TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, July 8, 2006

Insurance Tactics

Day On Torts has an interesting excerpt from a book about how Allstate revamped its claims handling policies with the help of McKinsey consultants.

July 8, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, July 7, 2006

How Tobacco Should Celebrate

Wonkette has some excellent suggestions for how tobacco companies should celebrate their Florida Supreme Court win.

July 7, 2006 in Damages, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

TortsProf Sports Special

Via the indispensable DeadSpin, we finally get a good sports story.  The local TV news has the details on the man's lawsuit against Michael Jordan and Phil Knight (Nike's founder), seeking $832 million:

Allen Heckard filed the suit himself, June 29th in Washington County Court. Heckard says he’s been mistaken as Michael Jordan nearly every day over the past 15 years and he’s tired of it.

I'm constantly being accused of looking like Michael and it makes it very uncomfortable for me,” said Heckard.

Heckard is suing Jordan for defamation and permanent injury and emotional pain and suffering. He’s suing Knight for defamation and permanent injury for promoting Jordan and making him one of the most recognized men in the world.

Says Heckard of how he came up with the $832 million figure ($416 million each): "Well, you figure with my age and you multiply that times seven and ah, then I turn around and ah I figure that's what it all boils down to."

DeadSpin also has this story and this followup on a lawsuit (complaint [PDF]) against Minnesota Timberwolves center Eddie Griffin for allegedly causing a car accident due to being distracted by watching and, er, enjoying pornographic videos on his in-dash DVD player.

July 7, 2006 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Florida Punitives Verdict Reversed

The Florida Supreme Court yesterday reversed [PDF] a $145 billion-with-a-b punitive damage award against various tobacco companies.  The opinion is long and fractured; the key conclusions appear to be that the punitive damage award was excessive and that the class should not have been certified in the first place.  $1 million-plus verdicts were upheld for individual class members, and all class members have the opportunity to go back and file individual cases.

The court's discussion of improper (but not quite reversible, evidently) argument is worth reading; it starts around page 39 of the PDF.  Among the objectionable arguments was this, in response to the defense lawyer arguing that there are two sides to every story:

Are there two sides to every question? And the immediate gut reaction  is: Yeah, yeah. You want to be fair and you say: Right, there’s two  sides to every question.  What’s the other side to the Holocaust? What  is the other side to slavery?

Over an objection, the plaintiffs' lawyer continued, in a "being legal doesn't make it right" theme, with this:

Let’s discuss the concept of legal in the context of America.  I noticed  in last week’s newspaper, Rosa Parks, who is 86 yCongressional Gold Medal because in 1955 . . . .

[Objection sustained]

We look back in history.  We look back in history.  The whole civil  rights movement of the ’60s was fightKing was arrested in the ’60s  . . . .   

[Objection sustained.]

In this building, in this building, a temple to the law, they were—there  were drinking fountains which said Whites Only.

While the Supreme Court condemns this argument, ultimately it concludes that it (and other argument) doesn't warrant reversal.

July 7, 2006 in Damages, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, July 6, 2006

Predicting the Supremes

I cleaned up my home office last weekend and finally tackled the two file cabinet drawers filled with materials from law school.  Among the files were my notes from the Supreme Court seminar taught by Charles Alan Wright, which was undoubtedly my favorite class in law school.

Tomorrow is the sixth anniversary of Professor Wright's death, from whom I took three courses (and from whom I received my two worst grades in law school and one of my best!).  I can't say anything about Professor Wright that hasn't been said, better, by others, but I will note that my file of correspondence with him is something I treasure (particularly those parts where he kindly if improbably identifies my poor grade as being a function of his "poor examining technique").

In any event, I thought a slow summer morning might be a good time to review the outcomes in the cases we discussed in the seminar.  Each of nine students (chosen at random) represented a Supreme Court Justice for the term, and we predicted votes and reasons for nine cases.  I was in the role of Justice Stevens.

So, for your slow summer morning reading pleasure, an overview of how we did:

  1. In re Korean Airlines Disaster, 524 U.S. 116 (1998). 
    Our prediction: 6-3 affirmal, with Breyer, Ginsburg & Kennedy dissenting. 
    CAW's prediction: 9-0 affirmance (my notes say he was "confused as to why [the Court] granted cert."). 
    Outcome: 9-0 affirmance:

    Personal representatives of passengers on airplane shot down over Sea of Japan sued airline under Warsaw Convention. After airline's liability was established in consolidated litigation, the United States District Court for the District of Columbia, Aubrey E. Robinson, Jr., J., 935 F.Supp. 10, granted airline's motion to dismiss plaintiffs' nonpecuniary claims, and the Court of Appeals, Randolph, Circuit Judge, affirmed. On writ of certiorari, the Supreme Court, Justice Thomas, held that Death on the High Seas Act (DOHSA) precluded any general maritime survival action to permit plaintiffs to recover damages for passengers' predeath pain and suffering.

