Wednesday, June 22, 2022
Bob Rabin has posted to SSRN The Search for Strategies to Reduce Medical Error. The abstract provides:
This essay is based on a book review of Closing Death’s Door: Legal Innovations to End the Epidemic of Healthcare Harm, by Michael J. Saks and Stephan Landsman. The book examines in precise detail the empirical evidence and policy dimensions of strategies for reducing medical error—both through analysis of data on medical malpractice litigation, and more centrally, through the organizational lens of the provision of medical care in the healthcare system.
Monday, June 20, 2022
Alex Lemann has posted to SSRN The Duty to Warn in the Age of Automation. The abstract provides:
Autonomous vehicles are expected to drive far more safely than humans do, and yet they create novel risks of their own. This Article explores how the risks of autonomous vehicles should be communicated to those who buy and use them.
In low-level automation systems, where drivers are required to monitor their cars’ driving, instructions provide the information drivers need to understand their role and perform it safely. The fatal crashes involving low-level automation that have already occurred show that instructions alone are not sufficient, and that cars must be designed to account for humans’ tendency to lose focus when engaged in “passive vigilance.”
High-level automation, in which the only driver is an algorithm and there is nothing for the human passenger to do, presents a thornier problem. What form disclosure of the risks of highly autonomous vehicles should take depends on what we expect disclosure to accomplish.
One model of disclosure is utilitarian. Here the goal is to nudge people in the direction of better choices, and disclosures are tailored to encourage optimal behavior. Implicitly adopting this framework, scholars who have addressed this issue argue that the risks of autonomous driving should be presented numerically: disclose to consumers a price, like a risk-rated insurance premium, as an indication of how well the autonomous vehicle they are about to buy performs on the roadways.
Another model of disclosure, however, is deontological. Built on ideas like consent and autonomy, this view of disclosure aims to provide people with salient notice of the risks they might choose to encounter, so that they are not subjected to risk involuntarily. This account has deep roots in our legal culture and, I argue, counsels against disclosing the risks of autonomous vehicles solely in the form of a price. Instead or perhaps in addition, customers should be given a qualitative sense of the hazards they face in driverless cars.
Friday, June 17, 2022
Thursday, June 16, 2022
Teneille Brown has posted to SSRN Minding Accidents. The abstract provides:
Tort doctrine states that breach is all about conduct. Unlike in the criminal law, where jurors must engage in an amateur form of mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at how the defendant behaved. But this is false. Foreseeability is at the heart of negligence—appearing as the primary tests for duty, breach, and proximate cause. And yet, we cannot ask whether a defendant should have foreseen a risk without interrogating what he subjectively knew, remembered, perceived, or realized at the time. In fact, the focus on actions in negligence is misleading, because unreasonable actions are not necessary for negligence liability, while a negligent mental state is. Unfortunately, when we assume that foreseeability can be assessed objectively through conduct, this encourages significant hindsight bias. Jurors are left rudderless—free to replace what *could* have been foreseen with what they think *should* have been in retrospect. Further, while the outputs of mental states can be labeled reasonable or unreasonable, the underlying mental states themselves cannot be. There is no such thing as “objectively reasonable memory” or “objectively reasonable perception.” If there were, it would need to be keyed to a population standard of poor performance, as typical adults are lousy at foresight. If we are committed to negligence being based on breach and not being simply a form of wealth redistribution or compensation, we must pay more attention to whether a particular defendant is capable of foresight. This article argues that foresight has been deemed a “vexing morass” and a “malleable standard” precisely because we fail to treat it as an epistemic construct—similar to intent, knowledge, or recklessness. Given the foregoing, I propose a revision to the elements of negligence to recognize foresight as mental state. While relying heavily on the current prima facie elements, I reshuffle them to focus the jury’s attention on the descriptive inquiries and the judge’s attention on the normative ones. In addition to reducing hindsight bias by emphasizing the defendant’s capacity for foresight, my proposal also has the added benefit of better distinguishing the tests for duty, breach and proximate cause, which presently overlap and blur the roles of judge and jury.
