TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, September 17, 2010

Personal Injury Roundup No. 80 (9/17/10)

New Suits

  • Mel Gibson's ex-girlfriend Oksana announced her intent to file suit against Mel for battery, emotional distress and defamation. (TMZ).
  • Florida state court judge sues for medical malpractive for sponge left in his abdomen after surgery.  (Miami Herald)
  • Michael Jackson's mom sues concert promoter for wrongful death.  (Turkewitz)


  • Second Circuit reverses Judge Weinstein's class certification in the Zyprexa litigation.   The Court also vacated his denial of summary judgment.  (Court's opinion, Point of Law).
  • Sixth Circuit vacates jury award in welding rod case based on errnoneous Daubert ruling. (Mass Tort DefenseCourt's opinion)
  • Ninth Circuit affirms Alien Tort Claims Act verdict in favor of Chevron.  (Court's opinion, Torts/Bernabe)
  • Massachusetts Supreme Court adoptes "apparent manufacturer" doctrine. (Bernabe)

Reform, Legislation, Policy

  • The costs of defensive medicine?  Philadelphia Inquirer and BNET take a look.
  • Federal magistrate judge concludes that Texas's medical malpractice caps are constitutional.  (Texas Tribune)
  • Senator Patrick Leahy (D-VT) introduced the Food Safety Accountability Act of 2010, which strengthens criminal penalties for food safety violators.  (FDA Law Blog)

Trials, Settlements and Other Ends

  • $1.1 M jury award in Baltimore medical malpractice case.  (About Lawsuits)
  • $5.8 M alienation of affection award in North Carolina. (WNCT)


  • Podcast on California's medical malpractice laws.  (Bernabe)


September 17, 2010 in Roundup | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 15, 2010

Prof. Richard Cole

I am sad to report that TortsProf Richard Cole, of my institution (Western New England) passed away over the weekend.  Dick began teaching at the School of Law in 1976, and, over the years, taught Torts, Toxic Torts, and various other courses related to civil litigation.  A graduate of the University of Pennsylvania and the University of Michigan Law School, Dick also taught at Detroit College of Law and visited at Oxford.

I join Dean Gaudio, as do all of my colleagues, in grieving the loss of a colleague and friend.  Dick was a gentle, caring, and inquisitive professor and colleague, and he touched countless lives.


September 15, 2010 in TortsProfs | Permalink | Comments (1) | TrackBack (0)

Call for Papers: Civil Litigation as a Tool for Regulating Climate Change

Call for Papers

Civil Litigation as a Tool for Regulating Climate Change

Conference on February 18, 2011

The purpose of this conference is to explore the interlinked policy, science, legal and political questions of utilizing the American litigation system, and particularly its tort theories of liability, to regulate climate change.  Attempts to employ the courts as a tool for regulation are exemplified by cases such as Comer v. Murphy Oil, Connecticut v. American Electric Power, Co., and Native Village of Kivalina v. Exxon Mobile Corporation.  Key presentations at the conference will be made by Professor Daniel Farber, Director of the Center for Law, Energy and the Environment, University of California at Berkeley;  Professor Michael B. Gerrard, Director of the Center for Climate Change Law, Columbia University School of Law; and Professor Daniel Bodansky of the Schools of Sustainability and of Law, Arizona State University.  Scholars and practitioners in the fields of environmental science, litigation, and tort law, among other areas, are encouraged to attend and present papers that will generate debate and discussion concerning the desirability of such litigation, strategies concerning it, and the impact it might have on efforts to bring about national legislation and international cooperation on global warming and related problems.

Valparaiso University School of Law issues this call for papers as part of the 25th Annual Monsanto Lecture/Conference on Tort Law and Jurisprudence, to be held at the School of Law on February 18, 2011.  If you are interested in presenting, please submit an abstract of your proposed paper. Abstracts are due on or before December 1, 2010.  A limited number of stipends are available to defray travel and lodging costs of some participants.

Submitted by Joellen Lind.

September 15, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Health Affairs Sept. 2010 Issue - "Medical Malpractice & Errors"

The September issue of Health Affairs focuses on the topic of "Medical Malpractice & Errors."    The issue includes an article co-authored by Michelle Mello (Harvard), et al., on "National Costs of The Medical Liability System," and a another article co-authored by Anna C. Mastroianni  (U. Wash. Seattle), Mello and others on "The Flaws in State 'Apology' and 'Disclosure' Laws Dilute Their Intended Impact on Malpractice Suits."

Unfortunately, full text is available by subscription only, though issue summaries are available.    If this is an area of interest, I recommend getting the full September issue. 


