TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, September 20, 2008

Feinman on Litigation Incentives and Insurers in Large Tort Cases

Jay Feinman (Rutgers-Camden) has posted on SSRN Incentives for Litigation or Settlement in Large Tort Cases:  Responding to Insurance Company Intransigence.  Here is the abstract:

The purposes of this article are to describe some ways in which the practices of insurance companies in settlement negotiations and the decision to settle or litigate in large tort cases disserve the objectives of tort law and to suggest genuine tort reforms to better align the dynamics with the objectives. Part I of the article describes models of the dynamics of settlement and litigation. Part II reports and explains a substantial gap between the predictions about settlement in the literature and the practice of settlement in large tort cases. In general, this can be described as a failure to appreciate the full consequences of insurance companies' strategic behavior in bargaining. In fact, there are a very significant number of large cases, probably an increasing number in the last few years, in which liability is relatively clear and it is also clear that the victim's damages are substantial, yet the insurance company refuses to make an offer to settle the case, makes a disproportionately low offer that it refuses to raise, or makes an offer only very late in the process. Part III explores existing measures and reforms to respond to this behavior. These include an expanded good faith duty owed by the defendant's insurance company to the insured, application of Unfair Claims Settlement Practices Acts, a common law action for bad faith against the insurance company by the tort victim, prejudgment interest and offer of judgment rules, intentional infliction of emotional distress, and the wrongful litigation torts.


September 20, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 19, 2008

Personal Injury Roundup No. 8 (9/19/08)

Has anyone else noticed that "premier week" for the networks' new TV season falls later and later each year?   Anyway, on to what's happened this week in torts...

Reform, Legislation, Policy

  • FDA warns consumers about Chinese baby formula possibly contaminated with melamine.  Chinese baby formula is not approved for sale in the U.S., but the FDA is investigating reports that Chinese-made formula is being sold in Asian specialty market.  [CBS 2 Chicago, FDA, LA Times, NY Times, Natl Geo Green Guide]
  • Survey finds that Texas doctors more willing to accept high-risk patients in light of med-mal caps.  [El Paso Times]
  • The FDA held a public hearing this week regarding allergen labeling on foods.  [ABC News, US News, WaPo]
  • WSJ Editors opine on tort reform.  [WSJ]
  • Representatives John Dingell and Bart Stupak (D-MI) investigate Wyeth's claims that Centrum Cardio lowers cholesterol.  [Pharmalot]
  • Consumer Product Safety Commission's Office of the General Counsel issued an advisory opinion finding that children's products which do not comply with new lead standards must be off store shelves by Feb. 10, 2009, regardless of manufacturing date.  (Advisory opinions are subject to change by the CPSC).  [CPSC]
  • Senate Special Committee on Aging held a hearing this week regarding direct-to-consumer advertising of medical devices.  [NYT, WSJ Health Blog]

New Lawsuits

  • Families sue Indianapolis hospital and drug manufacturer for heparin overdoses in newborns.  [Chicago Tribune (AP)]
  • Parents of boy who died after being hit by a jet ski seek $5 million from Idaho State University's Cooperative Wilderness Handicapped Outdoor Group.  [KBCI News 2 (AP)]
  • Jockey sues track owner for injuries sustained in horse race.  [TortsProf]
  • Six Flags sues ride manufacturer.  [TortsProf]
  • Gary Coleman sued for allegedly running down fan in bowling alley parking lot.  [Cal Punitive Damages]

Trials, Settlements & Other Ends

  • Family of boy scout settles totem pole lawsuit.  [TortsProf]
  • Federal judge dismisses libel suit against "Innocent Man" author John Grisham.  [AP/]


  • $54 million pants case set for appeal on Oct. 22d before D.C. Court of Appeals.  [BLT]
  • The Eleventh Circuit heard arguments in the gun-defamation case against NYC Mayor Michael Bloomberg.  [Fulton County Daily/, AP]
  • NY Appellate Division rejects breach of fiduciary claim against Wilson Elser, but allows legal malpractice claim to proceed.  [NY Law Journal/]
  • Ohio Supreme Court uses "market value" test to decide issue of damages that may be recovered by a spouse who took off time from work to care for a spouse injured by the negligence of another. [Day on Torts]
  • Adam Liptak reports on the upcoming preemption cases before the Supreme Court. [NY Times]



