Monday, May 3, 2021
Ronen Avraham & Kimberly Yuracko published an important op-ed in The Washington Post late last week entitled "The use of race- and sex-based data to calculate damages is a stain on our legal system." Steve Lubet has more at The Faculty Lounge. In addition to the contribution of Judge Jack Weinstein, mentioned in the op-ed, Martha Chamallas and Jenny Wriggins have done significant work in this area.
Monday, January 4, 2021
Last Thursday, in a case about excessive force by law enforcement officers, the Iowa Supreme Court ruled that there is no vested right to punitive damages and the state legislature may bar them completely, as it did in the Iowa Tort Claims Act. Alina Rizvi has details at Jurist.
Wednesday, July 22, 2020
In 1975, California enacted MICRA, a law which, among other things, capped pain and suffering damages in medical malpractice cases at $250,000. In 2013, there was an unsuccessful ballot initiative to raise the cap to $1.1 million. Proponents of the "Fairness for Injured Patients Act" have collected enough signatures to again attempt to alter the cap, this time in 2022. The initiative would do three things: 1. adjust the cap for inflation, and adjust it annually thereafter; 2. allow judges and juries to exceed the cap in certain cases of catastrophic injury or death; and 3. require the cap be revealed to jurors. Insurance Journal has the story.
Friday, July 10, 2020
The Georgia Supreme Court unanimously ruled that a non-driver in a DUI accident can be an "active" tortfeasor, and, thus, potentially liable for uncapped punitive damages. The allegations in the case involved a drunk man loaning his car to a man he knew to be drunk, devoid of a license, and having a habit of recklessness. The driver then hit and injured someone. Neither of the defendants was represented by counsel and a concurrence asked the legislature to consider whether the decision was the desired law of Georgia. Property Casualty 360 has the story.
Tuesday, May 12, 2020
Monday, November 25, 2019
Thursday, November 14, 2019
Monday, October 28, 2019
California has adopted a statute that prohibits the use of race, gender, and ethnicity in the calculation of lost earnings or impaired earning capacity in tort damages. The crucial language of S.B. 41 is:
Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.
Thanks to Nora Engstrom for the tip.
Monday, June 17, 2019
On Friday, the Kansas Supreme Court declared that state's cap on non-economic damages in personal injury cases unconstitutional as violating a person's right to a jury trial. The 4-2 decision affected a cap put in place in the 1980s. At the time of the appeal, the cap was $250,000, but it has since risen to $325,000. The Washington Post has the story.
Wednesday, April 3, 2019
The Supreme Court is in the process of deciding its second maritime personal injury case of the term. (The first was a ruling on the "bare-metal defense" in asbestos cases.) In The Dutra Group v. Batterton, the Court will determine whether a Jones Act seaman can recover punitive damages in a personal injury suit based on the unseaworthiness of a vessel on which he was working. At SCOTUSblog, Joel Goldstein breaks down the oral argument.
Tuesday, December 18, 2018
Earlier this month, the Supreme Court of Ohio ruled that the statutory cap on non-economic damages applies to compensatory damages awarded in defamation cases. At Legally Speaking Ohio, Marianna Bettman has analysis.
Wednesday, April 18, 2018
In 2011, a Wisconsin woman had all four limbs amputated. A jury determined health care providers were responsible by negligently failing to diagnose an infection and awarded her $25.3M. The non-economic damages portion of the award was approximately $16.5M. WI has a med mal cap on non-economic damages of $750,000. The trial judge ruled the cap was unconstitutional as applied to the plaintiff's case. The intermediate appellate court went further and ruled the cap was unconstitutional. Tomorrow the Wisconsin Supreme Court hears arguments in the case. The Milwaukee Journal Sentinel has the story.
Friday, February 9, 2018
An Illinois appellate court has cut a med mal verdict from $22M to $7M because the plaintiff died the day before the verdict was handed down. Among the reasons cited was that the money for the plaintiff's suffering was no longer relevant. The Peoria Journal Star has details.
Thursday, September 28, 2017
The Washington Supreme Court let stand an appellate court decision rejecting a pet owner's claim to emotional distress damages for witnessing a difficult euthanasia. The American Veterinary Medical Association News has the story.
Thursday, April 6, 2017
Chinese tort law is struggling with when and how to recognize what they refer to as "veneration rights," similar to our emotional distress, but with an increased sensitivity to remedies of rehabilitation of reputation and apology. George Conk has coverage at OTHERWISE.
Friday, December 2, 2016
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.
