Tuesday, August 14, 2018
Monday, August 13, 2018
Last year, Kentucky enacted a law requiring medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial. The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial. Last week, the Kentucky Supreme Court heard arguments over the constitutionality of the law. Plaintiffs claim the law obstructs the right to a jury trial, in violation of the state constitution. The Courier Journal has the story.
Wednesday, August 8, 2018
Tuesday, August 7, 2018
Monday, August 6, 2018
Intersentia's "The European Convention on Human Rights as an Instrument of Tort Law" by Stefan Somers will be available in October. From blurb:
Tort law and human rights belong to different areas of law, namely private and public law. Nevertheless, the European Convention on Human Rights increasingly influences national tort law of signatory states, both on the vertical level of state liability and on the horizontal level between private persons.
An individual can appeal to the European Convention on Human Rights in order to challenge national tort law in two situations: where he is held accountable under national tort law for exercising his Conventions rights, and where national law does not provide effective compensation in accordance with Article 13. The second method is strongly connected with the practice of the European Court of Human Rights to award compensations itself on the basis of Article 41. A compensation in national tort law is considered to be effective according to Article 13 when it is comparatively in line with the compensations of the European Court of Human Rights granted on the basis of Article 41. This raises the important question as to how compensations under Article 41 are made by the European Court of Human Rights.
The European Convention on Human Rights as an Instrument of Tort Law examines the entanglement of public and private and national and transnational law in detail and argues that while the Court uses a different terminology, it applies principles that are very similar to those of national tort law and that the Court has developed a compensatory practice that can be described as a tort law system.
Friday, August 3, 2018
For several years, there has been a saga in Arkansas to get a tort reform measure on the ballot. The measure would cap non-economic damages, punitive damages, and attorneys' fees. Last month, I reported on the most-recent event, a former judge sued to block the measure on the basis that it unconstitutionally combines several proposals and also violates separation of powers. On Tuesday, a judge refused to grant a preliminary injunction because the plaintiff-former judge could not demonstrate irreparable injury if the ballot went forward. The case remains to be decided on the merits. The Times Record has the story.
Thursday, August 2, 2018
The heartbalm torts--torts used to soothe a spouse's heart if cheated upon--have been abrogated in most jurisdictions. Six jurisdictions, however, retain some version of alienation of affections, criminal conversation, or both: Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. In these states, a cheated-upon spouse can sue the interloper in the marriage, not the other spouse. North Carolina makes the most use of these torts, and this week a man was hit with an $8.8M verdict for conducting a 16-month affair with another man's wife. Most of the verdict was in punitive damages, but $2.2M was in compensatory damages. When the plaintiff learned of his wife's infidelity, his business lost revenue and a valued employee (his wife). CNN has the story.
Tuesday, July 31, 2018
Jill Fraley has posted to SSRN Liability for Unintentional Nuisances. The abstract provides:
The Second Restatement of Torts aligned private nuisance law squarely with the law of torts by altering the elements of liability to require 1) intent, 2) negligence, or 3) abnormally dangerous activities. The Restatement then concluded: “an actor is no longer liable for accidental interferences with the use and enjoyment of land.”
Nearly forty years later, textbooks tend to teach the Restatement approach, but the majority of courts have never adopted this switch in the intent requirement for nuisance. In a number of states, accidental interferences remain actionable under nuisance law. The old approach to nuisance is not dying away quietly. In fact, in the new millennium courts have often gone to some trouble to explain and emphasize their resistance—and for good reason. This article defends the positions of those courts and argues that the Restatement got it wrong.
While the Restatement was correct that there had been “confusion” in the case law, the confusion was not about the conduct versus the interest invaded, but rather the muddling of the law of negligence with the law of nuisance. This article argues that nuisance was historically unique in tort law, because of its special role in protecting property rights. In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Restatement’s change then diminished our rights to private property.
Robert Chesney & Danielle Keats Citron have posted to SSRN Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security. The abstract provides:
Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors.
