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Bill Childs Archives

Finishing Up

Thanks again to Walter for the invitation to post here; I've enjoyed it and hope you've found it interesting. I don't have that much more to say. But there are some other possibilities that fit into my goal -- which is much more oriented towards increasing accuracy in allowing good claims while stopping bad ones earlier than towards many other proposals, which often are focused on, for example, reducing insurance premiums.

  • Screening panels. The data are mixed [PDF] as to their effect, but I suspect that may have as much to do with different implementations as anything else. A well-balanced panel (not just doctors, of course) with a real focus on careful selection of members seems feasible and potentially useful.
  • ADR & apologies. I remain interested in the MEDiC Bill , which encourages apologies when appropriate, quick mediation, and improvements in the medical system to avoid future errors. SorryWorks has some useful data on apologies.
  • Daubert & summary judgment. This isn't really much of a reform as a wish that more judges would take seriously their role as a gatekeeper of scientific evidence. The Howard piece linked to earlier this morning has some useful discussion of it.
Thanks again for the hospitality.

(And because I can't resist pointing it out, I just posted last night about what may well be the greatest lawsuit ever.)

Today's entry is going to be shorter (honest), because mostly I'm going to point to other things, some shamelessly self-promoting.

First, on the theme of better-educated judges, I think it'd be useful to allow (in proper circumstances), discovery into the peer review process, in particular when litigation experts are relying on litigation-driven scholarship. My forthcoming Nebraska Law Review article, The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, addresses the implications of both litigation-driven scholarship and discovery into peer review. In general, the academy's response to the concept of discovery into the peer review process has been hostile at best; I argue that it should be welcomed. Blog 702 has further discussion.

Second, Andrew McClurg (then of Florida International, now going to Memphis) has a fascinating article, Dead Sorrow [PDF]. McClurg provides a wrenching account of the sudden death of his fiance Kody Logan, exploring his grief and the grief of her family in coping with the (tortious) car accident that took her life. He also discusses his challenges in advising her family: "How do you explain to a mother who has just lost her only daughter that the value of her life under the law is literally zero?" (Page 6.)

Ultimately, McClurg concludes that wrongful death suits fail to account for two important aspects of a death: the value of the decedent's life itself and the grief suffered by her survivors. To deal with this failure, he proposes "damages for the lost value of life" that would

be used for the exclusive purpose of establishing a lasting memorial to the decedent. Such a solution would promote both the economic deterrence and corrective justice models of tort law and serve, albeit indirectly, to compensate the decedent by continuing his or her memory and place in this earthly world. Additionally, the memorial established with the lost life damages would, at no additional cost, provide a proven grief-healing instrument for all persons who mourn the decedent's passing. Finally, because it is recommended that memorials created with lost life damages be required to serve a utilitarian function, another unique aspect of the proposal is that it would allocate tort damages in ways that benefit society in addition to tort victims, enhancing the net social benefit of the tort system.

For additional discussion of his proposal, see Andrew's guest post and the multiple posts linked to therein, Ted Frank's comment on that post, and the interesting discussion, again featuring Ted and others, at Evan Schaeffer's Legal Underground.

On the TortsProf blog, I�ve mentioned the consistent surprise students express at the lack of a regulatory compliance defense. In fact, in my Products Liability course, I have assigned an essay on what each student thinks is wrong about the law as it stands; both times I�ve assigned it, roughly a fourth of the students have expressed frustration with the fact that compliance with regulation and $3.00 will get you a skinny vanilla chai tea latte but not much more, at least formally, in front of a jury. (They don't usually reference chai tea, though.)

Their concern comes, I think, from two sources. First, it�s a feeling of sympathy for the defendants. The case that typically is cited is one in the Owen et al. casebook I use, Metzgar v. Playskool, 30 F.3d 459 (3d Cir. 1994), in which an infant choked to death on a small play block that was in compliance with all relevant regulations (which were seemingly comprehensive). The block set in question, which had been sold for years, had never caused choking before. Yet summary judgment for the defendant was reversed. In class, students often discuss the tough position in which the manufacturer finds itself, complying with all regs but still potentially on the hook, without their compliance even getting them a thumb on the scale.

The second source of concern is that the lack of a defense fails to give any deference to the agencies that are supposed to have expertise in their respective area, whether the FDA, CPSC, NHTSA, or anything else. Even if they occasionally make mistakes, the thinking goes, they�re going to be right far more often than they�re going to be wrong.

I�m going to start with relatively small beer: getting judges better-educated about science.

Yesterday I discussed some of my experiences in a variety of jurisdictions in which the judges were seemingly indifferent to getting the science right. With some notable exceptions, I do not think that was because they were uninterested in the jury reaching an accurate conclusion, or because they were in anyone�s pocket -- the decisions reached were too random for that. And it certainly wasn�t because they were incapable of understanding the issues. Instead, I think it was because they simply didn�t know how to evaluate the scientific evidence presented to them, and didn�t think they had the tools to do so.

That�s not a criticism. Last week I led a discussion of torts with a couple dozen Massachusetts state trial court judges. They have no law clerks and a daunting caseload, and frequently the trial is the first time they�ve seen a case, as it is random whether the trial judge handled any pretrial matters. It�s no surprise that they aren�t ready for a full-on analysis of the science in any sort of case.

I�m moderately surprised to be blogging here, but pleased that Walter extended the invitation. The invitation surprised me because on most matters, my political views would be classified as substantially to the left of the Manhattan Institute�s. Indeed, my primary plan for the week is to talk about what I call �tort reform for liberals.�

Some background to, perhaps, justify my claim to liberalism: I took a semester off from college to work full-time on Paul Wellstone�s first campaign for the U.S. Senate. I attended college at Macalester College in St. Paul, happily residing in one of the most Democratic precincts in the country, and I now live happily in Northampton, Massachusetts, in another of the most Democratic areas in the country. I spent a number of years raising money for progressive groups and candidates in Minnesota and across the country. Sakes alive, I even supported John Edwards�s primary campaign and then John Kerry�s general election campaign. I am a progressive Democrat.

After clerking in a federal district court, though, I was a litigator at Williams & Connolly LLP in Washington, D.C., with much of my time spent as defense counsel in pharmaceutical mass tort litigation. (In the interest of disclosure (and context), I continue in a consulting role for an average of 10 to 15 hours per month for pharmaceutical companies involved in mass tort litigation. My comments here and elsewhere may or may not reflect my clients� views; they have no input into them.) Two years ago, I joined the faculty of Western New England College School of Law.



Rafael Mangual
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Legal Policy

Katherine Lazarski
Manhattan Institute


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