Saturday, October 24, 2009
Law Review Symposium Kansas
Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz
October 30, 2009
This Symposium explores the state of aggregate justice one decade after the Supreme Court issued guidance on the boundaries and meaning of the federal class action rule in Amchem Prods. Inc. v.
The renowned set of speakers participating in the Symposium will reflect on the lingering impact of Amchem and Ortiz. They will address timely and intriguing topics such as the ethical challenges inherent in mass settlements, the enduring vitality of the punitive damages class action, the empirical evidence of a shift from federal mass tort class actions to multidistrict litigation, the availability of collateral attack based on the adequacy of class representation, the impact of CAFA on state class actions, the disparities between federal and state class actions, and the very nature of cohesiveness in litigation.
Elizabeth Chamblee Burch, Assistant Professor of Law,
Howard M. Erichson, Professor of Law,
Steven S. Gensler, Welcome D. and W. DeVier Pierson Professor of Law, University of
Laura J. Hines, Professor of Law, University of
Linda S. Mullenix, Rita and Morris Atlas Chair in Advocacy, University of
Tom Willging, Senior Researcher, Federal Judicial Center: “From Classes to Multidistrict Consolidations: Documenting Some Shifts in Aggregate Mass Tort Litigation after Ortiz”
Patrick Woolley, Beck, Redden & Secrest Professor,
Attendance is free and no reservations are required. CLE credit will be offered at this event pending approval.
For more information, please contact Symposium Editor Shane McCall: [email protected].
You also can download a copy of the symposium brochure for more info.
Friday, October 23, 2009
Reform, Legislation, Policy
- FDA issues a "letter to industry" that the agency will take enforcement action aginst false or misleading package information (such as implied nutrient claims). (Food Law Prof, FDA Law Blog, ABC News, WaPo)
- Committee action on OSHA nominee postponed. (Point of Law)
- GAO finds FDA slow in banning researchers convicted of fraud. (NY Times, Pharmalot)
- Bi-partisan support for bill that would give FDA new powers over food supply. (LA Times)
- Senators introduce Dairy Country of Origin Labeling Act. (Supermarket News)
- MDL created for Zicam lawsuits. (Mass Tort Defense)
- 200 patients sue Cedar Sinai over excessive radiation exposure. (Daily Breeze, About Lawsuits)
Trials, Settlements and Other Ends
- California federal district court dimisses putative consumer fraud class action concerning defective Sears washing machines. (Mass Tort Defense)
- Jury awards $105 million to NYC in Exxon MTBE case. (Point of Law, About Lawsuits)
- Defamation suit against alleged Autoadmit harassers settles. (Brian Leiter, ABA Journal)
- Defamation suit against Target settles. (Turkewitz)
- Alabama Supreme Court reverses multi-million dollar fraud judgment against drug companies. (TortsProf)
- Massachusetts Supreme Court recognizes medical monitoring cuase of action. (TortsProf, Drug & Device, Point of Law)
- Maryland Court of Appeals bars expert testimony in med-mal case because expert spent more than 20% of his time just testifying. (Bernabe)
- Fifth Circuit allows suit by Katrina victims alleging the defendant oil and coal companies created greenhouse gasses, which caused global warming, which then caused a rise in sea levels, adding to Hurricane Katrina’s ferocity. (WSJ Law Blog, Russell Jackson, ABA Journal)
- First ever contest at Consumer Class Actions and Mass Torts Blog - there's even a prize.
Wednesday, October 21, 2009
Adam F. Scales is an Associate Professor of Law at Washington & Lee University School of Law. He graduated, Phi Beta Kappa, with a B.A. from the University of Massachusetts in 1991 and received his J.D. from the University of Michigan in 1993. Professor Scales was admitted to practice in Minnesota; he served as an associate at Faegre & Benson in Minneapolis during 1994-95. He was a law clerk to Judge Michael J. Davis and Judge David S. Doty at the U.S. District Court for the District of Minnesota in 1996. In 1996-97, he clerked for Judge Robert G. Renner, Senior U.S. District Judge for the District of Minnesota. Professor Scales began his career in the academy as Assistant Professor of Law, Washington & Lee University in 1997, a position he held until he was promoted to Associate Professor in 2003. He has served as Visiting Professor of Law at the University of Connecticut School of Law, as well as Chair of the Association of American Law Schools Section on Insurance Law.
