TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, February 12, 2010

Personal Injury Roundup No. 66 (2/12/10)

Reform, Legislation, Policy

  • A lower pain-and-suffering damages cap for med malpractice suits under consideration in Utah.  (Salt Lake Tribune)
  • FDA considers changing serving size information.  (NY Times)
  • Connecticut gubernatorial candidate calls for medical malpractice tort reform.  (Stamford News)
  • First Lady Michelle Obama discusses health care reform and obesity on Larry King. (CNN)

New Lawsuits

Trials, Settlements and Other Ends


  • Third Circuit holds that Federal Tort Claims Act suits must state "sum certain" even if treatment is on-going.  (NJ Law Journal/
  • Washington Supreme Court rejects nationwide consumer fraud class action against AT&T.  (Mass Tort Defense)


  • Florida judge says he intends to reduce $224M punitive damages award to individual smoker.  (Cal Punitive Damages)
  • Meanwhile, a Philadelphia judge reduced the punitive damages against Wyeth in a Preempro case from $75M to $5.6M.  (Mass Torts Profs)



February 12, 2010 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, February 11, 2010

Monday's Guest Blogger: Alan Calnan


Alan Calnan is Professor of Law at Southwestern Law School.  He developed a profound interest in jurisprudence and the social policies that influence it while serving as Notes and Comments editor of the Syracuse Law Review. Today, that interest has led him to explore the roots of tort law in his books Justice and Tort Law and Duty and Integrity in Tort Law. His 2005 book, A Revisionist History of Tort Law, has garnered numerous outstanding reviews.

Professor Calnan began his career as a judicial clerk to Judge Donald E. Wieand of the Superior Court of Pennsylvania, and went on to serve as a litigation associate with the firm of White & Williams. He found he missed the intellectual rigor of academic life, and left practice to accept a faculty position at Villanova University School of Law.  In 1990, he joined the Southwestern faculty. About teaching, Professor Calnan says, "I love the interaction with students. If I do my job well, I can cause them to see the world in a completely different way." His students believe that he has been successful in doing just that, and in 1999, he received Southwestern's Excellence in Teaching Award. The same year, he was named as the Irving D. and Florence Rosenberg Professor of Law, one of the highest honors bestowed on Southwestern Faculty. In 2004, he was named the Paul E. Treusch Professor of Law for his outstanding teaching, professional accomplishments and service to Southwestern.

Professor Calnan's expertise has been tapped by such agencies as the Bureau of Alcohol, Tobacco and Firearms, and the National Research Council and National Academy of Sciences' Committee on Marking, Rendering Inert, and Licensing of Explosive Materials, in a study of means to combat terrorist bombings. He has been quoted on an extensive array of tort and product liability issues (ranging from municipal liability to the liability of dog food, automobile, cigarette, gun, breast implant and halogen lamp manufacturers) by The Associated Press, The Los Angeles Times, USA Today, The Arizona Republic, The Atlanta Journal and Constitution, The Chicago Sun-Times, and other major newspapers, television, cable and radio outlets around the country.


February 11, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

Sharkey on Trespass Torts and Self-Help

Catherine Sharkey (NYU) has posted to SSRN Trespass Torts and Self-Help for an Electronic Age.  The abstract provides:

Liability for trespass to chattels (or personal property) ensnares one who intentionally takes or inter-meddles with chattel in the possession of another. The past decade or so has witnessed the re-emergence of the tort in a new guise, as a sword against electronic intrusions over the Internet. Trespass to chattels is distinct from trespass to land in that it requires proof of actual damage. Self-help is an adequate remedy for protection against “harmless” inter-meddlings with personal property, but not in the case of land.

The significance of the self-help remedy in trepass to chattels sheds light on an inherent limitation of the classic Calabresi-Melamed framework of entitlements protected by legal rules. Self-help is the “missing” third remedy. Self-help is conventionally understood as either a privilege to do something that would otherwise be legally actionable in order to prevent or cure a legal wrong or else a variety of prophylactic measures that one might take to protect one’s property that do not infringe upon anyone else’s legal rights.

In this article, written for a symposium celebrating the work of Richard Epstein, I invoke self-help as a prerequisite to invoke legal process. While not uncommon in real property law, conditioning one’s entitlement to legal remedies on the exercise of self-help is exceedingly rare in tort law but is justified on different grounds. First, the victim might be the “cheapest cost avoider” of the injury, such that it is efficient to place the burden upon the victim to take self-help measures that could, in some cases, mitigate or avoid the injury altogether. Second, a “live and let live” philosophy may govern minor injuries and inconveniences; self-help serves as a “sincerity index” for establishing the weightiness of the legally protected interest. Third, and especially relevant in cyberspace, the boundaries between public and private property are contestible. Self-help can serve as a way in which someone can “mark” his property as private - or exclude it from the public commons. The Internet trespass to chattels cases provide an opportunity to explore this conception of conditional self-help.


February 10, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Burch on Procedural Adequacy

Elizabeth Chamblee Burch (FSU/Mass Tort Profs) has posted to SSRN Procedural Adequacy.  The abstract provides:

This short piece responds to Jay Tidmarsh’s article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009). I explore Professor Tidmarsh’s proposed “do no harm” approach to adequate representation in class actions from a procedural legitimacy perspective. I begin by considering the assumption underlying his alternative, namely that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus and we must therefore tailor the adequacy requirement to curb self-interest only in so far as it makes class members worse off than they would be with individual litigation. Adopting the “do no harm” principle as our yardstick for adequate representation is alluring - it removes motivations and morality from the equation and avoids the stickiness that those calculations entail. Plus, Professor Tidmarsh’s careful treatment of the philosophical and economic arguments underlying the joinder rules make a compelling argument for the change. My concern, however, is two-fold: (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class action legitimacy.


