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Torts

Resource Guide

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Jarret Hann

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According to the State Court Guide to Statistical Reporting, a tort is a “type of civil case that alleges an injury or wrong committed against a person, their reputation or their property.” Generally, torts fall into three categories: intentional torts (such as assault and battery), negligent torts (including failure to exercise due care), and strict liability (such as defective products) torts. Topics of interest in the torts arena include tort reform, the availability and limitation of punitive damages, the expansion of products liability, and medical-malpractice suits, both generally and with regard to reform efforts.

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.

Featured Linkes

Medical Malpractice on Appeal. (2009). Caseload Highlights.

This issue of Caseload Highlights explores appellate activity in medical malpractice cases, including the factors that influence the decision to appeal a medical malpractice case, the issues on appeal, and how medical malpractice appeals are resolved. Data are from the 2001 Civil Justice Survey of State Courts: Supplemental Survey of Civil Appeals, which tracked appeals from civil trials held during 2001 in 46 of the nation’s 75 most populous counties.

Research

Langton, Lynn and Dr. Thomas Cohen. Civil Bench and Jury Trials in State Courts, 2005. (October 2008). Bureau of Justice Statistics Special Report, U.S. Department of Justice This report provides information and statistics available from the 26,950 civil cases (tort, contract and real property) that were disposed of by a bench or jury trial in 2005. 
Cohen, Henry and Vanessa K. Burrows Federal Tort Claims Act Congressional Research Service Report for Congress. (December 2007). Congressional Research Service, 95-717 This report on the Federal Tort Claims Act covers the Feres doctrine and medical malpractice, the discretionary function exemption, suits regarding atomic testing, the intentional tort exemption, suits against federal employees, and defense of government contractors.
Sarver, Tammy A. Resolution of Bias: Tort Diversity Cases in the United States Courts of Appeals. (2007). Justice System Journal (Vol. 28, No. 2).

This article examines tort cases that appeared before the U.S. Court of Appeals due to diversity of citizenship in order to answer the criticism that diversity jurisdiction presents a threat to federalism.
Cohen, Thomas. Appeal from General Civil Trials in 46 Large Counties, 2001-2005. (July 2006). Washington, D.C.: Bureau of Justice Statistics Highlights of the report include the fact that in 2001, litigants filed appeals in approximately 33% of product liability cases, and in 18% of medical malpractice cases; 43% of civil appeals were dismissed or withdrawn; and verdicts or judgments in plaintiffs' favor were reversed or modified more often than those favoring defendants.
Cohen, Thomas. Federal Tort Trials and Verdicts, 2002-03. (August 2005). Washington, D.C.: Bureau of Justice Statistics This report includes plaintiff success rates by case type, and compares jury and bench trials.
Cohen, Thomas H. and Steven K. Smith Civil Trial Cases and Verdicts in Large Counties, 2001. (April 2004). Washington, D.C.: Bureau of Justice Statistics This report provides plaintiff success rates and median awards.  The report indicates that of 11,908 trials, 66% were tort cases.
Cohen, Thomas H. Tort Trials and Verdicts in Large Counties, 2001. (November 2004). Washington, D.C.: Bureau of Justice Statistics This report provides a variety of tort case statistics: type of tort case, products liability suits, plaintiff's success rate, trial by judge or jury and median damages. 

Medical Malpractice

Latest Medical Malpractice Data Shows Number of Filings Reach New Low . (May 2011). Administrative Office of Pennsylvania Courts Pennsylvania state court system data on medical malpractice case filings and verdicts for 2010 show a decline in the number of lawsuits filed statewide for a sixth consecutive year.
The Great Medical Malpractice Hoax. (January 2007). Public Citizen Congress Watch

