TortsProf Blog

NM: "Ban the Box" Meets Negligent Hiring and Retention

The New Mexico legislature is considering a law that would extend the prohibition on asking job applicants whether they have criminal convictions to the private sector.  Currently, governmental units are prohibited from asking the question at the screening phase.  The goal is to allow people with convictions to more easily reintegrate into society.  The rub, however, is that New Mexico recognizes the torts of negligent hiring and retention.  An employer who hires or retains an employee who commits a tort when the employer knew or should have known of the risk posed by the employee could be liable.  In his column, Joel Jacobsen calls for protections for employers as part of the new law.  Of course, employers can still ask the question in subsequent phases of the hiring process.

NJ: Federal Law Does Not Preempt Claims of Failure by a Generic Drug Manufacturer to Update Warnings in a Timely Manner

The National Law Review analyzes New Jersey's ruling that "federal law does not pre-empt state law claims alleging that a generic drug manufacturer failed to timely update the warnings for its product to match those of the brand-name counterpart."

Indiana vs. Kentucky on Med Mal Tort Reforms, Insurance Premiums, and Medical Costs

The Courier-Journal compares Indiana and Kentucky on medical malpractice tort reforms, insurance premiums, and medical costs.  The gist:

Indiana is only one of six states that cap damages of all kinds – including lost wages and the cost of medical treatment – to victims of medical malpractice.

Though the figures are scheduled to rise over the next three years, for now, individual doctors and hospitals are only on the hook for $250,000, and the total award to plaintiffs is limited to $1.25 million.

Patients also must submit their claims to medical malpractice review panels, before they can sue and go to court.  And punitive damages are limited to three times the actual damages to the plaintiff.

The result is cheaper medical malpractice insurance premiums for doctors in Indiana, which Michael Rinebold, director of government relations for the Indiana State Medical Association, said encourages doctors to locate there.

Figures collected from malpractice insurance brokers show that doctors pay about 25 percent less for insurance in Indiana than Kentucky.

But doctors in Kentucky pay out only slightly more in average claims per year than their counterparts in Indiana, according to the National Practitioner Data Bank. And consumers in the two states pay virtually the same amount per person on doctors and hospitals, according to the most recent data available.

Read the full article here, and a related piece here.

Ikea Will Pay $50M for 3 Deaths Caused by Tipping Dressers

The families of three toddlers killed by Ikea dressers tipping over on top of them have settled with Ikea for $50 million.  It is believed to be one of the highest payouts for the death of children in U.S. history.  The money will be split equally among the three families, with an undisclosed amount paid in attorneys' fees.  Philly.com has the story.

Thanks to David Raeker-Jordan for the tip.

MI: Bill Passes to Restrict Med Mal Damages to Amount Paid, Not Charged

In July, the Michigan Supreme Court ruled that state law in med mal cases allowed plaintiffs to recover the gross amount of medical bills charged by providers.  Because insurers, Medicare, and Medicaid have provider rates substantially less than the charged rates, plaintiffs were able to recover more than the amount paid.  The Michigan Senate has passed a bill restricting the amount of compensation in med mal cases to the amount paid, regardless of the amount charged.  The bill is on its way to the governor for his signature.  The Daily Reporter has the story.

The Columbus Dispatch Urges Amendment to Noneconomic Damages Cap

The editorial board of The Columbus Dispatch has weighed in on the noneconomic damages cap upheld last week by the Ohio Supreme Court.  It urges the General Assembly to amend the law next session to enact an exclusion for sexual-assault victims.  It's a sound idea.  Even if you support caps on noneconomic damages, caps that cover intentional acts are very rare.

OH: Cap on Noneconomic Damages is Constitutional

The Supreme Court of Ohio has ruled, again, that a cap on noneconomic damages is constitutional.  The suit involved a 15-year-old girl who was raped by her senior pastor during a counseling session in his office.  The girl and her father sued the pastor and several other defendants and obtained a $3.6M verdict.  After the cap was applied, the judgment was trimmed to $500,000.  Marianna Brown Bettman (Emeritus, Cincinnati) has a detailed post at her blog, "Legally Speaking Ohio".

