Saturday, November 17, 2007
I posted on the justification for the heart balm torts yesterday. Along with the direct issues involved in deciding, say, alienation of affections cases, the few states retaining the heart balm torts face subsidiary issues such as insurance coverage. One would imagine such issues had been decided long ago. Not necessarily the case.
In late October, the Supreme Court of South Dakota decided a case in which the issue was whether a personal liability umbrella policy provided coverage for an alienation of affections suit. The answer was a resounding "no." Not surprisingly, the policy contained an intentional tort exclusion. The court held that the exclusion applied to alienation of affections. The court then took the further step of announcing that insurance coverage for alienation of affections is contrary to public policy:
To permit such "affair insurance" would defeat the purpose of punishing and deterring individuals for their own tortious acts. In accordance, we hold that insuring the tort of alienation of affections is contrary to South Dakota public policy
Friday, November 16, 2007
The LA Times has the story.
A Los Angeles jury ordered Dole Food Co. on Thursday to pay five Nicaraguan banana plantation workers $2.5 million as punishment for concealing the dangers of a pesticide that rendered them unable to have children.
The verdict, which awarded far less in punitive damages than some observers expected, was hailed as a victory by attorneys on both sides. It follows a Nov. 5 jury award of $3.2 million in compensatory damages.
As I noted in a previous post, one of my former students loaned me his grandfather's Torts notebook from academic calendar year 1938-39 at the University of Minnesota. The professor was William Prosser. My student's grandfather is Leroy S. Merrifield, who went on to be a law professor (and teach Torts) at GW.
A quick perusal of the notebook reveals something striking--we still teach today a number of the cases Prosser was teaching in the late 1930's. For example: Weaver v. Ward, Brown v. Kendall, Vosburg v. Putney, Courvoisier v. Raymond, Ploof v. Putnam, Vincent v. Lake Erie Transp. Co., Palsgraf v. Long Island R.R. Co. (then only 10 years old and consuming more pages in the notebook than any other case), Winterbottom v. Wright, MacPherson v. Buick Motor Co., B&O R.R. v. Goodman, Martin v. Herzog, Byrne v. Boadle, In re Polemis, Butterfield v. Forrester, Davies v. Mann, and Rylands v. Fletcher.
This one has it all: sex, class conflict (plumber versus multi-millionaire), and a protagonist named "Johnny Valentine."
The "heart balm" torts (alienation of affections, criminal conversation, seduction, and breach of promise to marry), originally premised on the idea of a property interest in wives and children, have fallen on hard times. Only eight states now recognize some or all of these torts: Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah. Of the original four torts, only criminal conversation and alienation of affections have any significant presence in those states. Criminal conversation (always) and alienation of affections (almost always) involve suing the third party (the interloper) who has interfered with a marital relationship. The unfaithful spouse is not a party to the suit.
Recently, in Mississippi, Johnny Valentine sued Jerry Fitch for alienating the affections of his former wife, Sandra. Valentine argued that Fitch used his millions to lure Sandra, who worked for Fitch, away from him. Valentine testified that he found unexplained large wads of cash lying around the home he shared with Sandra. Sandra testified that she had fallen out of love with Valentine long before her affair with Fitch; therefore, causation was missing. The jury awarded Valentine $642,000 in compensatory and $112,500 in punitive damages. The Mississippi Supreme Court affirmed at 959 So.2d 1012 (2007) (available here courtesy of SCOTUS blog).
Fitch then filed a Motion for Stay of Mandate in the Supreme Court of the United States. Fitch's argument was that the judgment violated the First and Fourteenth Amendments to the United States Constitution. Justice Antonin Scalia, acting as Circuit Justice for the Fifth Circuit, denied the motion on October 25, 2007. Mississippi divorce attorney M. Craig Robertson happily exclaims that the order "affirms the ability to recover under the tort of Alienation of Affections."
As a constitutional matter, surely Robertson is correct. However, is there a good reason, as a matter of tort law, to recognize alienation of affections or criminal conversation? At least in the common adultery cases, I don't think so (alienation of a child's affections from a parent might be different (see prior post here)). Compensation theorists are primarily concerned about spreading economic losses to soften the blow to individual plaintiffs. There seems to be little economic loss associated with these torts (domestic relations doctrines already deal with property issues associated with a divorce). There tends to be no physical injuries or property damage. Efficient deterrence, based on people behaving as rational actors, seems no more useful in justifying the torts. Sex and love are not governed by reason. The vast majority of people are unlikely to stop pursuing love and sex based on the remote possibility of a lawsuit.