While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace of ideas already suffers from truth decay as our networked information environment interacts in toxic ways with our cognitive biases. Deep fakes will exacerbate this problem significantly. Individuals and businesses will face novel forms of exploitation, intimidation, and personal sabotage. The risks to our democracy and to national security are profound as well.
Our aim is to provide the first in-depth assessment of the causes and consequences of this disruptive technological change, and to explore the existing and potential tools for responding to it. We survey a broad array of responses, including: the role of technological solutions; criminal penalties, civil liability, and regulatory action; military and covert-action responses; economic sanctions; and market developments. We cover the waterfront from immunities to immutable authentication trails, offering recommendations to improve law and policy and anticipating the pitfalls embedded in various solutions.
Monday, July 30, 2018
Tom Baker & Charles Silver have posted to SSRN How Liability Insurers Protect Patients and Improve Safety. The abstract provides:
Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey like this one cannot resolve. But, as we show, insurers make serious efforts to reduce their losses by encouraging and helping health care providers to do better in at least six ways. (1) Insurers identify subpar providers in ways that provide the opportunity for other institutions to act. (2) Insurers provide incentives for providers by charging premiums that are based on risk and by refusing to insure providers who are too high risk. (3) Insurers accumulate data for root cause analysis. (4) Insurers conduct loss prevention inspections of medical facilities. (5) Insurers educate providers about legal oversight and steps that they can take to manage their risks. (6) Finally, insurers provide financial and human capital support to patient safety organizations.
Wednesday, July 25, 2018
Marta Infantino and Eleni Zervogianni are editors of "Causation in European Tort Law," available from Cambridge University Press. From the blurb:
Through a comprehensive analysis of sixteen European legal systems, based on an assessment of national answers to a factual questionnaire, Causation in European Tort Law sheds light on the operative rules applied in each jurisdiction to factual and legal causation problems. It highlights how legal systems' features impact on the practical role that causation is called upon to play, as well as the arguments of professional lawyers. Issues covered include the conditions under which a causal link can be established, rules on contribution and apportionment, the treatment of supervening, alternative and uncertain causes, the understanding of loss-of-a-chance cases, and the standard and the burden of proving causation. This is a book for scholars, students and legal professionals alike.
Tuesday, July 24, 2018
Richards Lewis has posted to SSRN Strategies and Tactics in Litigating Personal Injury Claims: Tort Law in Action. The abstract provides:
This article reveals some of the tactics which lawyers may use when conducting personal injury litigation. The research is empirically based by being drawn from structured interviews with a cross section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect the outcome of individual cases irrespective of their legal merits. A range of strategies are considered here to illustrate how they may be used at different points during the litigation. In addition, the article updates our understanding of the compensation system by considering the practitioners’ responses in the light of the major changes made to this area of practice in recent years. It reveals how negotiation tactics have developed since research in this area was last carried out. Overall the article adds to a very limited literature dealing with negotiation and settlement of personal injury claims. The picture of litigation painted here runs counter to the misleading image of individualised court-based justice that is often portrayed as the defining characteristic of tort law.
Monday, July 23, 2018
On July 26, 2017, a ride at the Ohio State Fair catastrophically failed, killing one, seriously injuring four, and injuring 22 others. The "Fire Ball," which has six "arms" that spin riders around, had one arm crack off due to rust. It was later discovered that all six arms had significant corrosion. Ohio Department of Agriculture inspectors had reviewed the ride a few hours prior to the incident. State inspectors, however, have a form of qualified immunity that protects them from liability for negligence. The ride manufacturer is protected by a statute of repose. Several settlements have been reached, including an approximate $1.3M settlement on behalf of the 18-year-old man who was killed. Those settlements are with the ride operator, which has an aggregate $10M insurance policy in place, and a private company that inspected the ride. The Columbus Dispatch wrote a great update piece yesterday (you may need to sign in to obtain access).