  2. U.S. v. Scheffer, 523 U.S. 303 (1998).
    Our prediction: 7-2 reversal, with Ginsburg & Breyer dissenting.
    CAW's prediction: 7-2 reversal, with Ginsburg & Stevens dissenting.
    Outcome: 8-1 reversal, with Stevens dissenting (and a separate concurrence from Kennedy, O'Connor, Ginsburg, & Breyer):

    Accused was convicted by general court-martial, H. Martin Jayne, J., of uttering bad checks, wrongfully using methamphetamine, failing to go to his appointed place of duty, and absenting himself from his unit without authority. The United States Air Force Court of Criminal Appeals, 41 M.J. 683, affirmed as modified. Review was granted. The United States Court of Appeals for the Armed Forces, Gierke, J., 44 M.J. 442, reversed. On certiorari, the United States Supreme Court, Justice Thomas, held that per se rule against admission of polygraph evidence in court martial proceedings did not violate the Fifth or Sixth Amendment rights of accused to present a defense.

  3. Bragdon v. Abbott, 524 U.S. 624 (1998).
    Our prediction: 5-4 reverse, with Souter, Ginsburg, Breyer & Stevens dissenting.
    CAW's prediction: 6-3 reversed, with O'Connor leading the dissent.  (I think I'm reading my notes correctly on this one, but they're a little fuzzy.)
    Outcome: 6-3 vacated & remanded, with partial dissents from O'Connor, Rehnquist, Thomas, & Scalia:

    Patient infected with the human immunodeficiency virus (HIV) brought action under the Americans with Disabilities Act (ADA) against dentist who refused to treat her in his office. The United States District Court for the District of Maine, 912 F.Supp. 580, granted summary judgment in favor of patient, and dentist appealed. The First Circuit Court of Appeals, 107 F.3d 934, affirmed. Dentist petitioned for certiorari. The Supreme Court, Justice Kennedy, held that: (1) HIV infection is a “disability” under the ADA, even when the infection has not yet progressed to the so-called symptomatic phase, as a physical impairment which substantially limits the major life activity of reproduction, and (2) with regard to “direct threat” provision of the ADA, the existence, or nonexistence of a significant health risk from treatment or accommodation of a disabled person must be determined from standpoint of the person who refused the treatment or accommodation, but the risk assessment must be based on medical or other objective evidence, and not simply on that person's good-faith belief that a significant risk existed.

  4. U.S. v. U.S Shoe Corp., 523 U.S. 360 (1998).
    Our prediction: 8-1 affirmance, with Ginsburg dissenting.
    CAW's prediction: 7-2 affirmance, with Ginsburg & Kennedy dissenting.
    Outcome: Unanimous affirmance, with opinion by Ginsburg (who presumably got some sort of narrower argument for being in the unanimous opinion):

    Exporter brought action against United States, seeking refund of harbor maintenance tax (HMT) paid for exported articles on ground that HMT was unconstitutional as applied to exports. On cross-motions for summary judgment, a three-judge panel of the Court of International Trade, DiCarlo, Chief Judge, 907 F.Supp. 408, granted summary judgment for exporter. United States appealed. Sitting as a five-judge panel, the Court of Appeals for the Federal Circuit, Michel, Circuit Judge, 114 F.3d 1564, affirmed. Certiorari was granted. The Supreme Court, Justice Ginsburg, held that: (1) Court of International Trade properly exercised jurisdiction over exporter's challenge to constitutionality of HMT, and (2) HMT violated Export Clause as applied to exports.

  5. Burlington Indust. v. Ellerth, 524 U.S. 742 (1998).
    Our prediction: 8-0 reversal, with Justice O'Connor mysteriously missing.
    CAW's prediction: 9-0 reversal.
    Outcome: 7-2 reversal, with Scalia & Thomas dissenting:

    Employee who had suffered no adverse job consequences as result of alleged sexual harassment by supervisor brought suit against former employer under Title VII alleging that sexual harassment forced her constructive discharge. The United States District Court for the Northern District of Illinois, Castillo, J., 912 F.Supp. 1101, entered summary judgment in favor of employer. The Seventh Circuit Court of Appeals, 123 F.3d 490, reversed. Employer petitioned for certiorari. The Supreme Court, Justice Kennedy, held that: (1) employer is subject to vicarious liability for an actionable hostile environment created by a supervisor with immediate or successively higher authority over employee; (2) in those cases in which employee has suffered no tangible job consequences as result of supervisor's actions, employer may raise an affirmative defense to liability or damages; and (3) affirmative defense requires employer to show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that employee unreasonably failed to take advantage of any preventive or corrective opportunities provided or to avoid harm otherwise.

