Friday, April 30, 2010
Reform, Legislation, Policy
- Don Gifford's (Maryland) new book "Suing the Tobacco and Lead Paint Industry" and an interview with the author. (Citron/CoOp)
- Dan Markel (FSU) defends his retributive damages concept. (Markel/Prawfs)
- Hulk Hogan sues his car insurance company for failing to advise him to buy enough coverage prior to his son's crash. (Olson/Overlawyered)
- Insurer for Lower Merion School District (PA) files suit to avoid defending the school district over photos taken by laptops in the control of students. (PennLive)
- NY: Appeals court reduces pain-and-suffering amount from $900K to $200K without detailed explanation. (Hochfelder)
- Blogger John Day at Day on Torts has an interesting Tennessee-specific series on various tort doctrines. The most recent is on wrongful death, but if you scroll down you can find others, such as assault, battery, and even harboring wild animals.
- 217,000 Graco cribs recalled. (CNN)
Thursday, April 29, 2010
Monday's guest blogger is Mark Geistfeld. Geistfeld is the Sheila Lubetsky Birnbaum Professor of Civil Litigation at New York University School of Law, where he teaches Insurance, Torts, and Products Liability.
Geistfeld joined the NYU faculty in 1992. From 1997 to 2003, he served as the Director of the LL.M. (C.J.) Program, and in 2005, he served as Co-Director for the Center for Law, Economics, and Organization. Geistfeld was the Crystal Eastman Professor of Law in 2004,and is now the inaugural Sheila Lubetsky Birnbaum Professor of Civil Litigation.
Geistfeld's publications are too numerous to list here. A few of his recent publications include "Efficiency, Fairness, and the Economic Analysis of Tort Law," in Theoretical Foundations of Law and Economics (Mark D. White, ed., Cambridge University Press, 2009); "Products Liability," in Encyclopedia of Law and Economics, Vol. 1 (Michael Faure, ed., Edward Elgar Press 2nd ed., 2009); "Social Value as a Policy-Based Limitation of the Ordinary Duty to Exercise Reasonable Care," 44 Wake Forest Law Review 899 (2009); "The Value of Consumer Choice in Products Liability," 74 Brooklyn Law Review 781 (2009); Tort Law: The Essentials (Aspen Publishing, 2008), and "Punitive Damages, Retribution, and Due Process," 81 Southern California Law Review 263 (2008).
Geistfeld received his J.D. from Columbia Law School, and also a Ph.D. (Economics) from Columbia University. He also holds a M.A. (Economics) from the University of Pennsylvania. Prior to joining academia, Geistfeld was a law clerk to Judge Wilfred Feinberg, of the United States Court of Appeals for the Second Circuit. He also worked in the New York offices of Dewey Ballantine and Simpson, Thacher & Bartlett.
Wednesday, April 28, 2010
Tony Sebok (Cardozo) has posted to SSRN The Inauthentic Claim. The abstract provides:
This Article argues that third parties should be able to invest in lawsuits to a much greater degree than is currently permitted in most jurisdictions in the United States. The laws of assignment and maintenance limit the freedom of litigants to sell all or part of their lawsuits to strangers. I argue in the Article that the foundation of both doctrines is based on something I call the theory of “the inauthentic claim.”
The theory of the inauthentic claim asserts that there is a quality, separate and in addition to legal validity, which confers “authenticity” to a lawsuit. It does not presuppose that “inauthentic” lawsuits are more likely to be spurious, fraudulent, or frivolous than “authentic” lawsuits. It holds, instead, that the mere fact that a third party involved him or herself in the suit for the wrong reasons (either by taking an assignment in the suit or supporting the suit), is proof that the suit is against public policy.
This Article examines two arguments that might be used to defend the theory of the inauthentic claim, one from history and one from jurisprudence. I conclude that neither argument is persuasive. I conclude the Article by sketching a research agenda based on empirical evidence that would help policymakers and judges choose the socially optimal set of rules for third party investment in litigation.
Tim Lytton (Albany) has posted to SSRN Framing Clergy Sexual Abuse as an Institutional Failure: How Tort Litigation Influences Media Coverage. The abstract provides:
Tort litigation against the Catholic Church is largely responsible for the widespread understanding of clergy sexual abuse as an institutional failure on the part of Church officials. This essay focuses on three features of tort litigation that explain why it exerts such a powerful influence on the framing of clergy sexual abuse. The article concludes with a brief discussion of two implications of the analysis, one for the current controversy over tort reform and the other for our understanding of child sexual abuse in institutional settings.
