TortsProf Blog

Hackney on Weinstein

James Hackney has posted to SSRN Judge Jack Weinstein and the Construction of Tort Law in America:  An Intellectual History.  The abstract provides:

This Article explores the intersection between the judicial and scholarly work of Judge Jack Weinstein, particularly as related to mass tort litigation and the development of legal theory and tort law in America. The primary focus will be on Judge Weinstein’s handling of the Agent Orange litigation. Judge Weinstein’s tenure on the federal bench began in 1967. Some seven years earlier, Ronald Coase published his The Problem of Social Costs, a monumental moment in American legal theory and tort law policy. Three years later, Guido Calabresi published his path-breaking text, The Costs of Accidents. These two texts are representative of the law and neoclassical economics movement, which would indelibly shape tort law theory in America during Judge Weinstein’s years as a judge.

Law and neoclassical economics is most often discussed as a methodology for analyzing tort law on the basis of efficiency. However, it also exemplifies a broader approach to law that goes beyond efficiency analysis and can be found in much of contemporary legal theory. This broader approach focuses its analysis on the social good as opposed to prioritizing individual rights. It is through the lens of these two features of twentieth-century legal theory (efficiency and the social good), particularly as they apply to tort law, that this Article will examine the Agent Orange litigation.

The Agent Orange litigation is a landmark in American history. It involved hundreds of lawsuits, thousands of claimants (15,000 by one estimate), and seven corporate defendants. Aside from its scope, the issues surrounding Agent Orange are particularly worthy of attention because they exemplify the problems associated with resolving mass tort cases. An intriguing aspect of Judge Weinstein’s worldview, which is reflected in the disposition of the Agent Orange litigation, is that he champions efficiency and the social good while placing a premium on recognizing individual suffering as an existential reality.

Of course, the Agent Orange litigation is also circumscribed by the specter of the Vietnam War, which makes it an even more compelling site of inquiry. The Agent Orange litigation and Judge Weinstein’s legendary handling of it provides us with a unique opportunity to consider tort law in the context of not only legal theory, but one of America’s most searing historical moments, the Vietnam War.

Behrens Wins ILR Individual Achievement Award

Mark Behrens of Shook, Hardy & Bacon's Public Policy Group has been awarded the U.S. Chamber Institute of Legal Reform's Individual Achievement Award.  He joins Public Policy Group Co-Chair Victor Schwartz as a recipient of the award.

Grey & Marchant on Concussions and the Duty of Care

Betsy Grey & Gary Marchant have posted to SSRN Biomarkers, Concussions, and the Duty of Care.  The abstract provides:

The United States is currently facing a “concussion epidemic.”  Concussions, also known as mild traumatic brain injuries, have increased in numerous settings, including transportation accidents, military combat, workplace injuries, domestic abuse, falls, and sports.    The epidemic imposes huge costs on society.   At the same time, our understanding of the injury remains limited. Currently, no proven way exists to physiologically detect concussion risk or damage.   Determining whether a concussion has occurred and been resolved remains largely a clinical diagnosis, relying mostly on self-reported symptoms.   Our knowledge of long term implications of repetitive concussions is also limited.  Science is racing to develop objective measures, or biomarkers, of concussive injury that will tell us who is more likely than not to be susceptible to harm and the extent of harm they may have already suffered. The availability of biomarkers will lead to a deeper understanding of changes to the brain that occur in a concussion and enable us to trace back earlier into what we think of as a diseased state. 

These scientific developments will have enormous implications for questions of risk and loss distribution in society.  In particular, they portend a major reexamination of fundamental tort issues of duty, breach, causation, and fault allocation.  Applying the developing research to the legal landscape will shed light on duties, as well as causal issues,  and may help substantiate latent injury claims.  This article examines those questions in the context of youth sports.  The development of biomarkers will modify responsibilities for mitigating risks, screening and monitoring players, and the ability of the player to assume risks, as well as implicate privacy interests.  In general, the development of these biomarkers will shift responsibilities in the diagnosis and management of concussions, as well as long term injuries, to those most directly involved in the player’s participation.