Friday, October 28, 2016
The Washington Post ran a story this week about using race and gender to calculate damages. (See prior coverage here.) Among others, the story quotes Martha Chamallas and Jenny Wriggins. Here's a sample:
The practice of using race and gender to determine personal injury damages, which dates back at least a century, has produced some striking results.
The case of the male fetus and 6-year-old girl came in 1996, after a collision between a postal truck and a car left the car’s passengers – the girl and her godmother, a pregnant 33-year-old – dead.
In the case, which took place in a federal court in the Southern District of Georgia, both sides agreed the male fetus’s award to be higher than the girl’s, largely because of the difference in how much they were expected to earn over their lifetime, commonly known as “future lost income.” That’s despite testimony that the girl “exhibited a level of intellectual ability and behavior that surpassed that of most other students” and had a college fund in the works. The fetus’s mother had not completed college and the father was unknown, according to court records.
Tuesday, August 23, 2016
Keith Hylton has posted to SSRN Enhanced Damages for Patent Infringement: A Normative Approach. The abstract provides:
In Halo Electronics v. Pulse Electronics the Supreme Court granted greater discretion to lower courts to enhance damages for patent infringement. This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society’s welfare. Patent damages should therefore balance society’s interest in encouraging innovation against the need to regulate infringement incentives. Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them.
Tuesday, August 25, 2015
This is a hot topic. Judge Weinstein issued a ruling in late July and Tony Sebok blogged about the decision at New Private Law. Now, in recent postings to SSRN, Ronen Avraham and Alberto Bernabe take up the topic.
Avraham's piece, Is Race- and Sex-Based Targeting Efficient? A Look at Tort Law's Discriminatory Damage Awards, has the following abstract:
Under traditional law and economics analysis, it is deemed efficient to target individuals and communities based on race and gender when doing so results in the lowest tort liability for a rational actor. This results in the targeting of low income minorities and women - a fact which law and scholars economics would stamp with analytical approval, but are likely embarrassed to admit. Surprisingly, the basis for this targeting is the seemingly neutral use of race- and gender-based statistical tables (for example life expectancy or worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women. First, this paper provides a full account of courts' existing discriminatory practices, identifying both theoretical and actual examples of race and gender targeting. It then challenges the conventional wisdom that the use of race- and gender-based tables are justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how the tables are used in courts to calculate damages for individuals, and in the incentives they create. Under the status-quo, tort law’s remedial damage scheme both perpetuates existing racial and gender inequalities and creates ex-ante incentives for potential tortfeasers to engage in future discriminatory harm (discriminatory targeting) towards women and minorities. The paper then shows that similar discriminatory practices surprisingly and ironically exist in federal law such as the ADA and even Title VII. After discussing the legal and theoretical background, statistical shortcomings, and efficiency concerns associated with the use of race- and gender-based statistical tables, this paper proposes a feasible, low cost, and logical solution to save American courts as well as the law and economics movement from this great embarrassment, and push towards a more efficient, and fair tort law remedial system.
Bernabe's piece, Do Black Lives Matter?: Race as a Measure of Injury in Tort Law, has the following abstract:
Much of the current debate over race relations in the United States revolves around police brutality and legal injustice. However, prior to the events that made the phrase “black lives matter” the signature message of a protest movement against racism in the American justice system, the nation’s media was captivated briefly by another legal question: whether a child’s race should be used as a measure of injury to the child’s parents as part of a torts claim based on the “wrongful birth” of the child. Unfortunately, once the attention turned to the events that prompted the protests and the debate that has developed since, the discussion about whether someone’s racial identity could be used as a measure of injury faded.
Yet, the issues raised by the case are too interesting and important to be relegated to the background of the debate. The case not only offers the opportunity to discuss the issue of using race as an element in a tort law claim, it also poses interesting questions about the extent to which modern reproductive technologies change the way we think about injuries for purposes of tort law.
Obviously, there have been many wrongful birth and wrongful pregnancy cases in the past, but this one is different. Because the mother wanted to have a child and because the child was not born with a disability, the basis of the complaint is that the child’s race should be considered to be an injury to her and that the child’s existence should be considered to be an injury to the mother. If we are ready to recognize a claim in cases where the child is born with a condition that could have been avoided had the defendant not been negligent, should we also recognize a claim if the child turns out to have different physical traits than planned, or expected?
Martha Chamallas and Jenny Wriggins, who have focused on this topic for years, must be smiling.
Tuesday, August 18, 2015