6:56 PM 11 Jun 1997
| from: |
Ellen S. Seidman |
| to: |
Andrew, Bruce R. Lindsey, Charles W., Donald, Ed, Elena Kagan, Ellen S. Seidman, Fran, Ingrid M. Schroeder, Jeff, Jeffrey, John, John E. Thompson, Lisa M., Pam, Peter Jacoby, Ron, Steven D. Aitken, Timothy J., Tom, Tracey E. Thornton, William P. |
| cc: |
Ellen S. Seidman, Paul J. Weinstein Jr., Russell W. Horwitz |
The next meeting will be from 2:30 to 3:30 on Friday, in room 231.
Everyone will be cleared in. Topics are: (i) negligent entrustment; (ii)
small business exceptions; (iii) misuse and alteration; (iv) workers
compo We'll move quickly.
What follows are the options currently extant. Please be careful.
Joint and several
Proposal 1 - Reallocation
DD Joint and several if the plaintiff is fault-free
DD If the plaintiff is at all at fault, liability is
several, but if the plaintiff cannot collect from one or more defendant
after a specified period of time the plaintiff can petition the court for
reallocation of damages not attributable to the plaintiff among the
remaining defendants, but no defendant less at fault than the plaintiff.
may be charged with more than twice his proportionate share of damages
DD This would be two-way preemptive
Proposal 2A - Guaranteed recovery, two-way preemption
DD Joint and several liability of any defendant is than 30%
at fault (taking into account the fault of the plaintiff and settling
defendants)
DD If any defendant is less than 30% at fault, that
defendantD,s responsibility would be limited to a maximum of twice the
defendantD,s proportionate share of non-economic damages except where a
greater multiplier was needed to ensure the plaintiff recovery of at least
50% of the assessed non-economic damages.
Proposal 2B - Guaranteed recovery, one-way preemption
DD Joint and several liability of any defendant is than 10%
at fault (taking into account the fault of the plaintiff and settling
defendants)
DD If any defendant is less than 10% at fault, that
defendantD,s responsibility would be limited to a maximum of twice the
defendantD,s proportionate share of non-economic damages except where a
.,
greater multiplier was needed to ensure the plaintiff recovery of at least
60% of the assessed non-economic damages.
Punitive damages
Proposal 1 - Procedural changes only
00 Support the provisions in S.648 providing for uniform
federal standards of clear and convincing evidence and the right to
request bifurcation.
00 Support a uniform federal liability standard for
punitive damages that would not include recklessness, but (i) would not
require that the conduct that is the subject of the punitive damages is
the O&proximate cause08 of the plaintiff D,s harm and (ii) would explicitly
permit circumstantial evidence of intent or malice.
00 This would be two-way preemption, except that it would
not require states that currently do not allow punitive damages in
products cases to allow such awards .
Proposal 2 - Personal cap plus allocation of remaining punitive damages to
state
00 Authorize the jury to impose punitive damages without
any cap
00 Vest the plaintiff in a 25% share of the total punitive
damages, which amount will be assumed to include attorneyO,s fees (i.e.,
no additional attorneyO,s fees will be payable out of the punitive award)
00 The remainder of the award would be payable to the state
whose substantive law applies to the determination of punitive damages.
00 States would be forbidden to intervene in the
prodeedings at any stage.
00 Combine this with the procedural reforms outlined in
Proposal 1
00 This would be two-way preemptive except (i) it would not
require states that do not allow punitive damages in products cases to
allow such awards and (ii) states would explicitly be allowed to opt out
of the allocation to the state, in which case prior state law with respect
to caps and allocation would apply
Proposal 3 - Advisory jury opinion with judicial determination
00 The jury would render a solely advisory opinion on
punitive damages
00 The actual deterimination of punitive damages would be
made by the judge
00 The judge would be required to consider the factors in
S.648, and would be required to explain why the judgeD,s award differs
(either higher or lower) from the juryO,s advice
00 Combine with procedural changes from proposal 1
Proposal 4 - Cap with easier breakthrough
00 Cap punitive damages at the greater of $250,000 or twice
compensatories (the lesser of the two for small businesses)
do Do not tell the jury of the cap
00 Allow the judge to award punitive damages above the cap
without an additional proceeding and on a simple finding that the capped
amount is O&insufficient to punish or deter,08 the standard in S.648, with
no consideration of specified factors
00 Insist that there be no legislative history suggesting
this authority is to be used any more sparingly than implied by the
statutory standard
00 Couple this with the procedural changes described in
proposal 1
00 This would be two-way preemptive, except with respect to
states that do not allow punitives in products cases at all
Statute of repose
l.
00 Two-way preemption of state law (as in S.648)
00 18 year statute of repose (as in S.648)
00 Which a plaintiff may overcome by clear and convincing
evidence that the product had a longer useful safe life (not included in
S.648, and responsive to the victim of the hay-baler accident cited in the
veto message and to accidents involving products clearly intended to be
longer-lived, such as elevators)
00 Covering only durable goods in the workplace (narrower
than S.648, retaining plaintiff rights concerning consumer goods in states
without any statute of repose and responding to your concern about
handguns)
00 With further exceptions for toxic substances, vehicles
used in transportation for hire, and express warranties (as in S.648)
00 And with a provision that extends the statute to allow
full benefit of the two-year statute of limitations after injury or
discovery of harm in, for example, year 17 (not in S.648, but not expected
to be a problem)
.-
6:56 PM 11 Jun 1997
| from: |
Ellen S. Seidman |
| to: |
Andrew, Bruce R. Lindsey, Charles W., Donald, Ed, Elena Kagan, Ellen S. Seidman, Fran, Ingrid M. Schroeder, Jeff, Jeffrey, John, John E. Thompson, Lisa M., Pam, Peter Jacoby, Ron, Steven D. Aitken, Timothy J., Tom, Tracey E. Thornton, William P. |
| cc: |
Paul J. Weinstein Jr., Russell W. Horwitz |
The next meeting will be from 2:30 to 3:30 on Friday, in room 231.
