Saturday, March 21, 2009
The union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly sophisticated inquires into the doctrinal elements of the law of torts, with the tort of negligence in particular garnering the most attention from theorists. In this article, I examine philosophically rich issues revolving around each of the elements constituting the tort of negligence: compensable injury, duty, breach, actual cause, and proximate cause.
Four years ago, a boy died on a gentle boat ride at Rye's Playland Amusement Park. The "Old Mill" ride's boats float through tunnels and past simple scenes. The boy, Jon-Kely Cassara, apparently became scared and left his boat, getting stuck in the water and drowning. I posted about the case and his mother's desire for additional regulatory schemes here (with links to a number of other posts).
His family sued for his death and the trial has started, with the tension between the park's alleged errors (understaffing, poor training, failure to respond in a timely way, etc.) and the child's actions in getting out of the ride voluntarily central to the case. The plaintiff's opening witness was the then-director of the park, who discussed some of those errors, specifically the understaffing and his assertion that the boy should not have been allowed to ride despite being over the minimum height.
Friday, March 20, 2009
Happy first day of Spring! Here's what happened in the world of torts in the last week of winter:
Reform, Legislation, Policy
- Obama names Dr. Margaret Hamburger, former NYC Health Commissioner, as head of FDA. (NY Newsday, Atlanta Journal Constitution, WSJ)
- Oklahoma Bar Association criticizes tort reform proposals now pending before OK Senate. (Seattle Times/AP)
- Sen. John Cornyn (R-TX) sponsored a Republican Senate Conference on "Protecting Main Street from Law Suit Abuse" on Monday, March 16th. (Point of Law). Ted Frank testified at the conference. (AEI, Overlawyered)
- Democrat sponsored med-mal reform? Obama advisor and other top Democrats raises possibility. (Point of Law, WaPo, ABA Journal)
- Promoter sues Japanese pop star "Rain" for fraud and breach of contract after Rain canceled his break out tour in the U.S. (LA Times)
- Family of chimp attack victim sues owner. (Law and More, Jonathan Turley)
Trials, Settlements & Other Ends
- Wal Mart wins denial of class certification in pet food case. (Am Law Lit Daily, The Recorder/law.com)
- NJ trial court denies class certification in Vioxx case. (Drug & Device)
- United States Court of Appeals for the First Circuit denies en banc review in defamation case holding that truth is not an absolute defense to libel. (Media Law)
- Following December's Supreme Court decision in Altria v. Good, the Massachusetts Supreme Court gave the green light to a "lights cigarette case" alleging that use of the term "lights" on cigarettes was fraudulent under state consumer protection laws. (AmLaw Lit Daily, Law.com/AP, Consumer Class Actions)
- New Jersey appellate court issues decision applying Wyeth. (CL&P)
- Chrysler loses appeal on its request to autopsy mesothelioma victim. (Am Law Lit Daily, NJ Law Journal/law.com)
- Google mistrial: Use of BlackBerrys and iPhones by jurors during trial causing mistrials across the nation. (NY Times, Faculty Lounge)
Thursday, March 19, 2009
I discussed the parameters of the academic debate over apology immunity laws in this post. For those of you interested in delving into the literature, I offer this bibliography.
Articles Enjoy! --CJR
My state senator, Pat Vance, has proposed a bill that would make Pennsylvania the 36th state to provide some sort of apology immunity. (The Scranton Times has the details. SorryWorks! has a list of states with apology immunity laws here.)
People involved in accidents often appreciate speaking with the other party. Injured victims frequently state that they desire an explanation and, if appropriate, an apology. Similarly, injurers frequently state they would like the chance to talk to victims. This is particularly true if there is a pre-existing relationship, such as physician-patient. However, the incentives of the litigation system force people in another direction. Attorneys often counsel their clients to avoid contact with the other party, and under no circumstances discuss the details of the case or apologize. The main legal issue is that many apologies are seen as admissions and are admissible to prove liability.
