TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, February 5, 2010

Personal Injury Roundup No. 65 (2/5/2010)

Six more weeks of winter, and another week of Torts.

Reform, Legislation, Policy

  • Illinois med mal caps struck down (Legal News Line).
  • Tribe et al. (in conjunction with WLF) on the use of litigation to deal with global warming (spoiler: they think it's a bad idea) (TortsProf). 
  • Huffington Post blogger on med mal and reform (Huffington Post).
  • Erik Turkewitz "has gotta love" John Stossel (note: Erik may be being sarcastic) (New York Personal Injury Law Blog)

New Lawsuits

Trials, Settlements and Other Ends

  • Stripper gets $100K ($1M less than she sought) for injuries in drunk driving accident, alleging that drinking was part of her job (Overlawyered). 
  • Settlement discussions ongoing in 9/11 worker suits (NYT).


  • Victim in car accident seeks punitive damages against Terry Bollea and his son; Bollea is better known as Hulk Hogan ( 
  • Damages in HRT suit slashed from nearly $80 million to $5.6 million in punitives plus $3.7 million in actual damages (


  • Plaintiffs' attorneys fighting back against fraud allegations in suits against Dole (
  • Adventures with peer review and experts in drug cases (with a comment from me) (Drug & Device Law Blog).
  • Lancet (finally?) fully retracts article linking autism to vaccines (BBC). 
  • Suit against U-Haul for injuries resulting from truck with allegedly failed brakes and transmission continues through appellate process in Texas (Courier-Gazette).


February 5, 2010 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, February 4, 2010

Monday's Guest Blogger: Kenneth Abraham


Kenneth Abraham is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law. He is a member of the American Academy of Arts and Sciences and the Council of the American Law Institute. He served as an advisor to the American Law Institute's Restatement of Torts (Third): Products Liability, was a co-author of the Institute's major study, Enterprise Responsibility for Personal Injury,and has served on many other boards and commissions concerned with tort law and insurance reform. He has been a consulting counsel and an expert witness in a variety of major insurance coverage cases, involving directors and officers liability, environmental cleanup liability, toxic tort, products liability, and property insurance claims. He has also served as an arbitrator for the Dalkon Shield Claimants Trust, resolving over 100 claims by women seeking damages for injuries caused by the Dalkon Shield intrauterine device, both in the United States and Europe.

In 2000 Abraham received the all-University of Virginia Outstanding Teacher Award, as well as the American Bar Association's Robert B. McKay Law Professor Award, given for outstanding contributions to tort and insurance law. In 2001 he was honored with a Distinguished Faculty Achievement Certificate from the State Council of Higher Education for Virginia, for "outstanding achievement in teaching, research, and public service.” Abraham has been a Visiting Professor at Harvard Law School and Case Western Reserve Law School. He taught for nine years at the University of Maryland Law School before joining the Virginia faculty in 1983.

Abraham’s most recent book is The Liability Century: Tort Law and Insurance from the Progressive Era to 9/11 (2008). His casebook, Insurance Law and Regulation, now in its fourth edition, has been used as the principal text in courses on insurance law in more than 100 American law schools. His torts treatise, The Forms and Functions of Tort Law (3d ed. 2007), has become a basic text for first-year law students across the country


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

Tuesday, February 2, 2010

Toyota's Lawsuit Problem

In the aftermath of sudden acceleration problems and a recall, Toyota is facing a stream of lawsuits.  A recent Reuters piece quotes two lawprofs (and future TortsProf guest bloggers), David Owen (South Carolina) and James Henderson (Cornell), on the issue. 

Owen focused on the duty to warn issue:

"The grounds to sue are that there was a design defect, regardless of what Toyota may do to mop up the consequences, and the possibility that a post-sale warning was delayed too long," he said.

"If it turned out that Toyota delayed the recall beyond the point when a reasonable manufacturer would have done so, then punitive damages in substantial amounts might be available to whoever was physically injured," Owen added.

