Remedies
Reading Assignments
For 9/21, we will finish discussing wrongful death damages so review that material from
Thursday. We will also discuss tort reform and remedies. Read pp. 121-33. Keep in mind
the following questions:
Tort Reform Debate
1. Read Arbino mainly to get an idea of what statutes limiting tort awards look like;
what context they come up in; the kinds of challenges that have been made and when
they succeed and don’t.
a. Why have states enacted statutes like the one in Arbino?
b. Are statutes limiting damages fundamentally at odds with the notion of a jury trial
or due process or are they necessary to protect against outrageous awards?
i. Consider the following Missouri statute:
In any action against a health care provider for damages for personal
injury or death arising out of the rendering of or the failure to render
health care services, no plaintiff shall recover more than [$350,000]
dollars for noneconomic damages irrespective of the number of
defendants. …
ii. Missouri courts struck down this statute as violating the right to a jury trial
– any reason to rely on that theory rather than the many constitutional
theories raised in Arbino?
c. How does the court distinguish between different kinds of limits on damages?
2. Review the possible kinds of tort reform listed at p. 129 n.2. Why do you think the
focus has been on these aspects of tort reform (i.e., remedies)? Is it really remedies
that are the problem? What is the effect of limiting remedies for personal injury
plaintiffs?
3. Remember Oden (case on collateral source rule from last week) – this is another area
of tort reform as legislatures repeal the collateral source rule.
Damages for Dignitary Torts
If we have time, we might also be able to start on dignitary torts – so SKIM pp. 137-141
n.1. Consider the following two questions for now:
1.
What torts fall into the category of dignitary tort?
2.
What did you think of plaintiff’s evidence of emotional distress in Levka? If
you were her attorney what might you have done differently to bolster her
claim of emotional distress?