TortsProf Blog

Virginia's Punitive Damages Cap

Virginia has capped punitive damages at $350,000 since before I practiced there in the late 90s and early 2000s.  Recently, the Fourth Circuit had to apply that damages cap to a case arising out of the August 2017 "Unite the Right" rally in Charlottesville.  The court held that the cap applies to each plaintiff and not each claim and that it applies broadly to all cases:

Sines v. Hill, 106 F.4th 341, 344, 352-354 (4th Cir. 2024) (Virginia law) (holding that the limit applies to each plaintiff and not each claim, regardless of the number of defendants; rejecting, additionally, the plaintiffs’ argument that the limit applies only to “ ‘run-of-the-mill tort claims’ ” and not to hate crimes such as those arising from the August 2017 “Unite the Right” rally of “ ‘white nationalists, white supremacists, and neo-Nazis’ ” in Charlottesville, Virginia).  

Goldberg & Trask on No-Injury and Piggyback Class Actions

Phil Goldberg & Andrew Trask have published No-Injury and Piggyback Class Actions:  When Product-Defect Class Actions Do Not Benefit Consumers.  The abstract provides:

Class counsel are more frequently filing product-based class actions that, whether
successful or not, offer few practical benefits to real consumers or class members.
These no-benefit class actions cause the unnecessary expense of the courts’ time and
resources, and they often fail to provide actual value to class members while still
producing substantial attorneys’ fees. This article explores why strategic vagueness in
plaintiffs’ filings and a lack of vigorous analysis by the courts have allowed no-benefit
class actions to unnecessarily consume court resources. The article concludes by
offering suggestions for how courts can alleviate some of this pressure, primarily by
requiring judges to follow and enforce Federal Rules of Civil Procedure Rule 23(b)(3)
as the rule was written and intended.

Tort Reform in Florida

Recent tort reform in Florida is a major story that I have yet to cover.  In late March, Governor DeSantis signed into law a significant tort reform package that changed Florida law in a number of ways:

• A century-old law in Florida provided for "one-way" attorneys' fees, pursuant to which insurance companies had to pay the attorneys' fees of any policyholder who successfully sued the insurer.  Under the new law, each side will pay their own fees.
• Bad faith claims against insurers were limited, allowing insurers to pay the claim or the lesser end of the policy limits within 90 days.
• In negligence cases, pure comparative fault was replaced by the modified 50% rule.
• The negligence statute of limitations was reduced from 4 to 2 years.
• In premises liability cases, the jury must now consider the fault of a third-party criminal attacker.

There has been a flood of filings as attorneys try to get their clients' cases filed before the changes take effect.  Coverage is here and here.  Thanks to Kelsey Cohen for the tip.

Amicus Brief in NSSF v. Platkin

Scholars of tort law and statutory interpretation filed an amicus brief  in the Third Circuit appeal of NSSF v. Platkin—a case brought by the firearms industry’s trade association against the Attorney General of New Jersey to prevent enforcement of New Jersey’s new firearms nuisance statute. The industry argues that the Protection of Lawful Commerce in Arms Act bars lawsuits under the new law. The legal scholars’ brief argues that New Jersey’s law is precisely the type of state regulation of gun sales contemplated by PLCAA’s predicate exception.  The brief 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.

SLU: Workers' Comp: 50 Years Later

On October 11, from 9-1 CST, Saint Louis University is hosting a conference entitled "Fifty Years After 'Inadequate and Inequitable':  Reflections on State Workmen's Compensation Laws."  Panelists are Jason Bent, Mike Duff, James Gallen, Price Fishback, and Ye Yuan.  The blurb:

In 1970, Congress noted in its prelude to the enactment of the Occupational Safety and Health Act that “serious questions have been raised concerning the fairness and adequacy of present workmen’s compensation laws in the light of the growth of the economy, the changing nature of the labor force, increases in medical knowledge, changes in the hazards associated with various types of employment, new technology creating new risks to health and safety, and increases in the general level of wages and the cost of living.”

