TortsProf Blog

Personal Injury Roundup No. 31 (4/10/09)

Spring has sprung, more or less, in New England (though there were some snowflakes on Wednesday).  Those of you in places where it's been definitively spring for longer can just sit on your hands and refrain from making fun.

Reform, Legislation, Policy

• Oregon looks like it's raising caps on damages against the state [Bend Weekly] 
• Man, Sheila and Chris did a heck of a job covering the Restatement (Third) Conference.  Wow.  [TortsProf]
• Off-label prescriptions [Mass Tort Litigation Prof Blog]
• Too much CPSIA stuff to summarize here; as usual, Walter Olson is definitive in coverage (even if you disagree with his views) [Overlawyered]

New Lawsuits

• MDL sought for "burning bra" lawsuit against Victoria's Secret [NY Daily News]
• Fourth lawsuit against Blackwater for civilian deaths in Iraq [LA Times]

Trials, Settlements & Other Ends

• "Douchebag" defamation suit voluntarily dismissed after earlier one involuntarily dismissed [Smoking Gun] 
• Interesting third-party duty issue: the Sixth Circuit permitted a case to go forward against a hospital for releasing a man who killed his ex-wife [AP]
• West Virginia hears appeal of $381M verdict against DuPont [Legal News Line]

Appeals

•  $42.5M judgment upheld against Wackenhut in private prison death [Houston Chronicle]

Miscellaneous

• Who is that reasonable person?  Larry Solum knows.  [Legal Theory Blog]
• I'm still pretty proud about WNEC's national championship at the Products Liability Moot Court Competition, but I won't post about it any more.  After this.  [TortsProf] 
• Sperm as defective product [Turley]

--BC

Another "Douchebag" Defamation Lawsuit Dismissed

A book, tastefully entitled "Hot Chicks with Douchebags," featured, well, pictures of what the authors deemed to fit that description.  Not surprisingly, people identified as the latter took offense; at least two have sued for libel.  The Smoking Gun (who else?) reports that an earlier suit was dismissed by a judge, and that a second suit has been voluntarily dismissed by the plaintiff.  The opinion dismissing the prior suit is available here.

--BC

Hylton to Deliver Monsanto Lecture

Keith Hylton (Boston) will deliver the 23rd annual Monsanto Lecture at Valparaiso on April 23rd at 4:00 p.m.  His topic is "Intent in Tort Law."  Past speakers have included Ken Abraham, Anita Bernstein, Jules Coleman, Richard Epstein, John Goldberg, George Priest, Robert Rabin, Stephen Sugarman, and Ernest Weinrib.  More information is available here.

--CJR

Solum's Primer on the Reasonable Person

In this week's Legal Theory Lexicon, Larry Solum covered the "reasonable person."  For his analysis and a bibliography, click here.

--CJR

Oregon Houses Passes Increase on State Liability Caps

As Bend Weekly News reports, the Oregon House passed SB 311, which would raise the current liability cap of $200,000 for government agency defendants.   The new bill raises the cap and sets up a two-tier system depending on whether the suit is against the state or a local government.  As previously noted, the Oregon Senate passed this bill back in February.    The bill now heads to the governor for signature.

- SBS

Thanks to Mike Green & the Wake Forest Law Review

As readers know, Chris and I attended the Torts Symposium co-hosted by Wake Forest, ALI and Texas last week.   The event was held at Wake Forest School of Law in Winston-Salem, NC.

Mike Green was an exceptional host, and the students at Wake Forest were friendly, helpful and well-organized.   The entire conference ran like clockwork, thanks in large part to the hard work of the Wake Forest Law Review staff. 

Thanks to Mike and the law review students for organizing and hosting a wonderful event!

- SBS

Duty: How Would A Pluralist Approach Really Work?

During the panel on Duty at the ALI Conference on the Restatement (Third) of Torts last week, several commentators and audience members questioned how courts would weigh the competing values (economic factors and corrective justice factors) under a pluralist view.  

Alan Calnan (Southwestern) offers his response in his forthcoming book, "Duty and Integrity in Tort Law."   Calnan explains:

I use a modified version of Ronald Dworkin’s theory of “law as integrity” to construct an elaborate and structured methodology for analyzing hard duty cases. In fact, I spend an entire chapter (or Part in the online draft) applying the proposed methodology to a recent duty case decided by the Supreme Court of New Jersey and demonstrating the methodology’s advantages over existing multifactor approaches, including the one suggested by R3.

In a follow-up piece, "The Instrumental Justice of Private Law," Calnan examines "the relationship between justice and instrumentalism, and offer[s] a theory for integrating these seemingly opposed concepts in duty cases and beyond."

- SBS

Supreme Court Not Likely to do Much on Punitives

So says (accurately) this Legal News Line piece, noting as a harbinger the recent withdrawal of cert. in the Williams case.  Even with the Baker case providing a 1:1 hard ratio in maritime law, I think it's right to say that the Court is steering well clear of being a very active gatekeeper beyond the guidance it has already set down.

--BC

Turley on Defective Sperm as Products Case

Interesting post on the notion of defective sperm as giving rise to a tort or products liability suit.

--BC

WNEC Victory at the Rendigs Products Liability Moot Court Competition

I am pleased and proud to announce that the Western New England College School of Law team (which I coach) won the national championship in the Rendigs Products Liability Moot Court Competition, hosted by the University of Cincinnati School of Law.  The problem involved issues of preemption in the context of adulterated dietary supplements and the due process issues with punitive damages.

Congratulations to Lisa Elliott, Jasmine Campbell, and Merritt Schnipper for a fantastic performance!  Their brief and oral advocacy were remarkable.

--BC