Henderson (I'm assuming this is James Henderson at Cornell, not "Frank") addressed the basic lack of recovery for fear of injury alone:

"In a significant majority of states, there is no remedy for mental upset and fright, absent a consequential injury to people or property caused by the defect," said Frank Henderson, a Cornell Law School professor and product liability expert.

The entire article is here.


February 2, 2010 in Products Liability, TortsProfs | Permalink | Comments (0) | TrackBack (0)

CA: $16.5 M Med Mal Verdict

A Riverside jury awarded $16.5 M to a couple for the malpractice of a Palm Springs neurosurgeon.  The male plaintiff was injured while off-roading and was airlifted to a hospital where the defendant neurosurgeon was on call. Despite having a fractured spine, the patient was not seen until the next day, and was not taken into surgery until two days after the accident.  He is now paralyzed.  The San Jose Mercury News has the story.


February 2, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

This Is Not Torts Related. But It Is Fun.

You've been warned.  This post is not torts-related in any way.   If you want some torts-related content, just scroll down a bit to "Too Hot for Courts To Handle."  

This video, however, blew me away and is less than 5 minutes.  Watch the whole thing.   Really.  If you just watch 20 seconds or so, you miss the point.



My thanks to my colleague Richard Gershon for sharing this with me.


February 2, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

"Too Hot for Courts to Handle: Fuel Temperatures, Global Warming, and the Political Question Doctrine"

Laurence Tribe (Harvard), Tristan Duncan (Shook, Hardy), and Joshua Branson (Harvard Law student) have recently published "Too Hot for Courts to Handle:  Fuel Temperatures, Global Warming, and the Political Question Doctrine" (pdf) with the Washington Legal Foundation.  The executive summary provides, in part:

The authors frame their analysis of the political question doctrine in the context of two areas of ongoing litigation. The first set of lawsuits, brought both by private plaintiffs and some state attorneys general, targets businesses accused of contributing to global climate change. In the second group of suits, private lawyers have sued gasoline retailers for fraud, alleging that those who purchase gas in warm climates unknowingly receive less fuel than those purchasing it in colder climates.


Thanks to Mark Behrens for passing this along.



February 2, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 1, 2010

Guest Blogger Richard Epstein on "Multiple Standards of Liability in Tort Law: Of context and categories"

At the past meeting of the American Association of Law Schools, the Torts & Compensation Systems Section, chaired by John Goldberg, devoted its session to an examination of my academic writings on the law of tort.  Over the years, I have written on many discrete topics in tort law, but the general focus of that panel was on the first work that I wrote on the subject, “A Theory of Strict Liability,” 2 J. Legal Studies 151 (1973), which was written as a self-conscious response to Richard A. Posner’s highly influential article, A Theory of Negligence, 1 J. Legal Stud. 29 (1972),

At stake in my original debate with Judge Posner was a question that is critical to the articulation of a sensible system of tort law, but of somewhat narrower scope that I had suspected at that time.  More specifically, the first and easiest class of tort cases to organize are situations that involve the physical harms that one individual commits to a stranger.  The simplest versions of this wrong are ordinary trespasses that involve the application of force by the defendant, or by instruments under his control, to the person or property of the plaintiff.  The more complex causal chains of indirect causation involve, for example, the setting of traps that are set off by the conduct of a plaintiff who, typically, is ignorant of the peril that has been set in his path.

My position was, and remains, that the simple rules of push/pull causation do better than any complex negligence inquiry that seeks to compare in familiar fashion three quantities on which it is always difficult to get a handle:  the burden of precautions as measured against the expected magnitude of the loss, which is captured by knowing the probability of harm and its severity in all alternative states of the world.  The fewer the hypothetical questions, and the simpler the causal arguments, the more reliable the judicial determinations.  In this case, it is not possible to show any reason why the use of a simple rule of these injuries leads to systematic distortions in the care levels that people will take in response to the situations that they face.

