TortsProf Blog

Law 360: "4 Tort Reform Challenges to Watch"

At Law 360, Y. Peter Kang discusses 4 constitutional challenges to state tort reforms:  1.  KY's med mal review panels; 2. ND's med mal damages cap, struck down by a state trial judge as unconstitutional; 3. the Oklahoma Supreme Court's review of a $350,000 cap on noneconomic damages; and 4. the Wisconsin Supreme Court's review of an appellate court holding that its noneconomic damages cap is unconstitutional.

NY: Gov. Cuomo to Sign Amended Lavern's Law

The state legislature and Governor Cuomo have reached a deal on Lavern's Law, the only bill remaining from the last session on which Cuomo has taken no action.  The Daily News reports:

Gov. Cuomo and state legislative leaders have struck a deal for the medical malpractice bill known as Lavern’s Law to be signed into law.

Cuomo plans to sign the bill this week, after the Legislature votes to amend the version it passed in June. The bill would start a 2 1/2-year window to bring malpractice cases involving cancer when the patient discovers the error. Currently, the clock starts when the mistake occurs — meaning patients may lose their chance to sue before they even find out there’s been an error.

Under the amended version, people whose statute of limitations ran out in the last 10 months will get a six-month window to sue. The bill the Legislature passed offered a window for cases going back seven years.

The changes also make it more clear that the new rules apply only to cancer, not other illnesses.

The full article is here.

4th Annual Civil Procedure Workshop: Call for Papers

The 4th annual Civil Procedure Workshop will be held at Stanford on November 9-10, 2018.  Confirmed speakers include Judge Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler.  More information, and a call for papers, is available here:  Download Civil Procedure Workshop Call For Papers.2018

2018 AALS Annual Meeting Torts Section Podcast

In case you could not join is in San Diego earlier this month, the podcast from the Torts Section's meeting is here:  

https://soundcloud.com/aals-2/torts-and-compensation-systems/s-qQHGP?in=aals-2/sets/2018-annual-meeting/s-kIL0u

(You will need to log in with your AALS username and password.)

Regulating Risk Through Private Law

Regulating Risk Through Private Law, edited by Matthew Dyson, is now available from Intersentia.  The blurb provides:

Regulating Risk Through Private Law sets out, for nine significant legal systems, an overarching conception of risk in legal theory, particularly of the linked role of risk-taking in generating liability and in liability regulating risk. It examines and explains what risk-based reasoning adds to private law.

Taking tort law as the core case study, the book analyses national variation in risk understanding, liability, culture and regulation and from that, develops a legal framework for understanding and responding to risk. Then, looking beyond tort, the volume examines the contextual and cultural setting of different risks and how different legal systems seek to regulate them.

The volume draws on more than 25 leading scholars of private law and risk from around the world to develop a coherent and systematic study of risk. The legal systems included span the common law and civil law, large and small, codified and uncodified, as well as those with wider and narrower strict liability rules and causation rules: England and Wales, France, Sweden, Italy, Spain, the Netherlands, Chile, South Africa and Brazil.

This is the first multi-handed work on risk to explore what risk-reasoning adds to private law and how best it can be deployed, resisted or simply understood.

Matthew Dyson is an Associate Professor in the Faculty of Law, University of Oxford, and Tutorial Fellow of Corpus Christi College. Previously, he was a Fellow of Trinity College and Jesus College, Cambridge. He is an associate member of 6KBW College Hill Chambers, a Research Fellow of the Utrecht Centre for Accountability and Liability Law and Vice President of the European Society for Comparative Legal History. He is the editor of Unravelling Tort and Crime (2014), Comparing Tort and Crime (2015) and Fifty Years of the Law Commissions (2016).

With contributions by Cristián A. Banfi (University of Chile), Bernardo Bissoto Queiroz de Moraes (University of Sao Paulo), Mia Carlsson (Stockholm University), Nadia Coggiola (University of Turin), Matthew Dyson (University of Oxford), Anton Fagan (University of Cape Town), Duncan Fairgrieve (University of Paris-Dauphine PSL), Richard Fentiman (University of Cambridge), Sandra Friberg (Uppsala University), Bianca Gardella Tedeschi (Università del Piemonte Orientale), María Paz Gatica (University of Chile), Ivo Giesen (Utrecht University), Michele Graziadei (University of Turin), Cyril Holm (Uppsala University), Elbert de Jong (Utrecht University), Marlou Overheul (Utrecht University), Ignacio Maria Poveda Velasco (University of Sao Paulo), Alistair Price (University of Cape Town), Otavio Luiz Rodrigues Junior (University of Sao Paulo), Albert Ruda (University of Girona), María Agnes Salah (University of Chile), Helen Scott (University of Oxford), Sandy Steel (University of Oxford), Jenny Steele (University of York), Simon Taylor (University Paris Diderot), Eduardo Tomasevicius Filho (University of Sao Paulo) and Véronique Wester-Ouisse (Deputy Prosecutor at the Court of Appeal of Rennes).