  • Libel tourism on the rise in U.K.  [NYT Opinion]
  • Judge rejects NYC's objections to "severity chart," which provides a "snapshot" of most serious injuries in the 9/11 respiratory illness cases.   [TortsProf]


September 19, 2008 in Roundup | Permalink | Comments (0) | TrackBack (0)

Talk Like a Tort Pirate

Still can't really type well, but I can at least urge you all to celebrate Talk Like a Pirate Day.  From last year's post on the subject:

  • Some suggested terms:
  • Res ipsa loquitARRRR!
  • Matey, ye caused a batt'ry when ye sliced off me hand!
  • Avast!  Belay that sayin' I assaulted ye!  Ye know ye didn't be apprehendin' a touchin'!  In all my years, I never seen such an addled fool!

That's just a start, of course.  Please add more in the comments.


September 19, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2008

Family of Scout Killed by Totem Pole Settles Lawsuit

In a tragic local incident last summer, a nine-year-old boy was killed at the Hidden Valley Boy Scout Camp in Perry County, PA by a falling totem pole.  The boy and other children were playing near the base of the pole, which was rotted and cracked when it was pushed.  The family reached a $1.38 million dollar settlement with two scouting organizations and an insurance company.  PennLive has the details.


September 18, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Man Down!

Here's wishing Bill a speedy recovery.  In solidarity, I typed this post without my right pinky (It's a pain!)


September 18, 2008 | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 17, 2008

Judge Overrules NYC's Objections to Use of "Severity Chart" in 9/11 Respiratory Cases

At a status conference yesterday, U.S. District Judge Alvin Hellerstein rejected objections by NYC to the use of a "severity chart" in the 9/11 respiratory illness cases.   As reported by the New York Law Journal (via, Special Masters James A. Henderson (Cornell) and Aaron D. Twerski (Brooklyn) prepared the chart to provide "what they term a 'snapshot' of the most serious injuries and diseases."   

Hellerstein said he hoped the severity chart would help him establish priorities and find a way forward in litigation that threatens to extend for years. The chart would be the first step toward unearthing "bellwether" cases that could be tried or used as the basis for settlement talks.


The judge defended his method of measuring the severity of claimed illness while conceding the chart does not measure causation, including whether the dust at the World Trade Center site was responsible or whether other factors, such as smoking, played a role.

Causation and other issues, he said, would be the subject of the next phase of the massive litigation -- the building of a database that could bring some clarity and allow the court to group the cases into logical categories. 



September 17, 2008 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

NJ Judge Finds Exxon Mobil Refinery Pollution Created A Public Nuisance

The New Jersey Law Journal (via reports on a ruling by a New Jersey judge finding Exxon Mobil liable for causing a public nuisance by polluting the waterways, land, and wetlands at two former refinery sites.   "The damage to the contaminated sites resulted from both the active disposing and accidental spilling of hazardous substances," [Judge] Anzaldi ruled. "The resulting harm was great."  The New Jersey Attorney General's Office issued this press release.   The case is far from over, however.  For one thing, Exxon still has a pending motion to dismiss the nuisance claim on statute of limitations grounds.  A copy of Judge Anzaldi's opinion is available here (pdf). 


September 17, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wyeth Reply Brief Filed

Drug & Device Law has a copy of the Reply Brief filed by Wyeth in Wyeth v. Levine, which is scheduled for oral argument before the Supreme Court on Monday, November 3rd.  In addition to the brief itself, Beck & Herrmann provide a concise summary of the brief's preemption "highlights."


September 17, 2008 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2008

A Hiatus Perhaps

I (Bill) am typing mostly one handed as I broke my pinky this morning.  (I fell off my bike.  In our yard.  Please feel free to make fun.)

Typing one handed is slow and annoying.  I thus might not be posting for a bit.  Good thing there are two other people here, no?


September 16, 2008 | Permalink | Comments (2) | TrackBack (0)

Updated: Six Flags Sues Ride Manufacturer

As I predicted, Six Flags has sued Intamin, the manufacturer of the ride on which a teenage girl had her feet severed.

Update: A more complete story here.