Professor Scales's scholarship focuses on insurance law. He has been a national commentator on topics such as a market in tort claims, insurance litigation in the wake of Hurricane Katrina, the settlement of the Virginia Tech massacre claims, and the crash of AIG.
On Friday, the Alabama Supreme Court reversed multi-million dollar trial-court judgments against pharmaceutical companies that had allegedly caused the state to over-reimburse pharmacies and physicians for the medicines they provided to Medicaid patients. Even though the pharmaceutical companies were not directly reimbursed, it was alleged that they received indirect benefits by boosting their market share. The court concluded:
The State failed to produce substantial evidence that it reasonably relied on the misrepresentations and/or fraudulent suppression it alleged AstraZeneca, GSK, and Novartis engaged in in these cases.
A copy of the opinion (pdf) is here: Download GSK Full Opinion.
This is another case in which a state AG used outside counsel to sue an industry for a violation based in tort law. This decision comes as the National Association of Attorneys General is considering whether to place limits on the ability of a state AG to hire outside counsel in search of funds for the state.
Thanks to Mark Behrens for the tip.
On Monday, the Supreme Judicial Court of Massachusetts recognized medical monitoring as a viable cause of action in the Commonwealth of Massachusetts. The SoL is governed by the discovery rule. The opinion in Donovan v. Philip Morris USA [pdf] is here: Download Donovan Decision.
Beck & Herrmann analyze the decision here.
Tuesday, October 20, 2009
Guest Blogger Victor Schwartz on "A Government Appointed Independent Commission on Judicial Reform Is Considering Establishing a Right of Appeal in West Virginia: It Should Be Done"
Today, we have a special guest blogger, Victor Schwartz, who, among other notable accomplishments, is one of the authors of the widely-used torts casebook, Prosser, Wade & Schwartz's Torts.
* * *
Recently, I responded affirmatively to the very gracious invitation of Carte Goodwin, Chairman of West Virginia Governor Joe Manchin’s newly created Independent Commission on Judicial Reform, to testify about the need for an intermediate appellate court in the state of West Virginia.
We had written about the need for such a court in a West Virginia Law Review article, West Virginia As A Judicial Hellhole™: Why Businesses Fear Litigating In State Courts, 111 West Virginia Law Review 757 (2009).
Trial judges’ decisions in West Virginia are highly unlikely to be subject to appellate court review. There is no intermediate court of appeals. The states highest court, the Supreme Court of Appeals, requires that three of its five Justices agree for the Court to take a case. In most cases, the Court declines to do so. West Virginia is the only state where this is true. Judges are human beings, like the rest of us. We all can benefit from having someone review our work. I know that I do so in my practice.
The Independent Commission’s members who are considering whether some form of appellate review should be established in West Virginia are highly respected persons within the West Virginia legal community and include the Dean of West Virginia Law School, Joyce McConnell.
In my judgment, the Commission is fair and balanced.
Monday, October 19, 2009
If you are not a torts professor, you might think it odd that the two approaches that currently dominate tort theory are “law and economics” and “corrective justice.” Although there are major differences in the two approaches -- with “law and economics” fixed on efficiency and deterrence, while “corrective justice” is more concerned with fairness to the parties – they certainly don’t represent opposite ends of the political spectrum. Instead, the L&E movement is still heavily dominated by conservative thinkers, while corrective justice has no discernible political orientation. What is striking about this state of affairs is the seeming absence of critical theory, the other intellectual powerhouse that is now so firmly established outside the legal academy.
