of whom participated in a 2011 symposium at Florida State University School of Law that was devoted to the subject. In it, we defend civil recourse theory against corrective justice theory and (following our own, independent contributions to the symposium) further develop our critiques of that theory. Against methodological criticisms, we maintain that civil recourse theory is an interpretive theory that has both explanatory and normative power. Finally, we briefly tease out some of the implications of civil recourse theory for private law beyond torts (contract law, in particular), and for the philosophical analysis of concepts such as accountability and responsibility.


June 7, 2012 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 6, 2012

NY: Nonpecuniary Damages Not Available for Legal Malpractice

So held the Court of Appeals in Dombrowki v. Bulson  (pdf) (at least against criminal defense attorneys). 

Thanks to Mark Weber for the tip.


June 6, 2012 in Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 5, 2012

SSRN Top 10 Recent Papers

Top 10 Downloads for all papers announced in the last 60 days:

Rank Downloads Paper Title
1 297 The Empirical Effects of Tort Reform
Theodore Eisenberg,
Cornell University - School of Law,
Date posted to database: April 2, 2012
Last Revised: May 15, 2012
2 163 Statutes in Common Law Courts
Jeffrey A. Pojanowski,
Notre Dame Law School,
Date posted to database: March 19, 2012
Last Revised: March 28, 2012
3 148 Does Tort Reform Affect Physician Supply? Evidence from Texas
David A. Hyman, Charles Silver, Bernard S. Black,
University of Illinois at Urbana-Champaign - College of Law, University of Texas at Austin - School of Law, Northwestern University - School of Law,
Date posted to database: April 30, 2012
Last Revised: May 15, 2012
4 139 Outsourcing Regulation: How Insurance Reduces Moral Hazard
Omri Ben-Shahar, Kyle D. Logue,
University of Chicago Law School, University of Michigan Law School,
Date posted to database: April 11, 2012
Last Revised: May 22, 2012
5 124 The Law and Economics of Insurance Law - A Primer
Ronen Avraham,
University of Texas at Austin - School of Law,
Date posted to database: April 26, 2011
Last Revised: May 3, 2012
6 107 Irrevocability of Special Needs Trusts: The Tangled Web that is Woven When English Feudal Law is Imported into Modern Determinations of Medicaid Eligibility
Mary F. Radford, Clarissa Bryan,
Georgia State University - College of Law, Georgia State University - College of Law,
Date posted to database: April 9, 2012
Last Revised: April 9, 2012
7 75 Unwarranted Presumptions: Common Law, Injury, and Presumed Damages for Constitutional Torts
Ruth Sarah Lee,
Harvard Law School,
Date posted to database: April 7, 2012
Last Revised: April 7, 2012
8 73 State Law, the Westfall Act, and the Nature of the Bivens Question after Minneci v. Pollard
Carlos Manuel Vazquez, Stephen I. Vladeck,
Georgetown University Law Center, American University - Washington College of Law,
Date posted to database: April 12, 2012
Last Revised: May 9, 2012
9 71 Toward a Bankruptcy Model for Non-Class Aggregate Litigation
Troy A. McKenzie,
New York University School of Law,
Date posted to database: April 5, 2012
Last Revised: April 13, 2012
10 67 Does Product Liability Make Us Safer?
W. Kip Viscusi,
Vanderbilt University - Law School,
Date posted to database: April 5, 2012
Last Revised: May 29, 2012


June 5, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)