Tuesday, April 27, 2010
From the Washington Post:
The food industry and major business groups, including the U.S. Chamber of Commerce, are threatening to withdraw support for a long-pending bill to improve food safety, saying they are upset by a proposed amendment that would ban bisphenol-A, a controversial chemical, from food and beverage containers.
The bill is the Senate version of legislation passed overwhelmingly by the House last year. It is designed to give the Food and Drug Administration vast new regulatory authority over food production and place greater responsibility on manufacturers and farmers to produce food free from contamination....
Monday, April 26, 2010
Doctors and lawyers have been at odds since the first medical malpractice “crisis” occurred in the mid-nineteenth century. Their modern fight plays out publicly in a variety of forums, principally the national tort reform movement. Like professional wrestlers, the fighters sometimes resort to dirty tactics. It is an unseemly, embarrassing spectacle for what traditionally have been considered the two most prestigious professions. Given the importance of the healthcare and legal systems they serve, the doctor-lawyer conflict has implications for all Americans. Previous calls for doctors and lawyers to improve their relationship have been met with scorn. This article takes a different tack in calling for improved relations: an appeal to self-interest. It argues that doctors and lawyers have shared tangible and intangible interests in reducing their conflict and improving communication. The article also sets forth several steps toward accomplishing those goals, including the need for each side to acknowledge certain core, uncomfortable truths about our medical liability system. It begins with a brief history of the doctor-lawyer fight and an explanation of why the two groups dislike each other so much. Throughout, doctors and lawyers are compared on a variety of measuring scales such as total numbers, educational debt load, income, public approval ratings, jokes concerning, job satisfaction, political leanings, substance abuse, and suicide rates.Read it on SSRN.
Tort lawyers and scholars have long grappled with the issue of how to prove causation in toxic tort cases. Establishing causation is difficult because latency periods often precede exposure-related harm, making it hard for plaintiffs to connect illness to a particular substance. To overcome this problem, tort law has looked to science for help, and a large body of doctrine and scholarship has developed discussing what is sufficient to prove causation in a toxic tort case. In recent years, however, scientific developments have moved at a dramatic pace. The law soon will need to catch up.
Most legal debate in this area references probabilistic evidence (such as epidemiology studies) or extrapolative evidence (such as toxicology studies involving organisms or animals). Recent breakthroughs, however, will allow researchers to draw more specific conclusions about the consequences of toxic exposures than one could have imagined even a decade ago. For example, new techniques permit the observation of biomarkers in human tissue or fluids that can more accurately measure individual levels of exposure to toxic substances. Advances in toxicogenomics – the study of interaction between genes and toxins – are even more dramatic. Developments in this field have the potential to demonstrate not only individual exposure to a substance, but also the early progression of disease. (See generally National Institute of Environmental Health Sciences, Toxicogenomics Research Consortium, http://www.niehs.nih.gov/research/supported/centers/trc/).
The potential implications for tort law are immense, as people will have an increasing ability to gain information about health risks and environmental exposures before they manifest clinical symptoms of disease. Such information might provide opportunities for those on either side of a toxic tort lawsuit. Plaintiffs, for example, will argue to expand the traditional notion of compensable harm. Defendants, on the other hand, might look for evidence that a claimant’s disease was progressing before a particular exposure took place.
Before going further, I should inject appropriate caution. The “genomics revolution” is still in its infancy, and we remain far from having the ability to easily connect individual disease to most toxic exposures. But given the speed at which other developments have taken place, why should doing so be a far-off fantasy? Consider, for example, that the first human genome was successfully sequenced only seven years ago – after thirteen years of work and $300 million of investment. Today, technology allows researchers to sequence chemical bases thousands of times faster and at a fraction of the cost. This has spurred a cottage industry in the area of “personalized medicine,” with dozens of companies marketing direct-to-consumer genetic tests designed to analyze portions of the human genome that might have a correlation with disease. If we’ve come this far in just over a decade, what might the next ten or twenty years bring? Is it really far-fetched to think that we might soon be able to connect a toxic exposure to disease as easily as one connects a punch in the nose to a broken bone?
In a forthcoming article, Professor Steve C. Gold of Rutgers-Newark discusses these issues at length, dividing commentators into camps of those who take the “prophetic view and [the] skeptical view of the new science’s potential.” (Gold, “The More We Know, The Less Intelligent We Are? -- How Genomic Information Should, and Should Not, Change Toxic Tort Causation Doctrine,” 34 Harv. Envtl. L. Rev. ___ (forthcoming 2010)). Count me proudly among the “prophets.” Will I be right? Only time will tell … but I’ll bet that time will come sooner than many might imagine.