What is striking to me today, however, is not the debate over negligence and strict liability in these harm-to-stranger cases, but how both the negligence and strict liability rules do a very poor job of tracking any sensible system of liability in a raft of other contexts.  The first of these involve the occurrence of harm that arises out of some kind of consensual arrangement.  Against the general drift of modern law, I usually prefer that the tort rules in these cases be regarded as default principles that can be varied by private agreement that better reflects the joint intention of the parties.  Thinking of these tort rules as default rules raises the question of whether anyone in his right mind would want either the strict  liability or negligence rule in many discrete contexts. 

It turns out in medical malpractice, strict liability is a dead loser because the rate of accidents caused by medical intervention is high, but set off by the possibility of real benefits which provide full compensation from the ex ante perspective.  Forcing liability under strict liability shuts down the business. But the objective negligence standard, unconstrained by reference to custom, is in general a loser as well, for the same reason: it ignores the ex ante compensation from successful treatment. So the hard question is figuring out what custom entails in areas where there is a strong diversity of medical opinion.  The right way to do this is hard to guess, but the one clear loser is to carry over notions of what counts as care to avoid contact to cases of determining care levels in giving aid and comfort.  The Hand formula is useless there.

It is also quite beside the point in other contexts.  That formula maps very poorly into many occupier’s liability cases, where, especially with licensees, the question of whether a defect is known or latent has some real punch.  That same distinction should govern most product liability cases, I believe, and the modern tendency to use the risk utility test in this area almost always leads to the worst form of Monday-morning quarterbacking by judges and juries alike. A far better conception of the subject puts direct cost/benefit analysis on the back burner and asks this one question:  has the upstream provider of a good put the downstream user in a position that he or she has the needed information to make responsible decisions about its use? Avoid the traps, and let responsible parties then decide what risks to take in light of their own objectives.  Do not organize the system around the paternalist view that manufacturers have to control the behavior of downstream persons once they have lost control of their goods.

Both strict liability and ordinary negligence theories also tend to fare poorly in those cases where harms are inflicted by third parties on strangers.  One such context involves physical assaults on the defendant’s premises.  A second arises when one defendant operates as an inspector of the activities of a second responsible actor.  In both these contexts, the sensible approach is to impose general liability on the wrongful actor, without worrying about the position of, say, an insurer or inspector.  But if the wrongdoer is for some reason out of the picture, the tendency to reach out to the third party is great, if the alternative is no liability at all. 

The risk here of course is that strict liability is far too stringent.  Ironically, the same critique can be leveled against negligence liability under a protean cost/benefit analysis, which will also drive the insurers from the field when their assistance is needed most.  Yet at the same time, it is not wise to allow these persons to knowingly rubberstamp dangerous behavior of the very person over which they are supposed to exercise some independent oversight.  In the end, the best standard tries to use a recklessness standard to weave between the two extremes, buttressed in some cases by charges of “negligence plus,” which cover cases of egregious conduct that didn’t just miss some hidden danger, but which magnified the underlying risks.  These cases are critical where not only the injured party is in privity with the underlying actor, but of even greater relevance, where that party is not, as in cases of pollution or explosions, the one that hurt third persons. 

A short column cannot explore all the complex variations.  But it can point them out, as a stubborn reminder that context matters in tort, especially in those cases with strong contractual overtones.  Keeping all the balls in the air at the same time is a real challenge to any tort theorist, both within and outside of the law and economics tradition.  My sense of the field has surely evolved since I first wrote back in 1973.

- Richard A. Epstein
James Parker Hall Distinguished Service Professor of Law
University of Chicago

February 1, 2010 in Guest Blogger, Scholarship | Permalink | Comments (2) | TrackBack (0)

Sunday, January 31, 2010

Big Tobacco in a Post-Settlement World

The New York Times has an interesting piece today on Altria's direction in recent years, including its support for FDA oversight, its acquisitions to grow in the smokeless arena, and its efforts on smokeless cigarettes.  Worth a read.


January 31, 2010 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)