In reaction to these developments Congress established a National Commission on State Workmen’s Compensation Laws to “undertake a comprehensive study and evaluation of State workmen’s compensation laws in order to determine if such laws provide an adequate, prompt, and equitable system of compensation.” The Commission formed by President Nixon was tasked with providing a “detailed statement of the findings and conclusions of the Commission, together with such recommendations as it deems advisable” no later than July 31, 1972. That report was made, about fifty years ago. The Commission’s ultimate conclusion was “that State workmen’s compensation laws are in general neither adequate nor equitable.”

The purpose of this conference is to reflect upon the significance of the report as a moment in the legal history of the treatment of workplace injury. To aid in the reflection, we discuss what workers’ compensation is, the justice it attempts to effectuate, what happened leading up to the 1970s, and the system’s uncertain future.

CONTACT:

Falethia Hawthorne
Program Coordinator
William C. Wefel Center for Employment Law
Saint Louis University School of Law
[email protected] 

Engstrom on Medicaid and Personal Injury Litigation

On Monday, the USSC interpreted the federal Medicaid Act as allowing a state, exercising its right of subrogation, to recoup not only past but also future expenses from Medicaid beneficiaries.  Nora Freeman Engstrom and Graham Ambrose discuss the implications of Gallardo v. Marstiller here.

CA: Newsom Signs MICRA Med Mal Cap Increase

Last month, I reported that a compromise had been reached to raise the $250,000 noneconomic damages cap for California med mal claims.  On Monday, Governor Gavin Newsom signed that legislation into law.  The basics of the deal, as reported by Cheryl Miller at Law.com:

The deal will raise California’s current $250,000 limit on noneconomic damages starting in 2023 to $350,000 in incidents where the victim does not die, and to $500,000 in wrongful death incidents. The caps will continue to rise incrementally over the following 10 years to $750,000 and $1 million. After 2033, the award limits will increase by 2% annually.

Melody Gutierrez at the LA Times has the story.

CA: Deal to Raise MICRA Med Mal Damage Cap

A compromise among trial lawyers, medical groups, and lawmakers has been reached that will raise California's medical malpractice caps and avert a November ballot initiative.  In 1975, California passed MICRA, which capped pain and suffering damages in med mal cases at $250,000.  The cap has not been raised since.  In today's money, $250,000 is equivalent to approximately $1.3 million.  According to Cheryl Miller at Law.com:

The deal will raise California’s current $250,000 limit on noneconomic damages starting in 2023 to $350,000 in incidents where the victim does not die, and to $500,000 in wrongful death incidents. The caps will continue to rise incrementally over the following 10 years to $750,000 and $1 million. After 2033, the award limits will increase by 2% annually.

Bravo to all involved!  The story (behind a paywall) is here.

FL: Bill to Allow Parents of Adult Children to Sue for Med Mal Damages Fails to Advance

A bill to end a liability protection for doctors and hospitals in place since 1990 has died in the Florida Senate.  The bill would have allowed the parents of adult children to sue for medical malpractice damages.  Insurance Journal has the story.

No-Fault, Traditional Auto Insurance, and Reform

NPR's Bill Chappell has a story on Michigan providing a $400 refund to Michigan drivers for each vehicle that they own.  Refunds were possible because the legislature instituted reforms last year that saved Michiganders a lot of money on auto insurance.  Michigan is one of approximately a dozen states that retains some form of no-fault auto insurance law.  For years, Michigan has also had the highest auto insurance rates in the nation.  The major reform allowed drivers to choose how much personal injury protection medical coverage they want when they purchase or renew a policy.  

In this post, I don't intend to advocate for no-fault auto insurance.  Jeffrey O'Connell, my torts professor, mentor, and friend, was the co-author of the work that led to no-fault laws.  Despite my respect and affection for him, I don't support passing traditional no-fault laws.  The choice no-fault plans he embraced later in life are appealing, but I am not advocating for those in this post either.  Nor do I necessarily oppose the reform passed in Michigan.  Auto insurance cannot be prohibitively expensive, something Jeffrey himself believed wholeheartedly.  

