October 4, 2008
Abraham on the Prohibition of Party Testimony and Tort Law
Kenneth Abraham (Virginia) has posted to SSRN The Common Law Prohibition on Party Testimony and the Development of Tort Liability. Here is the abstract:
For two and a half centuries of accident law's history, between about 1600 and 1850, neither the plaintiff nor the defendant in a tort suit could testify in that suit. In fact, during this period the parties could not testify in any civil suit, and the defendant could not testify in a criminal case. These prohibitions were features of a broader common law rule providing that any potential witness who had an "interest" in the outcome of a case was not competent to testify in it. It was not until statutes abolishing this evidentiary prohibition were enacted in England in the 1840s, and in the United States between the late 1840s and the 1890s, that the parties were permitted to testify in tort (and other) suits. This Essay addresses the influence of the prohibition against party testimony on the development of tort liability prior to the middle of the 19th century.
October 3, 2008
Personal Injury Roundup No. 10 (10/3/08)
Reform, Legislation, Policy
- Illinois AG Lisa Madigan is calling on the CPSC to develop a plan to curb the sale of recalled products online and in second-hand shops. (LegalNewsline)
- As of October 1st, Medicare will not reimburse hospitals for ten "reasonably preventable" conditions. (HealthLawProf Blog)
- Florida joins eight other states in suing Merck to recoup payments for Vioxx. (The Pop Tort)
Trials, Settlements & Other Ends
- Manchester United player awarded 4.5 million pounds for a career-ending tackle (Olson/Overlawyered)
- The family of a woman crushed to death in the 2006 collapse of Boston's "Big Dig" tunnel ceiling collapse has settled with the remaining defendants. The total settlements equal $28 million. (ABA Journal)
- The Court has scheduled several torts cases: Altria Group v. Good (10/06/08) (Preemption), Wyeth v. Levine (11/03/08) (Preemption), Philip Morris USA v. Williams (12/03/08) (Punitive Damages). (SCOTUS Blog)
- The Illinois Supreme Court ruled that a state tort immunity act does not prevent a mother from suing the city of Park Ridge over its paramedics for the death of her son. (LegalNewsline)
- Unilever recalls Lipton Milk Tea after discovering Melamine (Stier/Mass Tort Lit Blog)
- The Pop Tort reports about uranium-tainted water in New Hampshire here.
- Drug and Device Law provides an intermediate-level tutorial on the learned intermediary doctrine here.
October 2, 2008
Leroy S. Merrifield
Leroy S. Merrifield, the Lobingier Professor Emeritus of Jurisprudence and Comparative Law at George Washington University, passed away on September 19th at the age of 90. Although Merrifield was a labor scholar, he also taught Torts. In addition, Merrifield was the author of the Prosser Notebook. I am grateful to Merrifield for patiently answering my questions about the notebook, and my sympathy goes out to his family.
Ex-Priest Sued for Stealing Parishioner's Wife
An Illinois man is suing his former priest for professional negligence, infliction of emotional distress, and (because it's Illinois) alienation of affections. In addition, he is suing the church for negligent supervision and retention. According to the reports, the man and his wife sought marital counseling from the priest. After the priest held many one-on-one counseling sessions with the wife, the couple broke up. The priest left the priesthood, and the wife moved in with him within a month. The story is here. Thanks to 1L Deepa Jaisinghani for the tip.
October 1, 2008
Biden & Torts, Again
--BC (whose pinky is healing nicely, if slower than he'd like)
September 30, 2008
Beck, Herrmann and Zipursky on Preemption
First, Drug and Device Law Blog have posted an excellent primer on preemption. As Beck and Herrmann succinctly state:
Implied preemption of tort cases is a big deal because how the Supreme Court addresses implied preemption in Levine – the legal principles it recognizes as controlling – will be applicable to analogous regulatory conflict situations involving any other product and any other agency.
Second, Benjamin Zipurksy follows up on last week's Findlaw column with an interview at Pharmalot. Zipursky explains why he thinks Wyeth v. Levine is a bad vehicle for the Supreme Court to rule on preemption.
Oregon Health & Science University Settles Six Malpractice Cases
The Oregonian reports that Oregon Health & Science University has agreed to settle six malpractice cases for a combined $38.5 million. In December, the Oregon Supreme Court invalidated a damages cap shielding OHSU and other Oregon state agencies from awards over $200,000. As noted earlier, OHSU and the state trial lawyers association have agreed on a new damages cap, which will be considered by the state legislature next year.
September 29, 2008
Cohen on China's Accountability for Its Products
In Saturday's Wall Street Journal, Marsha Cohen (UC Hastings) had a letter responding to the WSJ's editorial "The Tort Bar's Comeback." Cohen argues that the epidemic of defective products coming from China is caused by the absence of a tort system:
China has neither well-enforced regulatory mechanisms nor a torts/insurance system to protect consumers, although my understanding is that it is moving to adopt both. Without a civil justice system that enables those harmed to seek recompense from those who caused them harm, why would any product seller bother to invest in quality control or any other product safety measure?
Keitner on Ninth Circuit's Alien Tort Statute Decision
Chimène Keitner (UC Hastings) recently wrote a guest post at Opinio Juris analyzing the Ninth Circuit's decision on the Alien Tort Statute (mentioned in Friday's roundup). Keitner finds three lessons in the decision: "1. The crime of genocide requires that the perpetrator act with intent to destroy, in whole or in part, a protected group. ...2. Crimes against humanity need not involve state action.... [and] 3. The Rome Statute does not codify customary international law."