TortsProf Blog

Teninbaum & Kraman on Medical Apologies and Compensation

Gabe Teninbaum (Suffolk) & Steve Kraman (University of Kentucky Department of Internal Medicine) have posted to SSRN Disclosure & Offer at Twenty Five:  Time to Adopt Policies to Promote Fairly Negotiated Compensation.  The abstract provides:

In 1987, this article’s co-author (Dr. Kraman), with other hospital staff at the Lexington, Kentucky VA Medical Center, created the risk management method now known as "disclosure & offer." The Lexington VA's guiding principal was that patients injured by medical errors should be made whole without the need for litigation. Their process included advising patients to seek counsel and then negotiating fair compensation with the attorneys/patients. After 10 years, the Lexington VA group published a study revealing the success of their program in fairly compensating patients while reducing litigation costs.

Today, disclosure & offer programs are a national phenomenon. Most aspects of the VA model have been adopted by facilities that employ their own disclosure programs. Yet, the newer generation of programs appear to have adopted a more self-serving approach when it comes to discussing compensation with patients (typically not advising patients to seek legal counsel; nor putting safeguards in place to assure patients understand their legal rights and financial needs resulting from their injury before negotiating with risk managers). This article argues that negotiating with unrepresented patients creates a conflict of interests and recommends practices to remedy it for facilities engaging in "disclosure & offer."

--CJR

SD to Retain Alienation of Affections

For the 3rd time in 11 years, Sen. Stan Edelstein attempted to repeal South Dakota's alienation of affections law.  This time he was aided by a high-profile trial against a state's attorney in which the jury ultimately rejected the plaintiff's claims.  Media coverage was extensive and included specific and intimate details of the relationships involved.  The trial changed some minds, but not enough. The Senate Judiciary Committee rejected the bill on a 4-3 vote.  South Dakota will remain one of a handful of states retaining the heart balm tort.  Argus.com has the story.

--CJR 

Call for Torts Papers: 2013 Society of Legal Scholars Annual Conference

James Lee (Birmingham Law School (UK)) has sent around the following call for papers:

I write to invite proposals for papers for the Torts subject section meeting of the 2013 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 3^rd to Friday 6^th September 2013 at the University of Edinburgh, with Professor Hector MacQueen as President. 

The overall theme of the Conference is ‘Britain and Ireland in Europe, Europe in Britain and Ireland’. Papers may engage with this topic as it applies to tort, but proposals on any aspect of the law of tort would be very welcome. The Torts section will take place in the first half of the Conference: please note that it has changed from the second half last year, so will run on Tuesday 3^rd and Wednesday 4^th.

 All members of the section, whether research students, early career academics or more senior colleagues are invited to offer papers. It is not necessary to be a member of the Society in order to join, although all presenters are encouraged to consider joining.

 If you are interested in presenting a paper, please e-mail me at [email protected] with a title and a brief abstract. I am happy to discuss any potential submissions informally. Please also tell me if you are proposing a paper for another section, so that I can coordinate arrangements with my fellow convenors. The deadline for proposals is 12pm UK time on Monday 4th March 2013.

 Proposers will be informed of the outcome as soon as possible after the deadline. All those who have papers accepted will be required to post a final abstract to the conference paperbank by the end of July.

 Another reason to present a paper at the Conference is the 'Best Paper Prize', which is open to all those who comply with the criteria to be found at http://www.legalscholars.ac.uk/conference/best-paper-prize.cfm. Papers for the prize must be placed in the paperbank in advance of the conference. The Prize includes a monetary award of £250, and the winning paper will be published in Legal Studies. Please note that there is a strict word limit, and the rules have been clarified so that any paper must not be already published or under consideration for publication anywhere. (Papers not for consideration for the prize are not of course subject to these rules).

 After the success with their introduction last year, there will also be the opportunity to present research posters. If any members of the section would be interested in offering a poster, please write to me and I shall offer further details. There is also a prize for the best poster.

Convenors have been asked to make it clear to all potential speakers and poster presenters that all speakers, presenters and delegates (and convenors) are required to book and to pay to attend the conference. Booking information will be circulated later in the year.

 

PA Judge Upholds $10M Children's Motrin Verdict

The Legal Intelligencer reports that Philadelphia Court of Common Pleas Judge Nitza Alejandro has denied Johnson & Johnson's McNeil-PPC's post-trial motions in a case involving over the counter Children's Motrin.  In the case, a jury awarded $10 million to a young girl who suffered Stevens-Johnson syndrome/toxic epidermal necrolysis after taking Children's Motrin.   The full story is behind a free registration wall.

