April 30, 2010
Personal Injury Roundup No. 75 (4/30/10)
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)
April 29, 2010
Introducing Guest Blogger Mark Geistfeld
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.
April 28, 2010
Sebok on "The Inauthentic Claim"
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.
Lytton on Clergy Sexual Abuse, Tort Litigation, and Media Coverage
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.
April 27, 2010
Food Industry Lobbies Against Pending Food Safety Bill
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....
Senator Grassley Looks Into Conflicts of Interest at the CDC
Details from Reuters.
April 26, 2010
New from Andrew McClurgFriend-of-the-TortsProf-Blog Andrew McClurg (Memphis) will soon be publishing Fight Club: Doctors vs. Lawyers - A Peace Plan for America's Most Prestigious, Antagonistic Professions in the Temple Law Review. Here's the abstract:
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.
Guest Blogger Andrew Klein: "Science, Causation, and Toxic Torts"
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
April 25, 2010
IOM to Advise FDA on Post-Marketing Drug Safety Trials
The Institute of Medicine has been called upon to advise the FDA regarding post-marketing drug safety trials. George Conk at Otherwise has the details.