  6. Feltner v. Columbia Pictures, 523 U.S. 340 (1998).
    Our prediction: 7-1 reversal on various rationales (some statutory, some Constitutional), with Thomas dissenting and O'Connor mysteriously absent.
    CAW's prediction: 9-0 reversal, all on Constitutional grounds.
    Outcome: 9-0 reversal with a separate Scalia opinion:

    Owner of copyrights in television programs sued television station owner for infringement. The United States District Court for the Central District of California, Edward Rafeedie, J., granted summary judgment to copyright owner. Television station owner appealed. The Court of Appeals for the Ninth Circuit, 106 F.3d 284, affirmed in all relevant respects. Television station owner filed petition for writ of certiorari. The Supreme Court, Justice Thomas, held that: (1) Copyright Act does not grant right to have jury assess statutory damages, but (2) Seventh Amendment provides right to jury trial on all issues pertinent to award of statutory damages in copyright infringement action, including amount itself.

    Of note, among the materials Professor Wright distributed to us was a letter from none other than now-Chief Justice John Roberts, who argued the Feltner case for the winning side.  He claimed to be "anxiously await[ing] word on [the] seminar's vote."
  7. U.S. v. Balsys, 524 U.S. 666 (1998).
    Our prediction: 5-4 reversal, with Breyer, Stevens, Scalia & Souter dissenting.
    CAW's prediction: 8-1 reversal, with Stevens dissenting.
    Outcome: 7-2 reversal, with Ginsburg & Breyer dissenting:

    Government sought enforcement of administrative subpoena issued by the Director of the Office of Special Investigations of the Criminal Division of the United States Department of Justice (OSI), who sought to determine whether resident alien lied in his immigration application about his activities during World War II. The United States District Court for the Eastern District of New York, Sterling Johnson, Jr., J., 918 F.Supp. 588, enforced subpoena, and alien appealed. The Court of Appeals for the Second Circuit, Calabresi, Circuit Judge, 119 F.3d 122, vacated the order. Certiorari was granted. The Supreme Court, Justice Souter, held that concern with foreign prosecution was beyond scope of Fifth Amendment privilege against self-incrimination.

  8. Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1998).
    Our prediction: 9-0 affirmance.
    CAW's prediction: 7-2 affirmance, with Scalia & Rehnquist dissenting.
    Outcome: 8-1 mostly, with O'Connor and Breyer dissenting in part and Rehnquist dissenting:

    Nonprofit public interest organizations and individuals who regularly participated in Colorado's initiative and referendum petition process brought § 1983 action against state officials, challenging statutes regulating petition process. The United States District Court for the District of Colorado, 870 F.Supp. 995, upheld certain statutes and struck others. Parties cross-appealed. The Court of Appeals for the Tenth Circuit, 120 F.3d 1092, affirmed in part and reversed in part. Certiorari was granted. The Supreme Court, Justice GINSBURG, held that: (1) Colorado statute requiring that initiative-petition circulators be registered voters violated First Amendment free speech guarantee; (2) Colorado statute requiring that initiative-petition circulators wear identification badge bearing the circulator's name violated First Amendment free speech guarantee; and (3) Colorado statute requiring that proponents of an initiative report names and addresses of all paid circulators and amount paid to each circulator violated First Amendment free speech guarantee.

  9. Swidler & Berlin v. U.S., 524 U.S. 399 (1998).
    Our prediction: Privilege question - 5-3-1 affirm, with Stevens, Breyer & Ginsburg dissenting and Souter sitting out; work product issue - 7-1-1 affirm, with Kennedy dissenting and Souter sitting it out.
    CAW's prediction: Privilege question - 6-3 reverse, with Kennedy, Ginsburg & Breyer dissenting; work product - Court won't reach the question.
    Outcome: 6-3 reversal with O'Connor, Scalia & Thomas dissenting; didn't reach work product:

    Attorney and his law firm moved to quash grand jury subpoenas obtained by the Office of Independent Counsel during a federal investigation. The United States District Court for the District of Columbia, John Garrett Penn, Chief Judge, granted the motion, and appeal was taken. The Court of Appeals for the District of Columbia Circuit, 124 F.3d 230, reversed and remanded. Certiorari was granted. The Supreme Court, Chief Justice Rehnquist, held that the attorney-client privilege survives the death of the client.