This report discusses the frequency, type and amount of medical malpractice judgments and other trends in medical malpractice litigation.
Vidmar, Neil, Ph.D. Medical Malpractice and the Tort System in Illinois. (May 2005). A Report to the Illinois State Bar Association This report examines the incidence, frequency, verdict size and other aspects of the medical malpractice system in Illinois, concentrating on the counties of Cook, DuPage, Madison and St. Clair.
Carroll, James K., Linda A. Klein and Steven B. Lesser. Report on Contingent Fees in Medical Malpractice Litigation. (September 2004). Task Force on Contingent Fees, ABA Tort Trial and Insurance Practice Section

This report examines the relationship between contingency fees and medical malpractice litigation and includes proposals from the Medical Association and the Task Force regarding contingency fees.
Office of Legislative Research Medical Malpractice Reports. Connecticut General Assembly, Office of Legislative Research A wide variety of reports dating from 2002 through 2005 regarding medical malpractice have been authored by the Connecticut General Assembly's Office of Legislative Research.  Topics covered include comparisons of bills, limitations on expert testimony, damages caps, exemptions for physicians and reforms in other states.
Summary of Medical Malpractice Law. McCullough, Campbell & Lane, Chicago This Web site indexes state medical malpractice laws.  Topics covered include statutes of limitation, contributory or comparative negligence provisions, joint and several liability, contribution, vicarious liability, expert testimony, damage caps, statutory cap on attorneys' fees, periodic payments, collateral source rule, prejudgment interest, patient compensation funds, immunity and arbitration. 
Skove, Anne. Medical Malpractice Issues for Courts. (October 2004).

Report on medical malpractice issues, proposed reforms, research, and innovations in the states.

Tort Defense

Kritzer, Herbert M. Defending Torts: What Should We Know?. (2007). Journal of Tort Law Vol. 1, Iss. 3 This article examines the art of tort defense, including issues involving the relationship between the alleged tortfeasor, insurer, and defense lawyer; incentives faced by the parties; resolution of issues of liability, causation, and damages; different types of claimants; and the use of experts.
Faulk, Richard O. Strategic and Scientific Considerations in Toxic Tort Defense. (1985). South Texas Law Journal 26 This article discusses pretrial considerations, common problems encountered in trial preparation, discovery strategies, common motions and practical considerations of cost control and administrative efficiency, which are especially crucial in toxic tort cases.

Punitive Damages

Hersch, Joni, and W. Kip Viscusi. Punitive Damages: How Judges and Juries Perform. (May 2002). Harvard-Olin Center for Law, Economics, and Business, Discussion Paper No. 362 This article attempts to study the amounts that juries award in damages in civil cases versus judges.  The piece uses a substantial experiment, finding that judges and juries do not differ substantially in the amounts of damages they give to the plaintiffs.  The article finally discusses possible reasons for this finding, and decides that a new study may be needed.
Punitive Damages Reform. American Tort Reform Association This resource discusses the history of punitive damages and proposals for reform, lists states with punitive damages limits and states that prohibit punitive damages, specifies evidence standards required, and provides other information related to punitive damage awards.  

Tort Reform

Medical Malpractice Tort Reform. (February 2010). National Conference of State Legislatures The National Conference of State Legislatures tracks state and federal legislative activity regarding medical insurance costs, lawsuits and tort reform.  This site also includes links to a chart of the 2007 Medical Malpractice Liability Laws and a chart of the Medical Malpractice Tort Reform 2007 State Introduced Legislation.
ATRA Tort Reform Record. (July 2008). American Tort Reform Association The Tort Reform Record is published in June and December of each year.  It lists tort reforms enacted since 1986 for every state.  Topics covered include prejudgment interest, class action, punitive damages, noneconomic damages,  joint and several liability, collateral source rule, product liability, attorney retention sunshine, appeal bond and jury service reforms.
Barnes, Jeb. Rethinking the Landscape of Tort Reform: Legislative Inertia and Court-Based Tort Report in the Case of Asbestos. (2007). Justice System Journal (Vol. 28, No. 2).

Despite the absence of legislative action, this author explains that the tort system has not remained completely resistant to change, largely due to court-based efforts to alter existing rules and procedures in order to reform tort litigation.