TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, August 29, 2009

Statute of Repose Win in Fen-Phen Appeal

Over at Drug & Device Law, Jim Beck writes about the Sixth Circuit's decision affirming summary judgment for Wyeth based on Tennessee's statute of repose.


August 29, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, August 28, 2009

Personal Injury Roundup No. 48 (8/28/09)

We just finished our first full week of classes here at Charleston.  Here's what happened this week in torts:

Reform, Legislation, Policy

  • Health reform debate continues to percolate.  (WaPo, AP, ABC News Political Punch)
  • Representative Henry Waxman (D-CA) takes on Medicare Part D drug program.  (NYT)
  • As required by statute, FDA creates the Tobacco Products Scientific Advisory Committee and is requesting nominations for members.  (FDA Law Blog)


  • Federal judge grants Daubert motion and excludes plaintiff's expert in Bausch & Lomb ReNu MDL. (Drug & Device
  • Another federal judge excludes the plaintiff's causation expert in Viagra MDL.  (Mass Tort Defense, Mass Tort Profs)

New Lawsuits

  • A coach and an aide have filed separate lawsuits over the collapse of the Dallas Cowboys training facility back in May.  (AP, Dallas Morning News)
  • Unmasked blogger plans to sue Google for complying with a court order to reveal her identity in the "Skanks in NYC" defamation suit.  (CNN, ABA Journal, Concurring Op)
  • Two Pennsylvania women sue over pitt bull attacks.  (Sun News)
  • Yaz blood-clot lawsuit filed in Illinois.  (About Lawsuits)
  • Mother-in-law sues comedienne for defamation based on daughter-in-law's jokes, and keeping it all in the family, the lawyer/husband/son is representing his comedienne wife.  (WSJ Law Blog, ABA Journal)

Trials, Settlements and Other Ends

  • Beck & Herrmann collect Zyprexa andAredia-Zometa summary judgment rulings.  (Drug & Device)
  • Federal judge dismisses Trasyol class action.  (Mass Tort Defense)
  • $1.3M verdict in Maryland med-mal case.  (About Lawsuits)


  • Pennsylvania appellate court rejects assumption-of-the-risk defense for golfer struck by ball. (Point of Law)


  •  LA jury awards $13.8 million punitive damages in tobacco case retrial.  (Cal Punitive Damages)


  •  Wall Street Journal article on the Alien Tort Claims Act. (WSJ)


August 28, 2009 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, August 27, 2009

Introducing Guest Blogger Keith Hylton

 HyltonMonday's Guest Blogger is Keith Hylton.   Hylton is currently the Honorable Paul J. Liacos Professor of Law at Boston University School of Law.  Hylton joined the BU Law faculty in 1995 after teaching for six years and receiving tenure at Northwestern University School of Law. At BU Law, he teaches courses in antitrust, torts and labor law.

Hylton's articles are too numerous to list here.  His 2008 publications alone include:  "Asbestos and Mass Torts with Fraudulent Victims," in Symposium on Perspectives on Asbestos Litigation, 37 Southwestern Law Review 575 (2008); "Due Process and Punitive Damages: An Economic Approach," in Symposium on Punitive Damages, 2 Charleston Law Review 345 (2008); "The Lawful Acquisition and Exercise of Monopoly Power and Its Implications for the Objectives of Antitrust," with David S. Evans, 4 Competition Policy International 203 (2008); "A Positive Theory of Strict Liability," 4 Review of Law & Economics 153 (2008); "Preemption and Products Liability: A Positive Theory," 16 Supreme Court Economic Review 205 (2008); "A Theory of Wealth and Punitive Damages," in Symposium on 'Crimtorts', 17 Widener Law Journal  (2008); "Unilateral Refusals to Deal and the Antitrust Modernization Commission Report," 53 Antitrust Bulletin 623 (2008); "Weyerhaeuser, Predatory Bidding, and Error Costs," 53 The Antitrust Bulletin 51 (2008); and "When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards," 16 Supreme Court Economic Review 39 (2008). 

In addition, Hylton serves as co-editor of Competition Policy International and editor of the Social Science Research Network's Torts, Products Liability and Insurance Law Abstracts.

Hylton is also a former chair of the Section on Torts and Compensation Systems of the American Association of Law Schools, a former chair of the Section on Antitrust and Economic Regulation of the American Association of Law Schools, a former director of the American Law and Economics Association, a former secretary of the American Bar Association Labor and Employment Law Section, a former member of the editorial board of the Journal of Legal Education and a current member of the American Law Institute. 


August 27, 2009 in Guest Blogger, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 26, 2009

The Prosser Notebook is Available Online at Berkeley Law Library

Our regular readers know that a member of my first Torts class 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, and his professor was William Prosser.  At the time, Prosser was working on Prosser on Torts, which was published in 1941.

