TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, October 30, 2009

Personal Injury Roundup No. 56 (10/30/2009)

Happy Halloween!  In our house, we'll have Susan B. Anthony and a drowned sailor.  Yours?

Reform, Legislation, Policy

New Lawsuits

Trials, Settlements and Other Ends

  • No verdict as of this writing (Thursday midday) in the "Hold Your Wee for a Wii" case, but the jury did ask for a 10-digit adding machine, which can't make the defense feel real good (Sacramento BeeUpdate: The jury awarded $16.6 million in damages (
  • Punitive damage award in PremPro case remains secret (Bloomberg
  • Butler University drops defamation student against student who blogged anonymously (Inside Higher Ed)
  • Bat maker liable for ball player's death (Overlawyered)


  • Nevada considers pharmacy liability for harm caused by customers (WSJ Law Blog)
  • That reminds me of the Massachusetts case from last year on doctor liability for patients driving negligently while under treatment; here's a good look at that (NEJM)



October 30, 2009 in Roundup | Permalink | Comments (1) | TrackBack (0)

Thursday, October 29, 2009

Aluminum Bat Verdict: $850,000

A jury in Montana found the manufacturer of Louisville Slugger aluminum bats liable for failure to warn adequately in the death of an 18-year-old. (NYT) (Maryland Injury Lawyer Blog)


October 29, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Top 10 Recent SSRN Torts & Products Liability Downloads

Here are the top torts and products liability papers announced on SSRN within the last 60 days:

Rank Downloads Paper Title
1 71 Structured Settlements and Single-Claimant Qualified Settlement Funds: Regulating in Accordance with Structured Settlement History
Jeremy Babener,
New York University School of Law,
Date posted to database: September 19, 2009
2 54 Clarifying Causation in Tort
Erik S. Knutsen,
Queen's University Faculty of Law,
Date posted to database: August 15, 2009
3 53 Malpractice Standards of Care and Regional Variations in Physician Practice Styles
Michael Frakes,
Harvard Law School, Petrie-Flom Center,
Date posted to database: October 20, 2009
Last Revised: October 20, 2009
4 50 The Impact of Tort Reform on Employer-Sponsored Health Insurance Premiums
Ronen Avraham, Leemore S. Dafny, Max M. Schanzenbach,
University of Texas at Austin - School of Law, Northwestern University - Department of Management & Strategy, Northwestern University - School of Law,
Date posted to database: August 2, 2009
5 46 Symposium: Third Restatement of Torts: 'Expanding Liability for Negligence Per-Se'
Ariel Porat,
Tel Aviv University,
Date posted to database: July 25, 2009
6 46 A New Conflicts Restatement: Why Not?
Symeon C. Symeonides,
Willamette University - College of Law,
Date posted to database: August 6, 2009
7 36 Agency and Luck
Joseph Raz, Joseph Raz,
University of Oxford - Faculty of Law, Columbia Law School,
Date posted to database: October 13, 2009
8 34 The Impact of Tort Reform on Intensity of Treatment: Evidence from the Heart Patients
Ronen Avraham, Max M. Schanzenbach,
University of Texas at Austin - School of Law, Northwestern University - School of Law,
Date posted to database: August 2, 2009
9 34 The Common Core Sound. Short Notes on Themes, Harmonies and Disharmonies of European Tort Law
Marta Infantino, Mauro Bussani, Franz Werro,
University of Trieste School of Law, University of Trieste School of Law, Georgetown University - Law Center,
Date posted to database: August 15, 2009 
10 32

The Effect of Universal Health Insurance on Malpractice Claims: The Japanese Experience
J. Mark Ramseyer,
Harvard University - Harvard Law School,
Date posted to database: September 30, 2009


October 29, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 28, 2009

Frakes on the Incentive Effects of Medical Malpractice Standards of Care

Michael Frakes (Harvard) has posted to SSRN Malpractice Standards of Care and Regional Variations in Physician Practice StylesHere is the abstract:

Physician practices vary in a striking and persistent manner across different regions of the United States. In this paper, I explore the association between regional variations in physician behavior and the geographical scope of the standards of care to which physicians are held in malpractice actions. Malpractice laws that require physicians to comply with the standards set by local physicians may help to perpetuate divergent practice patterns. The adoption of laws requiring physicians to comply with national standards of care, on the other hand, may lessen regional disparities by inducing physicians to practice closer to the national mean. Over time, most states have come to modify their malpractice laws in this latter direction. Drawing on this rich set of legal variations and using data on physician behavior from the 1977-2005 National Hospital Discharge Surveys, I test for evidence of convergence in state utilization rates towards national rates as states abandon the use of “locality” rules in favor of national standard-of-care laws. Focusing on obstetric practices, I document robust evidence of convergence in cesarean section utilization, whereby as much as 40-60% of the gap between state and national cesarean rates is closed upon the adoption of a national-standard rule.


October 28, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 27, 2009

Food Industry Drops "Smart Choices" Labeling

On the heels of the FDA's letter to industry noted in Friday's Round-Up, food companies have halted the "Smart Choices" labeling program, which puts a green check mark on the front of packages to indicate that the product is a "smart choice."

The New York Times and Reuters both have more.  UPI also has coverage. 


October 27, 2009 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

South Carolina Settles Zyprexa Off-Label Marketing Case for $45 Million

Sometimes it is better to wait on the sidelines... South Carolina did not participate in the collective suit by 32 states against Pfizer for its off-label marketing of the anti-psychotic drug, Zyprexa.   If South Carolina has joined that suit, it would have received around $4.5 million.   Instead, it brought its own lawsuit and now reports a $45 million settlement with Pfizer.  The Post and Courier has more. 

As of September 30th, Legal Newsline reportedthree additional Zyprexa cases remained pending:  Mississippi before Judge Weinstein; Arkansas and Pennsylvania in state court. 


