TortsProf Blog

MO: Joinder and J&J

     Earlier this month, I reported that tort reform bills had been filed again in Missouri to alter liberal joinder rules in that state.  In the meantime, the Missouri Supreme Court ruled that allowing a non-resident to participate in joined cases was a violation of state law prohibiting the use of joinder to allow courts to hear cases they otherwise would not be able to.  The ruling may eliminate or reduce the pressure to pass legislation.  One company that may be particularly affected is J&J, a New Jersey-based company defending cases that talc included in its baby powder causes cancer.  In a December report, Reuters stated that J&J knew that talc in its baby powder tested positive for asbestos from the 1970s to the early 2000s.  J&J is facing about 13,000 cases over the issue, most of which have been consolidated in federal court in New Jersey.  The Missouri Supreme Court's ruling is potentially good news for J&J:

The St. Louis court has been a venue for more talc trials and has seen larger verdicts than any other jurisdiction. Outside of St. Louis, the only other significant talc verdicts against J&J to date have come in lawsuits filed by individual plaintiffs in New Jersey and California, where the company is currently facing jury verdicts totalling $142 million.

Tina Bellon at the Insurance Journal has the story.

CO: Planned Parenthood Mass Shooting Premises Liability Case Will Go to Jury

In 2015, Robert Dear--armed with multiple semiautomatic rifles, a shotgun, and explosives--shot several people in the parking lot of an abortion clinic and then shot through the clinic's windows, wounding several more.  A gun battle with police ensued in which one officer was killed and five were injured.  In all, 3 people were killed and 9 wounded.  Planned Parenthood of the Rocky Mountains (PPRM) was sued for negligence; the trial court granted summary judgment to PPRM.  Last week, the Colorado Court of Appeals reversed the trial court.  The appeals court found the plaintiffs raised genuine issues of material fact that PPRM knew of reasonable security measures that could have prevented the damages, and that PPRM was aware of threats against its premises.  The case will go to a jury.  The case is Wagner v. Planned Parenthood , Colo. Ct. App., No. 17CA2304.  Thanks to Susan Raeker-Jordan for the tip.

CFP: Obligations X: Private Law Inside and Out

The Tenth Biennial Conference on the Law of Obligations will take place at Harvard Law School from July 14-17, 2020.  It is co-hosted by Harvard Law School and Melbourne Law School, and will be co-convened by John Goldberg, Andrew Robertson, and Henry Smith.  The conference will focus on internalist and externalist views of private law.  Anyone wishing to contribute a paper should submit a title and abstract of no more than 500 words by August 15, 2019 to [email protected].  Those proposing papers will be notified by October 1, 2019 if the paper has been accepted.  A flyer is here:  Download Call for papers

Vandall on Strict Products Liability Versus Negligence in Pennsylvania

Frank Vandall has posted to SSRN Tincher Unmasked.  The abstract provides:

Over 76 years ago, Justice Traynor of the California Supreme Court called for the adoption of strict liability for products liability cases and for the rejection of negligence in such cases. The Supreme Court of Pennsylvania recently agreed in Tincher v. Omega Flex, Inc. Strict liability leads to corporate liability and this results in increased payments to victims and slightly lower profits. Corporations responded to strict liability with a firm embrace of the negligence cause of action, which puts both parties on an equal footing. This results in corporations winning more cases. The PLAC (an association of corporations that file amici briefs defending corporations) argued for negligence in Tincher.

In this paper I argue in favor of strict liability and support the Pennsylvania Supreme Court’s decision in Tincher.

JOTWELL Torts: Wriggins on Avraham & Yuracko on Race-Based Damages

At JOTWELL, Jenny Wriggins reviews Ronen Avraham & Kimberly Yuracko's Valuing Black Lives:  A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages.

PA: Med Mal Venue Decision Delayed

Two weeks ago, I reported that the Pennsylvania Supreme Court was considering an alteration of venue rules for medical malpractice cases.  In the early 2000's, the court restricted venue to the place of the wrong to prevent plaintiffs from venue-shopping.  The court is considering a removal of this restriction, which is not in place for other types of cases.  The court has now agreed to delay action until the issue can be studied by the Legislative Budget and Finance Committee; the report is due by January 1, 2020.  Pennlive has details.