Risk Management at U.S. Hospitals: Hard Times

According to a study published this week in Aon's annual benchmark analysis of hospital and professional liability, the average cost of closed claims with indemnity at U.S hospitals ($459,000) is near an all-time high.  The effects of tort reform are an issue:

However, the experience of so-called tort reform states – where non-economic damages have been capped by statute – is particularly concerning.  The severity of average claims in these states has been increasing faster than elsewhere.  In 2008, only 2.2% of claims from tort reform states exceeded $2,000,000.  By 2013, this proportion had risen to 4.1% and last year it jumped further, to 5%. 

"Tort reform, though still valuable in restraining the cost of claims, provides less effective insulation to hospitals than was originally the case," said Steve Chang, healthcare claims team leader at Beazley.  "The plaintiffs' bar has become very adept in maximizing the economic damages which remain uncapped. Moreover, we are finding that the distinction between tort reform and non-tort reform states is becoming increasing blurred with states such as California, Maryland and Florida, all of which are tort reform states, beginning to rival their non-tort reform counterparts."

CNN Money has the story.

CA Reaffirms No Duty by Universities to Protect Adult Students from Violence of Other Students

A California court of appeal has reaffirmed the rule that universities do not have a duty to protect adult students from the violent acts of other students.  Alberto Bernabe discusses the opinion at Torts Blog. 

Eaton & Wells on Attorney's Fees and Nominal Damages in Section 1983

Thomas Eaton and Mike Wells have posted to SSRN Attorney's Fees, Nominal Damages, and Section 1983 Litigation.  The abstract provides:

Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.

We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented and the factual record is opaque regarding what and how the plaintiff’s constitutional rights were violated. These complexities render Farrar a poor case upon which to frame a rule regarding the relationship between damage awards and the proper calculation of attorney’s fees. Second, the “low award, low fee” approach is inconsistent with congressional intent. When Congress enacted § 1988 it emphasized the public benefit of vindicating constitutional rights and deterring constitutional violations. No less important, it recognized that the harms caused by constitutional wrongs often are not easily measured in terms of traditional monetary remedies – a circumstance that would discourage attorneys from taking on the representation of plaintiffs in this important set of cases. The low award/low fee approach contravenes these purposes because it effectively discourages the bringing of large numbers of highly meritorious cases involving the abridgement of constitutional rights. Indeed, the effect of this approach is perverse, because it blocks the recovery of meaningful attorney’s fees in the very set of low damages-serious constitutional wrong cases in which the need to incentivize the provision of legal services is most pressing.

Updated:  Comments from George Conk.

 

Workers' Comp: States Limit Benefits; Federal Oversight Urged

A recent NPR/ProPublica series on workers' compensation caused 10 Democratic Senators to urge action on the part of the Labor Department:

Ten ranking Democrats on key Senate and House committees are urging the Labor Department to respond to a "pattern of detrimental changes in state workers' compensation laws" that have reduced protections and benefits for injured workers over the past decade.

In a letter to Labor Secretary Thomas Perez, the lawmakers cited an investigation by NPR and ProPublica, which found that 33 states have cut workers' comp benefits, made it more difficult to qualify for benefits or given employers more control over medical care decisions.

The letter also referred to NPR/ProPublica stories last week that detailed an emerging trend of permitting employers to drop out of state-regulated workers' comp programs, write their own injury plans and limit benefits on their own.

NPR has the story.

JOTWELL Torts: Goldberg on West on Gatsby and Tort

At JOTWELL, John Goldberg reviews Robin West's Gatsby and Tort.

Medical Devices Vulnerable to Cyber-Attack

The FDA recently warned that a particular pump could be hacked and give patients incorrect doses of medication.  At JD Supra, Butler Snow discusses problems in applying traditional products liability theories to such an attack.