Paul E. Beam Professor of Law
Indiana University School of Law-Indianapolis
Sunday, April 25, 2010
Friday, April 23, 2010
Reform, Legislation, Policy
- Louisiana Senate committee rejects bill to ban energy drinks to kids. (Bloomberg Business Week)
- Pennsylvania releases med-mal data. (TortsProf)
- Florida passes two tort-reform measures - risky activity waivers for children and increase on damages caps in suits against the state. (Miami Herald)
- FDA plans to limit amount of salt in processed foods. (WaPo)
- Rhode Island Supreme Court allows suit against city of Newport for fall along the famous Cliff Walk. (UPI)
- NY Appellate Division rules assumption of risk was not complete defense in cheer leading accident. (NY Law Journal/law.com)
- Ninth Circuit follows Seventh Circuit and holds that denial of class certification does not divest court of CAFA jurisdiction. (Consumer Class Actions & Mass Torts)
Trials, Settlements and Other Ends
- Judge dismisses Federal Torts Claims Act suit against SEC over Madoff fraud. (National Law Journal/law.com)
- Sort of an "other end" - MN doctors ask judge to reject Guidant plea deal that would settle federal criminal charges over Guidant heart defibrillators. (MN Star Tribune)
- Washington Legal Foundation introduces its new blog: Legal Pulse.
Thursday, April 22, 2010
Andrew R. Klein is the Paul E. Beam Professor of Law at the Indiana University School of Law-Indianapolis. He previously taught at Samford University’s Cumberland School of Law and practiced with the Chicago firm of Sidley & Austin.
Professor Klein has published articles on a range of tort law issues. He is co-author of a casebook, Torts: Cases, Problems and Exercises (Lexis/Nexis 3rd ed. 2009) and is currently working with a group of co-authors on a new casebook, Toxic and Environmental Torts: Cases and Materials (Thomson/West forthcoming 2010).
Professor Klein is a member of the American Law Institute and serves on the executive committee of the AALS section on Torts and Compensation Systems. He also serves as Reporter for the Seventh Circuit United States Court of Appeals Civil Jury Instructions Committee. In addition, Professor Klein is a dedicated classroom teacher who has won nine student teaching awards during his career.
Wednesday, April 21, 2010
Pennsylvania prepares more detailed med mal filings and verdicts data than most states. Yesterday, the 2009 figures were released. In 2009, there were 1,533 med mal filings, a 43.9% decline from the "base" years of 2000-2002. In 2003, Pennsylvania enacted two reforms: (1) a certificate of merit requirement and (2) a venue restriction. The news release (pdf), complete with statistics: Download FINAL - 4-20-10 med mal 2009 filings and verdicts. Thanks to David Tyler, one of my Torts students, for the tip.
Cathy Sharkey (NYU) has posted to SSRN The Exxon Valdez Litigation Marathon: A Window on Punitive Damages. The abstract provides:
The Exxon Valdez litigation marathon - a protracted, two-decade-long battle over the propriety and constitutionality of the jury’s $5 billion punitive damages award - provides a window into the past, present, and future of punitive damages. Acting akin to a common law court under federal admiralty jurisdiction, the U.S. Supreme Court provided a template for lower courts to follow. Free of constitutional constraints, the Court diagnoses the problem with punitive damages - unpredictability - and propose a solution: a 1:1 ratio of punitive to compensatory damages. The flaws in the Court’s statistical analysis provide a reminder that those “unsophisticated in statistics” should proceed with caution. The Court’s single-minded focus on unpredictability almost inexorably drives it to embrace and reinforce an exclusively retributive rationale for punitive damages. The Court invokes the analogy of the sentencing guidelines as a model for achieving greater predictability; once enamored with this model, the linkage between the guidelines and criminal retribution spills over to punitive damages as civil retribution. There is, moreover, an uncanny coincidence between the Court’s common law, policy-laden analysis, and the heavy-handed direction its constitutional excessiveness decisions had been taking.
Three issues loom large on the horizon of punitive damages doctrine and policy. First, the Court’s fixation on unpredictability can be linked with a broader trend in the Court’s jurisprudence of circumscribing the role of the civil jury in the name of certainty, predictability, and efficiency. Second, the Court had before it a case in a unique procedural posture: the plaintiffs were part of a “limited fund,” mandatory, non-opt out class action for resolution of punitive damages only. Because that element of the case was not appealed to the Court, the Court left for another day resolution of the classwide determination of punitive damages. Third, the Court’s quest for a national solution to the punitive damages problem and its equation of punitive damages and criminal fines presage impending federalism battles. By elevating a single punitive damages goal - that of retributive punishment - the Court sets the stage for a clash with state courts and legislatures who might be inspired to define their legitimate state interests in punitive damages differently.