So, there you have it.  It's as much for my entertainment as anything, but it is interesting to go back and look over predictions -- and it sure was a surprise to come across the Roberts letter.  Perhaps I'll see if I can track down some other participants in the seminar in other years.

July 6, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 5, 2006

Illinois Excitement

Two interesting opinions noted on the TortProf listserv; both are also discussed at Overlawyered:

  • In Tri-G v. Burke, Bosselman & Weaver, the Illinois Supreme Court held that "lost" punitive damages are not available in legal malpractice claims.  In other words, if your lawyer screws up and you lose punitive damages as a result, you can't recover those by way of suit against your lawyer.  From the majority opinion:

Disallowing lost punitive damages means that plaintiffs in legal malpractice actions may not receive as much money as they might have if the underlying action had been handled properly. Compensating plaintiffs, however, is but one of several factors that must be balanced in assessing whether lost punitive damages should be recognized in legal malpractice actions. There is no reason in logic or the law why it should be given preeminent effect where, as here, the jury has already awarded full compensation to the plaintiff for all the damages it actually sustained.

Punitive, or exemplary, damages are not awarded as compensation, but serve instead to punish the offender and to deter that party and others from committing similar acts of wrongdoing in the future. Loitz v. Remington Arms Co., 138 Ill. 2d at 414. Allowing Tri-G to recover its lost punitive damages from Burke would not advance that policy in any way. To the contrary, by holding the firm liable for the intentional or willful and wanton misconduct of a third party, it tears the concept of punitive damages from its doctrinal moorings.

Section 2-1115 of the Code of Civil Procedure (735 ILCS 5/2-1115 (West 2002)) expressly bars recovery of punitive damages in a legal malpractice action. By characterizing lost punitive damages as "compensatory," Tri-G is attempting to evade reach of this statute.

  • In another June decision, the Illinois Supreme Court held that a Burger King has a duty to patrons in connection with potential injuries from traffic smashing through the walls.  The dissent (and Ted Frank) suggest that the conclusion is massively overbroad -- but I think the opinion is actually fairly narrow.  Certainly the restaurant has a duty to its customers in terms of how it builds walls, roads, etc.

    The harder questions in this case are whether these injuries fall within proximate cause and whether the restaurant breached the duty of ordinary care.  Recall that the case was resolved on a motion to dismiss, where it's virtually impossible to win a breach argument. As for proximate cause, the Court concluded that the defendants failed to properly raise the proximate cause question: "[W]e find that defendants' [sic] have forfeited their argument regarding proximate cause for purposes of this appeal. Defendants argue for the first time before this court that, as a matter of law, the allegations in plaintiff's complaint are insufficient to demonstrate that their conduct proximately caused the decedent's injuries."

    I tell my students (and I told Massachusetts judges a couple of weeks ago) that any time a statement of duty sounds really specific -- i.e., "Restaurants have no duty to guard against bizarre traffic accidents ending up with cars running through the walls" -- it's much more likely to be a statement about breach, and properly dealt with on summary judgment.  The Court does a pretty good job of discussing how much confusion there is about duty, and comes out about right:

    Thus, the issue in this case is not whether defendants had a duty to install protective poles, or a duty to prevent a car from entering the restaurant, or some such other fact-specific formulation. Because of the special relationship between defendants and the decedent, they owed the decedent a duty of reasonable care. The issue is whether, in light of the particular circumstances of this case, defendants breached that duty. That question cannot be answered at this stage of the proceedings.

    Ultimately, the court concludes that the category of injuries is foreseeable enough that it can't find the absence of a duty as a matter of law -- but is emphatic that the presence of a duty implies neither breach nor proximate cause:

    Recognizing that the duty of reasonable care that businesses owe to their invitees applies to cases where invitees are injured by out-of-control automobiles is not the same as concluding the duty has been breached because a business failed to take a certain level of precaution. Nor is it the same as concluding that the breach was the proximate cause of an invitee's injuries.

    Do I thnk it's a great case?  Nope, not from what I've read.  It seems highly unlikely that there's a breach, given the facts that are known.  But those are hard questions to win on a motion to dismiss.  As for proximate cause, you might be able to win that on a motion to dismiss -- as long as it's properly before the court, which it apparently isn't here.  In other words, I think it's a loser of a case, but a loser at a different stage.

    I'm not an Illinois lawyer, so I don't know the procedural rules, but an early motion for summary judgment sounds like a good idea.  (I happen to think that more such motions should be taken seriously, but that's for another day.)