It’s not that there isn’t a body of critical torts scholarship. Since Richard Delgado first published Words that Wound: A Tort Action for Racial Insults, Epithets and Name Calling in 1982, there has been a steady stream of torts pieces inspired by feminism, critical race theory and postmodernism. Often, however, this work gets coded only as “critical theory” or “feminism” and does not seem to make a dent in what is regarded as tort theory. I was disappointed to see that John Goldberg simply left out critical theory altogether in his formidable article on Twentieth-Century Tort Theory (2003), stating in a footnote this was not a “judgment of the merits of the omitted scholarship,” but simply reflected his decision “to focus on theories that have set the terms of ‘mainstream’ debate among tort scholars.” John also devoted only 3 out of 64 pages to what he called “social justice theory” where he discussed writings by Richard Abel, Anita Bernstein, Carl Bogus, Thomas Koenig, and Michael Rustad. Is that really a full description of the contemporary progressive voice in American torts scholarship? (As you can guess, I don’t think so.)
This skewing of tort theory to the Right has had consequences. The dominant tort theories pay virtually no attention to race or gender or other dimensions of personal identity, while those topics are highly developed in critical theory, as evidenced by the proliferation of critical approaches that emphasize one or more “outsider” identity, such as critical race theory, Lat Crit theory or queer theory. In our new book, The Measure of Injury: Race, Gender and Tort Law, Jennifer Wriggins and I have tried to connect critical theory more closely to tort law by exploring how race and gender have shaped contemporary U.S. tort law – from the types of injuries recognized, to judgments about causation, to the valuation of injuries. (the book is scheduled for publication in May 2010 from NYU Press)
Our book is organized like a conventional torts treatise, with chapters on intentional torts, negligence, causation and damages, framed by chapters on tort theory and tort history. It is not your grandmother’s treatise, however, because we concentrate on those areas of tort law in which considerations of gender and race have been most salient, such as intentional tort claims for workplace harassment and domestic violence, negligence claims for emotional distress, lead paint and wrongful birth litigation, and the calculation of economic damages. We also theorize about the various ways that considerations of gender and race find their way into tort law, even though tort doctrine is facially gender and race-neutral. The main ingredients of our critical approach come from feminism, critical theory, and cognitive psychology. But like all good torts professors, our point of departure is the new Restatement (Third) of Torts because that endeavor still represents the mainstream “torts establishment.” (and btw, it is a very impressive and useful document)
We noticed that the Torts Restatements have evolved, if ever so slowly. In the beginning, the individual of tort law was an abstraction, disembodied, with no race or gender, who seemed to live outside of society. This creature had no name and appeared in the examples of the First and Second Restatement of Torts as simply A, B, or C. Today, however, most courts and torts scholars acknowledge that tort law is not autonomous or self-contained and they realize that tort doctrines are not simply abstract principles, but rules that operate in social context. Perhaps in recognition of this shift, the Third Restatement now provides first names for the hypothetical individuals used in its examples of black letter rules, subtly introducing gender into some scenarios. And sometimes the gendered nature of the tort appears quite prominently, even if the Reporters may not have been fully aware of this feature of the doctrine. For example, by my count, 10 of the 13 illustrations in the commentary to Section 45 dealing with the tort of intentional infliction of emotional distress deal with misconduct implicating sexual or reproductive behavior, ranging from a stepfather who sexually abuses his stepdaughter, to the inappropriate touching of preschooler, to a police officer who stalks a woman with whom he is obsessed. And in “direct victim” negligent infliction of emotional distress cases under Section 46, there is a similar preoccupation with sexual exploitation and reproduction, including claims against doctors for having sex with their patients under the guise of therapy and scores of cases brought by women who suffer emotional distress from stillbirths, miscarriages, and sterilizations caused by physician negligence.
So how has tort law dealt with these and other gender-related claims? How should it? One major theme of our book is the degree to which courts have allowed principles and norms from constitutional law and statutory civil rights law to migrate into torts. Currently, the case law is marked by ambivalence and lack of uniformity.