TortsProf Blog

MICRA Cap Increase Rider: Physician Drug-Testing

Prop 46, a California ballot initiative to raise the 1975 non-economic damages cap from $250,000 to $1.1M, includes a rider:  physician drug-testing.  The two are joined in the "Troy and Alana Pack Patient Safety Act of 2014."  Download pdf here:  Download Troyandalanapackpatientsafetyactof201400202344.  I'm not a fan of non-economic damages caps (though I acknowledge problems with non-economic damages).  Moreover, the cap increase strikes me as an easy call.  The cap hasn't been raised in 39 years and the increase is just an inflation adjustment; I ran a quick inflation calculation and $250,000 in 1975 is approximately $1.1M.  I do, however, object to the compound question nature of the initiative.  These are very different issues and should be considered separately.  The Sacramento Bee has details.

McBride on Tort & Human Flourishing

Nicholas McBride (Cambridge) has posted to SSRN Tort Law and Human Flourishing.  The abstract provides:

This is the second in a loose ‘trilogy’ of three papers that I presented at successive Obligations conferences: Obligations V (at the University of Oxford, in 2010, on the theme of ‘Rights and Private Law’), Obligations VI (at the University of Western Ontario, in 2012, on the theme of ‘Challenging Orthodoxy’), and Obligations VII (at Hong Kong University, in 2014, on the theme of ‘Divergence and Convergence in Private Law’).

In this paper, I argue that giving effect to the ‘balanced approach’ to determining what rights we have that I set out in my paper on ‘Rights and the basis of tort law’ requires one to draw on a vision of what human flourishing entails, so that we can determine whether the benefit to A from finding that he has a particular right against B outweighs the burden that B will incur if we find that A has such a right against B. I go on to argue that the vision of human flourishing that underlies the law’s practice in determining what rights we have against each other is a very familiar one – one that is widely prevalent in the West and best set out in the writings of John Finnis. I go on to criticise this account of human flourishing as radically defective, and explain what difference adopting a sounder view of what human flourishing entails would have on what rights we are recognised as having against other people.

I hope that this paper and the other two papers in the trilogy will eventually form the basis of a book, to be called The Humanity of Private Law.

AL: Two Views on Generic Drug Labels and Responsibility for Injuries

The Alabama Supreme Court recently denied rehearing in Weeks v. Wyeth, letting stand a holding that name-brand manufacturers can be liable for misrepresentations or failures to warn in regard to generic drugs they did not manufacture or distribute.  The rationale appears to be the FDA's requirements that the name-brand manufacturer provide the material for the drug label contents.  Generic manufacturers are not allowed to alter those contents.  Two views of the case, one from Richard Garrett of the Alabama Policy Institute, and the other from Lew Garrison, who represented the plaintiff.

Two by Solomon on Juries

Jason Solomon has posted two pieces to SSRN.  First is a symposium introduction to The Civil Jury as Political Institution.  The abstract provides:

More than two hundred years after the Seventh Amendment enshrined the civil jury right, the debate over the role of the civil jury in the United States continues unabated. But even as questions about the civil jury’s competence as an adjudicative institution continue, questions surrounding the civil jury’s justification and role as a political institution are under explored.

To explore these questions in contemporary society, the Bill of Rights Institute and Law Review at William & Mary Law School hosted a symposium on The Civil Jury as a Political Institution. For two days in February 2013, scholars from an array of disciplines gathered to consider the extent to which the civil jury played a meaningful role as a political institution historically, whether it still serves that purpose today and, if so, what measures can or should be taken to ensure its continuing significance. 

This short essay is the introduction to the symposium issue of the William & Mary Law Review on this topic. The essay provides a brief summary and exploration of some of the themes that arose in the papers and during the discussion.

Second is Juries, Social Norms, and Civil Justice.  The abstract provides:

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system. 

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions.

First, I undermine the claim that the breach question in negligence is inevitably one for the jury by revisiting a famous debate between Cardozo and Holmes about the possibility of judge-made rules around breach in tort. Second, I draw on social and cognitive psychology to question the conventional wisdom that juries applying general standards are ideally suited to identify and apply social norms. And third, I sketch a middle-ground approach on breach, which involves presumptive rules that defer to indicia of social norms such as statutes and regulations, custom, and the market.

In making the argument, this Article begins to point the way towards a tort system that recognizes the value of recourse but better serves rule-of-law values.

Abraham & White on Prosser

The paper is not yet available, but I want to advertise the forthcoming piece by Ken Abraham & Ted White for the Journal of Tort Law tribute to Jeffrey O'Connell.  The abstract for Prosser and His Influence provides:

This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions.

We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965.  We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.

Update::  The draft is now available here.

CA: Ads Hit the Airways in Battle to Raise MICRA Cap

Opponents of raising California's med mal cap in a fall ballot (Prop 46) are on the air with a 30-second television ad and a 60-second radio ad.  Opponents of the measure have raised more than $36M as of June 30; supporters have raised $2.3M in the same period.  The LA Times has the story.

