TortsProf Blog

AZ: Governor Favors Federal Med Mal Cap

Arizona Governor Doug Ducey weighed in favorably on a federal med mal cap, calling it an important element of any replacement of the Affordable Care Act.  Voters in Arizona have rejected a state med mal cap three times.  The Arizona Daily Star has the story.

Federal Tort Reform Stalls in the Senate

Bruce Kaufman at Bloomberg BNA has written a piece about tort reforms stalling in the Senate.  The House passed several bills that have not gained traction:

     The bills, two of which still lack Senate sponsors, are:

•  The Fairness in Class Action Litigation Act and Furthering Asbestos Claims Transparency Act ( H.R. 985) affects nearly all facets of class action practice, and mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies. It passed the House March 9 by a 220-201 vote.
•  The Innocent Party Protection Act ( H.R. 725) targets what is known as fraudulent joinder—the improper addition of local defendants to suits in a bid to keep cases in more plaintiff-friendly state courts. It passed the House March 9 by a 224-194 margin.
•  The Lawsuit Abuse Reduction Act ( H.R. 720; S. 237) requires judges to impose mandatory sanctions on attorneys who file “meritless” civil cases in federal courts. It passed the House March 10 by a 230-188 margin.

Several commentators in the piece focus on a surprising amount of conservative opposition to the bills.

Kysar on Tort as Risk Regulation

Douglas Kysar has posted to SSRN The Public Life of Private Law:  Tort Law as a Risk Regulation Mechanism.  The abstract provides:

Against the backdrop of contemporary climate change lawsuits, this article presents preliminary research findings regarding a remarkable and underappreciated moment in the common law pre-history of modern environmental, health, and safety regulation. The findings complicate the conventional academic story about the limited capabilities of tort law and its inevitable displacement by more institutionally robust and sophisticated forms of regulation. Part I offers a brief introduction, followed in Part II by a review of existing academic literature on the pros and cons of utilizing tort law as a regulatory device. As will be seen, the consensus view seems to be that tort law is a clumsy and imperfect mechanism for addressing most environmental, health, and safety risks. Part III argues that the debate over tort law’s potential as a risk regulation mechanism ignores the distinctively private law history and character of that body of law, essentially asking tort to serve a purpose for which it was neither intended nor designed. Part IV then presents a case study of nuisance litigation in which the tort system achieves a remarkable and underappreciated risk regulation effect precisely by focusing narrowly on the traditional task of adjudicating alleged wrongs between private parties. Part V concludes.

WSJ: Tort Suits Decline

Joe Palazzolo has a piece in the WSJ (behind a paywall) about the declining number of tort suits.  According to the National Center for State Courts, less than 2 in 1,000 people filed tort suits in 2015, down from 10 in 1,000 in 1993.  The story cites a number of factors as contributing to the decline, including tort reform, the increasing cost of bringing suits, improved auto safety, and a campaign by business to discredit plaintiffs and their lawyers.  

Popper's Materials on Tort Reform (2nd ed.)

Announcement: Publication of Materials on Tort Reform, 2^nd Edition (2017) by Andrew F. Popper, Bronfman Professor of Law, American University, Washington College of Law

 

Early in July, West Publishing released Materials on Tort Reform, 2^nd Edition (2017) by Andrew F. Popper.  The goal for this edition is very much the same as it was for the First Edition: a supplemental text for torts classes that provides essays, articles, cases, and other materials allowing for consideration of all sides of the tort reform debate.  In the quest to cut the Gordian knot of tort reform, the hope is to provide all points of view in an accessible and compelling manner. 

While tort law has not changed dramatically since this book was first published, the tort reform debate has shifted. In the period preceding the first edition, tort reform was a battle over substantive tort law, joint and several liability, admissibility of certain evidence—in other words, issues pertaining directly to accountability and liability.  Typical tort reform proposals involved limitations on non-economic loss, standards for punitive damages, changes in the definition of design defect, the government standards and state of the art defense, and more.

For the last seven years, while the above topics remain in play, focus has broadened to include fundamental procedural mechanisms that affect, enhance, or limit access to courts. In addition, there has been an undeniable push to move tort cases away from state courts and into federal court.  Broadly speaking, those fighting for these changes contend that tort law, as currently practiced, produces uncertain and unfair results.

Those opposing these changes assert that injured people are entitled to access to justice in their own states, before judges from their own states, with basic decisions made by a jury of their peers at a local level, i.e., federalism. Broadly, they assert that this is a struggle to preserve the rights of injured consumers to a fair and just legal system. What is at risk, they contend, is a level playing field where damages imposed on those who produce dangerous products or provide inappropriate professional services are sufficient to make whole those harmed and deter others from similar misconduct.

Both positions have multiple glimmers of legitimacy, a fact that seems obvious to all except those involved in the fight.

Through commentary, essays on both sides of the battle, articles, interest group papers, and cases, this text is designed to help students comprehend this 40-year struggle. Does the tort system yield inefficient and counter-productive results (e.g., a less competitive market and higher prices), or is it that prized legal regime its supporters contend, preserving fragile rights of injured consumers? 

