TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, September 9, 2006

Tort Liability & ABC

Defamation for the 9/11 "docudrama"?

September 9, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, September 8, 2006

What Could Possibly Go Wrong?

Sometimes I'm glad when a spam gets through the filters I have set up.  Today is one of those days, for otherwise, how could I have learned about the Fly-Jumper?  (Or flying-jumper; the site varies.)  Behold its joys:

You can take one step 2~3meters and also jump 1~2meters high when you use it. It will be one of hottest sports during this year! And it will be a windstorm in fashion, leisure and amusement throughout the world for people in different areas and different ages. Everyone can enjoy it

Pic6 As skateboarding and ice skate are still growing, a new item of more cool body building and leisure, you can’t seize the wind of fashion .Hop, bowling, net bar, skating and dancing blanket are popular in short time...

It suits everybody, no matter the age is which is embodied the attraction of sport. It’s also the special product of vigorous and amusement The dream of becoming YaoMing will come true, if you try it when you play basketball. You can show your cool dancing to people when you wear it to dance hip-top. You will share the happiness with the world if you walk with it...

This is not the new cosset of boys.

The girl who likes beautiful to own it, not only have pretty body, but also have the fiction of reduce weight;

...and that's how the cover page ends, more or less.  The picture page brings its own delights.

Looking for a products liability exam subject?  Enjoy.  (Oddly enough, I actually wrote one about a very similar project I noticed in, sadly enough, an AirMall catalog last spring.  But the AirMall catalog wasn't nearly as fun to read.)

September 8, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Featherstone on the Frey Settlement

The post is here, along with some lunatic rantings in the comments.

(via Point of Law.)

September 8, 2006 in Goofy Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, September 7, 2006

I'm Totally Suing if I Don't Win It All

<embarrassing off-topic stuff>

TortsProfs the nation over will no doubt cheer to hear that I will be representing them in the third annual blawger fantasy football league.

(Even more off-topic plug: Go read the great fantasy sports writing of my friend Christopher Harris.)

</embarrassing off-topic stuff>

September 7, 2006 | Permalink | Comments (0) | TrackBack (0)

A Million Little Pieces = $2.35 Million Settlement (Maximum)

Definition of "nuisance settlement"?  You be the judge.  (NYT story here.)

(Earlier post, and another post referencing one of the plaintiffs' lawyers, Thomas Pakenas, who also brought a McDonald's gluten lawsuit.)

September 7, 2006 in Goofy Cases | Permalink | Comments (0) | TrackBack (1)

Next Target for Change: Consumer Protection Laws? says a story.

As part of their efforts, tort reformers are circulating model legislation to state lawmakers that would require consumers to have suffered economic losses or injuries from a company's alleged misstatements in order to file a class action.

The model legislation, which was encouraged recently in a report by the American Tort Reform Foundation, also would require consumers to have relied on a company's alleged misrepresentations when they bought its product or services.

(See also the post from Pfizer's Arnold Friede.)

September 7, 2006 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 6, 2006

Vaccines & Autism

You probably noticed the stories covering a recent study that suggested a correlation between paternal age and incidence of autism.  I hadn't thought much about them (besides "interesting"), but this Respectful Insolence post points out that the study also gives more weight to the idea that autism is primarily genetic and not tied to vaccines and mercury in those vaccines.  It's worth a read.

September 6, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (1)

Tuesday, September 5, 2006

Legal Healing, That's What I Want

(Sorry, I'm really no Marvin Gaye.)

