TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, October 8, 2010

Personal Injury Roundup No. 83 (10/8/10)

New Suits

  • Over a 100 negligence suits filed against St. Joseph Medical Center (Baltimore) on Tuesday alleging unnecessary heart-related procedures.  (WJZ 13)


  • Second Circuit issues summary affirmances in eight Zyprexa dismissals.  (Drug & Device)
  • Eleventh Circuit "ruled that Medicare is not entitled to rely on its field manual and argue that a subrogation interest be reduced under a "made whole" type of analysis only if a judgment is entered in the case."  (Day on Torts)
  • NJ Supreme Court upholds use of class action for consumer fraud claim against drug manufacturer based on allegedly deceptive advertising.  (Opinion, NJ Law Journal (via, Drug & Device)
  • Kentucky appellate court holds law barring punitive damages against dram shops is unconstitutional. (Cal Punitive Damages)

Reform, Legislation, Policy

  • "Things Congress did and didn't do before leaving", Part I and Part II at Point of Law.
  • On-going Foreign Corrupt Practices Act investigation of several major drug manufacturers. (WSJ)
  • 9/11 compensation bill passed House last week, now moves through Senate.  (Point of Law)

Trials, Settlements and Other Ends

  • Federal district court grants summary judgment to defendants in the Wii defective wrist strap class action.  (Mass Tort Defense)
  • Federal district court judge reduces $8M Fosamax award as excessive, but denies new trial based on plaintiff's lawyer's improper conduct.  (Drug & DeviceAbout Lawsuits, NY Law Journal/


  • Judge Barbier gave notice of intent to appoint Professor Francis McGovern as a special master under FRCP 53 in the In re Oil Spill MDL.  (Order, Mass Tort Defense)


October 8, 2010 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, October 7, 2010

Introducing Guest Blogger Lester Brickman

Brickman (2) Monday’s Guest Blogger is Lester Brickman, Professor of Law and former Acting Dean at the Benjamin N. Cardozo School of Law, where he teaches contracts and legal ethics.  He has written extensively on legal ethics and his writings have been widely cited in treatises, casebooks, scholarly journals and judicial opinions. Among his areas of specialty are contingency fees and their effect on the tort system, mass tort litigation, asbestos litigation, regulation of attorney fees in the tobacco litigations, fee arbitration, and class actions.

 Professor Brickman is publishing a book on contingency fees due out in January 2011:  Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge Univ. Press).  The book is a broad and deep inquiry into how contingency fees distort our civil justice system, influence our political system and endanger democratic government.  While the public senses that lawyers manipulate the civil justice system to serve their own ends, few are aware of the high costs that come with contingency fees.   This book, which distills 20 years of Professor Brickman’s research, sets out to change that, providing a window into the seamy underworld of contingency fees that the bar and the courts not only tolerate but even protect and nurture.  Contrary to a broad academic consensus, the book argues that the financial incentives for lawyers to litigate are so inordinately high that they perversely impact our civil justice system and impose other unconscionable costs.  It thus presents the intellectual architecture that underpins all tort reform efforts.

Professor Brickman also has written extensively on asbestos litigation.  His articles and testimony before the Senate Judiciary Committee and a subcommittee of the House Judiciary Committee have been influential in directing attention to critical asbestos litigation abuses. He has been acknowledged by four federal courts as an expert on the history of asbestos litigation, asbestos bankruptcy trusts and the effect of tort reform on future asbestos claim generation. In early 2005, President George W. Bush introduced Professor Brickman to an audience in McComb County, Michigan, as an expert on asbestos litigation issues and asked Professor Brickman to explain the need for a legislative solution for asbestos litigation abuses.

Professor Brickman has been widely quoted in the press on lawyer fee issues as well as on tort reform issues. He has testified before Congress on the delivery of legal services, asbestos litigation, contingency fee abuses generally and in tobacco litigation and on the constitutionality of congressional regulation of fees in tobacco litigation.  He has served on the professional responsibility committees of the New York State and City bar associations and on the Professional and Judicial Ethics committee of the Association of the Bar of the City of New York.  Professor Brickman is a graduate of Carnegie-Mellon University, the University of Florida Law School and has a Masters in Law degree from the Yale Law School.


