ATRA Tort Reform Flashcards
What is the rule of Joint & Several Liability?
• Theory of recovery that permits plaintiff to recover damages from multiple defendants collectively, or from each defendant individually
Briefly explain whether the rule of joint are several liability is a fair rule
- Rule is neither fair, nor rational, because it fails to equitably distribute liability
- Allows defendant only minimally liable for a given harm to be forced to pay entire judgment if co-defendants is unable to pay
American Tort Reform Association (ATRA) suggested changes to the Joint & Several Liability rule
- Repeal in favour of rule of proportionate liability
- Not apply JSL for non-economic damages
- Not apply JSL to recover from defendants found to be responsible for less than a certain % of the plaintiff’s harm
Briefly explain the Collateral Source Rule
- Rule that prohibits the admission of an evidence that the plaintiff has received compensation from another source such as plaintiff’s insurance or WC
- This allows frequent double-dipping
- 35% total payments to MM claimants are for expenses already paid from other sources
What are Punitive Damages?
Is there an emerging trend?
• Awarded not to compensate plaintiff, but to punish the defendant for intentional or malicious actions and to deter future similar conduct
- Frequency and size of payments has increased greatly
- Difficulty predicting whether punitive damages will be awarded
Provide Reforms the ATRA proposes to punitive damages
- Establish liability “trigger” based on actual malice
- Require clear and convincing evidence
- Requiring proportionality in awards
- Enact fed legislation to address problem of multiple punitive damages awards
What are Non-Economic Damages?
What is an issue with them?
- Damages for pain and suffering, emotional distress, loss of consortium or companionship, and other intangible injuries
- Difficult for juries to assign a dollar value
- Given emotional environment and lack of guidance, awards are erratic and excessive
What is the ATRA position of non-economic damages?
Believes that unguided discretion given juries in awarding damages for noneconomic loss is the single greatest contributor to the inequities and inefficiencies of the tort liability system
Briefly explain PreJudgment Interest
Interest paid on the delay from the time when the incident occurred to when the plaintiff received settlement
+ Compensate the plaintiff fully
+ Encourage early settlements
+ Reduce delay in the disposition of cases
- Hold defendant responsible for delay
- Produce overcompensation
- Impede settlement
What does ATRA suggests about PreJudgment interest?
- Review to ensure fairness and foster settlements
- Interest rate indexed to treasury bills at the time claim was filed
- Judgment provision should be included
Provide Goals and problems of Product Liability Law
Goals:
• Compensate those injured by defective products
• Deter manufacturers from marketing such products
Problems:
• Does not send clear signals to manufacturers about how to avoid liability
• Holds manufacturers liable even when could not have anticipated the risk
Briefly explain what was and what is Class Actions
• Tool that aggregates cases with similar facts or complaints into a single action
- Seen now as means of defendant extortion rather than a tool of efficiency
- Meritless cases with millions of plaintiffs
- Awards go mainly to the attorneys
Briefly describe Attorney Retention Sunshine
- Attorney are hired by gov and get paid millions if they win the case (contingent fee basis)
- Problem is that attorneys are selected with political favoritism and corruption
- Attorney sunshine legislation prevent that
Briefly explain the issue with Jury Services
• Difficult for working people to serve on juries; exclusion of people who understand complexity of the issue
• ATRA suggested reforms:
1 - Eliminating occupational exceptions
2 - Ensuring only those who xp true hardship are excused
3 - Establish a lengthy trial found
4 - Protecting employees from any adverse action in the workplace due to jury duty
Briefly explain the issue with Appeal Bond
When appealing a verdict, have to post an appeal bond sometimes equal to 105% of verdict
• Appeal of huge verdict ($M) can force bankruptcy
ATRA supports appeal bond, limits the size of appeal bond when company is not liquidating its assets or attempting to flee from justice