Anyway.  An interesting sounding new paper by Jonathan Todres on reframing medical malpractice litigation as part of the continuum of care.  Unfortunately, the paper itself is not now available for download; it'll appear in the Connecticut Law Review.  The abstract:

The medical malpractice liability system is blamed for everything from the high cost of health care to quality assurance issues. This Article suggests that that one of the problems with the current approach to medical malpractice is that legal remedies for medical error are not viewed as part of the continuum of care. Thus, a new model - driven by the principle of care and the goal of healing - is needed to address medical errors more effectively. Building from these core principles of care and healing, the author develops a new healing-centered framework which provides a better assessment of the strengths and weaknesses of the current medical malpractice liability system and existing alternative schemes. Evaluating existing options using this new framework, we find that each of the current models falls short in certain ways. The author then turns to restorative justice for guidance in fashioning an alternative system for addressing medical error that meets the objectives of the healing-centered framework. Building on restorative justice principles, the author proposes a restorative medical error resolution scheme aimed at providing healing for patients, health care providers and the community.

Edit: Jonathan advises that he will be posting the article to SSRN, and that in the meantime, he'll send it to anyone who contacts him.

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

Lawyer Ads, Taste, Ethics

The Kentucky AG is interested, at least, in the lawyer ads that popped up almost immediately after the recent Comair tragedy in Kentucky.  He says he's not sure they're illegal but that they're certainly tasteless; no argument here.  The first suit was filed on the same day as the first burial.

I note that Googling "Comair 5191 attorneys" comes back with one clearly targeted ad -- for Lieff Cabraser -- while Kentucky plane crash attorneys returns with a whole pile of AdSense ads, but it's not entirely clear that they're aimed at Comair victims' families.

September 5, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, September 3, 2006

Updated - What Should Be Taught In Torts? A Series of Guest Posts

(Bumped to the top to note Sunday's new post.)

I'm back from Austin, where it was approximately 145 degrees.  Hooray for Guero's and Chuy's.

This week, being back-to-school or welcome-to-school at many law schools, I've invited what I think is a pretty great range of people -- from torts profs to law students to practicing lawyers to a judge to policy people -- to submit guest posts on what should be taught in law schools' torts classes.  As you'll see, the responses were quite varied and interesting.

Monday and Tuesday will feature the initial posts, with the rest of the week set aside for responses by the authors or by others.  If you have a comment that you think would better be a post rather than in the comments field, send me an e-mail (wchilds AT law DOT wnec DOT edu).

The posts:


Andrew McClurg provided a response to the posts from Ted Frank and Michael Moreland.


Michael Moreland responded to Andrew McClurg's post.  Moreland is an assistant professor at Villanova University School of Law and most recently worked in the White House.

Ted Frank has provided a response to McClurg's and Nordberg's posts.

Peter Nordberg has replied to Frank's response.


Peter Nordberg has posted a response to other posts.

Jennifer Wriggins has submitted a post about Torts and race.  Wriggins is an associate professor at the University of Maine School of Law.

RiskProf has an interesting post wanting more focus on economic realities of the tort system.  (I think that's a fair description of the post.)

There are also interesting comments, several to this post (click on "comments" below if you don't see them).  In addition, there are two commenters on Nordberg's post, including my colleague Jamie Colburn and Amos Presler, who has the interesting perspective of having worked for a plaintiffs' expert in litigation. (He may have worked as a defense expert too; Google is silent.)  Finally, one of Professor Shapo's former students suggests the value of folk music.

I'm expecting to receive some other comments and will post them as they arrive.


David Owen: What I Wish 1st Year Torts Students Would Learn.  David Owen is the Carolina Distinguished Professor of Law and Director of the Office of Tort Law Studies at the University of South Carolina where he teaches courses on Tort Law and Products Liability.

John Day: The Economics of Case Acceptance.  John A. Day is a founding member of Branham & Day in Brentwood, Tennessee.  He is a prolific blogger, most notably at  His firm primarily represents plaintiffs in civil litigation.

Ted Frank: Two Things.  Ted Frank is Resident Fellow and Director of the American Enterprise Institute Liability Project.  He frequently blogs at Overlawyered and Point of Law.

Peter Nordberg: Logic and Inference.  Peter Nordberg is a shareholder in the law firm of Berger & Montague and runs Daubert on the Web.

David Swanner: What Should They Teach at Law School?  Dave Swanner is a plaintiff's attorney with the second trial related blog in the country, He's a sole practitioner and used to teach interrogation for the Army.