More information is available here:  Download E-flyer_Regulating Risk Through Private Law

Lewis on the Effect of Personality on Tort Litigation

Richard Lewis has posted to SSRN Humanity in Tort:  Does Personality Affect Personal Injury Litigation?.  The abstract provides:

This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid?

A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal injury. In a demographic analysis, the article identifies typical claimants and the injuries from which they suffer. Claims have been gathered in increasing numbers by law firms in response to market pressures encouraging them to process minor injury cases in bulk. The firms have changed their structure and created ‘settlement mills’ where there may be little scope for individuals to affect the routine processing of small claims. By contrast, in more serious injury cases character and personality are more likely to make a difference. These findings are suggested by the author’s empirical study of the views of lawyers on the operation of the claims system: practitioners who have been interviewed are given voice here. 

The article challenges traditional perspectives of tort where it is often implicit that claims are resolved only in court on the basis of textbook rules on liability and damages. There has been a failure to take account of other factors which may influence both the settlement of claims and the few cases that go to trial. In this wider context the article forms part of a literature revealing that the operation of the tort system in practice differs markedly from that in theory. It calls into question those philosophies of tort liability which fail to consider how claims are actually determined.

Foreign Objects Left in Patients

Leaving a scalpel in a patient is a common fact pattern for res ipsa loquitur, and it is in the news.  Senator Richard Blumenthal (D-CT), of the Senate Committee on Veterans' Affairs, wrote several letters to VA leaders on Tuesday demanding answers for "allegations of appalling medical malpractice."  One memorable case included a surgeon who allegedly admitted leaving a 5-inch scalpel in a patient's abdomen, where it remained for approximately 4 years.  The Hartford Courant has the story, and reports:

A study of 100 health care organizations from 2011-12 found 428 incidents of items mistakenly left inside patients, including 128 sponges, 43 needles, 171 instrument fragments, 77 whole instruments and 9 towels.

Chamallas on Affirmative Consent

Martha Chamallas has posted to SSRN her contribution to the JTL symposium on the Restatement (Third) of Intentional Torts to Persons, The Elephant in the Room:  Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons.  The abstract provides:

In contemporary debates about legal responsibility for sexual misconduct, the status of “affirmative consent” is front and center. Most often associated with the campus rape crisis and the enforcement of Title IX by colleges and universities, affirmative consent places responsibility on individuals who initiate sex to secure the affirmative permission of their partners before engaging in sexual conduct. Going beyond “no means no,” affirmative consent is best captured by the slogan “only yes means yes” and aims to protect those sexual assault victims who react passively or silently in the face of sexual aggression, even though they do not desire to have sex and would not have initiated the sexual activity if they had been given the choice. The criminal law in most states has not yet caught up with these developments and has continued to require either a showing of “force” on the part of the defendant or proof of a verbal objection on the part of the victim.

Given its prominence, one might expect affirmative consent to emerge as a central issue in the revision of the Restatement (Third)’s provisions on consent.

Instead, affirmative consent makes an appearance only briefly in the Restatement's commentary and has not affected the core black letter statements of the law of consent. Although purporting to be neutral, the approach of the Restatement (Third) is incompatible with affirmative consent, both in the Restatement's definitions of actual and apparent consent and in its determination to assign the burden of proof to the plaintiff instead of the defendant.

Because there is no controlling precedent that would prevent the Restatement (Third) from embracing affirmative consent, the Restatement (Third) is free to follow the Title IX model and incorporate affirmative consent into the body of tort law. This article makes the case for adopting affirmative consent in sexual misconduct tort cases, even if the criminal law in any given jurisdiction continues to apply a more defendant-oriented consent rules.

ND: State Judge Rules Med Mal Cap Unconstitutional

In 1995, North Dakota passed a $500,000 cap on non-economic damages in medical malpractice cases.  Recently a state judge refused to apply the cap and reduce a non-economic damages award by $1 million:

[Judge] Feland ruled the 1995 law violates equal protection guaranteed by the state constitution by arbitrarily reducing damages for people who suffer the most severe injuries.

Feland wrote that the law's legislative record offered no explanation for how the $500,000 cap was chosen or how it would accomplish the Legislature's health care reform goals.

"The greater the harm caused by the negligent doctor, the greater the discount," said Tom Conlin, Condon's attorney. "The cap fell hardest on stay-at-home moms, the young and those who couldn't prove large economic loss."

CHI St. Alexius Health said on Tuesday that it's exploring legal options.

U.S. News has the story.