Ball: "Enrichment at Claimant's Expense"

Eli Ball has published Enrichment at the Claimant's Expense with Hart Publishing.  The blurb provides:

This book presents an account of attribution in unjust enrichment. Attribution refers to how and when two parties – a claimant and a defendant – are relevantly connected to each other for unjust enrichment purposes. It is reflected in the familiar expression that a defendant be 'enriched at the claimant's expense'. This book presents a structured account of attribution, consisting of two requirements: first, the identification of an enrichment to the defendant and a loss to the claimant; and, secondly, the identification of a connection between that enrichment and that loss. These two requirements must be kept separate from other considerations often subsumed within the expression 'enrichment at the claimant's expense' which in truth have nothing to do with attribution, and which instead qualify unjust enrichment liability for reasons that should be analysed in their own terms. The structure of attribution so presented fits a normative account of unjust enrichment based upon each party's exchange capacities. A defendant is enriched when he receives something that he has not paid for under prevailing market conditions, while a claimant suffers a loss when he loses the opportunity to charge for something under the same conditions. A counterfactual test – asking whether enrichment and loss arise 'but for' each other – provides the best generalisation for testing whether enrichment and loss are connected, thereby satisfying the requirements of attribution in unjust enrichment.

College Basketball Coach Accused of Battering Players During Game

Sean Woods, the basketball coach at Morehead State, has been accused of battering two players during a game last month.  One player said the coach backhanded him in the chest in the locker room at halftime and another player said the coach shoved him during a timeout and in the locker room.  Woods has been suspended, and criminal battery charges have been filed.  The Lexington Herald Leader has the story.  Thanks to David Raeker-Jordan for the tip.

Nanotechnology Tort Litigation

Peter Hayes, of Bloomberg BNA, has a piece on the potential for a new wave of tort suits based on nanotechnology (essentially the technology of really small things).  Nanotechnology can be used to make almost anything, but there have been concerns about health side effects.  Hayes notes many experts predicted such a wave a decade ago, and inquires of several experts whether the predictions were wrong or whether the wave is still coming.  His piece, "Nanotech Tort Litigation:  Potential Sleeping Giant", is here.

McPeak on Tort Liability in the Sharing Economy

Agnieszka McPeak (Toledo) has posted to SSRN Sharing Tort Liability in the New Sharing Economy.  The abstract provides:

The new sharing economy is forcing policymakers to reexamine current legal structures for several highly regulated industries, including taxi services. But in addition to regulation, tort law’s ability to adapt to the new sharing economy is an equally important concern, and one that few scholars have examined to date.

Although many sharing-economy companies, like ridesharing service Uber, merely purport to connect individuals to each other for the purposes of exchanging specific services, many of these companies are monetized, for-profit businesses that exert some level of control over the underlying commercial transaction. When an individual service provider, like an Uber driver, commits a tort, the victim may be under-compensated if that individual provider alone is liable. Holding the sharing-economy company vicariously liable may be appropriate for ensuring fairness for tort victims.

Fortunately, pre-existing tort principles — particularly vicarious liability concepts of respondeat superior, liability for independent contractors, and joint enterprise liability — already provide the framework for applying retrospective common law remedies in the sharing-economy context. Even though sharing-economy companies challenge the status quo with their innovative and non-traditional business approaches, pre-existing principles suffice to clarify tort liability in this new context. By liberally using the basic analysis and underlying policy rationales of existing vicarious liability concepts in particular, courts can ensure fairness under modern tort law, and policymakers can proceed with a holistic understanding of how retrospective remedies are well-poised to address some of the unique issues raised by the new sharing economy.

She's also blogging at Prawfs.

McMichael, Van Horn, & Viscusi on Apology Laws

Benjamin McMichael, Lawrence Van Horn, and Kip Viscusi (all Vanderbilt) have posted to SSRN Sorry is Never Enough:  The Effect of State Apology Laws on Medical Malpractice Liability Risk.  The abstract provides:

State apology laws offer a separate avenue from traditional damages-centric tort reforms to promote communication between physicians and patients and to address potential medical malpractice liability. These laws facilitate apologies from physicians by excluding statements of apology from malpractice trials. Using a unique dataset that includes all malpractice claims for 90% of physicians practicing in a single specialty across the country, this study examines whether apology laws limit malpractice risk. For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim. Overall, the evidence suggests that apology laws do not effectively limit medical malpractice liability risk.