The most promising justification for the torts is corrective justice, the righting of a moral wrong. Yet it seems that the true wrong to the jilted party is on the part of the unfaithful spouse. S/he is the one who promised to forsake all others. The pain of the loss comes from the rejection by the spouse, not the interest of the interloper. In the end, the unfaithful spouse makes an autonomous choice that results in the harm. The tort system has more significant matters to handle. (However, for an eloquent defense of modifying the heart balm torts, see William R. Corbett, A Somewhat Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career, 33 Arizona State Law Journal 985 (2001)). Your thoughts?
Brian Leiter has posted the most cited scholars in a number of fields, including Torts and Products Liability:
1. Dan Dobbs (University of Arizona): 1100 citations, age 75.
2. Robert L. Rabin (Stanford University): 1090 citations, age 68.
3. Stephen Sugarman (University of California, Berkeley), 530 citations, age 65.
4. James Henderson, Jr. (Cornell University), 470 citations, age 69.
5. Kenneth Abraham (University of Virginia), 450 citations, age 61.
6. Michael D. Green (Wake Forest University), 400 citations, age 57.
7. David G. Owen (University of South Carolina), 380 citations, age 62.
8. Aaron Twerski (Brooklyn Law School), 370 citations, age 68.
9. William C. Powers, Jr. (University of Texas), 330 citations, age 61.
10. John C.P. Goldberg (Vanderbilt University), 300 citations, age 46.
Runners-up: Benjamin Zipursky (Fordham University), 260 citations; Jeffrey O’Connell (University of Virginia), 220 citations.
Other highly-cited scholars who don’t work exclusively in this area: Richard Epstein (University of Chicago), 3390 citations; W. Kip Viscusi (Vanderbilt University), 850 citations; Saul Levmore (University of Chicago), 740 citations; Jon Hanson (Harvard University), 480 citations; Keith Hylton (Boston University), 470 citations.
Thursday, November 15, 2007
That's the argument summarized by Ron Miller (Maryland Injury Lawyer Blog) from Rebecca Korzec (Baltimore), Maryland Tort Damages: A Form of Sex-Based Discrimination 37 U. Balt. L.F. 97 (2007). Miller's summary (the article is not on SSRN or otherwise online for free, so far as I can tell):
The essential premise is that limiting non-economic damages disproportionately affects female litigants, because women earn less, in large measure due to women spending more time on unpaid child care and taking care of the children and the house. Accordingly, limiting pain and suffering damages does not allow juries to award fair compensation. Non-economic damage caps solidify bias by rewarding economic losses over non-economic ones, intensifying the gender bias of tort law.
A member of my first Torts class (a great group!), Clarke Madden, was kind enough to share with me the Torts notebook of his grandfather, Leroy S. Merrifield. Mr. Merrifield's first year at the University of Minnesota Law School was 1938-39. His professor was William Prosser. At the time, Prosser was working on Prosser on Torts, which was published in 1941.
The notebook is a treasure trove. It is bound in black leather and is in remarkably good condition. It appears that the first day of class was September 30, 1938. Professor Prosser began the year-long Torts course by distinguishing torts from crimes. Prosser also noted that "much of the law of torts is not settled" and, in a phrase Merrifield placed in quotation marks, that torts was "the battleground of social theories."
Leroy S. Merrifield went on to have a fantastic career. He became a law professor at George Washington University Law School. Although he was a labor law scholar, he also taught Torts. Professor Merrifield, who turns 90 on Sunday, is currently the Lobingier Professor Emeritus of Jurisprudence and Comparative Law at GW. A tribute to Professor Merrifield at the time of his retirement can be found at 55 George Washington Law Review 179 (1987).
The notebook, then, provides us the thoughts of an eminent torts scholar, in the process of creating arguably the most influential hornbook on torts, as channeled by a student who would go on to become a torts professor. I will discuss the notebook over the next several weeks. I sincerely appreciate Mr. Madden and Professor Merrifield for allowing me to examine and write about the notebook.
Wednesday, November 14, 2007
The Chicago Sun Times (via AP) reports that a Cook County Circuit Judge has struck down Illinois's caps on non-economic damages in medical malpractice cases. A 2005 law limits non-economic damages such as pain and suffering to $500,000 against doctors and $1 million against hospitals. The judge reportedly concluded that the caps violate due process and equal protection (via ABA Law Journal).
The Washington Post reports that Yahoo! has settled the Alien Tort Claims Act suit filed against it this past spring by the World Organization for Human Rights USA on behalf of two imprisoned Chinese democracy activists. (Prior post here). The two men were imprisoned by the Chinese government after Yahoo! provided Chinese officials with e-mail records and other information that helped the government identify pro-democracy activists. Although the terms of the settlement are unknown, "Yahoo said in a written statement that the company would start a fund "to provide humanitarian and legal aid to dissidents who have been imprisoned for expressing their views online.""