Abraham on Insurance Policy Interpretation

Ken Abraham has posted to SSRN Plain Meaning, Extrinsic Evidence, and Ambiguity:  Myth and Reality in Insurance Policy Interpretation.  The abstract provides:

Insurance coverage disputes are mostly about the correct interpretation of an insurance policy provision. But three myths confuse and confound thinking about the interpretation of insurance policies. The first myth is that an unambiguous insurance policy provision -- a provision with a “plain” meaning -- carries that meaning on its face. The second myth is that, if a policy provision has a plain meaning, then under the plain-meaning “rule,” sources of meaning outside the four corners of the insurance policy -- sources “extrinsic” to the policy -- are not admissible to aid in interpreting the provision. The third myth is that ambiguous policy provisions are necessarily construed against the drafter, which in insurance is almost always the insurer. In reality, all three myths seriously oversimplify how interpretation takes place. The problem, however, is not that, in acting in ways that are inconsistent with the simplifying myths, the courts are undermining desirable rules by quietly following other, undesirable rules. On the contrary, we do not need to change the rules or practices that govern insurance policy interpretation. Rather, we need more clarity and a deeper understanding of the sophisticated, complex rules and practices that are actually in force and are actually applied in practice. This Article aims to provide both.

Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education

Duquesne University School of Law is hosting a two-day conference on artificial intelligence on April 26 & 27, 2019.  There are a number of great presentations (including one by Dionne Anthon, Anna Hemingway, and Amanda Sholtis of Widener Commonwealth).  Details are available here:  Download Duquesne AI Conference Announcement

AR: Proposed Constitutional Amendment to Allow Damages Limits

After a multi-year saga in which ballot initiatives to amend the state constitution were struck down, new bills have been filed in Arkansas.  These bills, like prior ones, would amend the state constitution to allow caps on non-economic and punitive damages.  Unlike prior bills, control over procedure in state courts is not shifted to the legislature.  KAIT8 has details.

CFP: 5th Annual Civil Procedure Workshop in Austin, Texas

The workshop is October 25 & 26, 2019.  If you wish to participate, send a two-page abstract to Bob Bone ([email protected]) by March 15, 2019.  More details are here:  Download Civil Procedure Workshop 2019

Silver, Hyman & Black on the 2003 Texas Med Mal Reforms

Charles Silver, David Hyman, and Bernard Black have posted to SSRN Fictions and Facts:  Medical Malpractice Litigation, Physician Supply, and Health Care Spending in Texas Before and After HB 4.  The abstract provides:

This article, written for a symposium issue of the Texas Tech Law Review, summarizes our research on the impact of Texas’ 2003 medical malpractice (“med mal”) reform. Our central findings include:

(1) there were no major changes in the frequency of med mal claims, payout per claim, total payouts, defense costs, or jury verdicts that can explain the spike in premiums for med mal liability insurance that occurred in Texas in the years before the 2003 reforms;

(2) Texas’ supply of direct patient care physicians grew steadily, at similar rates, in both the pre- and post-reform periods, despite politician’s claims that physicians fled Texas before reform and flocked back thereafter;

(3) although the damage caps adopted in Texas and other states greatly reduced the volume of malpractice litigation and payouts to patients, neither in Texas nor in other states have damage caps moderated the growth of health care spending;

(4) the savings in liability costs generated by the Texas reforms were shared between physicians and their insurers, with the former paying lower premiums and the latter collecting more premium dollars relative to dollars paid out on claims; and

(5) there is evidence that when liability rules are relaxed, hospital safety records gradually deteriorate.

MS: Premises Liability Reform Bills

Premises liability reform bills have been introduced in the Mississippi House and Senate.  In Mississippi, if a plaintiff sues for the attack of a third party on defendant's premises, the jury cannot assign a portion of fault to the third-party attacker.  These bills would allow such apportionment.  The bills would make additional changes:

Most importantly, the bills say a property owner is exempt from a lawsuit unless someone can prove they “affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party.” A woman who sues after being attacked in a dark parking lot without security would have to prove that the business knew about the potential harm and let it happen.

They also exempt property owners from liability even if they knew about the violent nature of the third party, and doesn’t allow a plaintiff to establish that there was an atmosphere of violence at a location unless there was similar violent conduct that resulted in three felony convictions on the property within the three prior years. So a nightclub where the police are called to break up fights but people aren’t charged and convicted of felonies could be exempt, for example, if someone was hurt there later.

The Mississippi Business Journal has the story.