September 16, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

New Damages Caps Proposed For Suits Against Oregon State Agencies

The Oregon Health & Science University and the Oregon Trial Lawyers Association have agreed on new damages caps in torts suits against government agencies.    According to a press release, "[t]he 'per claim' limit would be set at $1.5 million effective July 1, 2009. The limit would increase by $100,000 per year for the next 5 years to $2 million."   None of these numbers, however, are final.  The proposal now proceeds to the Oregon Tort Claims Act Interim Task Force, the Governor, and the Oregon Legislature.    An Op-Ed in the Oregonian critiques the proposal.


September 16, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Forwarding Employer Email To Personal Account Supports Conversion Claim

In a recent opinion (pdf), the United States District Court for the Western District of Virginia addressed a 21st century conversion claim:  a former employee forwarded an allegedly proprietary email to his personal account, and then used the information to solicit people for a competitor.   The court found that these allegations stated a cause of action for conversion, and denied the employee's motion to dismiss reasoning that the "conversion claim does not fail merely because the property at issue is an electronic version of the list rather than a hard copy."  (Slip Op. at 20-21). 

(Thanks to Meredith Miller (Touro) for the tip).

- SBS   

September 16, 2008 in Current Affairs, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Monday, September 15, 2008

New Risks for Antipsychotics in Youth

The Times has details.  The lede:

A new government study published Monday has found that the medicines most often prescribed for schizophrenia in children and adolescents are no more effective than older, less expensive drugs and are more likely to cause some harmful side effects. The standards for treating the disorder should be changed to include some older medications that have fallen out of use, the study’s authors said.


September 15, 2008 in Products Liability | Permalink | Comments (1) | TrackBack (0)

Jockey Sues Track Owner

Alas, the story is paid subscription only, but our local paper reports that the owner of the Three-County Fair (in Northampton, Mass.) has been sued by Christopher Martin, a Maryland jockey, for injuries suffered when he was thrown from his horse during a race in 2005.

In a lawsuit filed on the three-year anniversary of the accident, Martin claims the irregular shape and poor maintenance of the racetrack caused his thoroughbread, "Miner Distraction," to collide with another horse and stumble.

The article says that coverage at the time reported that Martin said he wanted to ride in the next race, but was convinced to go to the hospital.  He asserts permanent disability.

I used a somewhat similar fact pattern a few years ago in testing on implied assumption of risk; one would assume that will be a major issue here too.


September 15, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, September 14, 2008

5 Blogs & 5 Blawgers

Beck & Herrmann at Drug & Device Law tagged us last week with the latest Internet meme.  (Until their tag, I also was clueless on the meaning of "Internet meme," but it seems to me to be the blogger equivalent of a chain-letter... - SBS).   This particular meme asks us to (1) identify five non-law blogs that we find interesting, and (2) tag five law-bloggers to do the same thing.

So, first, Beck & Herrmann want to know what non-law blogs we read in our spare time.  Chris reports that his blogs of choice are "all law, all the time," but Bill and Sheila have some non-law blogs in their favorites: 

Zooglobble - Kids and family music - news, reviews, and more. (Bill reads this.)

Chocolate and Zucchini - Written by Clotilde Dusoulier, a Parisian woman who shares her passion for all things food related. (Sheila reads this.)

Wonkette - Political gossip, satire, and sometimes news. (Bill & Sheila both read this.)

Paper Cuts - Written by the editors of the NYT Book Review about books and other forms of printed matter.  (Sheila reads this.)

Spare the Rock, Spoil the Child - The blog for the radio show hosted by Bill and his kids on Northampton, Massachusetts station 93.9 The River.  He writes this.

(There are a lot more we could add, and we could probably cheat and do so, but we won't...except that Bill can't resist: I also read, among many others, Deadspin, Cake Wrecks, Damning Capsule Reviews, The Unofficial Apple Weblog, Cinematic Titanic, and The RiffTrax Blog.)

And now we're supposed to tag five blawgers to continue this game:

First, we tag Professors Stier, Erichson, Lahav and Burch over at Mass Tort Litigation.   

We'd also love to know which non-law blogs Ted Frank and Walter Olson at Overlawyered read in their spare time (if they have spare time).

Brooks Schuelke always has something interesting to say.

Finally, let's tag some non-torts people - what do Contracts Prof and Property Prof read?

- The TortsProfs

September 14, 2008 in Current Affairs | Permalink | Comments (1) | TrackBack (0)