Thursday, June 30, 2011
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).
Wednesday, June 29, 2011
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.
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.
Sunday, June 26, 2011
Two articles on hot coffee and tort reform
Saturday, June 25, 2011
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:
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.
Friday, June 24, 2011
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.
Friday, June 17, 2011
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."
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."
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