Gifford on the Role of Technology in Changing Tort Law

Don Gifford has posted to SSRN Technological Triggers to Tort Revolutions:  Steam Locomotives, Autonomous Vehicles, and Accident Compensation.  The abstract provides:

Waves of technological change explain the most important transformations of American tort law. In this Article, I begin by examining historical instances of this linkage. Following the Industrial Revolution, for example, machines, no longer humans and animals, powered production. With greater force, locomotives and other machines inflicted far more severe injuries. These dramatic technological changes prompted the replacement of the preexisting strict liability tort standard with the negligence regime. Similarly, later technological changes caused the enactment of workers’ compensation statutes, the implementation of automobile no-fault systems in some states and routinized automobile settlement practices in others that resemble a no-fault system, and the adoption of “strict” products liability. From this history, I derive a model explaining how technological innovation alters (1) the frequency of personal injuries, (2) the severity of such injuries, (3) the difficulty of proving claims, and (4) the new technology’s social utility. These four factors together determine the choice among three liability standards: strict liability, negligence, and no-fault liability with limited damages. I then apply this model to the looming technological revolution in which autonomous vehicles, robots, and other Artificial Intelligence machines will replace human decision-making as well as human force. I conclude that the liability system governing autonomous vehicles is likely to be one similar to the workers’ compensation system in which the victim is relieved of the requirement of proving which party acted tortiously and caused the accident.

AALS Annual Meeting: Torts Section

I hope to see many of you tomorrow at the Torts and Compensation Systems Section's program at the Annual Meeting.  The program is Friday, January 5 from 1:30-3:15.  We will do three things:

1.  Present the William L. Prosser Award:  Mike Rustad will introduce the 2018 winner, Marshall Shapo.

2.  Panel presentations on "The Role of History in Tort Theory":  Speakers are Martha Chamallas, Don Gifford, John Goldberg, and Ted White.  Unfortunately, John Witt is not able to speak.  The panel will take questions from the audience.

3.  Elect the 2018-19 Executive Committee:  The slate is Chair:  Stacey Tovino; Chair-Elect:  Adam Scales; Secretary:  Scott Hershovitz; Treasurer:  Mary Davis; Members:  Tim Lytton and Nora Freeman Engstrom.

Sharkey on Chevron

Cathy Sharkey has posted to SSRN Cutting in on the Chevron Two-Step.  The abstract provides:

This Article aims to address an all-too familiar scenario: a federal agency, under the guise of supposed legal interpretation of a statute, earns automatic judicial deference for what is, in reality, its policy-based interpretation—a scenario that, I argue, is translating into courts' insufficient oversight over agency action. Where an agency effectively uses Chevron Step One legal statutory interpretation arguments to justify its implicitly policy-based interpretation at Step Two, judicial oversight at Step Two is weakened, if not annulled.

This Article advocates incorporation of State Farm into the Chevron framework. Put simply, State Farm’s demand for “reasoned decision-making” from agencies mitigates Chevron's mandate for deference to agency statutory interpretations. The Chevron-State Farm model highlights the agency expertise rationale that infuses the implied delegation rationale for agency deference, particularly at Step Two. As a practical matter, the model expands the domain of State Farm, widening the scope of agency rules subject to hard look review, and, further, aims to increase the stringency of re-view. Perhaps most significantly, where the Chevron interpretive issue arises between private parties when the agency is not a party and litigants accordingly have no recourse to direct State Farm challenge to the rulemaking, the model would open the door to an indirect State Farm challenge.

The Article explores how this new doctrinal approach, one of hard look review at Chevron Step Two, will affect courts and, most of all, affect agency decisionmaking. Moreover, this particular form of Chevron retreat—widening the space for the application of State Farm—is fundamentally distinct from, and preferable to, setting Chevron aside. Whereas knocking down the Chevron pillar deals a blow to over-exuberant regulators and promises to stem the tide of over-regulation of the economy and health and safety, heightened judicial scrutiny of the Chevron-State Farm variety will force the agency’s hand in the context of deregulation as well.

(Via Solum/LTB)

Two on Nuisance by Nolan

Donal Nolan has posted 2 pieces on nuisance to SSRN, both of which are book chapters.  First, 'A Tort Against Land':  Private Nuisance as a Property Tort.  The abstract provides:

The thesis of this chapter is that private nuisance can only properly be understood as a tort which protects rights in land, and that, understood in this way, it is a thoroughly coherent cause of action. I begin by introducing this ‘property tort analysis’ of private nuisance and by providing a definition of the tort. The bulk of the chapter is then devoted to showing that the central doctrines of private nuisance law are consistent with the property tort analysis. In the remainder of the chapter, I look at the relationship between private nuisance and trespass to land, identify some sources of confusion which have served to obscure the underlying coherence of private nuisance and consider the implications of the property tort analysis for the traditional distinction between property and obligations. I finish off by making some more general observations about the value of a rights-based analysis of private law.

Next, Nuisance, Planning and Regulation:  The Limits of Statutory Authority.  The abstract provides:

In this chapter, I examine the defence of statutory authority in the law of private nuisance. I argue that if we let our guard down, the de facto extension of the defence could put at risk the continued vitality of private nuisance as a cause of action. Recent developments in the law of private nuisance have threatened in effect to extend the defence of statutory authority to encompass the defendant’s compliance with regulatory regimes governing his activity, and at least some instances in which planning permission has been granted for the use of land causing the alleged nuisance. I argue that there are fundamental objections to these de facto extensions of statutory authority, and that they are inconsistent with core features or aspects of that defence. The core message of the chapter is summed up by Tony Weir’s characteristically pithy remark that ‘administrators cannot authorise torts’.