Leroy S. Merrifield went on to became a law professor, and teach Torts, at George Washington University Law School.  The notebook, then, provides 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. 

Thanks to the efforts of Berkeley Law archivist William Benemann, the notebook is now available online:

My article analyzing the notebook is available here.


August 26, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Porat & Stein on Liability for Future Harm

Ariel Porat (Tel Aviv) & Alex Stein (Cardozo) have posted to SSRN Liability for Future Harm.  Here is the abstract:

This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine the American and English court decisions pertaining to this issue and consider whether a probability-based compensation for the victim’s expected - albeit not yet materialized - harm is just and efficient. We demonstrate how the virtues of a legal regime that allows a tort victim to recover compensation for her expected harm overshadow its vices. We conclude that a person’s risk of sustaining harm in the future should be actionable whenever the risk is substantial. We further conclude that it should be left to the victim to decide whether to recover for his or her expected harm, or else wait and see if the risk materializes and recover only if it does. We observe that allowing victims to make this choice might create a collective action problem. Because expedited compensation for a victim’s expected harm erodes the wrongdoer’s ability to compensate future claimants, victims would opt for an early recovery for expected harm even when their substantive remedial preferences are different. We demonstrate, however, that this problem can be resolved.


August 26, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 25, 2009

Torts Opening at Albany

Peter Halewood asked us to post this announcement from Albany Law School:

Tenure-Track Positions
ALBANY LAW SCHOOL invites applications for as many as seven tenure-track positions beginning in the fall of 2010. Appointment will be made at the assistant, associate or full professor level, depending on experience. We are particularly interested in faculty with expertise in one or more of the following areas: family law, intellectual property, trusts and estates, tax, torts, criminal procedure, and business (including contracts, corporations, regulatory compliance, and mergers and acquisitions). Candidates must demonstrate 1) a strong academic background, 2) a capacity for and a commitment to excellence in scholarship, and 3) a capacity for and a commitment to be an effective teacher in the classroom and to spend significant time outside of class working with students.

ALBANY LAW SCHOOL is a small, independent private school in New York State’s capital. Established in 1851, it is the oldest independent law school in the nation and the oldest law school in New York. You can learn more about the school by visiting our website:

Application (electronic preferred) should include cover letter, resume, a list of publications and three references and be sent to Faculty Recruitment Committee c/o Barbara Jordan-Smith, Dean’s Office, Albany Law School, 80 New Scotland Ave., Albany, NY 12208-3494,

Albany Law School is an Equal Opportunity Employer.


August 25, 2009 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

"Flip and Fall"

Jonathan Turley reports that a Chicago woman who fell while walking on the floor near a dolphin tank is suing the zoo for “recklessly and willfully trained and encouraged the dolphins to throw water at the spectators in the stands, making the floor wet and slippery.”


August 25, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, August 24, 2009

Jeffrey O'Connell: Tort Liability as Social Insurance

Though not often thought of this way, tort liability coverage for personal injury can be best seen as social insurance. Such a vantage invites the government to take a firm hand in shaping such coverage rather than leaving it to the market, as is largely done with other forms of private insurance whether life, health, disability or homeowners. Social insurance can be defined as insurance coverage mandated by the government for losses – coverage that is so essential to well-being that society deems it impermissible for the populace to fail to be covered for such losses. Obvious examples are workers’ compensation, medicaid, medicare, along with old age benefits and total disability insurance under social security, etc. All these are mandated by state or federal legislation. Tort liability insurance is also mandated by law – in this case by common law rather than legislation, but law nonetheless. The common law in every state mandates that those liable for causing injury by their substandard conduct (or product) pay their victims’ losses. In the case of auto accidents, liability insurance for misconduct as defined by common law is indeed expressly mandated in one form or another for motorists by legislation in every state. Furthermore, mandatory auto insurance statutes not only protect the assets of those who commit torts but impart rights to those they injure.

Admittedly, tort liability insurance is not similarly legislatively mandated for, say, medical mistakes or malfunctioning products. But as a practical matter, any party – personal or corporate – potentially liable is compelled to purchase liability insurance based on the government’s common law dictate as to the legal consequences of such misconduct. Because tort liability is required by law, it follows that it should be viewed as a form of social insurance. Especially is this so since, on the other side of the coin, all who purchase goods or services are also, of course, required to pay for the tort liability coverage accompanying such purchases.

All this leads to the propriety, indeed necessity, for any government to structure this mandated insurance such that above all it seeks to protect those who suffer real need – namely those in almost any socioeconomic class seriously injured by tortious accidents whose losses outstrip all other applicable coverages.

Continue reading

August 24, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)