Mass Tort Litigation Blog

February 27, 2007

I recently came across the Mass Tort Litigation Blog, an offering by Professor Byron Stier of the Southwestern Law School and Professor Howard Erichson of Seton Hall Law School. A member of the Law Professor Blogs Network it is full of articles specific to mass torts and class action. It includes posts on recent cases, developments and issues, as well as, resources, and publications dedicated to the topic. I found it to be a very interesting and informative on an ever increasingly important area of tort litigation. I have added the blog to my links.

Michael Stevens reports on his Kentucky Injury Law Journal that the Kentucky Supreme Court has granted discretionary review in the case of Commonwealth Transportation Cabinet v. Sexton. Sexton created a new duty for landowners with respect to their trees in heavily populated areas. Michael describes the new duty as follows:

The Court of Appeals in a published decision written by Judge Henry (with Judge Combs concurring) held “that a landowner in an urban or heavily populated area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises.”

Michael’s post contains links to the SCOKY order, the Court of Appeals opinion, and his earlier digest of the case. Click the link for Michael’s post.

As noted by the dissent, there currently is no duty for a landowner to discover trees, which may create a “reasonable risk of harm.” A landowner is only responsible for those trees which he knows or should know create an unreasonable risk of harm. His knowledge is the spark which ignites forseeability and establishes a duty. Two judges have now removed the requirement of knowledge. This new duty greatly expands the scope of a landowner’s responsibility. A landowner, or homeowner in urban areas, now has a duty to discover dead or decaying trees that create a risk of harm. I disagree that this is an appropriate course for a select panel of the Court of Appeals to take. If it is to be a new duty it will, and should come, from the Supreme Court.

The Courier Journal reported on a $10.4 million verdict awarded by a Louisville jury in US District Court against U-haul International, Inc. The case involved a U-Haul towing device, known as a tow dolly involved in a tragic accident, resulting in very serious injuries. U-haul maintains its product was state of the art and plans to appeal. Click the link for the story.

The Kentucky Supreme Court published Schmidt v. Leppert, finding that “Kentucky’s MVRA leads to the inescapable conclusion that Schmidt [was], in fact, personally liable to Nationwide for repayment of BRB because Schmidt [was] not a “secured person” under the MVRA.”

Schmidt admitted he negligently caused an auto accident in Kentucky. Schmidt, an Indiana resident, was insured by a policy of insurance with American Family Insurance Company. American Family did not do business in Kentucky nor did it provide basic reparations benefits. Nationwide Insurance Company, who had paid benefits on behalf of its insured, Leppert, sought recovery of those benefits directly from Schmidt.

Resolution of the case turned on KRS 304.39-070, which allows subrogation of reparation benefits directly from any person or organization, “other than a secured person.” A secured person is an owner or operator of a secured vehicle. In order to have “security” on a motor vehicle, an insured’s policy must include “basic reparation benefits.” Because Schmidt’s policy did not provide for the payment of BRB’s it did not qualify as “security”, and Schmidt was not a “secured person.” Because Schmidt was not a secured person, Nationwide could sue him directly.

As noted by the Schmidt Court, this analysis is the same as the one undertaken in City of Louisville v. State Farm for Kentucky entities opting out of the payment of BRB’s. If the security does not provide for the payment of BRB’s, the insured is not a “secured person” and is subject to personal liability. In Schmidt, American Family admitted it would indemnify him for any BRB’s he had to pay.

This is simply the same result reached in the days before the MVRA. Typically, the injured party would sue the negligent party to recover the medical expenses paid. If “at fault” the insurer would pay those sums due up to the policy limits. With the advent of the MVRA the personal insurer steps in and pays the first $10,000.00 of those payments. The MVRA now provides a procedure for the reimbursement of those sums in place of the tort system. However, it leaves the old tort system in place in those instances when the a person is someone other than a “secured person.”

The Courier Journal reprinted an Associated Press story, reporting that the United States Supreme Court has thrown out a $79.5 million punitive damages award against tobacco maker Philip Morris to an Oregon widow. Click the link to read the article.

Mike Krauser and I just completed oral arguments in the case of Reece v. Nationwide, before the Kentucky Supreme Court. Although there were several issues presented, the central issue was whether Nationwide was entitled to a directed verdict on Reece’s claim of permanent impairment. Michael Stevens has posted a summary of the issues identified by the SCOKY at the Kentucky Injury Law Journal with links to the submitted briefs. Michael describes The Kentucky Law Journal as an, “[o]n-line legal journal for the Kentucky trial lawyer addressing cases and developments in torts, insurance, civil procedure, and trial practice.”

I was fortunate enough to talk to Michael about the oral arguments, including my thoughts and opinions on the outcome. He was kind enough to listen. We hope to follow this case to its final decision. Look to both the Kentucky Tort and Insurance Law Blog and the Kentucky Injury Law Journal for further analysis and thoughts. Given my participation, I will reserve my comments until the opinion is issued. Michael, however, is under no such constraint. I hope to post some of my comments on Michael’s blog and offer that he do the same here. I have added Michael’s new blog to my links for easier access.

Back before the Holidays, I posted several articles on electronic discovery and information. One of the hot topics in this area and for 2006, in general, was metadata. Metadata is the information embedded in electronically produced documents. Because it is embedded, it is basically hidden, unless you know where to look. The question most posed was whether or not it was ethical for a lawyer to look at this information. Ben Cowgill posted an article with links to the ABA Formal Opinion, which has held that “lawyers can ethically examine hidden ‘metadata’ in electronic documents.”


A recent ABA Formal Ethics Opinion holds that a lawyer can ethically examine the hidden ‘metadata’ in an electronic document received from an opposing party. See ABA Formal Ethics Opinion 06-442.

Click on the heading for Ben’s entire post or click on the links for the specific document referenced.

This will be my last post on this issue, at least for now. The fact that something such as “metadata” was discussed at such lengths in legal journals, CLE’s and legal blogs shows the value of being “techsavy” when it comes to electronic discovery.