TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, February 14, 2009

Conference: Restatement (Third) of Torts: Physical and Emotional Harm

Wake Forest University School of Law, the University of Texas School of Law, and the American Law Institute are sponsoring a Symposium on April 2-3 in Winston-Salem, North Carolina to discuss the upcoming Restatement (Third) of Torts: Physical and Emotional Harm. Coverage includes virtually all of the basic principles of tort law, including duty, negligence, factual causation (and the controversial Comment c on proof in toxic substances cases), scope of liability (proximate cause), duty to rescue, emotional harm, and land possessor duties.

Many of the leading torts scholars nationally and internationally will be present, as will the two co-Reporters for this Restatement. In addition, prominent American jurists and lawyers will gather to discuss and critique this Third Restatement of Torts. The schedule of events for this two-day conference is contained in the attached brochure.  Download tortbrochure1.pdf

Attendance is free, although there is a nominal charge for lunch. A block of hotel rooms has been reserved for those who desire to attend and need overnight accommodations.

For more information about the conference, and to register, visit or e-mail the Wake Forest Law Review at or Michael Green at

(Via Mike Rustad)


February 14, 2009 in Conferences | Permalink | Comments (1) | TrackBack (0)

Friday, February 13, 2009

RICO Suit Brought Against Asbestos Screeners, Others

LegalNewsLine has details of the claims against a radiologist and others who, the complaint alleges, "have schemed to generate false medical test results, false medical reports and false diagnoses to substantiate tens of thousands of personal injury cases filed against plaintiff and other similarly situated companies or bankruptcy trusts involving allegations of asbestos related disease."

The suit was brought by National Service Industries.


February 13, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Personal Injury Roundup No. 24 (2/13/09)

In the week my son turned 4, the world of torts kept moving...

Reform, Legislation, Policy

New Lawsuits

  • $15M lawsuit claims ex-Met Roberto Alomar had sex knowing he had AIDS (NY Daily News)

Trials, Settlements & Other Ends

  • Philadelphia's Judge Bernstein decertified a neurontin off-label use class action and granted summary judgment on express warranty claims (Drug and Device Law)
  • New Jersey judge dismissed defamation suit of three women included in the book "Hot Chicks with D-Bags."  (Olson/Overlawyered linking to The Smoking Gun)
  • Court:  Vaccine didn't cause autism (CNN)




  • Auto fatalities decline (Day on Torts)
  • Fitness expert is preparing class action against Nintendo:  Claims Wii's marketing is deceptive, it doesn't make people fit, and it's dangerous (News Blaze; Commentary at Popehat)
  • The peanut butter plot thickens...(The Pop Tort)

Thanks to Bill, Sheila, John Hochfelder, and Patrick Anders.


February 13, 2009 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2009

Causation Found in Hess Case

The WSJ has the story.  The jury found that the plaintiff's lung cancer was caused by his smoking.  But there remain both liability (presumably the defect/negligence question) and damages phases of the trial.


February 12, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Court of Federal Claims Rejects Autism-Vaccine Claims

Point of Law reports that the Court of Claims's vaccine court's special masters rejected the claim that the claimants' autism was caused by the MMR vaccine's thimerosol.  CNN Money has more details, and you can access the decisions at the Court of Claims' website.


February 12, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Suit Alleges Disney's Tower of Terror Caused Stroke, Heart Attack

In an interesting counterpoint to the suit I noted earlier this week seeking more rides on the Twilight Zone: Tower of Terror Ride at Walt Disney World (there the plaintiff contends that the ride is good for her health), a new suit was filed yesterday (more coverage here) alleging that the ride caused the teenage plaintiff's heart attack and stroke in 2005.  It alleges negligence in warnings and design.

(Update: Incidentally, on the claim that the ride is a common carrier, recall California's experience.)


February 12, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Pump Handle on the Wakefield/MMR Stuff

An interesting take, focusing on the issue of peer review in the process.


February 12, 2009 in Experts & Science | Permalink | Comments (1) | TrackBack (0)

Stapleton on Causation

Jane Stapleton (Australian National University College of Law/Texas) has posted Choosing What We Mean by "Causation" in the Law on SSRN.  In the article, Stapleton offers a "radical new account of 'causation' in the law," and contrasts her account with that of others "including the approaches of the legal realist Leon Green, the linguistic analysts Hart and Honore, the corrective justice theorist Michael Moore, the legal economist Guido Calabresi and the "new realist" Richard Wright."