Tuesday, November 13, 2007
David Rossmiller (over at Insurance Coverage Law Blog) reports that the federal district court in Alabama has set November 20th for Dickie Scruggs's arraignment on contempt charges. (Prior posts here, here and here). The court also will hear Scruggs's motion to dismiss that day. (Scruggs earlier sought dismissal by filing a petition for writ of prohibition and writ of mandamus with the Eleventh Circuit, but the Court of Appeals denied that request in late October).
An article in today's National Law Journal (via law.com) provides a detailed explanation of the events leading to the contempt charges, as well as commentary on the likely success of the contempt charges.
The Daily Business Review (via law.com) reports that the Florida Third District Court of Appeal has reversed a $60 million jury verdict against Ford involving a fatal rollover of an Explorer SUV:
Ford appealed the verdict in June 2006 on the grounds that Miami-Dade Circuit Judge Roberto Pineiro erred by allowing testimony alluding to hundreds of Ford Explorer accidents without requiring the plaintiffs to establish similarities between those accidents and the fatal one that caused the 1997 death of 17-year-old Lance Crossman Hall.
The Boston Globe (via Bloomberg) reports that the plaintiffs plan to appeal to the Florida Supreme Court, and if that fails, go ahead and retry the case.
A dentist at Syracuse Community Health Center, dancing to the song “Car Wash” while he was extracting a patient’s tooth, lost the inch-long drill bit, which punctured her sinus cavity and came to rest by her eye socket, according to her lawsuit.
The NYT blog The Lede has more discussion, including an observation that the dentist's name is, amusingly, Dr. George Trusty.
I've got a dentist appointment on Friday. Perhaps I'll ask that they turn down the volume on the radio...
Monday, November 12, 2007
According to a new Injury Prevention Journal study, 190 online auctions contained, or were suspected to contain, a recalled children's item.
* * *
The study monitored eBay for 30 consecutive days for the presence of 141 child and infant products that had been recalled.
All of the items were recalled between 1992 and 2004 and researchers used the site's search function to hunt for the items.
In its own search, ABC News found 10 recalled items in only a few minutes.
eBay said that they link to the CPSC's recall list, but that it is not feasible to block such sales across the board.
The new issue of AAJ's Trial has a story (paid membership required) about the ongoing litigation against the trailer manufacturers who provided trailers for Katrina refugees:
More than 500 Louisianans who have been living in trailers provided by the Federal Emergency Management Agency (FEMA) since their homes were destroyed by Hurricane Katrina are suing mobile-home and travel-trailer manufacturers for making products that violate state and federal law by producing formaldehyde “at a dangerously unhealthy rate.” (Culler v. Gulf Stream Coach, Inc., No. 07-4018 (E.D. La. filed Aug. 7, 2007).)
* * *
The plaintiffs’ complaint charges that the trailers were manufactured “without the benefits of defendants’ usual quality control. [The] defendants were unable to find enough construction materials from their usual suppliers of low-formaldehyde-emitting material and instead used high-formaldehyde-emitting particle board, composite woods, adhesive, and other materials in the manufacture of the housing units.”
The story notes that plaintiffs have not sued FEMA itself, stating that they hope that the government would assist in finding out the problems with the trailer construction.
USA Today has the story of a tort system brought this summer against the second-largest Ku Klux Klan group in America, the Imperial Klans of America. The suit arose out of the 2006 beating of a Hispanic teenager in Kentucky; the Klan members deny that the group was involved. The plaintiff is represented by the Southern Poverty Law Center, who says that the goal is to cripple the group and deter future violence; their press release is available here.
This paper considers the problem faced by a manufacturer who learns the product's risks after the product has already been sold and distributed to consumers. A product recall, where the manufacturer contacts old customers to warn them about the risks and (possibly) to offer to buy the product back, is costly to conduct. When held strictly liable for product-related injuries, the manufacturer solicits the return of the product when the product risk exceeds a threshold. Consumers comply with the recall and return the product when their private valuations of consumption are smaller than the buyback price. With strict liability alone, the manufacturer's private incentives to stage a recall are insufficient, the buyback price offered is too low, and the continued product usage by consumers is excessive. Strict liability with a warning defense, where the manufacturer can avoid liability by simply disclosing product risk, leads to too many product recalls but correct consumer usage following a recall. A carefully designed negligence based rule, the “post-sale duty to warn,” implements the social welfare benchmark.
Sunday, November 11, 2007
The NYT has details, including the note that the manufacturer did not evidently inform the seller of the ingredient change, and also that the toxic (when metabolized) product costs about a third of the proper ingredient. It also has this attempt at a caveat from the Chinese regulator:
The Chinese quality supervision agency noted that the packaging had the warning “swallowing can cause danger” and that the beads were not recommended for children under age 3.
As of this morning, Kline & Specter and Lieff Cabraser have purchased Google ads for "Aqua Dots lawyer."