Robinette & Graham on Prosser's Decanal Letters

Kyle Graham and I have posted to SSRN The Prosser Letters:  Scholar as Dean.  The abstract provides:

Examining a previously unexplored trove of letters, this article sheds new light on the thinking and work of William L. Prosser, the past century’s leading torts scholar. In these letters to family written while dean of the University of California, Berkeley School of Law, Prosser candidly describes his approach to scholarship; the development of his casebook, the second edition of Prosser on Torts, and some of his most well-known and influential articles. Moreover, Prosser provides his often-cynical impressions of the legal process; his views of his peers at Berkeley and at other institutions; and his work as dean. The letters also demonstrate some of Prosser’s limitations, including his craving for attention, a sometimes petty personality, and racial and ethnic biases. In all, the letters capture a scholar at the zenith of professional accomplishment in his field, who nevertheless showed signs of the insecurity that would later trigger his resignation from the Berkeley deanship and retreat from the forefront of torts scholarship.

Two by Lens

Jill Lens has posted two pieces to SSRN.  First, An Undetectable Constitutional Violation; the abstract provides;

In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant’s harming nonparties. The jury can consider that evidence when determining the level of defendant’s reprehensibility, but punishment for causing that nonparty harm would violate the defendant’s constitutional rights.

Ten years later, this Article is the first to examine lower courts’ attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin to try to apply Philip Morris’s reprehensibility-punishment distinction. The Article then both criticizes the protection most lower courts have used—vague limiting instructions—and suggests alternative protections. A new rule governing the admissibility of nonparty harm should be used because of the constitutional implications of the admission of the evidence. Courts should also include explanations within their limiting instructions and aggressively review awards for possible Philip Morris violations despite the use of limiting instructions.

Second, Justice Thomas, Civil Asset Forfeitures, and Punitive Damages; the abstract provides:

For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and now Justice Thomas, the originalist, seems ready to disregard that history.

This Essay is the first to note the seeming inconsistency in Justice Thomas’s applications of originalism to two civil punishments—civil forfeitures and punitive damages. Justice Thomas seems eager to re-evaluate the constitutionality of civil forfeitures despite their long history. Justice Thomas has never, however, publicly entertained the possibility that history does not justify the constitutionality of punitive damages. No obvious reason exists to explain the distinction. 

The Essay also generally examines the similarities between civil forfeitures and punitive damages, and cautions that even with Justice Thomas’s vote, any enthusiasm that the Court will find civil forfeitures unconstitutional should be tempered. The Court—minus Justice Thomas—eventually defined some constitutional limitations for the civil imposition of punitive damages, but little reform resulted until legislatures got involved.

NE: Court Declines to Adopt Loss of Chance

Tom Metier at The Legal Examiner has details.

Judge Weinstein Surpasses 50 Years on the Bench

Citing a story at Law.com, Byron Stier at Mass Tort Profs notes that Judge Jack Weinstein of the Eastern District of New York has been on the bench for over 50 years.  Among other contributions, Judge Weinstein is known for his opinions in mass tort cases.

SD: Med Mal Payouts Down Last Year

There is more data that med mal payouts continue to decline, this time from South Dakota.  Payouts in South Dakota for 2016 amounted to $1.8M statewide (for 12 cases), less than half the amount of payouts from 2015.  With the small number of cases, such a one-year decline might not mean a lot.  Payouts, however, continue a declining trend dating to 1992.  The Sioux Falls Argus Leader has details.

Central States Law Schools Association 2017 Scholarship Conference

Registration is now open for the Central States Law Schools Association 2017 Scholarship Conference, which will be held on Friday, October 6 and Saturday, October 7 at Southern Illinois University School of Law in Carbondale, Illinois. We invite law faculty from across the country to submit proposals to present papers or works in progress.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Please click here to register. The deadline for registration is September 2, 2017.  

Hotel rooms are now available for pre-booking.  The conference hotel is the Holiday Inn Conference Center in Carbondale.  To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate ($109/night) or book online and use block code SOL.  SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events.  Other hotel options (without shuttle service) are listed on our website.  Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2017 Annual Conference please subscribe to our blog.

JOTWELL Torts: Bublick on Avraham & Yuracko on Race, Gender, and Tort Damages

At JOTWELL, Ellie Bublick reviews Ronen Avraham & Kimberly Yuracko's Torts and Discrimination.

KY: Suit Challenges Constitutionality of Med Mal Panels

A Kentucky woman has filed a lawsuit alleging that the medical malpractice panels put in place earlier this year and effective June 29th are unconstitutional:

The 38-page suit claims the law “discriminates against a class of litigants who, based on nothing more than legislative whim, must delay any judicial remedy while other litigants can pursue their rights in court immediately.” It asks the court to “preliminarily and permanently” stop the state from enforcing the new law and to award the plaintiffs unspecified “reasonable costs.”

The lawsuit said at least seven states have removed medical review panels and five others have found them unconstitutional.

Jack Brammer of the Lexington Herald Leader has the story.