Baker on the Alienability of Mass Tort Claims

Lynn Baker has posted to SSRN Alienability of Mass Tort Claims.  The abstract provides:

This Article was prepared for the 19th Annual Clifford Symposium on Tort Law and Social Policy, "A Brave New World: The Changing Face of Litigation and Law Firm Finance."  It seeks to contribute to the larger conversation about whether the United States should permit innovative forms of litigation financing for personal injury claims by examining a hypothetical regime with expanded alienability of mass tort personal injury claims.  The Article focuses on this subset of claims because arguments in favor of complete alienability of personal injury claims are strongest with regard to these claims, and many of the staunchest critics of alternative litigation financing have expressed particular concern about its implications in the mass tort context.  Thus, those not persuaded by the Article's analysis are unlikely to be persuaded by arguments for expanding the alienability of personal injury claims more generally.

The Article begins by describing the current state of affairs for both clients and their lawyers regarding the alienability and prosecution of mass tort personal injury claims. Despite various longstanding restrictions on the alienability of personal injury claims in the United States, substantial alienability of these claims is permitted and is engaged in by both clients and their attorneys.  Part II discusses the aspects of the prosecution of mass tort claims in the United States that make these claims especially good candidates for complete alienability.

Part III discusses the benefits and costs to mass tort claimants and their attorneys of a hypothetical regime under which a claimant could sell her entire claim to a law firm, rather than retain the firm to serve as her counsel on a contingent fee basis.  This Part also discusses various practical issues that would need to be resolved before a claim-sale option for mass tort personal injury claims could become a reality.  Part IV goes on to analyze the normative concerns that underlie the existing constraints on claim sales.  It reveals that none of these concerns is a persuasive grounds for prohibiting mass tort claimants from selling their claims to an attorney (or, perhaps, to any other potential purchaser).

It is not at all clear that a market for mass tort personal injury claims would flourish even if the existing ethical and legal constraints were relaxed.  But that possibility does not diminish the importance of the Article's larger conclusion that there are no compelling normative or economic reasons to prohibit the complete alienability of mass tort personal injury claims in the United States.

Nussbaum on Corrective Justice in Med Mal Reforms

Lydia Nussbaum has posted to SSRN A Crucible for Corrective Justice: Legislative Experiments with ADR to Reform the Medical Malpractice System.  The abstract provides:

The American tort system has been the target of medical malpractice reform efforts for close to fifty years.  Using different “crisis” narratives, reform advocates argue that litigation costs must be contained, that alternative methods for compensating injured patients should replace the tort system, and that healthcare delivery systems must change to reduce the incidence of patient injury.  In pursuit of these different reform objectives, state legislatures enact laws that, for medical malpractice claims, change both substantive tort doctrine and procedure.  For procedural reforms, policymakers turn repeatedly to ADR to fix perceived problems with the medical malpractice system, enacting statutes that mandate or direct parties to utilize specific ADR processes.  This Article argues that ADR procedural interventions have substantive reform goals in the medical malpractice context.  Ironically, these successive generations of medical malpractice ADR demonstrate a diminishing primacy of tort, rendering ADR not only an alternative process but also a venue for alternative models of corrective justice.

Upper East Side Aunt Sues Nephew for Enthusiastic Hug, Broken Wrist

A Manhattan woman sued her then eight-year-old nephew for an enthusiastic hug that knocked her down and broke her wrist.  A jury found the nephew was not liable.  I assume the homeowner's policy was the target, but it couldn't have helped that she testified that it hurt for her to hold a plate of hors d'oeuvres.  The Connecticut Post has the story.

Thanks to Sheila Scheuerman for the tip.  Also posted at Olson/Overlawyered.  And don't miss this coverage from Eric Turkewitz at New York Personal Injury Law Blog.

