TortsProf Blog

Lim on Civil Damage Awards & the Media

Claire Lim (Cornell-Economics) has published Media Influence on Courts:  Evidence from Civil Case Adjudication. 

The study’s findings include:

• As the “liberalness” of a district increases, so too does the likelihood of higher civil trial awards. In other words, liberal districts tended to adjudicate larger final damage awards to plaintiffs. (This general finding is supported by other academic research, as well.)
• More specifically, a one standard deviation increase in the liberalness of political orientation in a district is associated with a 33% increase in the amount of final award in districts with average newspaper coverage.
• However, the influence of political orientation on final awards becomes smaller as media coverage increases.
• Neither the volume of media coverage alone, nor having elected judges, has a statistically significant impact on the amount of final award in civil adjudications.
• Coverage appears to have no statistically significant impact on plaintiff win rates — only on the amount of damage awards adjudicated.

Journalist's Resource has more details.

CT: Bill to Extend SoL

In Connecticut, Senate Bill 1028 would allow people who turn 18 to sue for personal injuries they suffered when they were minors and unable to sue in their own name.  It would allow recovery for negligence, including med mal, and reckless misconduct.  Trial lawyers and doctors are squaring off over the bill.  The Hartford Courant has the story.

CA: Janitorial Mistake is Not Professional Negligence

A California court of appeal has overturned a trial court holding that a woman who slipped on a wet floor in a hospital was subject to MICRA's one-year statute of limitations.  Holding that a janitor's conduct is not "professional negligence," the court of appeal applied the two-year statute for ordinary negligence suits.  The Metropolitan News-Enterprise has the story.

Blum on Section 1983

Karen Blum (Suffolk) has posted to SSRN Section 1983 Litigation:  The Maze, the Mud, and the Madness.  The abstract provides:

This piece reflects on what I perceive to be the major analytical and practical failures of Section 1983 jurisprudence as it has been shaped by the Supreme Court since the watershed case of Monroe v. Pape. Based on 40 years of academic involvement with both judges and lawyers who struggle with the various doctrines the Court has promulgated in the wake of Monroe, I highlight those areas that have become truly unintelligible, nonsensical, and incoherent.  There is a growing consensus among practitioners, scholars, and judges that Section 1983 is no longer serving its original and intended function as a vehicle for remedying violations of constitutional rights, that it is broken in many ways, and that it is sorely in need of repairs. The primary focus of this article is on the befuddled jurisprudence, “the madness,” surrounding the defense of qualified immunity.  I begin, however, with some brief observations about “the maze” built to sustain the direct vs. vicarious line drawn in the context of municipal liability and “the mud” that Iqbal has deposited with respect to issues of liability of supervisors. Problems plaintiffs have manipulating through the maze of municipal liability doctrine and wading through the mud of liability standards for supervisors underscore the importance of overcoming the madness of  qualified immunity if plaintiffs are to have a viable damages remedy for the violation of their constitutional rights. In the end, however, I come back to where I started in 1978, to the position I advocated following the decision in Monell, and urge the Court to relinquish its dogged adherence to the doctrine of no respondeat superior for claims brought under Section 1983.

MO: Legislature Passes Med Mal Cap

In 2012, the Missouri Supreme Court struck down that state's med mal damage cap.  The legislature has passed a replacement, and it is now awaiting Governor Jay Nixon's decision whether to sign it.  In sum:

The bill, if signed into law, would place a $400,000 cap on noneconomic damage awards in medical malpractice cases. The cap would be raised to $700,000 for catastrophic and wrongful death cases. Both caps would then increase by 1.7 percent each year.

There is a catch to the law. A jury would still be able to award an amount greater than the allowed caps. If a motion is then made contesting the award, the trial court will determine whether the limitations apply in that case.

The St. Louis Business Journal has the story.