My point is a more modest one.  Saying Michigan has the highest auto insurance rates in the nation is not an apples-to-apples comparision.  First, everyone injured in a no-fault system receives compensation, regardless of whether they were at fault.  So all Michiganders are protected from injuries in auto accidents.  Second, Michigan is the only state that, until the 2020 reform, required drivers to purchase lifetime medical benefits.  Anyone injured in an auto accident in Michigan would have all of their health care needs provided for the rest of their lives.  The situation is very different in other states.  In both Pennsylvania, where I lived for 18 years, and California, where I live now, someone injured in an auto accident could receive as little as $15,000 from an at-fault driver.  The $15,000 amount is the mandatory minimum amount of liability insurance required for bodily injuries to a single person.  That is not half the cost of a helicopter ride to the hospital.  Technically, the driver is personally liable for all costs above insurance coverage, but it is rare they have the assets for that.  One of the bigger problems with tort law for auto accidents is that smaller claims tend to be overcompensated and larger claims tend to be undercompensated, sometimes dramatically so.  So, although Michiganders paid more for auto insurance, they received a lot more protection. 

Again, I am not arguing the reform was a mistake.  If the costs are too high, it may not be reasonable to require such levels of protection.  (Though, undoubtedly, there will be those who rue the change.)  But if lifetime medical coverage is too high, surely $15,000 is too low.  Those states requiring only $15,000, or even $25,000, of liability insurance per person for physical injuries need to review those laws and consider changing them.  (For an article specific to Pennsylvania, but applicable more broadly, see here.)  You can, and should, protect yourself using UM/UIM and medical insurance, but so many people do not or cannot understand the need to do so.   With auto accident deaths rising again, now is an excellent time to reconsider the minimum auto insurance requirements.

Thanks to Sheila Scheuerman for the tip.

Bill Proposed in Congress to Update Maritime Law

Last Wednesday, legislation was introduced in Congress to update the Limitation of Liability Act of 1851, pursuant to which boat owners can limit their liability to the value of the remains of the vessel.  The proposed legislation, introduced by Rep. Salud Carbajal and Sen. Dianne Feinstein, would mean that owners of small boats could be held legally responsible for maritime accidents regardless of the value of the boat after the incident.  The changes would be applied retroactively to compensate the victims of a 2019 incident off the coast of Ventura County, California.  In that case, 34 people were burned to death in the bunkroom of the Conception, a scuba-diving boat.  The AP's Stefanie Dazio in the Los Angeles Times has the story.

Korean Media Law Amendment

In South Korea, the ruling Democratic Party is on the verge of passing a Media Law Amendment that authorizes punitive damages against the media of up to five times compensatory damages.  The standard for punitive damages would be intent or gross negligence.  The law is presented as a way to curtail "fake news," and the government defends the law on the basis that US law is even harsher regarding punitive damages toward the media.  

I don't know what the government has in mind, but, regardless, US law does not support the Media Law Amendment.  The USSC has interpreted the Due Process Clause of the US Constitution as establishing a flexible cap on punitive damages in the form of a single-digit multiplier of compensatory damages (no more than nine times).  Sitting as a common law court in a maritime case, however, the Court referred to a 1:1 ratio as a "fair upper limit."  Moreover, the Due Process limit is said to protect all types of defendants from a system of punitive damages that is widespread in the US.  As I understand Korean law, punitive damages are not generally available; they must be authorized by particular statutes.  Thus far, only a handful of specific statutory allowances of punitive damages have been enacted.  So, in this case, the authorization of punitive damages would be targeting the media specifically.  Additionally, I understand that Korean punitive damages have traditionally been set at a 3:1, not a 5:1, ratio.    

The bigger problem with arguing that US law is harsher against media defendants than the proposed Korean law is that it doesn't take the free-speech protections of the US Constitution into account, particularly the standard needed to prove liability for damages in defamation cases.  The Korean Media Law Amendment would allow punitive damages based on a standard as low as gross negligence.  Very few US jurisdictions allow punitive damages in any kind of case based on gross negligence; the vast majority require a higher standard.  Under US law, for certain types of plaintiffs in a defamation case, gross negligence would not be sufficient to recover even compensatory damages.  Interestingly, in a recent statement, Democratic Party leader Song Young-gil cited Gertz v. Welch as support for the Media Law Amendment, stating the US imposes "tremendously heavy punitive damages."  On remand, the plaintiff in Gertz was awarded $100,000 in compensatory damages and $300,000 in punitive damages.  Gertz, however, is widely understood as requiring "actual malice"--knowledge of falsity or reckless disregard for the truth--prior to receiving punitive damages, at least from a media defendant on matters of public concern.  The $300,000 award was made after the plaintiff proved the "actual malice" standard.  Gross negligence would not have been sufficient.  