Wright on Efficiency Theories of Causation and Liability

Richard Wright has posted to SSRN The New Old Efficiency Theories of Causation and Liability.  The abstract provides:

For the last forty years, efficiency theorists have attempted to demonstrate that tort liability in general and negligence liability in particular can best/only be explained by the hypothesis that judges are trying to maximize aggregate social welfare. Thirty years ago I published a pair of articles criticizing these attempts, noting especially the efficiency theorists' inability to explain and justify the factual causation requirement in tort law. Nevertheless, the efficiency theorists have continued to make the same arguments. In this paper, I canvass the old arguments and their current restatements, including the attempts by some of the leading theorists to equate ex post analysis of actual causation with ex ante analysis of negligent conduct and attempts by others to explain the actual negligence liability rules. None of the rules proposed by the efficiency theorists is consistent with the practice of the courts, and none of them would promote efficient deterrence. Worse yet, the least descriptively plausible negligence liability rule proposed by the efficiency theorists is the one likely to be the least inefficient in actual practice, while the one assumed by most efficiency theorists will be the most inefficient. The fundamental problem with the efficiency theories is that they assume that the focus of law should be and is on the maximization of aggregate social welfare, rather than justice -- the promotion of everyone's equal external freedom  in their interactions with others.

(Via Solum/LTB)

WI: Another Bill to Allow Parents to Sue for Med Mal on Behalf of Their Adult Children

Wisconsin law does not allow the parents of adult children to sue on their behalf for medical malpractice.  For years, bills have been introduced to change the law (here is a post from last session), and Senator Harris Dodd is trying again.  This bill would allow parents to sue for their children up to age 27 if they die as the result of medical error.  This year's bill is scaled back:

Earlier versions would have allowed adult children to sue if a parent died because of malpractice and also called for allowing parents of children of any age to sue for malpractice in death cases.

The Milwaukee Wisconsin J0urnal Sentinel has the story.

Texans for Lawsuit Reform Claims Increase in Physicians; Link to Reform

TLR's website has the story.

McBride on "The Humanity of Private Law"

Nicholas McBride (Cambridge) has posted to SSRN The Humanity of Private Law--An Introduction.  The abstract provides:

This is a draft of the introduction to a book I am working on called The Humanity of Private Law – which book will attempt to present a new account of private law as centred around the promotion of a particular vision of human flourishing.

As well as introducing the main claims of the book, this introduction also discusses: (1) economic and Kantian explanations of private law; (2) the explanations of tort law put forward by John Goldberg and Benjamin Zipursky, and by John Gardner; (3) the nature of corrective justice; (4) the nature of morality; (5) the justifiability of strict legal duties to succeed; (6) the difference between explanations and evaluations of private law; and (7) three different models of human flourishing.

CA: Saskatchewan Approves Changes to Auto Coverage Programs

 The Saskatchewan government has approved changes to tort and no-fault programs recommended after a review of the auto system.

Among others, the changes include:

• When an impaired driver causes a collision and is killed, allowing an innocent party or the family impacted to sue for pain and suffering or bereavement damages (No Fault and Tort coverage);

• Expanding the list of offences that trigger the ability for an innocent party to sue for pain and suffering or bereavement damages to include: criminal negligence causing death or bodily harm, criminal negligence causing bodily injury, flight from a peace officer and dangerous operation while street racing (No Fault and Tort coverage);

• Updating amounts paid for living expenses to reflect current market rates, increasing the overall amount available for assistance to those with cognitive impairment and implementing a process to regularly review the amounts for alignment with market rates (No Fault coverage);

• Ending the practice of reducing income benefits by the amount a customer receives through Canada Pension Plan (CPP) disability (No Fault coverage); and

• Ensuring Tort income benefits maintain pace with minimum wage (Tort coverage).

Canadian Underwriter has the story.

Volvo Accepts "Full Liability" for Autonomous Cars

Volvo announced it will accept "full liability" for accidents when one of its self-driving cars is operating in autonomous driving mode.  The move would simplify liability issues and perhaps reduce legal barriers to autonomous vehicles.  Automobile has the story.

Thanks to Adam Scales for the tip.

NV: Med Mal Non-Economic Damages Cap Upheld

Last week, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages.  A lower court had ruled the cap violated the constitutional right to trial by jury.  The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant.  The Las Vegas Review-Journal has the story.

AALS Torts Section 2015 Newsletter

is here:  Download AALS Tort Section Newsletter 2015.  Thanks to my co-author Jessica Smeriglio.  We appreciate the assistance of Widener Commonwealth librarians Pat Fox and Ed Sonnenberg.