These circumstances have led to the states' 35 apology immunity laws, almost all of which were passed in the last decade. The laws have generated several controversies in the academic literature. First, should a state protect "full," fault-admitting apologies or only "expressions of benevolence," such as "I'm sorry that you are hurt." Most state laws protect only statements of benevolence, allowing a fault-admitting apology to prove liability. Second, the literature indicates that people receiving an apology are less likely to sue. Scholars debate whether that is a good result; several argue that an apology is inadequate consideration for many injuries. Third, a similar debate is joined over whether apology immunity laws provide potential defendants incentives for purely strategic behavior. In other words, there is a concern about the sincerity of the apologies being offered.
Thanks to Jennifer Robbennolt (Illinois) for guiding me through the field. The literature is fascinating, and, in a later post, I will offer a bibliography.
Wednesday, March 18, 2009
A judge has determined (a mere two years after the trial) that the state amusement ride inspectors in Ohio were negligent and are liable for the death of young Greyson Yoe, who was electrocuted while standing in line for bumper cars at the Lake County Fair. A second phase of the trial will determine damages.
I've written a fair amount about the case, including a Capital University Law Review article in 2006. A collection of posts about it, including a link to a draft version of that article, is available here.
After Levine, Big Pharma is faced with a choice. If it can convince the Supreme Court to adopt the background reasons test set out by Judge Sloviter in Colaciccio, and Big Pharma can do the kind of work that was done by the SSRI manufacturers to produce a record upon which a court can predict agency "rejection" as I have defined it, then Levine may turn out to have produced a good result. If the background reasons test is rejected, then Big Pharma's best hope is to ask the FDA to issue regulations that incorporate its logic, and to hope that they can convince Justice Breyer to take up their cause once a preemption case under the new regulation is challenged.
Trent Taylor, a partner with McGuire Woods, has published "State of North Carolina v. TVA - A New Era In Public Nuisance Law?" (pdf) in the BNA Toxics Law Reporter. In the article, Taylor discusses a January 2009 decision out of the Western District of North Carolina, which held that air emmissions from coal-fired power plants operated by the TVA were a public nuisance, and ordered the TVA to install enhanced pollution controls at a cost of nearly $1 billion. Taylor argues that the case significantly expands the doctrine of public nuisance, and could lead to public nuisance suits targeting global warming and climate change - what he calls "the next big battlefield in tort law."
The Torts and Compensation Systems section of the American Association of Law Schools (AALS) is soliciting nominations for the William L. Prosser Award. The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ...." The two most recent distinguished recipients are Robert Rabin and Dan Dobbs. Past recipients also include luminaries such as Leon Green, Wex Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section, based on the recommendation of a special selection committee. The announcement of the award will be made at the annual AALS meeting in January, 2010.
Nominations, accompanied by a brief supporting statement, should be submitted to Prof. Michael L. Rustad, Secretary of the Executive Committee, either by regular mail or e-mail at firstname.lastname@example.org. Nominations must be received no later than 5 pm eastern time (U.S.) on July 1, 2009. If you have previously submitted nominations, please resubmit them. E-mail submissions at email@example.com are preferred. If you prefer to mail the nominations, please send them to the address below:
Michael L. Rustad
Thomas F. Lambert Jr. Professor of Law &
Co-Director of the Intellectual Property Law Concentration
Suffolk University Law School
120 Tremont Street, Boston, Massachusetts 02108-4977
Tuesday, March 17, 2009
President Obama has named Dr. Margaret A. Hamburg as the new FDA Commissioner. Dr. Hamburg is the former health commissioner for New York City. Obama also named Baltimore Health Commissioner Dr. Joshua Sharfstein as Deputy Commissioner. Washington Post and Reuters have more.
As I previously mentioned, the Food & Drug Law Institute's Annual Conference will be held April 22-23rd in Washington, DC. The FDLI has released the agenda for the conference. Topics include "What is Safety?", a plenary panel on preemption, a plenary panel addressing "Legislative Outlook - FDA and the 111th Congress," and a plenary panel on "Visions for Healthcare 2020."