October 7, 2010 in Guest Blogger, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 6, 2010

Top Plaintiffs' Lawyers

Mark Behrens and Cary Silverman (Shook, Hardy & Bacon) recently surveyed numerous defense counsel, in-house counsel, and individuals involved with civil justice reform efforts across the country to identify the plaintiffs' lawyers viewed by the defense bar as the top trial lawyers in America in terms of expertise and influence.  Here is the list of 75 lawyers:  Download DC-188012-v2-Trial_Lawyer_Kingpins(1) (Excel). 

The partner for whom I worked the most in practice, Thomas E. Albro (Tremblay & Smith), represented mostly plaintiffs.  He is a fantastic lawyer.


October 6, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 5, 2010

Zipursky on "Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law"

Ben Zipursky (Fordham) has a forthcoming article on Snyder v. Phelps, which will be before the Supreme Court for oral argument tomorrow.   The abstract provides:

In Snyder v. Phelps, the United States Supreme Court will decide to what extent state tort law may impose liability for “intentional infliction of emotional distress through outrageous conduct” without running afoul of the First Amendment’s guarantee of freedom of speech.   The defendants, the Phelpses, picketed the funeral of a young Marine who died in the line of duty in Iraq; they carried signs with statements such as “God hates the USA,” “God hates you,” “Fag troops,” and “Thank God for dead soldiers.”   Sickened, depressed, and infuriated by the conversion of his son’s funeral into a media circus for an extremist group, the soldier’s father, Albert Snyder, successfully sued the defendants for the torts of intentional infliction of emotional distress through outrageous conduct and invasion of privacy.  Several important First Amendment scholars have argued that an emotional harm tort that depends on applying the vague, subjective, and malleable concept of “outrageousness” to political speech cannot withstand First Amendment scrutiny, and that the Court should therefore rule for the defendants.

This Essay examines Snyder v. Phelps from a tort scholar’s point of view and, in doing so, puts forward strong reasons for rejecting the outrageousness argument.   When one looks into the nature of the emotional distress tort carefully, as one must if one takes federalism seriously, three points become clear: first, that state tort law contains its own well-developed resources for scrutinizing such emotional distress claims and carefully filters out the vast majority of such claims; second, that the concept of outrageousness is used in part to insure that only a narrow range of kinds of cases can succeed; and third, that one of the most longstanding and best established paradigms for liability in emotional distress torts involves persons who have intentionally or recklessly interfered with a plaintiff’s efforts to grieve for a deceased child, parent, or spouse.  As a unanimous United States Supreme Court recognized only seven years ago in the privacy case National Archives and Records Administration v. Favish, the law does acknowledge that “[f]amily members have a personal stake in honoring and mourning their dead” and does not protect the activity of one who, by intruding on the family members’ grief, “tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.”  To suppose that Snyder’s tort claim cannot be permitted because “outrage” and “emotional harm” are too vague or mercurial is simply to invert legal reality.

 You can download a copy of Zipursky's paper here:  Download Zipursky on Snyder v. Phelps


October 5, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Toyota Files Motions to Dismiss

Toyota has moved to dismiss the personal injury, wrongful death, and economic damages claims filed against it based on the alleged "sudden acceleration" problem.  A hearing has been set for November 19th.  The National Law Journal (via has more.


October 5, 2010 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Monday, October 4, 2010

Guest Blogger Catherine Sharkey on "The Politics of Preemption: NHTSA, State Tort Law & Automobile Safety"

Today's guest blogger is Catherine M. Sharkey, Professor of Law at New York University School of Law. 

The Politics of Preemption: NHTSA, State Tort Law & Automobile Safety

Today, the first Monday in October, marks the beginning of the U.S. Supreme Court 2010 Term.  This Term, the Court, after a year’s hiatus, is getting back into the game of federal preemption.

In Williamson v. Mazda Motor of America, Inc., all eyes should be on Justice Stephen Breyer. Williamson is revisiting the scope of implied conflict preemption under the National Traffic and Motor Vehicle Safety Act of 1966 [Safety Act] as announced in 2000 by Justice Breyer in Geier v. American Honda Motor Co.  The plaintiff in Geier, injured in an automobile accident, alleged that Honda negligently and defectively designed her vehicle because it was not equipped with airbags in addition to seatbelts.  The defendant, Honda, complied with Federal Motor Vehicle Safety Standard [FMVSS] 208 promulgated by the National Highway Traffic Safety Administration [NHTSA] that gave automobile manufacturers a range of choices among different passive restraint devices. 

