More hot coffee for you

Here is a link to a short discussion among readers of the ABA Journal.com.  You can skip the story which does not add anything you don't already know and go down to the comments (here).

Pennsylvania eliminates joint and several liability

Bad news for victims of injuries in Pennsylvania.  Gov. Tom Corbett today signed the ”Fair Share Act,”  which does away with joint and several liability.  Tort reform groups are celebrating the announcement as a "major legislative victory."  Unfortunately, what it is, is a shift from a system that erred on the side of protecting injured victims to one that errs on the side of those who injure them.  Both approaches are problematic, and the better option - a compromise through which both sides share part of the loss - was not even considered. 

This is not a major victory for anyone; it is a major disappointment that advances a flawed and, quite simply, bad public policy. 

For those who don’t remember, joint and several liability is a doctrine that allows a plaintiff to choose which defendant will be responsible for paying the value of the injuries. In many jurisdictions that follow this doctrine, it applies regardless of the level of negligence of any individual defendant. This is not the case in every jurisdiction, but let’s leave that aside for the moment - more on that later.

The main argument upon which the attack on joint and several liability is based is that it is unfair to impose liability for the full amount of the injury on a defendant who "does not cause all of the injury" or, as it is often stated, that a defendant can be made to pay 100 percent of a jury award even if he is only 1 percent liable for the injury suffered by a plaintiff.

The problem is that this argument is based on a fallacy.

The origin of the argument is usually that courts can ask jurors to assign a percentage of negligence on all tortfeasors relative to each other. The problem is that when doing this the jury is not asked to find a level of "liability." Thus stating that a defendant found to be "1 per cent liable" is simply misunderstanding what a jury does. A jury may find that one defendant was more negligent than another, but that does not mean the jury is finding any one of them should be more liable than any other.

Opponents of joint and several liability argue, however, that liability should be apportined according to the level of negligence assigned by the jury.  Say, for example, that the jury finds that one defendant was 75% negligent while the other one was 25%. In a jurisdiction that follows joint and several liability, the plaintiff can recover 100% of the value of the injury from either defendant and the defendant who was found to be less negligent typically argues this is unfair.

One problem with this argument is that the defendant who has to pay has the right to make the other defendant pay him whatever amount he paid in excess of his level of negligence.  So, if the system is unfair at all, it is only unfair if the other tortfeasor is not available to pay (either because it is unavailable, was never identified or has no money to pay). If that tortfeasor is available/has money, then after all is said and done everyone pays what they owe according to the percentages of negligence.

Now even assuming that the other tortfeasor is not available, here is the other problem with the argument. The percentage numbers are an expression of the level of negligence each defendant was found to be relative to each other. They do not refer to, or express, how much of the injury each defendant caused. By definition if we could determine what part of the injury each defendant caused, the liability of that defendant would be limited to that part of the injury because it would be contrary to the law to impose liability for something the defendant did not cause.

Joint and several liability, again, by definition, applies in cases where the injury is indivisible - when it can’t be determined which part of the injury was caused by any one defendant individually. The injury (all of it) was caused by the combination of the negligence of each defendant. Thus, each defendant caused all of it. The fact that one defendant was less negligent than the other does not eliminate the fact that all defendants caused all of the injury because we just can’t tell what part of the injury was caused by any individual defendant.

Given this, jurisdictions have to decide between two options: in the first option a defendant who caused an injury but who was less negligent the another one may end up paying more than the other defendant.  This may seem unfair to the defendant who pays but it assures that the victim obtains a full recovery.  In the second option, the victim does not get a full recovery while a defendant who caused the injury is relieved from paying for part of the injury they casused.  Pennsylvania has abandoned the first option in favor of the second one.

Although joint and several liability (the first option) is prefereable to several liability (the second one), neither option is the best. 

There are two other possible options that are better.
One alternative is to adopt a threshold before which joint and several liability does not apply. That threshold would be, by force, arbitrary, but at least there would be a threshold. Illinois, for example, sets the threshold at 25%. A defendant whose level of negligence is below that is only liable for an amount equivalent to their percent of negligence. If the level of negligence is above that, then the defendant is joint and severally liable and can, in fact, end up paying for the full amount.

If the concern is to protect defendants who were "not very negligent" when compared to the others involved in the claim, this is not a bad compromise. The important question becomes where to place the threshold. This alternative is suggested in the Restament of Torts.