February 10, 2010 in MDLs and Class Actions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 9, 2010

A Treasure of Torts in The Latest Northwestern Law Review

The latest volume of the Northwestern Law Review contains a treasure of tort scholarship including Jason Solomon's Equal Accountability Through Tort Law  (pdf) and The Synergy of Early Offers and Medical Explanations/Apologies (pdf) by our own Chris Robinette.


February 9, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Litigation-Driven Research

On last week's roundup, I linked to a Drug & Device Law Blog post on litigation-driven scholarship and peer review.  I'd commented on that post, and that triggered a post from Dr. Barbara Martin that might be of interest.


February 9, 2010 in Experts & Science | Permalink | Comments (0) | TrackBack (0)

Monday, February 8, 2010

Guest Blogger Kenneth Abraham: Four Conceptions of Insurance


  As all torts scholars and teachers know, tort liability and insurance are intimately connected. Much of tort liability as we know it would not exist if liability insurance did not also exist, to provide plaintiffs a reliable source of recovery and to protect defendants against the potentially catastrophic impact of liability. And liability insurance as we know it might look very different if the U.S. tort system had a different character. Indeed, in a recent guest blog my colleague Jeffrey O’Connell argued that tort liability should be seen as social insurance.


    Over the years I have noticed, in addition, that debates about the proper scope of insurance, whether third-party or first-party insurance, and about the proper interpretation of insurance policy language, often presuppose particular views about the purpose or purposes of insurance, and sometimes even presuppose a particular view of what the essence of insurance is. This has certainly been a feature of the recent national debate about health insurance reform. Arguments pro and con about pre-existing condition limitations on coverage, about a possible mandate that all individuals purchase insurance, and about many other components of the House and Senate Bills, reflected different views about what insurance should and should not do, and about what insurance actually is. These different views -- I will call them “conceptions” of insurance -- do much of the work of producing the result that a party to the debate or dispute favors.


    Insurance, in short, is a contested concept. And in fact it is contested in more ways than one. We transfer and spread risk through an array of different private and public devices, only some of which are, strictly speaking, insurance. Exactly which such devices constitute insurance is a matter of dispute. For example, some observers have contended that the credit-default swaps that were at the heart of the AIG bailout were a form of insurance that should have been regulated by state insurance commissioners. This is a significant issue because our systems of regulation are set up to address insurance, and insurance companies, in different ways, and through different regulatory regimes, than non-insurance transactions by other financial intermediaries. Further, even when there is agreement that a transaction constitutes insurance and that one of the parties to the transaction is an insurance company, what follows from such designations depends on the particular conception of insurance that is invoked.


    Contests over the meaning of a concept – here, the concept of “insurance” -- may take different forms. In this instance, the contest is among different ways of characterizing insurance in terms of something else. The contest, that is, is over competing metaphors and analogies. Four conceptions, either explicit or merely implicit or inchoate in the case law and scholarly literature, are sufficiently common to warrant extended examination. I am currently undertaking such an examination, but in the meantime, here is a brief summary of the four conceptions.


    Contract conceptions understand insurance as a voluntary agreement between an individual policyholder and an insurer, subject to the constraints and rules of construction that are ordinarily placed on such agreements by the law of contracts. The challenge for contract conceptions of insurance, as it is for contract theory more generally, is to articulate a principle or set of principles that coherently distinguishes between the features of the insurance contract that are subject to market choice – that are contractually binding -- and the features that judicial and administrative regulation legitimately may trump.


    Under public utility conceptions insurance is a regarded as an insufficiently competitive industry, selling a good so nearly essential that it requires government regulation in the public interest. Contract is only a convenient means of delivering insurance to those who need it, and contract terms are therefore mere starting points. Regulators should have authority to ensure that suitable insurance is delivered at a fair price to all comers.


    Product conceptions see insurance as resembling a tangible good more than a promise to perform financial services, and therefore appropriately subject to rules analogous to those that govern defectively designed products. Regulators should ensure that insurance policies do not contain gaps that are unreasonably dangerous to those who suffer losses. Courts should not merely interpret policy language, but should subject that language to a defectiveness test and award damages (i.e., coverage) when policy language fails this test. Interestingly, this is a tort law conception of what insurance is, or at least of how the quality of insurance ought to be evaluated.


    Finally, private government or mutuality conceptions view insurance as a product of consent on the part of policyholders to invest an insurer with authority to operate a risk-sharing arrangement for the mutual benefit of the policyholders. These circumstances create the opportunity for abuse of policyholders by the insurer to serve its own ends, and a risk of abuse of the minority of policyholders by the majority for the majority’s ends. Insurance law should therefore be structured to provide the necessary protections against both forms of private “governmental” abuse. 


    The proponents of these conceptions often tend to believe that they have different normative implications. And this may be partly correct, although much depends on the particular contours that are thought to comprise a given conception. More importantly, ultimately the principal value of the different conceptions is not that they have different normative implications, but that they stretch the imagination and thereby help us to clarify our views about the proper relationship between insurers and policyholders, and among policyholders themselves. We can’t simply change our conception of insurance and thereby avoid the hard but essential work of figuring out precisely what rights and obligations these parties ought to have. And as we do this work, inevitably our conclusions will not only affect insurance and insurance law, but tort law as well, in view of the enduring relation between tort liability and insurance.


--Kenneth S. Abraham

University of Virginia Law School

February 8, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)