Thanks to Lisa Smith-Butler for the alert.

- SBS

 

Simons on the Role of the Victim in Tort Law

Ken Simons (Boston University) has posted to SSRN Victim Fault and Victim Strict Responsibility in Anglo-American Tort Law.  The abstract provides:

Anglo-American tort doctrine pays considerable attention to the conduct of the victim as well as the conduct of the injurer. A symmetrical standard of care for victims and injurers is also common: just as injurers are liable for failure to use reasonable care, victims frequently have their compensation reduced insofar as they, too, failed to use reasonable care. The advent of comparative fault, replacing the all-or-nothing rule of contributory negligence, has made the symmetrical approach seem inexorable and unremarkable.

But symmetry is usually the wrong perspective for the legal system to take towards victim and injurer conduct. That perspective also misdescribes legal doctrine. Courts often depart from symmetry, even in comparative fault jurisdictions. Thus, courts recognize several categorical doctrines that permit full recovery without regard to the possible fault of the victim (e.g., where the defendant’s duty is to protect the victim from his own vulnerability or incapacity, or where the defendant is engaged to provide medical care or other services to the victim necessitated by the victim’s own prior fault). Courts also recognize categorical doctrines that automatically preclude any recovery despite the supposed presumptive status of comparative fault (e.g., the illegality doctrine, the mitigation of damages doctrine, and the defense of voluntary assumption of risk).

Moreover, even when victim conduct is compared to injurer conduct, the way in which victim conduct is relevant to tort liability is frequently qualitatively different than the way in which injurer conduct is relevant. Often, when we characterize a victim as being “at fault,” we do not mean that the victim should have acted differently, but only that he should be strictly responsible for his choice or action (e.g. because he justifiably forfeited his right to full damages). Indeed, sometimes, even though a victim has a moral or legal right not to take a precaution, it is appropriate to deny him full damages for the harm that the precaution would have averted.

To be sure, symmetry is sometimes appropriate, especially when the actor’s unreasonable conduct creates substantial risks both to others and to himself. But in many other cases, symmetry is much less defensible, at least if one endorses a nonconsequentialist rather than utilitarian account of tort law. The law could do more to address the unjustifiable use of symmetrical criteria — e.g., the fact-finder could be instructed, or the judge could be advised, to treat risk to others as a more serious type of fault than risk to self.

--CJR

Linda Riss Pugach Dies at 75

Linda Riss Pugach died in New York on Tuesday.  In 1959, Linda Riss was blinded in a lye attack by men hired by her jealous ex-boyfriend, Burton Pugach.  Pugach went to jail for 14 years and married Riss upon his release.  The attack story is told in Riss v. City of New York, a staple on sovereign immunity in torts casebooks.  The NYT has an obituary. 

Thanks to John Goldberg for the tip.

--CJR 

PA: $4M Verdict in Hunting Accident

Plaintiff hunter suffered blindness, brain trauma, and extensive scarring.  He was injured by another hunter, who had been barred from having a gun because of a prior conviction.  The judge awarded over $4 million in damages.  The case was argued by Schmidt Kramer's Joe Chapman (Widener Law '08).  The story (pdf) is here:  Download Hobbins Verdict -- Daily Item, 1-18-13[1].

--CJR    

Chamallas to Deliver 2013 Monsanto Lecture

Martha Chamallas (Ohio State) will deliver the 2013 Monsanto Lecture at Valparaiso.  The speech, entitled "Institutional Responsibility for Sexual Exploitation:  Can Tort Law Deliver Social Justice?," will be delivered on April 12, 2013 from 4:00-5:00 p.m. at Wessemann Hall.  The official notice is here.

--CJR

Sperino on "The Tort Label"

Sandra Sperino (Cincinnatti) has posted "The Tort Label" to SSRN.  The abstract provides:

Courts and  commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes created large exceptions to common law ideas of at-will employment, and strong textual arguments militate against prioritizing tort law as source of meaning.

The tort label not only exaggerates the affinity between tort law and employment discrimination, it also overestimates the work that tort law can adequately perform in statutory interpretation. Tort law generally does not have independent descriptive power. It does not cohere around a narrow enough set of theoretical or doctrinal concepts to provide an answer or even a small subset of answers to many
statutory questions. Over time, tort law responds to changing factual and legal landscapes, often while outwardly maintaining the same language.