Another, alternative that is definitely more fair than simply eliminating joint and several liability and that still protects the interests of defendants from having to pay the full amount when other tortfeasors can’t contribute is to adopt a system that reapportions the amount that those unavailable defendants should have paid among all available tortfeasors. The Restatement of torts considers this the most appealing alternative because it apportions the risk of insolvency to all the remaining parties in proportion to their level of negligence, thus providing an equitable mechanism for dealing with the problem. 

Now, THAT is fair.  But, of course, not surprisingly tort reformers have no interest in this...  That’s because the goal of the tort reformer is not to find a fair system but a system that provides the most protection possible to tortfeasors. The battle lines are drawn and the only alternatives mentioned are the ends of the spectrum. If those are the only alternatives, the question to ask is whether it is more fair to err on the side of the injured person or on the side of those who actually caused the injury.

If those are the only alternatives, the answer is easy: err on the side of the victim. It would be better, though, to consider the alternatives available as a compromise.

The PopTort has its own comment on this here.

Not everyone likes Hot Coffee

Not suprisingly, pro tort reform groups are crying foul about the publicity generated by the documentary Hot Coffee.  Here is a link to a review by the Washington Legal Foundation.

Two articles on hot coffee and tort reform

Joanne Doroshow, of the Center for Justice and Democracy, has an article on tort reform and the movie Hot Coffee in the Huffington Post here.

The New York Times has a comment on the movie Hot Coffee here.

Thanks to Abnormal Use for the NYT link.

Interview with the director of the documentary "Hot Coffee"

Here is a link to an interview with the director of the documentary Hot Coffee which premiers on HBO this week.  (Thanks to Abnormal Use blog for the update.)

The documentary discusses the McDonald’s hot coffee case to address the larger issues related to the tort reform movement.  My original pos on the film t is here and it includes links to comments by other bloggers both favorable and critical of the case and the film.  Here is the trailer for the movie:

Supreme Court decides case on preemption of claims vs generic drug manufacturers

Big news out of the Supreme Court this week: The Court issued a decision in the highly awaited consolidated cases PLIVA v. Mensing (09-993), Actavis v. Mensing (09-1039), and Actavis v. Demahy (09-1501) on the right to sue in state court when a generic drug maker fails to change its label to warn consumers of new harmful side-effects.  For some background information on this case, go to my previous posts on it here, here and here. For a copy of the opinion and all other relevant documents, lower court opinions and briefs go here.

In another 5 to 4 decision, the Court decided that federal law preempts state lawsuits because their effect could be to force the defendants to offer labeling that is different from what appears on the label of the brand-name drug. Writing in dissent, Justice Sonia Sotomayor concludes that “The court today invokes the doctrine of impossibility preemption to hold that federal law immunizes generic drug manufacturers from all state-law failure-to-warn claims because they cannot unilaterally change their labels. I cannot agree. We have traditionally held defendants claiming impossibility to a demanding standard: Until today, the mere possibility of impossibility had not been enough to establish preemption." 

Here are some links of coverage of the full story from around the internet (thanks to the SCOTUS blog):

Pharmalot
AboutLawsuits.com
Wall Street Journal law blog
FDA law blog
Reuters
ABA Journal
Los Angeles Times
Bloomberg
Atlantic Wire
NPR
CBS News
PrawfsBlawg
Courthouse News Service
David Savage (Los Angeles Times)
Jess Bravin (Wall Street Journal)
USA Today
The Drug and Device law blog has even more links here.

Prof. Steven Schwinn offers more detailed analysis in a short article called "Court charts new course in preemption analysis" here.

Defendant who pleads nolo contendere is precluded from suing for legal malpractice

Here is the most recent case in a long line of bad cases that hold that a criminal defendant does not have a right to sue his or her attorney for legal malpractice.  In this instance, the West Virginia Supreme Court held that a criminal defendant who, having obtained habeas relief, pled nolo contendere to the criminal charges.  In a dissenting opinion, Justice Ketchum argued that the court's decision is contrary to 148 years of precedent as well as rules of procedure and evidence.  He also argues that the decision "obliterates a criminal plea that served a very useful purpose." You can read the opinion here and the dissent here.

West Virginia Court Upholds Limit on Pain & Suffering Awards in Medical Liability Lawsuits

West Virginia’s Supreme Court recently reaffirmed the constitutionality of the state's cap on awards for pain and suffering in medical liability lawsuits. Interestingly, the opinion closely tracks a brief filed in the case by the West Virginia Medical Association, the West Virginina Academy of Family Physicians, the American Medical Association and many other allied doctor and hospital groups. You can read the opinion here.  You can read the brief here.