Tuesday, June 14, 2022
Tim Lyttton has posted to SSRN Responsive Analysis: Public Health Federalism and Tort Reform in the U.S. Response to COVID-19. The abstract provides:
Tort liability offers a means of incentivizing healthcare facilities and businesses to adopt reasonable measures to prevent the spread of COVID-19. Reliance on tort liability to regulate the risk of disease transmission is consistent with the decentralized approach to public health policy and the aversion to government mandates that have characterized the U.S. pandemic response. However, thirty-six states, via legislation and executive orders, have shielded healthcare facilities and businesses from civil liability for COVID-19 transmission. Tort reform advocates lobbied successfully for these measures by arguing, contrary to the available empirical evidence, that sweeping immunity from civil liability was necessary to prevent a costly flood of litigation.
Monday, June 13, 2022
Mauro Bussani, Tony Sebok, and Marta Infantino have published with OUP Common Law and Civil Law Perspectives on Tort Law. The blurb provides:
The book provides scholars, lawyers and law students with a comparative overview of the law of civil liability for injuries arising outside of contract in five major legal systems in the common law and civil law traditions: England, the United States, France, Germany and Italy. The book analyzes a select number of foundational issues that lie at the core of tort law in all the jurisdictions surveyed, and takes them as points of comparison for appreciating commonalities and differences between the common law and the civil law traditions, as well as within these traditions. The analysis covers the structure and context of tort law architectures, the role of negligence and the continuum between fault and strict liability, rules on recovery for personal injuries, non-economic losses and for pure economic losses, tests and approaches to causation, medical malpractice and products liability regimes. As such, the book provides an updated and enriched framework for understanding the rules, the theories, the styles of reasoning and the tort law cultures across the Atlantic.
Thanks to Richard Wright for the tip.
Friday, June 10, 2022
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.
Wednesday, June 8, 2022
Leslie Kendrick has posted to SSRN The Perils and Promise of Public Nuisance. The abstract provides:
Public nuisance has lived many lives. A centuries-old doctrine defined as “an unreasonable interference with a right common to the general public,” it is currently the backbone of thousands of opioid and climate-change suits across the United States. It was a major force behind the landmark 1998 tobacco settlements and has figured in litigation over issues as diverse as gun sales, lead contamination, water pollution, Confederate monuments, and Covid safety standards. Although this common-law oddity has shaped the face of modern tort law, it is unfamiliar to the public and usually ignored even in law schools. When it is discussed, it often provokes anxiety—about whether it is a tort at all and whether, whatever it is, it might swallow tort law, the regulatory state, and separation of powers as we know it.
This article utilizes the opioid litigation to explore the three most common sets of objections to public nuisance: (1) traditionalist, (2) formalist, and (3) institutional. Public nuisance can seem unusual, even outlandish. At worst, it is a potentially capacious mechanism allowing executive branch actors to employ the judicial process to address legislative and regulatory problems. Nevertheless, its perils are easily overstated and its promise overlooked. I argue that, historically, public nuisance has long addressed problems such as harmful products; doctrinally, it accords better with tort law than commonly recognized; and institutionally, it functions as a response to non-ideal conditions.
Drawing on long-standing tort principles of duties generated by risk creation, I propose a conception of public nuisance that highlights its coherence with familiar aspects of tort and its consistency across past and present. Public nuisance is an object lesson in the common law’s balance of stability and evolution, across time and within varying regulatory contexts.
Monday, June 6, 2022
Cathy Sharkey, Xiaohan Wu, Michael Walsh, and Kenneth Offit have posted to SSRN Regulatory and Medical Aspects of DTC Genetic Testing. The abstract provides:
The recent Food and Drug Administration (FDA) marketing authorizations granted for testing mutations associated with hereditary breast and colon cancer, as well as pharmacogenomic susceptibilities, provide an opportunity to reexamine the medical as well as regulatory underpinnings of direct-to-consumer genetic testing (DTC-GT). In this chapter, we make the case for federal regulation of DTC-GT at two levels: protecting consumers/patients who access particular tests and building an informational environment for genetic testing that supports innovation in the aggregate.