MO: Joinder Tort Reform Bill Filed Again

For the past several years, tort reform advocates in Missouri have filed bills to restrict mass tort filings.  One of those bills has been filed again.  The Houston Herald explains:

Now a Senate bill, sponsored by Sen. Ed Emery, R-Lamar, once again seeks to change what are known as “joinder” rules in Missouri.

Currently, someone can join someone else’s lawsuit over a tort — or harm — as long as they are suing over the same facts, about the same product or service and out of the same series of transactions. Joint cases can be tried in any Missouri court as long as one of the plaintiffs has standing to sue in that court — meaning that they live there, that the incident occurred there or that the company is located there.

If Senate Bill 7 were to pass, chances for plaintiffs to join cases would shrink. Most cases could only be joined and tried in a court where all plaintiffs are allowed to sue.

Courts in St. Louis are especially exploited due to plaintiff-friendly juries.  This dispute has shades of the medical malpractice venue controversy in Pennsylvania, in which tort reform advocates attempt to keep med mal cases out of Philadelphia.

The full story is here.

Database of State Tort Law Reforms

Ronen Avraham has posted to SSRN Database of State Tort Law Reforms (6.1).  The abstract provides:

This manuscript of the DSTLR (6th) updates the DSTLR (5th) and contains the most detailed, complete and comprehensive legal dataset of the most prevalent tort reforms in the United States between 1980 and 2018. The DSTLR has been downloaded more than 2700 times and has become the standard tool in empirical research of tort reform. The dataset records state laws in all fifty states and the District of Columbia over the last several decades. For each reform we record the effective date, a short description of the reform, whether or not the jury is allowed to know about the reform, whether the reform was upheld or struck down by the states’ courts, as well as whether it was amended by the state legislator. Scholarship studying the empirical effects of tort reforms relies on various datasets, (tort reforms datasets and other legal compilations). Some of the datasets are created and published independently and some of them are created ad-hoc by the researchers. The usefulness of these datasets frequently suffers from various defects. They are often incompatible and do not accurately record judicial invalidation of laws. Additionally, they frequently lack reforms adopted before 1986, amendments adopted after 1986, court-based reforms, and effective dates of legislation. It is possible that some of the persisting variation across empirical studies about the effects of tort reforms might be due to the variations in legal datasets used by the studies. This dataset builds upon and improves existing data sources. It does so through a careful review of original legislation and case law to determine the exact text and effective dates. The fifth draft corrects errors that were found in the fourth draft, focuses only on the most prevalent reforms, and standardizes the descriptions of the reforms. A link to an Excel file which codes ten reforms found in DSTLR (6th) can be found here: http://www.utexas.edu/law/faculty/ravraham/dstlr.html.
It is hoped that creating one “canonized” dataset will increase our understanding of tort reform’s impacts on our lives..

Zabinski & Black: Med Mal Caps Diminish Deterrent Effect

Zenon Zabinski & Bernard Black have posted to SSRN The Deterrent Effect of Tort Law:  Evidence from Medical Malpractice Reform.  The abstract provides:

We examine whether caps on non-economic damages in medical malpractice cases affect in-hospital patient safety. We use Patient Safety Indicators (PSIs) — measures of adverse events — as proxies for safety. In difference-in-differences (DiD) analyses of five states that adopt caps during 2003-2005, we find that patient safety gradually worsens after cap adoption, relative to control states. Standard DiD inference can be unreliable with a small number of treated units. We therefore develop a randomization inference-based test for DiD statistical inference with few treated units but multiple, potentially correlated outcomes, and confirm statistical strength with this nonparametric approach.

PA: Med Mal Reform on Venue?

Yesterday's The Patriot-News (Harrisburg) featured a front-page article by David Wenner entitled "Is the deck stacked against patients?".  In 2002, during the middle of an alleged crisis in malpractice, the legislature passed a law that, among other things, added a certificate of merit requirement and restricted venue to the place of the alleged malpractice. The latter was largely aimed at keeping cases out of Philadelphia, where juries tend to be more liberal on both liability and damages.  The Pennsylvania Supreme Court adopted the venue restriction into the rules of civil procedure, fixing a constitutional problem with the legislation.  Since the reforms, the number of cases filed in Pennsylvania has been cut nearly in half.  A committee of the Supreme Court is now considering eliminating the rule against venue shopping.  The article contains prominent voices on both sides of the issue debating the merits.