Thursday, July 19, 2018
Judge Christopher Conner has issued a preliminary injunction stopping the Commonwealth of Pennsylvania from absorbing the JUA (and its money) into its Insurance Department. In May, Judge Conner ruled Pennsylvania could not take $200M from the JUA in an attempt to balance its budget because the money was private property and such a seizure violated the Takings Clause of the United States Constitution. The current ruling indicates those principles apply equally to an absorption. The May ruling is on appeal to the Third Circuit. PennLive has the story. Thanks to Dan Noon for the tip.
Wednesday, July 18, 2018
AMP (Arkansas Money & Politics) has the story. The gist:
Former Pulaski County Circuit Court Judge Marion Humphrey is challenging the ballot measure that would cap damages awarded in lawsuits and give legislative control over court rules in Arkansas.
Humphry filed the lawsuit last week, challenging the proposed constitutional amendment, also known as Issue 1, that Arkansas legislators voted in 2017 to put on the November ballot. The measure limits damages that can be awarded in civil lawsuits and contingency fees attorneys can receive in those suits. The measure also would give the Legislature power to change, repeal or adopt rules for the state’s courts.
In the lawsuit, Humphry claims the measure unconstitutionally combines four separate proposals. He also suggests it violates the separation of powers by giving the legislative branch power over the judicial branch. Humphry asks that a Pulaski County judge disqualify the measure and prevent election officials from counting any votes for it.
The proposed amendment caps noneconomic damages awarded in lawsuits to $500,000 and would restrict punitive damages to $500,000 or three times the amount of compensatory damages awarded, whichever is higher. The Legislature would be able to increase these limits with a two-thirds vote of the House and Senate. It also caps attorneys’ contingency fees at 33 1/3 percent of the net amount recovered in the suit.
Friday, July 13, 2018
In a case of first impression at the circuit level, the Third Circuit ruled that TSA screeners are not law enforcement officers under the Federal Tort Claims Act; claims related to their conduct are barred by sovereign immunity:
In a statement, U.S. Attorney William M. McSwain said he is pleased with the decision.
“Through the Federal Tort Claims Act, Congress sought carefully to balance the federal government’s sovereign immunity and duty to protect taxpayer dollars against the need to provide a remedy for plaintiffs in certain cases,” McSwain said. “The court rightly concluded that Congress did not provide for suits against the government for the acts of federal employees, including Transportation Security Administration Officers, who are not empowered by law with traditional law enforcement responsibilities.”
Lizzy McLellan of The Legal Intelligencer has the story.
Tuesday, July 10, 2018
Last March, a tragic fire here in Harrisburg killed two girls (a two-year-old and a ten-year-old). The fire allegedly occurred when a LayZBoard hoverboard overheated while it was charging. The families are now suing the manufacturer and seeking more than $500,000 in damages. A further tragedy occurred as a fireman was responding to the call; he was killed when a driver who was high ran a stop sign. The proximate cause implications are exam-worthy. The Tampa Bay Times has details.
Friday, July 6, 2018
Thursday, July 5, 2018
Back in May, Judge Christopher Conner of the Middle District of Pennsylvania ruled that the Commonwealth could not take $200M from the state-created joint underwriting association (JUA) for medical malpractice insurance to balance the budget. The judge ruled it was a seizure of property without compensation and was unconstitutional. (Coverage here) Having been thwarted, the Commonwealth passed a budget that simply absorbs the JUA's operations into the Insurance Department. The JUA has sued again and has filed a motion for a temporary restraining order and preliminary injunction. WITF has the story.
Wednesday, July 4, 2018
Teaching Professional Responsibility, one sees a number of attorney advertisements, many of them from personal injury lawyers. Apropos of the holiday, I give you Bryan Wilson, the Texas Law Hawk, in a fireworks safety video. If this whets your appetite for the Law Hawk, check him out on YouTube. Thanks to Caroline Robelen for the tip.