Reports concludes wrong site surgeries take place 40 times each week

A new report by a hospital accreditation body estimates that so-called wrong site surgeries take place 40 times each week in the nation's hospitals.  The Washington Post has the story here.  The Boston Personal Injury Blog and the NY Personal Injury Blog comment here and here respectively.

Federally funded proposal for alternative dispute resolution of med mal claims in New York

As part of its health-care bill, the Obama Administration included money for grants to states to launch projects aimed at curbing costs associated with medical malpractice litigation.  One of these grants has been used to fund a project in New York that gets judges involved early on in malpractice cases in an effort to settle the cases and save court costs.  Here is an article on the New York Times on it, and a report by the Wall Street Journal law blog. 

Unfortunately, the proposal is based on a false premise: that medical malpractice cases "sharply increase health care costs", a claim that has been proven false by multiple studies.  For links to those, click on my section on medical malpractice on the right side panel and scroll down.  You will find many posts on that subject. 

For a critique of the New York proposal go the the PopTort blog where you will find an article that concludes that the "federal grant proposal is an anti-patient, anti-plaintiff model that will harm patients, interfere with efforts to expose unsafe medical care, and has no place in New York State or the rest of the country."

IL Supreme Court announces decision that illustrates why a statute of repose in legal malpractice cases is a bad idea

Illinois is the only state I know of that has a statute of repose that applies to legal malpractice actions. This means that, as in all statute of repose cases, an injured plaintiff can lose the right to recover against a lawyer before the client finds out he or she has suffered that injury. This, in my humble opinion, is absurd, and what makes it even worse is that the period of time recognized in the statute is only six years. Typically, statutes of repose in other areas of the law are at least ten years - although some have been lowered in response to tort reform efforts.

Today the Illinois Supreme Court issued an opinion that illustrates everything that is wrong with the Illinois approach to the issue. In this case, the plaintiff, a widow, found out after her husband’s death that, due to the negligence of the defendant attorney, she was not entitled to her house by right of survivorship. She sued the lawyer and the lawyer argued the claim should be dismissed under the statute of repose. The lower court granted the motion and the Supreme Court affirmed.

The Illinois statute of repose states that a claim may not be brought more than six years from the date on which the complained-of act or omission occurred. There is an exception to this, however, where the injury does not occur until the death of the client, in which case suit may be brought within two years of the demise. Here the court held the injury occured when the lawyer was negligent, not at the decedent’s death and held the case had to be dismissed.

Applying a statute of repose in legal malpractice cases is a terrible policy and Justice Freeman wrote a dissenting opinion that does a great job explaining why. First of all, it must be understood that the plaintiff here is not the lawyer’s client but a beneficiary of the lawyer’s work. More importantly, a future beneficiary. The lawyer’s work would not have any effect on the plaintiff at the time the lawyer performed his work negligently but much later in the future when the beneficiary would acquire the right to the benefits supposedly provided by the lawyer’s work. Thus, it is simply absurd to claim that the beneficiary suffered anything at all when the lawyer failed to draft some documents while her husband was alive.

Second, it is illogical to assume that a beneficiary would have to double check - presumably with another lawyer - the accuracy of the lawyer’s work when the lawyer performed it in order to discover the lawyer’s negligence at the time it happened.

Third, given the facts of the particular case, to survive the effect of the statute of repose, the plaintiff would have had to have sued while her husband was still alive, at which time she had not suffered the injury, had no knowledge that she was at risk of suffering an injury and, more importantly, since her husband was still alive, had not right to sue to begin with.

I agree with Justice Freeman when he says the result is absurd and unjust and that what it does is protect negligent lawyers.  You can judge for yourself by reading the opinion here. The case is called Snyder v. Heidelberger.

Mississippi Supreme Court to decide constitutionality of damages cap

The Mississippi Supreme Court heard arguments this week about the constitutionality of its non-economic damages cap.  Interestingly, the case actually originated in a claim filed in federal court.  In that case, the jury awarded $2.2 million for non-economic damages but the judge reduced the non-economic damages to $1 million because of the state cap. The plaintiff appealed the reduction, in response, the federal court asked the state court to determine whether the Legislature overstepped its authority in passing the law and whether the law violates a constitutional right to have a jury determines the facts of a case, including damages.  Similar legislation has been been struck down as unconstitutional in a number of other states.  Stay tuned!  Go here and here for more on this story.