DeVito & Jurs on Tort Reform

Scott DeVito (Florida Coastal) & Andrew Jurs (Drake) have posted to SSRN An Overreaction to a Nonexistent Problem:  Empirical Analysis of Tort Reform from the 1980s to 2000s.  The abstract provides:

Proponents of tort reform have suggested it is a necessary response to rising personal injury litigation and skyrocketing insurance premiums. Yet the research into the issue has mixed results, and the necessity of tort reform has remained unproven.

We decided to research an underdeveloped area by empirically testing the real world effects of noneconomic damages caps. To do so, we assembled a database of nearly fourteen million actual cases filed between 1985 and 2009 and then measured how damages caps affect filing rates for torts. Not only could we analyze the change in filings after adoption of a cap but we could also measure the effect of elimination of a cap as well. When we did, we found something unique in the literature.

We found first that when a state adopts a noneconomic damages cap, there is a statistically significant drop in filings of all torts and for medical malpractice torts. We also found that in both the 1990’s and 2000’s, the rate of filings dropped consistently as well – both in states with tort reform but also in states without it. Therefore, our finding of a statistically significant reduction in filings in response to damages caps demonstrates a “doubling-down” effect: there is one drop in filings due to the damages cap, but there is another drop based on larger background forces.

Next, when assessing the change in filings after elimination of a damages cap, we found something initially counterintuitive but also new to the literature. While one might expect a sharp increase in filings when a cap disappears, our analysis could find no statistically significant change in the filing rate for all torts after elimination, while medical malpractice filings continued to decline overall. We believe that this finding demonstrates and quantifies, for the first time, the non-legal effect of tort reform measures discussed by commentators like Stephen Daniels and Joanne Martin.

We believe the combination of the “doubling down” on plaintiffs as well as the quantifiable non-legal changes in response to damages caps significantly modifies the cost-benefit analysis of tort reform. In Trammel v. United States, the Supreme Court stated: “we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change.” Based on our empirical assessment, we conclude that tort reform has reached that point and call upon state legislators to reconsider these measures.

CO: Commercial Tenant Not Liable for Slip-and-Fall

A woman tripped on an uneven area of sidewalk and was injured.  She settled with the owner of the commercial property and then sued one of the tenants.  The Colorado Supreme Court rejected the contention that the tenant in this case was also the landlord:

“The clinic was not in possession of the sidewalk because it had only a right of non-exclusive use and the landlord retained responsibility for maintaining that area,” the ruling said. “Second, the court concludes that, under the terms of the lease and the facts of this case, the clinic was not legally responsible for the condition of the sidewalk or for the activities conducted or circumstances existing there. It therefore holds that the clinic is not a landowner within the meaning of the Premises Liability Act.”

The Denver Business Journal has the story.

MD: Municipal Liability Cap Compromise Passed by Legislature

The current cap in place for Maryland's municipalities is $200,000 per claim/$500,000 per incident.  The House passed an increase to $300,000/$600,000 and the Senate passed an increase to $500,000/$1,000,000.  Perhaps not surprisingly, a conference committee approved $400,000/$800,000 and that passed 89-45 in the House and 33-14 in the Senate.  The bill also extends the filing period from 6 months to 1 year.  HB 113 awaits the governor's signature.  MarylandReporter.com has the story.

Katz on Domestic Violence and Privacy

Elizabeth Katz (Harvard-History) has posted to SSRN Judicial Patriarchy and Domestic Violence:  A Challenge to the Conventional Family Privacy Narrative.  The abstract provides:

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.

MD: Legislature Debates Raising Cap for Claims Against Local Governments

Late last month, the Maryland Court of Appeals upheld the cap on damages for claims against local governments.  The current cap is $200,000 per claim, with a maximum of $500,000 for any number of claims stemming from a single incident.  The House passed a bill raising those limits to $300,000 and $600,000.  Last week a Senate committee proposed raising the limits to $500,000 and $1,000,000.  The full Senate will vote on Friday.  Cecil Whig has the story.