Marshall Shapo: What Should Be Taught.  Marshall S. Shapo is the Frederic P. Vose Professor at Northwestern University School of Law.

Robert Bailey: More Balance.  Robert W. Bailey, MD, FACS, is a Professor of Surgery (former) & third-year law student at Florida International University College of Law.

James M. Rosenbaum: Common Law.  Judge James M. Rosenbaum is the Chief Judge in the District of Minnesota.  I clerked for him.

Andrew McClurg: Three Things We Should Be Teaching in Torts (But Aren't).  Andrew McClurg is the Herbert Herff Chair of Excellence in Law, Cecil C. Humphreys School of Law, The University of Memphis.

Arnold Friede: Taking Proximate Cause Seriously.  Arnold Friede is Senior Corporate Counsel at Pfizer.  Prior to joining Pfizer in 1998, he served in various roles, including Vice President and General Counsel, at Unilever.  He has also worked at the FDA.

I will update this post throughout the week to include links to the various pieces.


September 3, 2006 in Teaching Torts | Permalink | Comments (3) | TrackBack (0)

McClurg: In Defense of the Common Law: McClurg’s Response to Moreland and Frank

This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.

Andrew McClurg is the Herbert Herff Chair of Excellence in Law, Cecil C. Humphreys School of Law, The University of Memphis.

Thanks to Michael Moreland and Ted Frank for their thoughtful replies to my argument that law professors should be spending more time talking about the process of tort reform, coupled with my more specific concern that today’s students pass through law school largely unaware of the radical pace at which statutory and administrative law are usurping the common law tort tradition.

Who’s better-suited to write tort law: judges or legislators? The answer to this central question, as Michael suggests, is that it depends on the particular issue. I don’t oppose all legislative tort reform. Legislative solutions may be appropriate for certain complex issues or situations when it has become apparent they are beyond the capacity of effective common law adjudication. Asbestos and class actions, mentioned by Michael and Ted, are probably good examples.

If only tort reform were so limited. Neither Michael nor Ted mentions the “silent tort reform” process through which federal agencies are preempting or attempting to preempt state common law through administrative regulations. Professor David Owen calls preemption the most important issue in products liability law today, yet the administrative preemption process, which has escalated dramatically in 2006, remains invisible to most Americans, including Torts students.

In the legislative arena, dozens, perhaps even hundreds, of tort reform bills are introduced in state legislatures annually. Many of them pass. Approximately half of U.S. states have statutes capping noneconomic damages. A majority of states have legislatively abrogated or substantially modified the common law doctrine of joint and several liability. About half of states have abolished or modified the collateral source rule.

The list goes on and on. The main point of my initial post was not whether these changes are good or bad, although I confess to thinking some of them are bad, particularly because none of the measures that reduce plaintiffs’ damages address the pink elephant in the living room that U.S. tort plaintiffs have to foot the bill for attorneys’ fees and litigation costs. Rather, my complaint was that these rapid and fundamental alterations in how tort law is made are escaping significant scrutiny in legal education.

The influence factor. Common law decision-making suffers from deficiencies (it’s ad hoc, inefficient), but so does legislative decision-making. Michael and Ted are critical of judges making tort law, but have they given fair consideration to problems in the legislative tort reform process? Are they convinced that legislative tort reform is made for the right reasons after due consideration of all relevant issues?

Back in Florida, I attended a party in Miami thrown by and for lobbyists where I struck up a conversation with one of the most powerful lobbyists in the state. Making forced small talk, I asked, “What percent of legislative decisions are made on the merits?” His depressing answer: “Zero.”

Hopefully, he was exaggerating, but I’d be curious to get Michael’s insight from working in politics about who drafts most tort reform legislation. At least at the state level, my understanding is that most of the bills are drafted by lobbyists or other industry representatives. Correct me if I’m wrong.