McPeak on Ridesharing and Tort Law

Agnieszka McPeak has posted to SSRN Regulating Ridesharing Through Tort Law.  The abstract provides:

As the sharing economy digs its heels in to the American mainstream, it turns the existing regulatory structure on its head. But the law needs to both facilitate innovation while balancing countervailing concerns like safety and cost allocation. While finding the best way to regulate ridesharing platforms is important, tort law plays a crucial, complementary role as well. On the regulation side, regulators need to craft meaningful rules that promote fairness across the industry – to both sharing economy actors and traditional enterprises. But comprehensive federal regulation under the new Trump administration seems like an unlikely solution. And local regulators run the risk of unnecessarily burdening the sharing economy through barriers to entry or other anti-competitive or onerous regulatory schemes.

Tort law is thus a critical legal tool, and the main focus of this article. While regulations provide prospective limits that may stifle innovation, tort law, on the other hand, addresses retrospective harms and deters future bad conduct. Allowing tort law to provide solutions may be key to preventing over-regulation while still promoting fairness. Thus, while propositions to fix the regulatory piece of the puzzle certainly have merit, tort law is also an important aspect to consider.

This article builds off of longstanding cases dealing with taxi or other transportation services and concludes that tort law is already able to handle the seemingly unique liability concerns arising from ridesharing platforms. In particular, it focuses on vicarious liability doctrines, like joint enterprise liability, as the means for achieving important regulatory goals through the tort system. By using tort law to address some of the concerns surrounding the sharing economy, important objectives can be achieved without risking over-regulation.

WI: Intermediate Appellate Court Strikes Down $750K Med Mal Cap on Non-economic Damages

In a decision sure to reach the state's highest court, Wisconsin's $750K med mal cap on non-economic damages was ruled unconstitutional by an appeals court today.  The gist:

A Milwaukee County judge sided with the [plaintiffs], finding the cap was unconstitutional as applied in their case. The 1st District Court of Appeals went further Wednesday, ruling the cap is unconstitutional on its face. The court found the cap allows full awards for less severely injured patients but results in reduced awards for the catastrophically injured, amounting to an equal protection violation.

The court went on to say the cap doesn't achieve any of the Legislature's stated goals in adopting it.

Lawmakers included language with the cap that said it was designed to encourage doctors to practice in Wisconsin, contain health care costs by discouraging "defensive medicine" and providing certainty in damage awards as well as protect the solvency of the state compensation fund.

The number of doctors participating in the fund has grown every year and there's no data indicating a cap has any effect on physician retention anywhere, the court said. Doctors don't face any personal liability thanks to the state fund, which would appear to eliminate the need for defensive medicine. As for the fund's solvency, claims against it have decreased since 2005 and as of 2014 the fund's assets stood at about $1.2 billion, the court said.

"We are left with literally no rational factual basis in the record before us which supports the legislature's determination that the $750,000 limitation on noneconomic damages is necessary or appropriate to promote any of the stated legislative objectives," the court's opinion said.

Todd Richmond, of the AP, filed this story. 

KY: Republican Legislator on the Failure of Med Mal Panels

Chad McCoy, a Republican state House member and husband of a physician, explains in this article why med mal panels are a bad idea.  Like me, he prefers a certificate of merit program.  Here's a sample:

“If the panel tells me there’s no negligence, I’m still going to court,” McCoy said, if he has done his homework and thinks there’s a legitimate claim.

“All it does is delay it,” he said. “When you look at Indiana, which has almost the same law, the delays are horrible. It delays cases, on average, about three years.”

Kentucky’s constitution says there can be no “unreasonable delay” in a court case.

The statute also makes cases more expensive because the insurance companies have to hire attorneys to make their arguments before the review panels whether they go to court or not, he said.

The people on the panel don’t make any money. The lawyer who chairs it gets paid in a day about what he could bill for an hour if he were working other cases, and the doctors don’t get paid at all. They’re conscripted.

“The intention is great. Let’s get rid of frivolous lawsuits. Let’s make justice efficient. I’m for all of those things. It’s just unfortunate that this is not the best way to go about it,” McCoy said.

In fact, it may actually result in more, not fewer, frivolous lawsuits, he said.

Currently, there aren’t that many of them in Kentucky despite the all the TV ads for ambulance chasers. That’s because it costs so much to take those cases. The plaintiff’s attorney has to decide if he’ll earn enough to pay the tens of thousands of dollars it costs to get a doctor to testify as an expert witness. In most cases, it isn’t worth it.

“I turn away, on a daily basis, probably four or five medical malpractice cases, not because they didn’t show a mistake, but because the damages weren’t high enough to even get past our fixed costs,” he said.

Now that the new law is in place, however, he and his partner have a couple of cases they intend to file with the cabinet because it won’t cost them anything.

McCoy got out a 2015 edition of the “Kentucky Trial Court Review,” a compendium of court cases, to show that the number of medical malpractice cases has declined steadily since 1998, and most cases don’t result in awards.

“Look at how the number of cases has plummeted over the years,” he said. “It’s almost like this is a solution in search of a problem.”