Epstein and Abbott Debate FDA Involvement in Off-Label Drug Use

Richard Epstein & Ryan Abbott have posted to SSRN FDA Involvement in Off-Label Use: Debate between Richard Epstein and Ryan Abbott.  The abstract provides:

Before a drug can be sold legally in the United States, the Food and Drug Administration (FDA) must approve it as safe and effective for a particular indication or use — the use then appears on the drug's label. Federal law, however, allows doctors to prescribe drugs that the FDA has approved for one indication for any other indication, even though the FDA never evaluated the safety or efficacy of the drug for that use.

Off-label prescribing is an integral part of modern-day medicine. Patients may benefit when they receive drugs or devices in contexts not approved by the FDA. In fact, in some instances an off-label use may be the standard of care for a particular health problem. However, off-label prescribing can also harm patients, especially when an off-label use lacks a solid evidentiary basis.

For this reason, the FDA forbids drug companies from promoting their own products for off-label use, except for certain activities such as disseminating research literature and sponsoring educational programs. In recent years, civil and criminal actions against drug companies for illegal promotion for off-label use have proliferated, leading to many large settlements. For example, in July 2012, GlaxoSmithKline pled guilty and paid $3 billion to resolve criminal and civil liability arising from the company's unlawful prescription drug promotion, failure to report safety data, and false price reporting practices.

As a result of this recent litigation, many have questioned the FDA's current role in regulation of off-label use and whether more or less intervention is needed. This debate sought to address these very issues.

Mini-Asbestos Roundup

On Thursday, Arizona Governor Ducey signed into law a bill requiring plaintiffs to disclose asbestos claims they have filed or intend to file.  The legislation, referred to as a transparency law, is justified as necessary to keep plaintiffs from double-dipping from asbestos trusts.  Today's News-Herald has the story.

In other asbestos news, the California Supreme Court will hear an appeal regarding the status of "take home" asbestos claims.  The lower appellate court denied the claim.  The Pacific Legal Foundation provides information on the case and argues against such claims here.

TX: Watching Soccer Not a Recreational Use

Plaintiff was injured while watching her daughter play soccer.  She sued the owner of the facility; the owner defended by asserting the recreational use statute.  The Texas Supreme Court held that watching soccer is not a recreational use within the statute. 

Iowa State's CALT has details.

FL: $4.5M Wrongful Death Award in Premises Case

In 2005, two siblings were shot to death in their Florida apartment.  The Florida Supreme Court recently upheld a $4.5M premises liability verdict against the owner of the apartment complex, based on the failure of the owner to repair a security gate at the gated complex.  The criminal case is still unsolved.  LawyersandSettlement.com has the story. 

MA: No Duty to Provide Medicine

On March 25, the United States District Court for the District of Massachusetts decided Hochendoner v. Genzyme Corp., 2015 WL 1333271.  Plaintiffs suffered from Fabry disease; defendant manufactured a drug used to treat the disease.  Plaintiffs alleged that defendant negligently contaminated the medicine, causing a reduced supply and harming plaintiffs.  The court dismissed the case, holding defendant had no duty to provide the medicine. 

Thanks to Bob Bohrer (Cal Western) for the tip.

GA: Jury Awards $150M Against Chrysler in Fatal Rear-End Jeep Crash

The focus of the trial was a rear-mounted gas tank.  The verdict comes nearly two years after Chrysler agreed to a scaled-back recall of some older-model Jeeps with rear-mounted tanks.  The New York Times has the story.

Thanks to Susan Raeker-Jordan (Widener) for the tip.

JOTWELL: Mullenix on Robreno

At JOTWELL Courts, Linda Mullenix (Texas) reviews Judge Eduardo Robreno's contribution to Widener's Perspectives on Mass Tort Litigation symposium from April 2013.

MD: Cap on Damages Against Local Governments Upheld

On Monday, the Maryland Court of Appeals upheld a cap on damages against local governments.  A jury awarded $11.5M to the family of a man shot to death by police, and the family argued the cap was unconstitutional.  The court rejected the challenge; the family will receive $400,000.  The Baltimore Sun has the story.