Everyone will be cleared in. Topics are: (i) negligent entrustment; (ii)
small business exceptions; (iii) misuse and alteration; (iv) workers
compo We'll move quickly.
What follows are the options currently extant. Please be careful.
Joint and several
Proposal 1 - Reallocation
00 Joint and several if the plaintiff is fault-free
00 If the plaintiff is at all at fault, liability is
several, but if the plaintiff cannot collect from one or more defendant
after a specified period of time the plaintiff can petition the court for
reallocation of damages not attributable to the plaintiff among the
remaining defendants, but no defendant less at fault than the plaintiff
may be charged with more than twice his proportionate share of damages
00 This would be two-way preemptive
Proposal 2A - Guaranteed recovery, two-way preemption
00 Joint and several liability of any defendant is than 30%
at fault (taking into account the fault of the plaintiff and settling
defendants)
00 If any defendant is less than 30% at fault, that
defendantO,s responsibility would be limited to a maximum of twice the
defendantO,s proportionate share of non-economic damages except where a
greater multiplier was needed to ensure the plaintiff recovery of at least
50% of the assessed non-economic damages.
Proposal 2B - Guaranteed recovery, one-way preemption
00 Joint and several liability of any defendant is than 10%
at fault (taking into account the fault of the plaintiff and settling
defendants)
00 If any defendant is less than 10% at fault, that
defendantO,s responsibility would be limited to a maximum of twice the
defendantO,s proportionate share of non-economic damages except where a
greater multiplier was needed to ensure the plaintiff recovery of at least
60% of the assessed non-economic damages.
Punitive damages
Proposal 1 - Procedural changes only
DO Support the provisions in S.648 providing for uniform
federal standards of clear and convincing evidence and the right to
request bifurcation.
DO Support a uniform federal liability standard for
punitive damages that would not include recklessness, .but (i) would not
require that the conduct that is the subject of the punitive damages is
the D&proximate causeD8 of the plaintiff D,s harm and (ii) would explicitly
permit circumstantial evidence of intent or malice.
DO This would be two-way preemption, except that it would
not require states that currently do not allow punitive damages in
products cases to allow such awards
Proposal 2 - Personal cap plus allocation of remaining punitive damages to
state
DO Authorize the jury to impose punitive damages without
any cap
DO Vest the plaintiff in a 25% share of the total punitive
damages, which amount will be assumed to include attorneyD,s fees (i.e.,
no additional attorneyD,s fees will be payable out of the punitive award)
DO The remainder of the award would be payable to the state
whose substantive law applies to the determination of punitive damages.
DO States would be forbidden to intervene in the
prodeedings at any stage.
DO Combine this with the procedural reforms outlined in
Proposal 1
DO This would be two-way preemptive except (i) it would not
require states that do not allow punitive damages in products cases to
allow such awards and (ii) states would explicitly be allowed to opt out
of the allocation to the state, in which case prior state law with respect
to caps and allocation would apply
Proposal 3 - Advisory jury opinion with judicial determination
DO The jury would render a solely advisory opinion on
punitive damages
DO The actual deterimination of punitive damages would be
made by the judge
DO The judge would be required to consider the factors in
5.648, and would be required to explain why the judgeD,s award differs
(either higher or lower) from the juryD,s advice
DO Combine with procedural changes from proposal I
proposal 4 - Cap with easier breakthrough
DO Cap punitive damages at the greater of $250,000 or twice
compensatories (the lesser of the two for small businesses)
DO Do not tell the jury of the cap
DO Allow the judge to award punitive damages above the cap
without an additional proceeding and on a simple finding that the capped
amount is D&insufficient to punish or deter,D8 the standard in 5.648, with
no consideration of specified factors
DO Insist that there be no legislative history suggesting
this authority is to be used any more sparingly than implied by the
statutory standard
DO Couple this with the procedural changes described in
proposal 1
DO This would be two-way preemptive, except with respect to
states that do not allow punitives in products cases at all
Statute of repose
DO Two-way preemption of state law (as in 8.648)
DO 18 year statute of repose (as in 8.648)
DO Which a plaintiff may overcome by clear and convincing
evidence that the product had a longer useful safe life (not included in
8.648, and responsive to the victim of the hay-baler accident cited in the
veto message and to accidents involving products clearly intended to be
longer-lived, such as elevators)
DO Covering only durable goods in the workplace (narrower
than 8.648, retaining plaintiff rights concerning consumer goods in states
without any statute of repose and responding to your concern about
handguns)
DO With further exceptions for toxic substances, vehicles
used in transportation for hire, and express warranties (as in 8.648)
DO And with a provision that extends the statute to allow
full benefit of the two-year statute of limitations after injury or
discovery of harm in, for example, year 17 (not in 8.648, but not expected
to be a problem)