NHTSA argued in an amicus brief before the U.S. Supreme Court in Geier that allowing the state tort claims to proceed would interfere with the federal regulatory policy intended to provide a menu of options to automobile manufacturers—a policy designed, in part, to stimulate industry experimentation.  Convinced that “the agency’s own views should make a difference,” Justice Breyer’s majority opinion gave “some weight” to the agency’s view.  In a 5-4 decision, the Court held that, notwithstanding the fact that the Safety Act directed the agency to promulgate “minimum” safety standards and the fact that the Act also included an express “savings” clause that seemed to preserve common law liability, Alexis Geier’s state law claims were impliedly preempted (though they were not expressly preempted by the Act).

Ten years later, the preemptive force of the Safety Act and NHTSA’s FMVSS 208 safety regulation is back before the U.S. Supreme Court.  Ms. Williamson, riding in the back middle seat of a Mazda minivan, was killed in an automobile accident.  Her estate and survivors allege Mazda negligently designed the minivan because the back middle seat where Ms. Williamson was seated had a lap seatbelt only, as opposed to the lap and shoulder belts equipped in the front and back side seats.  Like the Honda in Geier, the Mazda complied with FMVSS 208, which allowed manufacturers to install either lap or lap/shoulder belts in all non-outboard seating positions.  The trial court sustained Mazda’s preemption defense; the California state appellate court affirmed, holding that the policy concerns of testing multiple forms of passive restraints (e.g. airbags) that led to preemption in Geier also applied to seatbelts; and the California Supreme Court declined to review the case.  Given the lack of disagreement among lower courts—which overwhelmingly have concurred with the California appellate court’s interpretation of Geier—the U.S. Supreme Court’s grant of certiorari came as somewhat of a surprise.

What has changed in the decade since Geier?

(1) Wyeth v. Levine: In October Term 2008, the Court decided Wyeth v. Levine, which narrowed the range of implied preemption.  The Court held that the Food and Drug Administration’s (FDA) premarket approval of a pharmaceutical drug’s labeling did not preempt the injured patient’s failure to warn state tort claim.  In a 6-3 decision penned by Justice Stevens, the Court rejected Wyeth’s arguments based upon two categories of implied preemption: (1) impossibility, i.e., that Wyeth could not comply with the state law duty to revise its labeling without violating federal law; and (2) obstacle, i.e., that state tort law obstructs the purposes and objectives of the federal drug labeling regulatory regime.  The Wyeth majority castigated the FDA for its about-face of its longstanding position and proclaiming preemption of state tort law in a preamble to a drug labeling rule, which evaded the notice-and-comment process under the Administrative Procedure Act, whereby states and other affected entities can participate and voice their concerns.  For this reason, the Court was not prepared to defer to the FDA’s pro-preemption view.

(2) Obama Administration: In May 2009, President Obama issued a Presidential Memorandum on Preemption, which outlined the new Administration’s policy that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.”  More concretely, echoing the Supreme Court’s reprimand of the FDA in Wyeth, President Obama directed federal agencies to cease the practice of “preemption by preamble.” The Memorandum signaled a political shift, with the new Administration distancing itself from the prior pro-preemption, anti-tort law position of the previous administration.

(3) NHTSA’s position:  Whereas NHTSA argued in favor of preemption in Geier, it has adopted a decidedly anti-preemption position in its amicus brief in Williamson.  Since Geier, according to NHTSA, lower courts around the country have misinterpreted the case to find that any time NHTSA gives manufacturers different options to satisfy a safety standard, state tort law is preempted.  NHTSA claims that in Williamson (unlike in Geier) there is no federal policy to affirmatively encourage diverse forms of seatbelts.  And, according to NHTSA, the agency’s “longstanding” position has been that NHTSA standards do not generally preempt state tort law, aside from relatively rare situations, as in Geier, where the agency’s affirmative policy presents an outright conflict.  NHTSA proposes a standard whereby courts should defer to its judgment when it states that a rule does not have preemptive effect.