Calabresi on Liability Rules

Guido Calabresi (Yale, Second Circuit) has posted to SSRN A Broader View of the Cathedral:  The Significance of the Liability Rule, Correcting a Misapprehension.  The abstract provides:

Recent years have seen a resurgence of Torts viewed as a purely private legal arrangement: whether described in terms of compensatory justice — the right of an injured party to be made whole — or of redress for civil wrongs — the right of an injured person to get back at the one who injured him. These positions reject the approach of the system builders (to use Izhak Englard’s felicitous phrase), those who see torts as part of a legal-political-economic structure of a polity. This latter, “public,” view of torts has been dominant, at least since my first article, and Walter J. Blum and Harry Kalven’s answer to it, aptly titled "Public Law Perspectives on a Private Law Problem." It is of the relationship between these approaches, and of the inevitability of the public-law (and hence, in part, economic) view of torts that I wish to write today. In doing so, however, I mainly want to correct an error that many system builders have made: that is, of viewing the liability rule (in torts and in its cognates) as a “second best” way of mimicking markets when markets “will not work,” or “are not available.” I want to claim a more significant economic role for the liability rule, and hence for torts, than that. For reasons that will be clear in due course, I call this "A Broader View of the Cathedral."

Long on Consent in Defamation and Employment Reference Cases

Alex Long (Tennessee) has posted to SSRN The Forgotten Role of Consent in Defamation and Employment Reference Cases.  The abstract provides:

As has been well documented, the fear of defamation suits and related claims leads many employers to refuse to provide meaningful employment references.  However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s job performance.   Thus, many attorneys now advise prospective employers to have applicants sign consent agreements, permitting the prospective employer to conduct an investigation into the applicant’s work history and releasing from liability anyone who provides information about the employee’s work history.  The Restatement (Second) of Torts has been highly influential in shaping the development of the defense of consent in the defamation context.  This article looks at the consent defense within the context of employment reference cases.  Specifically, the article examines the consent defense as described in the Restatement from an historical perspective and argues that the authors fundamentally misstated the law in a manner that has had negative consequence for employees who have been the victims of defamatory references.

Harris & Peeples on Demographic and System Variables in Med Mal

Catherine Harris  (Wake Forest-Sociology) & Ralph Peeples (Wake Forest) have posted to SSRN Medical Errors, Medical Malpractice and Death Cases in North Carolina:  The Impact of Demographic and System Variables.  The abstract provides:

A Study of hospitals in North Carolina from January 2002 to December 2007 reports that there was no statistically significant decrease in medical errors during this period, in spite of efforts to reduce them (Landrigan et al. 2010).  Our study utilizes a medical liability insurer's archive of death cases in North Carolina from 2002 to 2009 (156 cases involving 401 physician-defendants.  Given the implications of medical error for health care delivery, we consider whether demographic variables (age, gender, marital status and race) and system variables (hospital involvement and number of physician-defendants) are predictive of higher risk of death.  Our dependent variables are three major categories of error associated with patient death in the archive (diagnostic, treatment and surgical.  We find that men are significantly more at risk for diagnostic errors.  There is evidence that age and number of defendants is predictive of treatment errors.  Policy implications are discussed.

Dorfman & Jacob on Trespass

Avi Dorfman (Tel Aviv) & Assaf Jacob (The Interdisciplinary Center Radziner School of Law) have posted to SSRN Trespass Revisited:  Against the Keep-Off Theory of Property and for Owner-Responsibility.  The abstract provides:

The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property.  In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders.  This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own.  In this article, we argue that this view is mistaken.  We advance conceptual, normative, and doctrinal arguments to show that this account runs afoul of the actual workings of the tort in question.  A more precise account of trespass to land will reveal that the tort gives rise to a hybrid regime of tort liability: one which combines considerations of fault along with those of strict liability.  On the proposed account, therefore, an owner does assume some responsibility for guiding others in fulfilling the duty they owe the former.

--CJR

JOTWELL Torts: Bublick on Goudkamp's "Tort Law Defences"

Ellen M. Bublick (Arizona) has a Jot on James Goudkamp's 2013 book, "Tort Law Defences."

- SBS

Conference Announcement: "New Frontiers for FDA Regulation"

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the Food and Drug Law Institute have announced a joint symposium on "Emerging Issues and New Frontiers for FDA Regulation," to be held on October 20, 2014, in Washington.  Topics include food regulation, drug shortages, stem cells, and synthetic biology.

- SBS

Providence, RI Intends to Sue GM Over Ignition Switch Defects

In a pleading seeking a lead counsel role in the MDL, Joe Rice revealed that the City of Providence, RI intends to sue General Motors as part of the ignition-switch litigation coordinated in the Southern District of New York.    From news reports, it sounds like Providence intends to bring a diminished value claim, similar to claims brought against Toyota a few years ago.  (I've written about these kinds of risk-liability suits here).

National Law Journal has the story.

- SBS

Do Physicians Respond to Liability Standards?

Michael Frakes (Northwestern), Matthew Frank (Harvard student), & Seth Seabury (RAND) have posted to SSRN Do Physicians Respond to Liability Standards?.  The abstract provides:

In this paper, we explore the sensitivity in the clinical decisions of physicians to the standards of care expected of them under the law, drawing on the abandonment by states over time of rules holding physicians to standards determined by local customs and the contemporaneous adoption of national-standard rules.  Using data on broad rates of surgical interventions at the county-by-year level from the Area Resource File, we find that local surgery rates converge towards national surgery rates upon the adoption of national-standard rules.  Moreover, we find that these effects are more pronounced among rural counties.

--CJR

Zoning Commission Approves Nader's Torts Museum

As previously mentioned here, crews have begun working on Ralph Nader's American Musuem of Tort Law.    Just this week, the Winsted Planning and Zoning Commission approved the site application plan for the musuem.  The Register Citizen reports:

Exhibits will include historical cases of precedent that built the “edifice of common law of torts,” along with major cases, including judicial decisions in auto safety, tobacco, asbestos and invasion of privacy. Plans were in the works for a website to be set up as well, to extend the reach of the museum’s mission to include contemporary and future developments, according to Nader. The museum could also host events.

- SBS