February 12, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Abraham on Custom

Kenneth Abraham (Virginia) has posted Custom, Non-Customary Practice, and Negligence on SSRN.  Here's the abstract:

The rule that evidence of compliance with or departure from custom is admissible to prove negligence implements the idea that recurring patterns of conduct have a bearing on what constitutes reasonable care. In contrast, evidence of the incidence of practices that are not sufficiently widespread to qualify as customs is not admissible to prove negligence. In de-emphasizing the importance of patterns of conduct that regularly recur but are not as widespread as customs, the practice rule treats each negligence case as more nearly unique, and leaves greater room for the risk-benefit and reasonable prudence conceptions of negligence to operate. In this Article, prepared for a Symposium on the Restatement (Third) of Torts at the Wake Forest Law School, I attempt to enrich our understanding of the custom rule, including what the rule implies about the admissibility of practice evidence. I do this by examining precisely what makes custom evidence at least potentially probative of reasonable care, and by identifying two functions of custom evidence that have not been emphasized in previous work. Custom evidence is not only directly relevant to the negligence issue, but can also perform a knowledge-building, or educational function. And admitting custom evidence may help to prevent the jury from drawing unwarranted inferences from the absence of such evidence. Interestingly, there is virtually no case law addressing the admissibility or inadmissibility of the incidence of practices that are not customs. I identify the reasons for this case law vacuum, and consider the arguments for and against permitting the introduction of evidence of the incidence of such practices. Finally, precisely because negligence law permits the parties to deploy, and juries to consider, evidence and arguments based on the different perspectives that the custom and practice rules reflect, we have a conception of negligence that is often ambiguous. In a brief concluding discussion, therefore, I return to the contrast between the different sources of authority in negligence law, and try to tease out some of the broader implications of this contrast for our understanding of negligence.


February 12, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2009

Slippery Slope Interview with Kia Franklin

Over at the Slippery Slope, Meredith Miller (Touro) has an interview with Kia Franklin, a Senior Fellow in Civil Justice at the Drum Major Institute.   The conversation includes DMI's civil justice platform, mandatory arbitration and arguments for a civil right to counsel (i.e., "civil Gideon"). 


February 11, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (1)

A New Site About Online Marketing of Asbestos Lawyers

Someone sent me a link this morning to Sleaze-othelioma, a new blog that describes its mission as such:

This blog is to provide a factual document regarding the marketing practices of staff involved in promoting mesothelioma sites. This blog is not being published to personally attack any particular person, company or organization, rather its being published in an effort to get marketers to clean up their tactics and promote their sites upholding the values of responsibility and transparency.

Could be worthwhile to follow if online marketing is of interest to you.

On a related note, (which is mentioned on the new site) appears to have finished their updates (related to my post last month) and it is clearer than it was before that it is associated with a plaintiffs' lawyer.


February 11, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (1)

Suit Demands More Rides on Disney's Tower of Terror

Denise Mooty says (and has a doctor who agrees) that riding on Disney's Tower of Terror ride relieves the pain of her abdominal adhesions, and she apparently rode the ride more or less constantly in recent years. 

But then Disney limited her access to the ride to four per day and a confrontation ensued.  Now she's sued (complaint [PDF]) alleging breach of contract (based on her season pass), false arrest, and intentional infliction of emotional distress.

(h/t Eric T)


February 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 10, 2009

Wrongful Death Suit Against Seahawk Manufacturer

Families of four Navy crewmen who were killed when their Seahawk helicopter crashed into the Pacific Ocean have filed a wrongful death suit against the helicopter manufacturer as well as the parts manufacturers.    NavyTimes has a full report.


February 10, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (1)

Assault Trial Begins for Former "Sopranos" Star

Former "Sopranos" star Vincent Pastore is in trial in New York state court facing a tort suit by his former girlfriend for $5.5 million.  She alleges that he assaulted her during an argument; Pastore denies hitting her.   

More on the story from Jonathan Turley.


February 10, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2009

Updated: First Post-Engle Trial Begins

A few years ago, the Florida Supreme Court threw out a $145 billion class verdict against various members of the tobacco industry.  Now, as Sheila noted in last week's roundup, the first Florida trial post-Engle has begun; Bloomberg has a somewhat more detailed piece on the trial's start.  In the trial, the plaintiffs do get to take advantage of the preclusive effect of the class finding that cigarettes are addictive and cause cancer. 

The trial is in three parts, with the first focusing on liability; the second (if needed) on compensatory damages and the availability of punitive damages; and the third (again if needed) on the amount of punitive damages.

Update: In case you're particularly interested in the case, you can watch it live (for a charge) at


February 9, 2009 in Damages, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (1)

Peanut Butter: "It Keeps Getting Worse"

The Pump Handle has an overview.


February 9, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (1)

Goldacre Threatened with Copyright Suit in MMR Flap

It's a lengthy and complicated story, but you might find it interesting: here (Goldacre's Bad Science blog, including a gazillion links to more coverage). 

And, in a bit of an aside, early in the MMR story appears Andrew Wakefield, who is himself noted at Point of Law in connection with some recent revelations.


February 9, 2009 in Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

Zyprexa Class Decision Appeal Certified

In a not-very-big surprise, the Second Circuit has agreed to review Judge Weinstein's class certification in the Zyprexa RICO decision.  Mass Tort Defense has more.


February 9, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (1)