Thursday, June 2, 2022
Wednesday, June 1, 2022
I have been covering a case in the Eastern District of Tennessee brought by workers alleging injuries sustained during the cleanup of a massive coal ash spill in 2008. Today the Tennessee Supreme Court hears arguments about whether the Tennessee Silica Claims Priorities Act, a statute passed in the wake of fraudulent silicosis claims in the early 2000s, applies to coal ash. In a recent post, I wrote:
The Tennessee Supreme Court, meanwhile, is going to decide whether the Tennessee Silica Claims Priorities Act applies to the case. That statute is a reform that includes a 10-year lung cancer latency requirement, a five-year substantial occupational exposure requirement, and various requirements for medical experts providing testimony. If the statute applies, many of the plaintiffs will be dismissed. The issues include whether coal ash qualifies as "mixed dust" for purposes of the statute and whether the statute, not invoked until considerably after the complaints were filed, is an affirmative defense.
Earlier posts on the case are here and here. Anila Yoganathan of the Knoxville News Sentinel, who is providing excellent coverage of the case, has a new piece about today's arguments. The proceeding is on YouTube here. Anila's (post-argument) coverage of it is here.
Tuesday, May 31, 2022
The Geneva Association is pleased to announce a special July 2023 issue of The Geneva Papers on Risk and Insurance--Issues and Practice on "Emerging risks and liability insurance in the time of pandemics". Papers should be no longer than 8,000 words and should be submitted no later than 10 June 2022. For more details, see this flyer: Download CallForpapersJuly2023_Liability
Friday, May 27, 2022
Ken Abraham & Daniel Schwarcz have posted to SSRN The Limits of Regulation by Insurance. The abstract provides:
Insurance is an enormously powerful and beneficial method of spreading risk and compensating for loss. But even insurance has its limits. A new and misleading aspiration for insurance – that it also can and often does substitute for or significantly complement health and safety regulation – is increasingly in vogue. This vision starts from the uncontroversial recognition that insurers typically adopt measures designed to counteract "moral hazard," the tendency of insurance to blunt policyholders’ incentives to take care. But proponents of this vision go on to contend that the risk-reducing potential of insurance is significantly more extensive than is traditionally imagined, because insurers are strategically-positioned to induce their policyholders to embrace precautions, procedures, policies, or training regimens that decrease the incidence of loss. Proponents of this new "regulation thesis" often dramatically summarize these points by describing insurance as a form of private "regulation” or “loss prevention,” attempting to trade on the positive optics of these notions. Enamored with this idea, commentators, activists, and lawmakers have advanced various proposals to mandate the purchase of insurance or otherwise intervene in insurance markets to address a broad range of modern social ills, including police misconduct, gun violence, cyberattacks, and harms caused by artificial intelligence. Building on emerging criticism of this regulation thesis as well as increasing empirical evidence questioning its accuracy, this Article argues that these regulatory aspirations for insurance are over-optimistic. Creating less loss than insurance otherwise might have created is not regulation or loss prevention. Rather, it is damage-control, and that is what insurance devices designed to combat moral hazard almost always involve. Insurers face a daunting set of obstacles to further reducing policyholder risk below what it would be in the absence of insurance. In short, insurance has substantial limits as a solution for the failures of regulation.
Thursday, May 26, 2022
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.
Monday, May 23, 2022
Robert Rhee has posted to SSRN Probabilistic Causation in the Loss of Chance Doctrine: A Comment on Efficiency and Error Mitigation. The abstract provides:
The loss of chance doctrine in tort law solves a recurring problem in the context of medical malpractice in which severely ill patients are misdiagnosed or mistreated. Absent a theory permitting probabilistic recovery, traditional factual causation inquiry always results in the finding of no causation in individual cases. But we know as a matter of practical certainty that negligence adversely affects outcomes in the minority of cases based on probabilities. While the theory is sound, the majority rule of proportional damages, calculated as the product of the full value of physical loss and the percentage reduction in the chance of survival, is demonstrably flawed. It is inefficient in two ways: it does not sufficiently deter negligence, and it does not minimize total error in misallocated payments as between tortfeasor and plaintiffs and among plaintiffs themselves. This article provides a statement of the correct rule, the underlying probability analysis, and a demonstration of the error mitigation analysis. The core problems are two: (1) a conceptualization of the proper reference class; (2) a conceptualization of probabilities as not static, but dynamic with the incorporation of time and new information.
