TortsProf Blog

Lawyers Generally Leery of AI to Estimate Damages

Charles Toutant at Law.com has an interesting piece on AI services to estimate damages for plaintiffs' lawyers.  So far, the verdict is that they don't see the value in it.  Here is a sample:

“I wouldn’t do it. I don’t feel comfortable enough delegating my work to anyone other than the attorneys in my office,” said Nicholas Leonardis, a personal injury lawyer at Stathis & Leonardis in Edison, New Jersey. “We’re hired by the clients for our skill and expertise, and that’s what they pay for, and that’s what they’re entitled to. I don’t think the clients hire an AI company. The way I look at it, the clients hire me, the clients want my expertise and they’re going to get it.”

The article (behind a paywall) is here.

The Kingston Coal Ash Workers and the Tennessee Damages Cap

Anila Yoganathan of the Knoxville News Sentinel has been covering the lawsuits filed by workers who cleaned up a coal ash site in eastern Tennessee following a spill in 2008.  Yesterday she published a story about the potential effects of Tennessee's noneconomic damages cap, which generally caps pain and suffering at $750,000.  Her story is here.  

Earlier coverage is here, here, and here.

Engstrom, Hyman & Silver Amicus Brief on Damages

Nora Engstrom, David Hyman & Charles Silver have filed an amicus brief in a Texas case on damages:

The brief addresses two misguided proposals that Petitioners—tort defendants in the trial court below—are pushing in a case currently before the Supreme Court of Texas.  The first proposal is to require Texas courts to consider comparison cases when reviewing the reasonableness of awards of noneconomic damages.  The brief argues that that proposal is unsound conceptually and unworkable empirically, which is why other courts that have tried the approach have quickly abandoned it.  Second, Petitioners insist that noneconomic damages should be limited to a predetermined ratio of economic damages, as is currently the case for compensatory damages and punitive damages.  The brief argues that, in addition to violating the bedrock principle that prevailing tort plaintiffs are to be made whole, this second proposal, by tethering damages for pain and suffering to lost wages, would disproportionately harm certain (low-wage-earning) accident victims, including women, children, and the elderly.  In the brief’s words:  “If Petitioners have their way, Texas’s civil justice system will systematically (but irrationally) discount the pain endured by old persons, young persons, and stay-at-home moms.”  Finally, the brief takes issue with the contention by Petitioners and their supporting amici that noneconomic damage awards in Texas have “skyrocketed.”  For starters, the brief notes that, although the insurance industry amici have proprietary data on which their business models depend, they have offered no evidence to support their empirical claim.  That silence is telling.  Moreover, after compiling and analyzing the best data that is publicly available, the brief reports that it appears that noneconomic damages aren't increasing but are, rather, in sharp decline.  

The brief is here:  Download Law Professor Amici Curiae Brief in Support of Respondents (1)

Spectrum Stabbing Damages Reduced to $1.15 Billion

In late June, a Texas jury found Spectrum liable in the death of one of its customers.  The company employed an internet installer who robbed and stabbed an 83-year-old woman to death.  The jury found the murderer was 10% responsible and Spectrum was 90% responsible.  The jury awarded $375 million in compensatory damages; Spectrum's share was $337.5 million.  In late July, in a second phase of trial, the jury awarded the family $7 billion in punitive damages.  Earlier coverage is here.  

As anticipated, the $7 billion punitive damages award has been reduced by the trial judge.  The plaintiffs' attorneys actually requested the reduction to protect the verdict on appeal.  They requested a ratio of 2:1 and received it.  The total award is now $1.15 billion.  Spectrum states it will appeal.  Dave Simpson at Law360 has the story (behind a paywall; it is also available on Lexis).  

Ford Hit With $1.7 Billion Punitive Damages Verdict in Pickup Truck Rollover Case

A Georgia jury awarded $24 million in compensatory and $1.7 billion in punitive damages to the sons of a couple killed when their Ford pickup truck rolled over.  The roof of the truck collapsed after a tire blowout, killing the couple.  The jury heard evidence of a number of prior similar incidents, but many of those cases have been resolved with confidential settlements.  The jury also heard evidence of Ford's wealth.  Even the plaintiffs' lawyer admits the punitive damages award is likely to be reduced, as it is approximately 70 times the compensatory damages award.  Georgia has a split-recovery system, one of approximately eight, in which the state receives a portion of a punitive damages awards (in this case, 3/4).

Hannah Albarazi at Law 360 has the story, quoting Cathy Sharkey, Ben Zipursky, and me.

The History of Wilkinson v. Downton

The 1897 English case of Wilkinson v. Downton is famous for establishing the equivalent of intentional infliction of emotional distress long before that was a viable cause of action in the United States.  The case involved a pub patron playing an attempted practical joke by telling the pub owner's wife that her husband, who was away at the races, was "smashed up" in an accident involving a horse-drawn vehicle.  The wife experienced traumatic emotional damages.

On the Incorporated Council of Law Reporting for England and Wales (ICLR) Blog, Professor Rachael Mulheron QC (Hon) of Queen Mary University of London Department of Law provides the background history of the case, including what became of the pub.

Thanks to David McFadden for the tip.

Avraham & Yuracko's WaPo Op-ed on Race- and Sex-Based Damage Calculations

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.  

IA: Punies Not Available for Victims of Excessive Force by Law Enforcement Officers

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.

CA: Med Mal Cap Vote in 2022

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.

GA: Non-driver in DUI Accident Potentially Liable for Uncapped Punies

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.

Culhane on COVID-19 Immunity for Businesses

John Culhane, writing at Slate, argues that COVID-19 immunity for businesses is unnecessary.

JOTWELL Torts: Goldberg on Descheemaeker on Compensating Emotional Harm

At JOTWELL, John Goldberg reviews Eric Descheemaker's Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018).

Engstrom & Rabin on CA Barring the Use of Race, Gender, and Ethnicity in Calculating Tort Damages

Recently, I reported that California has banned the use of race, gender, and ethnicity in the calculation of tort damages.  Now Nora Engstrom and Bob Rabin have written this piece for Law.com.

CA: Race, Gender, Ethnicity Not to Be Taken Into Account When Calculating Tort Damages

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.

KS: Supreme Court Strikes Down Non-economic Damages Cap

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.

Punitive Damages for Maritime Personal Injury?

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.

OH: Non-economic Damages Cap Applies to Defamation Cases

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.

WI: Med Mal Cap Challenged as Unconstitutional

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.

IL: Plaintiff Dies the Day Before Verdict, Which is Reduced by $15M

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.

WA: Court Retains No-Emotional-Distress-for-Pets Rule

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.