September 15, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 14, 2010

Herstein on "Why the Duty of Care is Not a Duty 'To Try'"

Ori Herstein (Cornell) has posted "Responsibility in Negligence: Why the Duty of Care is Not a Duty 'To Try'"  on SSRN.  The abstract provides:

Even though it offers a compelling account of the responsibility-component in the negligence standard - arguably the Holy Grail of negligence theory - Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence.

The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of thought; adversely affecting the prevention of negligent harm - the essence of the negligence standard - and, raising severe probative difficulties. Moreover, the duty of care also does not give rise to what I call a de facto duty to try.

The duty of care is better construed to require only certain conduct and not trying. Returning to the primary appeal and motivation for exploring the validity of equating the duty of care with a duty to try - searching for the responsibility-component in the negligence standard - I argue that the responsibility-component in negligence does not take the form of an obligation to try but rather has a conditional form, manifested in the conditions of applicability of the negligence standard. In other words, the negligence standard comprises a conduct-based as opposed to a combined action-/intent-based duty (such as a duty to try) as its duty of care, a duty that only applies to actors who possess the capacity to intentionally or knowingly comply with it, or, put differently, possess the capacity to try.

 - SBS

September 14, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 13, 2010

Guest Blogger Andy Popper: "Leaping Forward--or Not--With the 2010 Foreign Manufacturer Legal Accountability Act"


    Earlier this summer I testified in favor of H.R. 4678, The Foreign Manufacturers Legal Accountability Act.  While at first the bill looked like it would sail through, recent highly vocal and stunningly well-funded opposition from foreign automobile manufacturers and others (can you guess which absolutely huge auto manufacturer – from Japan – has been at the forefront?) has placed its future in doubt. 

    Gross sales of foreign manufactured goods in the U.S. exceed two trillion dollars annually.  Conservatively, there are tens of millions of defective, dangerous, and in some instances deadly goods produced abroad for sale in U.S. markets (think Chinese dry-wall, toxic levels of lead paint on toys, contaminated pet food, allegedly lurching cars, infant cribs that to give rise to the prospect of strangulation, etc.).  Because of the complex post-Asahi minimum contacts puzzle, many of those producers are not subject to tort liability in state courts regardless of the fact that their products are dangerous and likely to be sold in the U.S.  

    H.R. 4678 would require foreign manufacturers of certain products and component parts to designate a registered U.S. agent to accept service of process in a state where the manufacturer has a substantial connection either through importation, distribution, or sale of its products.  Three federal agencies (FDA, CPSC, and EPA) would determine the products and component parts subject to the terms of the bill.  Each agency would also establish the minimum quantity or value required to trigger the terms of the bill.  Central to the bill is the declaration that designation of a registered agent constitutes consent to jurisdiction by the foreign manufacturer in the courts of that state and in federal courts. 

    This strikes me as a simple, elegant, and appropriate step forward.  It levels the civil liability landscape, stripping foreign manufacturers of an unfair advantage over domestic manufacturers and addresses a powerful but understandable anomaly in our legal system. 

    By making possible litigation against those who place into the stream of commerce defective goods, the bill triggers the corrective justice incentive mechanisms of the tort system.  When you create the realistic possibility for liability, you activate incentives to make safer and more efficient products. 

    It is both the current state of the law – and problematic – that a foreign producer cannot readily be held accountable in state courts even if (a) the product was unquestionably dangerous and defective, (b) the harm to the victim was foreseeable, and (c) the foreign producer has sold large numbers of these products in the U.S. in the past.  Every U.S. manufacturer of any product is subject to the U.S. rule of law, the U.S. tort/civil justice system, and U.S. regulatory mandates.  That foreign entities and individuals profit from the sale of defective goods and are outside this system is wrong.  

    We all recognize the legal issue: assertion of jurisdiction over an individual or entity presents a challenge when the entity’s contacts with state are limited.  Not surprisingly, many foreign manufacturers do not have an officer, agent, representative, employee, office, or property in a particular state where their products cause harm.  At present, such manufacturers cannot readily be “haled” into state court if their contacts fail to meet the constitutionally compelled “minimum contacts” requirement.  In addition, the assertion of judicial power must be consistent with notions of fair play and substantial justice, fundamental fairness, and reasonability – for the defendant.  In the absence of the ingenious solution presented in H.R. 4678, these norms prevail and access to justice is limited or denied. 

    Opponents have argued that the terms of the bill violate WTO constructs.  They claim this system would discriminate unfairly against foreign manufacturers.  Frankly, it is hard to see how H.R. 4678 would create any undue barrier or obstacle to trade.  It imposes on foreign manufacturers the same responsibilities and obligations of domestic sellers and producers.  This is a straightforward and essential change, giving injured persons access to the civil justice system. 

    Check out the full text of the legislation as well as the testimony and statements filed regarding H.R. 4678 at:


--Andy Popper

American University


September 13, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)