Tuesday, April 20, 2010
Patrick Borchers (Creighton) has posted "Punitive Damages, Forum Shopping, and the Conflicts of Laws" on SSRN. The abstract provides:
Few issues have as profound an impact on civil litigation as the availability and dimensions of punitive damages. States, however, vary considerably on whether punitive damages are allowed, the quantum and burden of proof necessary to establish liability for them, their insurability and the standard of appellate review of their award. Because of the high stakes involved, all three of the traditional branches of the discipline of the conflict of laws -- jurisdiction, choice of law and judgment recognition -- are directly involved. Civil plaintiffs naturally seek to find courts that will be hospitable to their attempted assertion of punitive damage liability and civil defendants are equally anxious to avoid such courts. The practice of attempting to find a friendly court is known colloquially as "forum shopping." This article examines how the branches of the conflict of laws are implicated in this high stakes battle and also examines what implications the Supreme Court's decision in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) has for conflicts issues in the punitive damage wars.
Monday, April 19, 2010
When U.S House Speaker
A A A mismatch between insurance coverage and common injuries to women also characterizes the liability insurance market, which crucially affects tort law. If a victim of domestic violence (which necessarily is tortious and usually criminal) tries to bring a tort suit against the perpetrator, she will almost certainly find that insurance coverage is barred by the “intentional acts” exclusion or the “family member” exclusion found as a standard feature in liability policies. Interspousal immunity may have been discarded, but private insurance has erected an equally effective barrier to recovery. Since liability insurance indisputably drives tort law, a domestic violence victim will most often be without a remedy.
Domestic violence victims encounter other barriers when they file tort claims. The statute of limitations for intentional torts is typically one or two years, shorter than that for negligence and strict liability, which typically is between two and six years. Although the short statute of limitations barrier is applied equally to all intentional tort victims, the shorter limitations period is particularly harsh for domestic violence victims. This is because the pattern of coercion and control that often characterizes domestic violence makes considering a tort claim near the time of injury inconceivable for many domestic violence victims. The shorter statute of limitations for intentional torts can be traced back to a 1623 Act of Parliament, the rationale for which has been lost to obscurity. Because the usual policy reasons for statutes of limitations--barring stale claims, avoiding the problem of fading memories, and fostering predictability--apply to both intentional torts and negligence, there is no reason for the shorter statutes of limitations. To compound difficulties, there is a tendency to steer domestic violence claims into family court. Some states require that any tort claims be joined with a divorce, or else be barred by res judicata or collateral estoppel. These joinder rules can put extreme pressure on domestic violence tort victims who may be unable to contemplate a tort claim until their divorce is final.
How cruelly ironic that tort law supposedly regards intentional torts to be more serious than negligently inflicted harms. After all, unlike with negligence, there is no economically efficient level of intentional torts such as assault, battery, and intentional infliction of emotional distress. Yet, we have developed an asymmetric system of torts and insurance that provides mandatory liability insurance to compensate for injuries caused by automobile accidents, but at the same time ensures that injuries from domestic violence are not compensated by liability insurance (and until recently, may not have even been covered by a woman’s health insurance). The costs of car accidents do not fall solely on the victims, but very often are shifted and spread through comprehensive torts and insurance mechanisms. Thus, injuries caused by negligent drivers have a most-favored injury status in our torts and insurance system. Despite the widespread harm caused by domestic violence, the dominant focus of torts continues to be accidental injury
A century ago, Oliver Wendell Holmes and Roscoe Pound centered the field of torts on accidental injury and declared the problem of intentional torts to be solved. Interspousal immunity was then the law of the land and domestic violence was legal. Sadly, in the torts realm, not that much has changed; tort suits for this pervasive harm are exceedingly rare. The costs of domestic violence still are not shifted but fall solely on the victims (and their children). The risks of domestic violence are not shared. Given the widespread public attention to domestic violence, we no longer can say, as we could forty years ago, that we do not appreciate the magnitude of the harm. Although torts scholars often talk about deterrence and compensation as being broad goals of tort law, we seem to take for granted that tort law is incapable of deterring or compensating for this widespread harm. In my view, we have not even attempted to get the private enforcement mechanisms of torts and insurance to work in this area. As Kenneth Abraham recently wrote, the insurance business is “remarkably creative” at insuring risks that at first seemed uninsurable. Is it finally time to start considering injuries caused by domestic violence to be as worthy of tort compensation as injuries caused by negligent drivers?