Disbarment recommended for one of the "kings of torts"

Back in March I reported (here and here) on the possible disbarment of attorney Stanley Chesley, a very successful plaintiffs' lawyer who some consider to be the father of the modern-day mass tort.  I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case and it really bothers me to see his career -- during which he helped many people -- go down in flames like this. 

The Wall Street Journal blog is reporting (here) that the Kentucky Bar Association board of governors voted to disbar him for allegedly taking more than his share – $7 million, to be exact – in fees from a 2001 diet drug settlement.  The Lexington Herald-Leader has more details here.

North Carolina is NOT on its way to approving a bill that would immunize manufacturers of drugs in most cases if the drugs were approved by the FDA

Two days ago I reported (here) that North Carolina was getting ready to approve a bill to protect drugmakers and those selling medications from liability in lawsuits that would have made it harder for North Carolina consumers to recover compensation than citizens in any other state in the US except Michigan. 

Yet, today comes news that the proposal was removed late yesterday by a legislative committee, effectively tabling the proposal!  This is a surprising victory for consumer advocates in the tort reform friendly atmosphere that seems to be prevalent around the states these days.

Pharmalot has the full story here.

Avandia Class Action Lawsuit Filed in Illinois by 43 People

A new class action lawsuit has been filed in Illinois over Avandia, the beleaguered diabetes drug that has been linked to an increased risk of heart problems and which has already been the subject of thousands of individual injury suits filed by users throughout the United States.  AboutLawsuits has the full story here.

Study comparing med mal situation in a state with damages cap with state with no cap

Here is a link to a report by the PopTort Blog on a study that compares two states – California, which has had a $250,000 “cap” on compensation for 36 years, and Oregon which has no cap. 

North Carolina seems to be on its way to approving a bill that would immunize manufacturers of drugs in most cases if the drugs were approved by the FDA

Pharmalot is reporting that North Carolina lawmakers have passed a bill that would protect drugmakers from liability in lawsuits in most cases if the drug has been approved by the FDA. The only other state that has a similar law is Michigan.  Go here for the full story.

As originally presented, the bill only allowed possible liability if the plaintiff proved the FDA approval had been obtained by fraud or bribery.  However, to respond to criticism, the approved bill also recognizes the possibility of liability if the plaintiff proves that the drug is unsafe or ineffective. 

This seems to leave the state of the law in the same place it was before, since it seems to recognize a cause of action for damages caused by a defective product.  Yet, there is a "catch" and it is that the new law changes the burden of proof.  In order to recover, the plaintiff now has to prove his or her case by "clear and convincing" evidence.

In other words, given that the defense of preemption already exists, the bill is a roundabout way to simply change the burden of proof in product liability cases against drug manufacturers for injuries caused by drugs previously approved by the FDA.  I would not have a problem with this if we could trust the FDA as a capable overseer of product safety but the reality is that it has proven to be quite the opposite. 

Given this reality, it makes more sense to me to allow state law to operate as a compliment to federal regulation in an attempt to promote consumer safety.  What the bill does, unfortunately, is eliminate - or at least weaken - the possible safety net for consumers.  And that, I think, is not good public policy.

You can read the bill here and the amendment here.

Hot Coffee on HBO

Last December I reported on a new documentary called Hot Coffee that debuted on the Sundance Film Festival which discusses the case in which a plaintiff was awarded compensation when she got burned by McDonald’s hot coffee.  It uses that case (and apparently others) to discuss the civil justice system and how it is used (and misused) for propaganda purposes about tort reform. My original post is here and it includes links to comments by other bloggers both favorable and critical of the case and the film. 

Now you can watch the documentary on HBO starting on June 27.  Here is a trailer.

Popcorn Plant Worker Awarded $814,500 in Popcorn Lung Lawsuit

AboutLawsuits.com is reporting that a Baltimore County jury has awarded a Maryland man $814,500 as the result of a claim for failing to warn about the possible health risks associated with exposure to the chemical diacetyl, which was used for years to make microwave popcorn smell buttery. The plaintiff was originally awarded $5.4 million last month, but that amount was reduced last week due to Maryland’s cap on non-economic damages. More than 300 popcorn lung disease lawsuits have been filed nationwide.  For more on the story, go here.

This Week's Top Stories

Go here for the TortsProf Blog's list of this week's top stories and here for the Abnormal Use blog's "Friday links." Finally, go here and scroll down for my own selection of top news stories.