July 5, 2006 in Damages, Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Call for Papers

Call for Papers Reminder
Deadline: July 28, 2006

Junior scholars writing in the area of Torts are invited to submit papers for "Tort Law and the Modern State," a conference to be held at Columbia Law School, New York City on September 15-16, 2006.

The Conference is sponsored by Columbia Law School and the Randolph Speakers Fund and is being organized in connection with the launch of a newly formed peer-reviewed journal, the JOURNAL OF TORT LAW,

    Jules Coleman, Yale Law School

Editorial Board
    Mark Geistfeld, NYU Law School
    John C.P. Goldberg, Vanderbilt Law School
    Catherine Sharkey, Columbia Law School
    Ronen Perry, Faculty of Law, Haifa University
    Benjamin Zipursky, Fordham Law School

The Conference will bring together many of the world's most prominent tort scholars, representing a range of perspectives and methodologies including comparative, economic, empirical, historical, institutional, and philosophical analysis.

The Conference organizers are soliciting papers from junior (pre-tenure) scholars. Papers must be on some aspect of tort law, but all topics and methodological approaches will be considered. Submissions will be judged by the editorial board. Authors of submissions that are selected will appear on a conference panel, and will be given the option of publishing in the JOURNAL OF TORT LAW.

Junior scholars interested in being considered for inclusion must submit their papers no later than July 28, 2006. Papers should be no longer than 25,000 words. Submit your torts manuscript today via our website:

If you have questions about submissions or about the conference, please contact: Thelma Twyman,

July 5, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Accreditation versus Membership versus It's A Nice Thing To Have On Your Website

Ben Goldacre has a typically fun-to-read piece on his efforts to pull back the curtain of an "registry" of nutritionists, some of whom are peddling nonsense.

A plaintiffs' expert in a case I was tangentially involved in featured fairly prominently on his CV his membership in some group relating to forensic pathology -- I don't remember which one.  And, as expected, he noted that in his direct testimony, suggesting without quite saying that it was rather an honor. 

On cross, the lead defense lawyer (apparently quite effectively) showed him the membership certificates that several members of the defense team had obtained -- without any relevant training -- by simply paying the membership fee.

Remember: the pretty initials after a name sometimes just mean that they've written a check.

July 5, 2006 in Experts & Science | Permalink | Comments (0) | TrackBack (0)

PoL Closeout

Walter Olson at Point of Law has posted a response to my series of posts last week.  Thanks again to Walter for the invitation.

July 5, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 4, 2006


The SciAm blog has a bunch of cool pictures of nebulae and such that are somewhat like fireworks.

In related news, I am surprised to report that the Google search "fireworks lawyers" brings back not a single AdSense result.  There's a market opportunity, folks!  Run to it!

(InjuryBoard does have an entry on fireworks injuries and a referral service; they've got pretty good Google placement.)

July 4, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (1)

California Expands HIV Infection Liability

The California Supreme Court ruled yesterday that someone with HIV can sue the sexual partner who infected them based on constructive knowledge.  My sense (without doing a fifty-state survey) is that this is a fairly mainstream position.

"The burden of a duty of care on defendants who know or have reason to know of their H.I.V. infection is minimal, and the consequences for the community would be salutary," Justice Marvin R. Baxter wrote for the four-justice majority.

The opinion is here [PDF].

July 4, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, July 3, 2006

MySpace: The Extended Dance Remix Edition

Anita Ramasastry has a thorough examination of the MySpace case, focusing, in the end, on the feasibility of MySpace doing more.

(See also here, here, here, here, and here.)

July 3, 2006 in Current Affairs | Permalink | Comments (3) | TrackBack (0)

Sunday, July 2, 2006

Fun with Fungibility of Damages

A new SSRN paper by Jonathan Klick (FSU) and Catherine Sharkey (Columbia) suggests that caps on punitive damages may not be a completely effective way to control damages (if such control is your goal):

Conventional wisdom suggests that punitive damages are growing out of control. To stop juries from awarding blockbuster punitive damages, a number of states have passed caps to set a ceiling on the amount of punitives. In principle, if plaintiffs' attorneys and/or juries wish to circumvent such caps, they could simply increase the amount of compensatory damages awarded. To investigate this possibility, we examine data from the Civil Justice Surveys performed by the National Center for State Courts and present evidence in both difference-in-difference and triple differences frameworks that punitive damage caps are associated with an increase in compensatory damage awards. These results suggest that caps alone are a poor way to constrain damage awards.

July 2, 2006 in Damages | Permalink | Comments (0) | TrackBack (0)