To date, courts have failed to appreciate the complexity of tort law. Courts use cursory descriptions of tort law that characterize tort doctrine as narrower, more stable, and more consistent than it actually is. They have not considered whether tort concepts can and should be unmoored from the common law tradition, which anticipates that concepts can subtly change over time to fit new situations.

The federal courts view tort law as possessing narrow  conceptions of causation and harm. Using this narrow tort frame leads to discrimination law that is primarily concerned with individual remedies, rather
than a broader response to societal discrimination. The move to tort law is thus part of a broader story about the privatization of discrimination law that can be seen in the greater acceptance of private arbitration and the move away from systemic discrimination claims.

The primary problem of the tort label is  its effect on discourse about fundamental questions regarding employment discrimination law. The prioritizing of a narrow view of tort law removes textually supportable options from statutory analysis without meaningful discussion about why the courts narrowed the potential statutory landscape. The courts never consider whether their narrow notions of tort causation and harm are reflected in the discrimination statutes’ text, intent or purpose. The
primary aim of this Article is to urge courts to respect the complexity of the judgments at issue by resisting the simple, but also simplistic, allure of the reflexive use of tort law.

 

- SBS

 

Wriggins on Compulsory Auto Insurance and the Health Care Mandate

Jenny Wriggins has posted the final version of her paper analogizing the two, entitled Mandates, Markets, and Risk:  Auto Insurance Mandates and the Affordable Care Act, it is available here.

--CJR

Symeonides' 26th Annual Choice of Law Survey

Symeon Symeonides has published his annual chocie of law survey.  The abstract provides:

 

This is the Twenty-Sixth Annual Survey of American Choice-of-Law Cases. It is intended as a
service to fellow teachers and students of conflicts law, in the United States
and abroad.

            Of the 4,300 cases decided in 2012 by
state and federal courts, this Survey reviews 1,225 appellate cases, focusing
on those cases that may contribute something new to the development or
understanding of conflicts law, particularly choice of law. Highlights include:

▸          Numerous exemplifying the valiant efforts of state courts, and
some lower federal courts, to protect consumers, employees, and other
presumptively weak parties from the Supreme Court’s ever-expanding
interpretation of the Federal Arbitration Act;

▸          A few cases enforcing choice-of-law clauses unfavorable to
their drafters, and many more cases involving deadly combinations of
choice-of-law and choice-of-forum clauses;

▸          Several interesting products liability cases, and other tort
conflicts, including maritime torts and workers’ compensation claims by
professional football players;

▸          The first appellate case interpreting the recent amendments
of the anti-terrorism exception to the Foreign Sovereign Immunity Act (FSIA);

▸          The first cases holding unconstitutional the Defense of
Marriage Act (DOMA);

▸          A Massachusetts case holding that an undissolved Vermont
same-sex union was an impediment to a subsequent same-sex marriage in
Massachusetts; 

▸          An Arizona case holding that a Canadian same-sex marriage
was against Arizona’s public policy, but—unlike other cases—also holding that
the trial court had jurisdiction to annul the marriage and divide the parties’
property;

▸          The first case in decades upholding a foreign marriage by
proxy;

▸          A case upholding, on First Amendment grounds, an injunction
against Oklahoma’s “Anti-Shari’a” Amendment; and

▸          A case refusing to recognize a Japanese divorce, custody,
and child support judgment rendered in a bilateral proceeding because the
husband did not receive notice of a subsequent guardianship proceeding.

 

- SBS

Indiana Governor Seeks Tort Reform

Indiana Governor-elect Mike Pence has included tort reform in his first year legislative agenda.  Proposals include a loser pays bill.   Details have not been released yet.

The Chicago Post Tribune and WISH TV both have reports.

- SBS

More on Stengel v. Medtronic (Ninth Circuit Preemption Decision)

Over at Torts Today, George Conk has commentary on Stengel v. Medtronic, the Ninth Circuit preemption decision reported here last week.  

- SBS

 

 

Remembering Jeffrey O'Connell

Since Jeffrey died last Sunday, there have been several notices.  The New York Times and UVa Law both ran good obituaries.  His accomplishments as a scholar are fairly well-known, and I want to share glimpses of Jeffrey that are more personal.