Thursday, May 19, 2022
Recently, I wrote about a case filed by workers alleging their exposure to coal ash during a clean up resulted in numerous health issues. The plaintiffs worked for a contractor hired to clean up a coal ash spill from a power plant owned and operated by the Tennessee Valley Authority (TVA). Plaintiffs filed suit against the contractor and the contractor argued it was entitled to share the immunity of the government agency with which it contracted. The case has been going on for nine years and this was the second trip to the Sixth Circuit over this issue.
Yesterday, the court rejected the claim to derivative immunity (opinion here: Download 6thCircuit_Decision_Opinion (1)). Although most tort immunity issues involving the federal government are focused on the Federal Tort Claims Act, the TVA is explicitly excluded in that statute. TVA is a hybrid government/private entity and the legislation creating it included a sue-and-be-sued clause. The proper immunity analysis to be applied to TVA was recently covered in Thacker v. TVA, 139 S. Ct. 1435 (2019). Based on that analysis, when determining derivative immunity, the two broad questions are: (1) would the TVA have been immune if it were sued directly?; and (2) is the contractor entitled to share the immunity of TVA?. The second question revolves around whether the contractor followed the TVA's instructions, but there is a dispute in this case about how to phrase the standard. The test for TVA's immunity is itself divided into two parts. The first is whether the act in question was commercial or governmental. If it was commercial, there is no immunity. If it was governmental, there is a further issue to be resolved. If TVA is operating in a governmental capacity, the sue-and-be-sued clause is limited by implied exceptions if: (1) the suit is not consistent with a statutory or constitutional scheme; (2) the suit would gravely interfere with the performance of a government function; or (3) for other reasons it was plainly the purpose of Congress to use the sue-and-be-sued clause in a narrow sense (essentially a catch-all).
In this particular case, the court worked through the following analysis. First, would the TVA have been immune if it were sued directly? (Was the act in question--cleaning up a coal ash spill--commercial or governmental? And are these tort suits inconsistent with the Supremacy Clause and CERCLA (the statute under which the clean up proceeded)? Are these torts suits a grave interference with a government function? Second, should the contractor share in the TVA's immunity?
The court found no need to decide whether the clean up was commercial or governmental and no need to decide if the contractor would share the TVA's immunity. It held that even if the clean up was a governmental function, the suits were not inconsistent with the Supremacy Clause or CERCLA and were not a grave interference with a governmental function. As to the consistency with the Supremacy Clause and CERCLA, the court noted that the plaintiffs' theory does not challenge the adequacy of the safety plan drawn up pursuant to CERCLA; the plaintiffs allege that the contractor failed to comply with those terms (a jury in a phase I trial has concluded the contractor did fail to comply with the terms). As to the grave interference issue, the court emphasized the existence of the sue-and-be-sued clause and again noted that the plaintiffs were not challenging the safety plan itself, only the contractor's compliance with it.
Next up is a case in the Tennessee Supreme Court (June 1) on whether the Tennessee Silica Claims Priorities Act applies to these cases and perhaps after that a phase II trial. Anila Yoganathan at the Knoxville News Sentinel has the story.
Tuesday, May 17, 2022
Tomorrow (5/18) is torts day at the ALI's Annual Meeting. Concluding Provisions (Nora Freeman Engstrom and Mike Green, Reporters) is discussed from 3-4:30 Eastern. Remedies (Richard Hasen and Doug Laycock, Reporters) is discussed from 4:30-6 Eastern. I believe this is the first time two Torts Restatements have been discussed at the same Annual Meeting.
Monday, May 16, 2022
Cathy Sharkey has posted two pieces to SSRN. First, Common Law Tort as a Transitional Regulatory Regime: A New Perspective on Climate Change Litigation. The abstract provides:
This book chapter explores how common law (state or federal) tort law evolves to fill regulatory voids. Particularly in areas that pose emerging, and incompletely understood, health and safety risks, common law tort liability holds out the potential for a dynamic regulatory response, one that creates incentives to develop additional information about potential risks and stimulates innovation to mitigate and/or adapt to these risks. In this temporal model, common law tort plays an essential role in transition, allowing for experimentation with various risk-minimization methods and remedial approaches until optimal approaches emerge which could then be enshrined in more uniform regulations.