October 27, 2009 in Current Affairs, MDLs and Class Actions, Products Liability | Permalink | Comments (1) | TrackBack (0)

Sunday, October 25, 2009

Guest Blogger Adam Scales: Tort Law and Climate Change

I have always been a little uncomfortable with the purported distinction between "public" and "private" law, as applied to Torts.  By the second half of the 20th Century, the aspirations of tort law were certainly public-regarding, aimed not just at righting fractures among a small set of individuals, but laying guidelines for proper conduct in a society that, as the California Supreme Court dystopically suggested in Tarasoff, had become "crowded[,] computerized" and "risk-infested".

Yet, reading a recent decision of the Fifth Circuit prompts one to think carefully about the private/public border in tort cases.  The decision is Comer v. Murphy Oil, et al., decided two weeks ago.  The case was filed by property owners living along the Mississippi Gulf Coast who suffered losses as a result of Hurricane Katrina.  Those losses, they allege, are traceable to the tortious conduct of domestic U.S. energy and chemicals firms that emit greenhouse gases.  By contributing to global warming, this conduct worsened the severity of Hurricane Katrina, and exacerbated (or perhaps caused entirely) plaintiffs'  property damage.  The plaintiffs seek class action status.

The Fifth Circuit overturned a District Judge who found that the plaintiffs lacked standing, and were further barred by the political question doctrine.  In language that would be familiar to students of Boomer v. Atlantic Cement, or a number of products liability cases and analyses over the years, the District Judge viewed the litigation as "a 'debate' about global warming", and regarded the requisite technical and political judgments needed to settle the respective rights of emitters (and facilitators of emissions), and property owners (undoubtedly themselves emitters as well)  as lying beyond the remit of the judiciary.

The opinion is only about tort law in a literal sense: standing and justiciability concerns supply the frame for a portrait of alleged intentional and negligent invasions that remains to be drawn. Distinguishing between claims to prevent future harm, and claims - as presented in Comer - to redress past injury, the Fifth Circuit characterized the action as a common-law action asserting private rights, which does not ordinarily trigger standing concerns.  To the extent that standing nonetheless requires that the alleged harm be "fairly traceable" to the challenged conduct, that was met by the essential story described above:  Defendants' emissions cause global warming, which leads to higher sea levels and increased hurricane activity, culminating in plaintiffs' injuries.  Though the court was careful to observe that this alleged causal chain might not suffice to establish proximate causation on the merits, the merits of the case were not before it.  Judge Davis concurred, suggesting that he would have dismissed the case on proximate cause grounds.   The defendants made this traditional, tort-based argument for dismissal at the trial level, but the Fifth Circuit left that to be developed after remand.

Like Judge Davis, I wish they had taken this issue up (though perhaps certification to the Mississippi Supreme Court, rather than an unadorned Erieguess, is the best outcome procedurally).  I have profound reservations about the claim, implicit in nominally private climate change litigation, that the tort system is capable of specifying rights and responsibilities on the subject of global warming.  I like to tell my students that we have a tort system designed for horse-and-buggy accidents.  In fact, this is unduly generous.  The tort system cannot even handle simple car accident cases without tremendous delay and inefficiency - and this is with the assistance of a claims-settling insurance bureaucracy that pre-determines the vast majority of outcomes.  

As tort law's scope expanded during the 20th Century, the nature and complexity of tort claims changed.  Now, it is not unusual for claims to involve precise questions of epidemiology (toxic torts), and polycentric interests (competing claims for product warnings, for example).  The tort system is not designed for, and probably will never handle well, these sorts of injuries.  The system is necessarily biased toward discrete and limited injuries; in even the simplest cases, it of necessity excludes from consideration large swathes of stakeholders in the name of - to borrow a term - justiciability.  Structurally, it is not ideal, and is in fact quite ill-suited, for adjudicating entitlements among many parties offering competing claims for the mantle of "the public interest". If I were writing these words in 1975, they would be just as true.

Writing them in 2009 raises as well an entirely different objection to the use of tort law here.  Tort law has been in retreat for decades.  Courts are not fashioning new duties at the heady clip seen in the 1960s and 70s.  Rather than dramatically rewrite tort law, which is rather difficult to do, courts have recoiled from its earlier excesses by trimming doctrine at the margins.  A question of proximate cause, which once may have served as an open-ended invitation to search for a just outcome, is more likely today to be used restrictively to deny claims, thus nudging future potential parties towards private or political resolutions of their disputes.  Today's tort system, to anthropomorphize a bit, no longer sees itself as wide-ranging arbiter of social conduct, faithful only to its own ideas about justice.  Of course, in main operation, the tort system never quite looked that way, but there was a time when its broadest aspirations reached far beyond the quotidian categories of harm that had long been uncontroversially settled.

It is thus a little surprising to see climate change activists so hopeful about reliance on today's tort law, as opposed to the tort law of a few years ago.  Tort law tends to rise and fall with the political winds; perhaps climate change action will strike judges (who shrink from charges of judicial activism), juries (decreasingly sympathetic to plaintiffs, and fed a diet of "crazy tort stories" in the media) and legislators (who have not been shy in recent years about pre-termitting disfavored tort claims on behalf of important economic interests) as so urgent that it will constitute an exception in this era of retrenchment.  I don't think that is likely, and I hope it doesn't happen.  It is questionable whether any political system is capable of marshaling the extravagantly complex and overdetermined series of relationships that drive global emissions into an effective consensus for change.  I am fairly certain, however, that the small, inwardly-focused, intuitive, largely undemocratic cross-section of the political system that is tort law is not up to the task.


--Adam Scales

Associate Professor of Law

Washington & Lee University School of Law




October 25, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)