Whatever the merits of the Media Law Amendment, and I'm dubious about them, US law does not support its passage.

Kyung-Won Lee of the Seoul Broadcasting System has the story (in Korean). 

Update:  Consideration of the bill has been postponed for a month for further discussion.

Lytton on New York's New Firearms Public Nuisance Statute

Writing in The Regulatory Review, Tim Lytton analyzes New York's recently passed statute on firearms and public nuisance. 

Lytton on Illegal Firearms as Public Nuisance

Tim Lytton has an article at The Conversation regarding New York's new law defining illegal firearms as a public nuisance.  He anticipates a Second Amendment challenge to the law, but even if it survives:

The main impact of these lawsuits is to put pressure on gun manufactures to do more to prevent inventory theft and illegal sales by retailers. Since 2000, the gun industry has operated a program to prevent illegal straw purchases, suggesting manufactures think they may be able to affect how retailers operate. Even still, little is known about whether this program has had any impact on gun violence rates. That’s why no one really knows if forcing gun manufacturers to more closely supervise retailers will work.

Part of the problem is a lack of government funding since the mid-1990s for public health research on alleged links between industry sales practices and gun crimes. Recent funding for this kind of research may clarify the value of regulating illegal gun sales as a public nuisance.

Until then, passing laws to prompt litigation against the gun industry is just a shot in the dark.

Justice Thomas Would Hear Case to Overturn Feres Doctrine

Justice Thomas issued a dissent from cert denial in which he made it clear he believes Feres was a policy judgment by the Court and not based on the Federal Tort Claims Act.  He stated succinctly, "Feres was wrongly decided."  ABA Journal has the story.

FL Enacts COVID-19 Immunity

On Monday, Florida became the most populous state to enact COVID-19 immunity.  The law is similar to those passed in other states.  Among other entities, it covers corporations, hospitals, nursing homes, government entities, schools and churches.  There is an exception for gross negligence or intentional conduct.  Law 360 has the story.

NYC Eliminates Qualified Immunity for Police Officers

Last week, the New York City Council enacted legislation eliminating qualified immunity as a defense for city police officers when sued under the new local statute.  Qualified immunity remains a defense if an officer is sued under federal or state statutes.  CBS News has the story.

PA: Joint and Several Liability Still Applies if Plaintiff Is Not Negligent

In 2011, the Pennsylvania General Assembly altered the common law rule of joint and several liability with the Fair Share Act.  That Act restricted joint and several liability to intentional torts or misrepresentations, the release or threatened release of certain hazardous substances, serving alcohol to a visibly intoxicated patron, and, most importantly, to defendants who were found to be 60% or more responsible for the tortious injuries of the plaintiff.  Last week, the Superior Court ruled that the Fair Share Act does not apply in cases in which the plaintiff is not found to be contributorily negligent for her own injuries.  In other words, for wholly innocent plaintiffs, joint and several liability remains in place.  (The opinion is here:  Download KEITH SPENCER Appellant v CLEVELAND JOHNSON TINA GAINER JOHNSON AND PHILADELPHIA)  This argument was put forth by Widener alums Scott Cooper & Lara Antonuk is their contribution to Widener's Mass Tort Litigation symposium in 2013.  (The article, check particularly footnote 143, is here:  Download Cooper-antonuk---ready-for-pub.-6.18.14)

NM: Med Mal Noneconomic Damages Cap Is Constitutional

Yesterday, the New Mexico Supreme Court unanimously ruled that the state's $600,000 noneconomic damages cap in med mal cases does not violate the constitutional right to a jury trial.  The Los Alamos Daily Post has the story.