Ted’s example of Roger Traynor. Ted mentions, with apparent disapproval, Justice Roger Traynor of the California Supreme Court, who helped introduce strict tort liability for defective products in Greenman v. Yuba Power Products, Inc. (Cal. 1963). I appreciate that reference because I believe it supports my position that the slow, organic nature of common law evolution has advantages over rapid, ill-considered, one-size-fits-all legislative changes.

If I could be King of Torts for one day and issue one proclamation to legislators regarding tort reform, it would be: “Slow down!” Let’s give more in-depth and balanced consideration to the issues before continuing to jettison common law doctrines that, in some instances, took more than a century to evolve.

The common law adoption of strict products liability was a gradual process that occurred over a period of decades. Traynor himself first advocated for strict liability nineteen years earlier in Escola v. Coca-Cola Bottling Co. (Cal. 1944). The adoption of strict liability hardly was a precipitous action by one judge. By the time Greenman was decided, other courts already were imposing strict liability “in contract.” Traynor essentially said let’s just call it what it really is: strict liability in tort.

One advantage of the common law system is that when courts do get something wrong, there’s an opportunity to correct the mistake. To the contrary, once a statute has found its way into the books, removing it is practically impossible. In the case of strict liability, however, although Michael and Ted may disagree, history has shown that the courts got it right, as evidenced by the fact that most economically developed legal systems worldwide have followed the U.S. path in imposing strict liability for injuries caused by defective products.

Ask yourself who you feel more comfortable with as a maker of tort law: great legal minds like the distinguished Roger Traynor or a group of persons who know little about tort law and most of whom are not even lawyers? Traynor is widely recognized as one of the great American jurists. In 1948, he wrote the first state supreme court opinion striking down a miscegenation law enacted, of course, by a legislature.

The common law system isn’t broken. The common law system gets all the blame, but never any credit when it functions well, which it usually does. The system isn’t flawless, of course, but no complex system of adjudication ever could be. Ted mentions using public nuisance law to take on handgun and lead paint manufacturers, but I believe most courts have rejected that theory. He mentions “wrongful birth” cases. If he’s talking about cases where persons born in an impaired condition, or their parents, sue doctors for failing to detect the condition and inform the parents so they could terminate the pregnancy (as opposed to botched vasectomy cases), my understanding is that most courts have either rejected those claims or severely limited them. Michael mentions excessive damages, but courts regularly toss out or reduce excessive damages awards. Contrary to the publicity often given to the initial award, these corrective actions usually occur with little fanfare.

“Memorial damages” as an infringement of common law tradition. Finally, Ted asks whether my proposal for memorial damages in wrongful death actions in my article Dead Sorrow [PDF] is a threat to the common law. Since wrongful death actions are exclusively creatures of statute, I would say not.

Everything I’ve said misses my original point. All of the above obscures the principal argument of my initial post, which did not focus on the merits of legislative tort reform. Rather, my post posited that torts professors should be doing more to engage students, whether they favor or oppose tort reform, to think critically about the very questions Michael, Ted, and I are discussing.

September 3, 2006 in Teaching Torts | Permalink | Comments (1) | TrackBack (0)

Tom Cruise Knows Drug Labels

I'm just speculating here -- perhaps a bored reader can do the Nexis search -- but I bet this is the first story in which Tom Cruise, Brooke Shields, and FDA black-box warnings have been mentioned together:

Cruise’s spokesman confirmed the celebrities made up.

“It is true that his friendship with Ms Shields has been mended,” spokesman Arnold Robinson said in a statement. ”He has not changed his position about antidepressants, which as evidenced by the black label warnings issued by the FDA on these types of drugs, are unhealthy.”

That said, the black box warning on SSRIs (at least Zoloft [PDF] and Paxil [PDF]) addresses use by children and adolescents.  While I'm sure Shields looks younger than her 41 years, she's neither a child nor an adolescent.

September 3, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Mass Tort Litigation Blog

Did I mention that you should be visiting the Mass Tort Litigation Blog, edited by Byron Stier (Southwestern)?  Because you should.

September 3, 2006 in Teaching Torts | Permalink | Comments (0) | TrackBack (0)