He was a virtuoso classroom teacher.  Jeffrey was so entertaining behind the lectern that you had to listen.  In this way, you learned and learned painlessly.  He told me that too many teachers neglected the performance aspect of teaching.  He studied drama, and even taught it while he was a Harvard Law student, and he used the techniques to enhance his teaching. 

He had a fantastic sense of humor.  One way he was so entertaining is that he was funny.  One day, as his research assistant, I was waiting for him to finish class so we could work on an article.  When he finally came out of the classroom, he winked at me and said, "Sorry I'm late.  The students like to ride me around on their shoulders after class."

He worked.  A lot.  I have vivid memories of him in his office.  He liked to work standing at a lectern and listening to classical music.  At one point in the early 2000s, he told me that he thought he had finished writing.  It lasted a few months.  In 2008, on the verge of turning 80, he co-authored 3 books.

He was centered in family.  He spoke often and lovingly of his family.  His Christmas cards in the later years featured him surrounded by numerous family members and very happy.  I returned from his funeral yesterday, and the family's deep affection for Jeffrey was obvious.

He was generous.  One word I hear over and over about Jeffrey from others is that he was generous.  In working with him, Jeffrey was always more concerned that I get credit for my work than he was about credit for his.  Over the weekend, I heard a story about his experiences as an associate at Hale & Dorr in Boston.  One of the firm's clients was a man who had escaped the Holocaust in Germany.  He built a financial empire in the United States, but was illiterate.  On his own time, Jeffrey took dictation from the man so he could send letters back to his family in Europe.  

He was compassionate.  His fundamental idea was to make compensation more readily available to the injured.  Regardless of your view of his proposals, and we disagreed on several occasions about how to best accomplish the objective, he was motivated by a basic compassion for people.

Farewell, my friend.  You will be missed.

--CJR 

Ninth Circuit Allows Failure to Warn Medical Device Case to Proceed

Muddling the preemption waters, the Ninth Circuit has ruled that a plaintiff can bring a state law failure to warn claim against a medical device manufacturer.  The court found the claim was not preempted by the Medical Device Amendments to the Food, Drug, and Cosmetic Act.   A copy of the opinion is here.  The Recorder (via law.com) has more.

Thanks to Lisa Smith-Butler for the alert.

- SBS

Roller Coaster Death Case Settles

The family of an Iraq War veteran killed in a roller coaster accident has settled with Darien Lake amusement park.  The amount is undisclosed, but is rumored to be in the low seven figures as part of a structured settlement; the money will be used to care for the man's two young daughters.  The Buffalo News has the details. 

Thanks to Bill Childs for the tip.

--CJR

Defamation Lawsuit Over Law Review Article

The National Law Journal reports that a New Jersey banker, Robert Catalanello, has sued Associate Dean Zachary Dean (Arizona State), for defamation and invasion of privacy based on Dean's 2011 law review article, "Of Meat and Manhood."  Dean's aricle analyzes a discriminaion lawsuit brought against Catalanello by a former employee.   The suit also names the law review (Wash U St. Louis), and Western New England School of Law, where Dean lectured on the article.

- SBS

Jeffrey O'Connell (1928-2013)

It is with profound sadness that I report the death of my teacher, mentor, and friend, Jeffrey O'Connell.  The longtime University of Virginia Law professor co-authored the work that led to no-fault automobile insurance and created an "early offers" proposal, a version of which was passed into law in New Hampshire last year.  He was a phenomenal classroom teacher and a good man.  He will be missed. 

I will likely post some further thoughts about Jeffrey later in the week.

--CJR

IL: Forum Non Conveniens & Asbestos

Over at Drug and Device Law, friend of TortsProf Brendan Kenny (Blackwell Burke) has a guest post on an Illinois Supreme Court case involving forum non conveniens in an asbestos case.

--CJR

CA: Bumper Car Injury Covered by "Primary Assumption of Risk"

The Supreme Court of California has ruled that "primary assumption of risk" or the "inherent risk doctrine" applies to bumper cars.  Typically applied to sporting activities, the court extended the doctrine to cover a San Jose doctor who broke her wrist on a ride in 2005.  Regardless of the substantive merits, I don't like the terminology.  I think it's better to cover this under either a duty or a breach analysis instead of adding concepts to the law.  This is a case that makes me miss Bill Childs, with his passion for covering amusement parks!  The Los Angeles Times covers the story here; the opinion (pdf) is here.

--CJR