--Jennifer B. Wriggins
Sumner T. Bernstein Professor of Law and Associate Dean for Research
-Kenneth Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11 (
-Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law (NYU Press forthcoming May 2010)
-Robert Pear, ‘Women Buying Health Policies Pay a Penalty,’
-Jennifer Wriggins, ‘Domestic Violence Torts,’ 75 So. Cal. L. Rev. 121 (2001)
Friday, April 16, 2010
A homeowner's insurance carrier has paid $1.75 M to settle a case in which a 14-year-old girl was killed when she and her friend were allowed, by the friend's parents (as hosts of a sleepover), to ride with a boy who then crashed. The parents of the deceased sued the parents hosting the sleepover. The plaintiffs alleged they told the host parents, "No boys with cars." At one point during the course of the case, the Supreme Court of Virginia held that a parent who agrees to supervise and care for a child has a common law duty to do so with reasonable care. VLW Blog has the story.
Thursday, April 15, 2010
Jennifer B. Wriggins is the Sumner T. Bernstein Professor of Law and the Associate Dean for Research at the University of Maine School of Law. Professor Wriggins specializes in Torts, Insurance Law, and Family Law. Upon receiving her J.D., Professor Wriggins served as Clerk to Hon. Edward T. Gignoux, U.S. District Judge in Portland, Maine. She was a Visiting Professor at Harvard Law School and Boston University School of Law in Spring 2005. Her book, "The Measure of Injury: Race, Gender, and Tort Law" (NYU Press 2010, co-authored with Professor Martha Chamallas of Ohio State University) will be published in Spring 2010. She is the 2006 recipient of the USM Faculty Senate award for excellence in teaching. She was appointed Associate Dean for Research in May 2009. She has published articles in the areas of torts, insurance, and family law, with a focus on race and gender. In October 2008, her research was cited in James McMillen v. The City of New York which held that use of race-based life expectancy tables was unconstitutional. Her articles are frequently cited and excerpted in books.
Prior to joining the faculty of Maine Law, she was a partner at Pressman, Kruskal & Wriggins in Cambridge, Massachusetts, served as an Assistant Attorney General in the Massachusetts Attorney General’s office, and was in private practice in Maine. She graduated magna cum laude with distinction in philosophy from Yale College and graduated cum laude from Harvard Law School. She is a member of the American Law Institute, and is Treasurer of the Executive Committee of the Association of American Law Schools Torts and Compensation Systems section.
Wednesday, April 14, 2010
John Goldberg (Harvard) and Ben Zipursky (Fordham) have posted to SSRN the latest piece in their development of civil recourse theory Torts as Wrongs. The abstract provides:
Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them.
Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that the concept of a wrong is either too moralistic to explain the terms on which liability is imposed or so capacious as to be vacuous. We demonstrate that torts can be understood as a special kind of wrong without draining the content from the concept of a wrong. Specifically, every tort is a legal, relational, civil, and injury-inclusive wrong. In turn, tort law provides victims of such wrongs with a power to obtain recourse against those who have wronged them.
A view of torts as wrongs is not only conceptually available but interpretively superior to loss-based views. Indeed, the latter prove to be incapable of accounting for basic features of tort law, including: claims that are viable without proof of loss; claims that are not viable even though an actor has foreseeably caused a victim to suffer a loss; suits giving rise to remedies that do not involve the shifting of a loss; suits in which recovery turns on whether a certain kind of loss is parasitic on a predicate injury; and suits in which recovery is denied, or defenses rendered inapplicable, because there is a heightened or attenuated connection between the agency of the defendant and the plaintiff’s injury. In contrast to loss-based theories, a wrongs-based theory can easily account for all of these aspects of basic tort doctrine.
Perhaps the greatest challenge to wrongs-based theories lies in explaining what value there is, apart from loss-shifting, in having tort law. Our answer is that tort law is law for the recourse of wrongs. Hand-in-hand with their articulation of legal wrongs, courts provide victims of such wrongs with an avenue of civil recourse against their wrongdoers. This is what tort law does. It makes real the principle that for every right there is a remedy.
The 3rd Circuit ruled that defective sperm from a sperm bank cannot form the basis for a products liability suit. (Kraweic/The Faculty Lounge)
A potential torts exam hypothetical, though panned in the comments for having insufficient nudity and death. (Araiza/Prawfs)
Interested in taking over Products Liability Prof? Apparently Paul and Joe are still looking. (Products Liability Prof)