The chapter identifies and assesses this dynamic, information-forcing role for common law tort liability in the realm of climate change litigation. In this model, common law tort, rather than a relic of the past, emerges as relevant to the future of environmental risk regulation, as indeed superior to legislation and/or regulation in terms of addressing newly-emergent risks. Moreover, the model suggests that the interaction between common law tort and federal statutes and regulations will remain interactive and dynamic over time.
The chapter then uses climate change litigation as a case study to shed light on the expansion of common law public nuisance to fill a regulatory void in this area, revealing the modern relevance of common law tort in environmental law. The chapter concludes with a preliminary evaluation of the extent to which experimentation among states and municipalities with regard to various adaptation measures fits the optimal model of common law tort in transition, with a final gesture toward forces at play that may stymie the common law’s evolutionary impulses.
Next, Personalized Damages. The abstract provides:
In Personalized Law: Different Rules for Different People, Professors Omri Ben-Shahar and Ariel Porat imagine a brave new tort world wherein the ubiquitous reasonable person standard is replaced by myriad personalized “reasonable you” commands. Ben-Shahar’s and Porat’s asymmetrical embrace of personalized law—full stop for standards of care, near rejection for damages—raises four issues, not sufficiently taken up in the book. First, the authors equivocate too much with regard to the purposes of tort law; ultimately, if and when forced to choose, law-and-economics deterrence-based theory holds the most promise for modern tort law. Second, the damage-uniformity approach clearly dominates the status quo of “crude” personalization. Third, via a deterrence lens that eschews “misalignments” in tort law, a personalized standard of care necessitates personalized damages. Fourth, the true benefit of an ideal personalized damages regime might be further uncovering the root cause of racial and gender disparities in status quo tort damages. Paradoxically, ideal personalization might then reinforce the damage-uniformity approach.
Wednesday, May 11, 2022
Sandra Sperino has posted to SSRN The Causation Canon. The abstract provides:
It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon—the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish “but for” cause.
This Article is the first to name, recognize and discuss this new canon. The Article traces the birth of the canon, showing that the canon did not exist until 2013 and was not certain until 2020. Demonstrating how the Court constructed this new canon yields several new insights about statutory interpretation.
The Supreme Court claimed the new causation canon represents “ancient” and “long-held” principles of common law. The Supreme Court’s claims about the causation canon are easily disprovable with only a cursory re-view of Supreme Court cases from the past 40 years. This is not a case of a contested or difficult historic record.
With the causation canon the Court did not simply apply the common law to statutes. Instead, it created its own new federal causation standard that is not consistent with any state’s common law or even the Restatement of Torts. The Court significantly changed the common law and then magnified the significance of the change by imposing it as a default statutory interpretation canon that will apply across both federal civil and criminal statutes.
This new canon represents a significant change in the way the Supreme Court has used the common law, and it does not fit comfortably within claims made about textualism generally or substantive canons specifically. Creating a new federal common law of factual cause and imposing that newly created law as a default standard significantly raises the profile of this area of statutory interpretation and demands greater scholarly inquiry.
Tuesday, May 10, 2022
Kip Viscusi and Rachel Dalafave have posted to SSRN The Broad Impacts of Lighter Safety Regulations. The abstract provides:
The Consumer Product Safety Commission’s regulation of disposable lighters was targeted at preventing injuries due to use of lighters by children not over 4 years of age. Based on a difference-in-differences analysis of national data for 1990-2019, this article estimates that the regulation reduced all injuries to the target population by 71%, burn injuries by 74%, and injuries severe enough to warrant admission to the hospital by 85% overall and by 84% for burn injuries. Unlike the counterproductive performance of safety cap regulations, this safety device enhanced safety levels in the target population group. The safety improvements from lighter safety devices outweigh any lulling effect of viewing products as being “childproof.” The regulation had a broader safety impact beyond the target population group, as it also reduced all types of injuries by at least 50% for children in the 5-17 age group. Total annual risk reduction benefits were $940 million-$1,465 million. A benefit-cost analysis based on a retrospective assessment of the regulation finds a more favorable impact than was anticipated.