(4) Composition of the Supreme Court:  The vociferous dissent in Geier was written by then-Justice Stevens, joined by then-Justice Souter, and Justices Thomas and Ginsburg.  The Geier dissenters formed the majority in Wyeth.  The Wyeth dissenters (Justice Alito, joined by Chief Justice Roberts and Justice Scalia) are likely to stand by their more expansive reading of Geier in Williamson.  Justice Kagan—who has replaced Justice Stevens, the staunchest torch bearer for the anti-preemption position on the Court—has recused herself, setting up the possibility of an even 4-4 split.  There is some uncertainty with respect to the positions of Justice Kennedy (who joined the majorities in Geier and in Wyeth) and Justice Sotomayor (who replaced Justice Souter).  But, to my mind, the pivotal Justice to watch is Justice Breyer, who authored the Geier majority.  Justice Breyer joined the Wyeth majority, but concurred separately to emphasize that agency regulations with “force of law” (unlike the FDA preemption preamble) can impliedly preempt state law.

My prediction?  Williamson will narrow the reach of Geier implied obstacle preemption, but will not sound the death knell entirely—much to Justice Thomas’ chagrin.  Justice Breyer (and the Court) is likely to defer to NHTSA’s “expert” view on whether state tort law impedes federal regulatory policy where there has been notice-and-comment rulemaking and where the agency’s position is consistent and longstanding.  Williamson will then be a further data point for my claim that reliance on agencies’ views in regulatory preemption cases has been a staple of Supreme Court jurisprudence.  What is missing thus far—and what is needed to guard against agency political flip-flop with each Administration’s change of view on implied preemption and state tort law—is a coherent framework for the level of deference to accord to agency positions on preemption, coupled with heightened judicial scrutiny of the agency’s regulatory record that supports its position.

- Catherine M. Sharkey
Professor of Law
New York University School of Law



October 4, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Sunday, October 3, 2010

Top 10 Recent SSRN Torts & Products Liability Downloads

Rank Downloads Paper Title
1 343 Torts Compendium, Volume One (Version 1.0)
Eric E. Johnson,
University of North Dakota School of Law,
Date posted to database: August 25, 2010
Last Revised: August 30, 2010
2 169 Cracking the Code to Writing Legal Arguments: From IRAC to CRARC to Combinations in Between
Gerald Lebovits,
Saint John's University - School of Law,
Date posted to database: August 2, 2010
Last Revised: August 2, 2010
3 159 Do Class Action Lawyers Make Too Little?
Brian T. Fitzpatrick,
Vanderbilt Law School,
Date posted to database: August 9, 2010
Last Revised: September 15, 2010
4 149 Statistical Knowledge Deconstructed
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: September 7, 2010
Last Revised: September 7, 2010
5 123 Free Speech at What Cost?: Snyder v. Phelps and Speech-Based Tort Liability
Jeffrey Shulman,
Georgetown University - Law Center,
Date posted to database: June 9, 2010
Last Revised: September 1, 2010
6 87 A Moral Rights Theory of the Private Law
Andrew S. Gold,
DePaul University - College of Law,
Date posted to database: August 23, 2010
Last Revised: September 17, 2010
7 77 Anatomy of an Aggregate Settlement: The Triumph of Temptation Over Ethics
Lester Brickman,
Benjamin N. Cardozo School of Law,
Date posted to database: July 28, 2010
Last Revised: July 30, 2010
8 60 Factual Causation and Asbestos Cancers
Jane Stapleton, Jane Stapleton,
Australian National University (ANU) - College of Law, University of Texas at Austin School of Law,
Date posted to database: July 31, 2010
Last Revised: July 31, 2010
9 53 Why Civil Recourse Theory is Incomplete
Christopher J. Robinette,
Widener University - School of Law,
Date posted to database: August 16, 2010
Last Revised: August 16, 2010
10 50 The Supreme Court and Legal Uncertainty
Stephen G. Gilles,
Quinnipiac University School of Law,
Date posted to database: August 4, 2010
Last Revised: August 4, 2010


October 3, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)