Gregory Keating Has Been Busy

Greg Keating has uploaded to SSRN to SSRN 6 p apers:

Comment on Gardner:  Duty and Right in Public Law

Liability without Regard to Fault:  A Comment on Goldberg & Zipursky

Comment on Avraham and Yuracko:  Torts and the Paradox of Conservative Justice

Must the Hand Formula Not Be Named?

Is Cost-Benefit Analysis the Only Game in Town?

Products Liability as Enterprise Liability

Fake News and Defamation

On NPR's All Things Considered, Audie Cornish discussed the recent increase in fake news and possible recourse for it with Derigan Silver, professor of media, First Amendment, and Internet Law at the University of Denver.  NPR's website has the story.

Abbott on AI Tort Liability

Ryan Abbott (Surrey Law/UCLA Med) has posted to SSRN Allocating Liability for Computer-Generated Torts.  The abstract provides:

Artificial intelligence is part of our daily lives. Whether working as taxi drivers, financial analysts, or police, computers are taking over a growing number of tasks once performed by people. As this Artificial intelligence is part of our daily lives. Whether working as taxi drivers, financial analysts, or police, computers are taking over a growing number of tasks once performed by people. As this occurs, computers will also cause the injuries inevitably associated with these activities. Accidents happen, and now computer-generated accidents happen. The recent fatality caused by Tesla’s autonomous driving software is just one example in a long series of “computer-generated torts.”

Yet hysteria over such injuries is misplaced. In fact, computers are, or at least have the potential to be, substantially safer than people. Self-driving cars will cause accidents, but they will cause fewer accidents than human drivers. Because automation will result in substantial safety benefits, tort law should encourage its adoption as a means of accident prevention.

Under current legal frameworks, manufacturers of computer tortfeasors are likely strictly responsible for their harms. This article argues that where a manufacturer can show that an autonomous computer is safer than a reasonable person, the manufacturer should be liable in negligence rather than strict liability. This would essentially treat a computer tortfeasor as a person rather than a product. It would create a powerful incentive to automate when it would reduce accidents, and it would continue to reward manufactures for improving safety.

In fact, principles of harm avoidance suggest that once computers become safer than people that human tortfeasors should no longer be judged against the standard of the hypothetical reasonable person that has been employed for hundreds of years. Rather, individuals should be compared to computers. To appropriate the immortal words of Justice Holmes, we are all “hasty and awkward” by comparison.

(Via Solum/LTB)

Senate Bill Introduced Limiting Racial and Gender Discrimination in Damages

A bill was introduced in the Senate yesterday by Senators Booker and Gillibrand seeking to limit the consideration of race and gender in computing damage awards.  The bill will have bipartisan sponsors in the House of Representatives.  Ohio State's Martha Chamallas has been heavily involved in the legislation.  The Washington Post has details.

More on Products Liability as a Capstone Course

This summer I taught Products Liability, and I mused that it was a terrific capstone course.  I received more evidence of this yesterday.  One of the students in that course is graduating early this month.  In  a reception for our December graduates, unprompted by me, he told me that Products was a great course to take right before preparing for the bar exam.  He cited the review of tort and contract principles.  

CA: Will the California Supreme Court Reject "Innovator Liability"?

The California Supreme Court is reviewing a case by one of the courts of appeal that adopted "innovator liability" in products cases, the doctrine imposing liability on brand name manufacturers for injuries caused by their generic versions.  Most jurisdictions have rejected the doctrine.  The Pacific Legal Foundation's Liberty Blog urges rejection of the theory:

As we argue in our brief, that decision has no connection to any conceivable rationale normally employed in tort.  Generally, tort law exists to deter unreasonably dangerous behavior, and to compensate wrongful injuries.  But there can be no deterrence where an injury occurs after the generic manufacturer sells the production rights to someone else, and relinquishes control over how the drug is produced and labeled.  Only those entities that can monitor, label, test, or otherwise control a product have an incentive to make that product safer.  The decision is also unfair, because it imposes never-ending liability for statements that generic manufacturers make.  Not even leaving the market and selling the production rights to someone else will relieve a brand drug company from liability.

JOTWELL Torts: Goldberg on Goudkamp & Murphy on Tort Theory

At JOTWELL, John Goldberg reviews James Goudkamp & John Murphy's The Failure of Universal Theories of Tort Law.