TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, March 5, 2010

Personal Injury Roundup No. 69 (3/5/10)

Reform, Legislation, Policy

  • Medical device firms claim job losses as a result of the Massachusetts gift-ban.  (Mass High Tech)
  • Proposed Bipartisan Tax Fairness and Simplification Act of 2010 would bar defendants from deducting punitive damages awards as a business expense.  (NY Times, Cal Punitive Damages)
  • FDA Tobacco Panel includes two scientists with ties to manufacturers of quit-smoking products.  (WSJ)
  • Nestle, Gerber and 15 other companies receive warning letters from the FDA for false and misleading food labeling.  (Wash Post, FDA Law Blog)

New Lawsuits

  • Santa Clara County (CA) files false advertising suit against GlaxoSmithKline.  (Mercury News)
  • Portland (Ore.) community college student files false arrest and battery claims aganist police.  (Oregon Live)
  • IHOP sued for finger-tip in the fried chicken salad.  (Smoking Gun)


  • Seventh Circuit rejects preemption defense in Paxil suicide case.  (Torts)
  • New Jersey Supreme Court holds NJ can exercise jurisdiction in a product liability action over a foreign manufacturer based on the manufacturer's relationship with a nationwide distributor and on its presence at national trade shows. (Mass Tort Defense)
  • Fifth Circuit to rehear the Katrina-climate change suit en banc.  (Mass Tort Defense)



  • NY Daily News on forensic meteorology and New York's "Storm in Progress" doctrine for winter slip-and-falls.  Fascinating.   

Thanks to my co-editor Bill for material this week.


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

Thursday, March 4, 2010

Introducing Guest Blogger Michael McCann

072408-mcannFaculty   Michael McCann is an Associate Professor of Law at Vermont Law School, where he teaches sports law, antitrust, torts, and sales.  He also teaches a sports law reading group at Yale Law School.

McCann is also a Legal Analyst for Sports Illustrated and the “Sports and the Law” Columnist on  He has received recognition from The American Lawyer and the Newhouse School of Public Communications for excellence in journalism.

McCann is also Co-Founder of the Harvard Law School Project on Law and Mind Sciences and the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law, where he was an Assistant Professor of Law between 2005 and 2008 and where he now teaches a sports law class every summer. During his three-year tenure at Mississippi, Professor McCann received the school's most prestigious teaching awards, including the Professor of the Year Award in 2007 and 2008 and the Shirley Norwood Jones Faculty Award, also in 2008.

In the fall of 2008, McCann was a Visiting Associate Professor of Law at Boston College Law School, where he taught sports law and administrative law, and served as Chair of the AALS Section on Sports and the Law.

McCann has placed scholarly pieces in the Yale Law Journal, Wisconsin Law Review, and the Connecticut Law Review, among other publications. His most recent article is American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 YALE LAW JOURNAL 726 (2010).

Prior to becoming a law professor, McCann served as counsel to college football star Maurice Clarett in his lawsuit against the National Football League and its age eligibility rule. He also served as a Visiting Researcher at Harvard Law School and Legal Counsel to U.S. Congressman Marty Meehan.

McCann has been frequently interviewed on television programs, including HBO's Bob Costas Now, CNN's The Situation Room with Wolf Blitzer, American Morning, Headline News, and Glenn Beck Show, Fox News' Fox Live Desk, and CNBC's Morning Call and Power Lunch.  He is also a legal correspondent for the nationally syndicated Dan Patrick Show.


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

Wednesday, March 3, 2010

Erichson & Zipursky on Mass Torts

Howard Erichson (Fordham/Mass Tort Profs) and Benjamin Zipursky (Fordham) have posted to SSRN Consent Versus Closure.  The abstract provides:

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent in advance to be bound by a settlement with a supermajority vote. This article argues that, despite their appeal, both of these strategies must be rejected. Lawyer empowerment strategies render settlements illegitimate when they rely on inauthentic consent or place lawyers in the untenable position of allocating funds among bound clients. Consent, not closure, is the touchstone of legitimacy in mass tort settlements.

For more, see Erichson's post at Mass Tort Profs.


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

More on Toyota

Transportation secretary Ray LaHood stated yesterday that the Obama administration is considering requiring all automobiles to contain a brake override system intended to prevent sudden acceleration.  Already a feature in many cars sold around the world, the override system is designed to deactivate the accelerator when the brake pedal is pressed.  The NYT has the story.

In other Toyota-related news, a man convicted of vehicular homicide hopes to be exonerated based on evidence of Toyota's sudden acceleration issue.  (

Thanks to George Conk, who notes the brake override system is a RAD, for the tip.


March 3, 2010 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

Torts Visitor Opening at FIU

From Howard Wasserman (FIU) comes news of a torts visitor opening at Florida International University in Miami:


Florida International University College of Law invites

applications from candidates for one or more visiting

faculty positions beginning in Fall 2010. Areas of

curricular preference include Property, Criminal Law,

Torts, Environmental Law, And Trusts and Estates. Visits

could be for either the fall or spring semester or for the

full year.



Part of Miami's public research university, the College of

Law is a dynamic urban law school with approximately 600

students. FIU College of Law was established in 2000,

enrolled its first class in 2002, and currently has 30

full-time faculty members. In the spring of 2007, the FIU

College of Law moved into a new state-of-the-art building

at the heart of the main university campus. Over the past

two years, our FIU on-campus community has been enriched

through the addition of a new medical school and the

construction of the Frost Art Museum.


The FIU community and the College of Law are strongly

committed to the pursuit of excellence and the goal of

ensuring opportunities within the legal profession for

individuals who represent different groups as defined by

race, ethnicity, gender, sexual orientation, socioeconomic

background, age, disability, national origin, and religion.




Applicants should have a J.D. degree; applicants with

additional advanced degrees are also encouraged to apply.

Applicants must possess a strong commitment to teaching and

a record or the promise of outstanding scholarship.

Applicants interested in joining the FIU College of Law

faculty as a visiting faculty member should send a cover

letter expressing interest and a resume to:


CONTACT:    Associate Dean Joelle Moreno

    Chair - Faculty Appointments Committee

    Florida International University

    College of Law

    11200 S.W. 8th Street

    Miami, FL 33199

You may also send application materials electronically to





For more information, please visit our website at:

Florida International University encourages applications

from candidates who would continue to enhance the diversity

of our College of Law faculty and university community and

does not discriminate on the basis of race, color, national

origin, ancestry, sex, disability, religion, age, sexual

orientation or veteran status in its education and

employment programs or activities. FIU is also a member of

the State University System and an Equal Opportunity, Equal

Access, Affirmative Action Employer.


March 2, 2010 in Teaching Torts, TortsProfs, TortsProfs Moves | Permalink | Comments (0) | TrackBack (0)

AALS Call for Proposals

From Emily Randon (UC Davis):



A Joint Program of the Sections on Balance in Legal Education and Academic Support

Co-Sponsored by the Section on Student Services


Theme:  “Beyond Humanizing:  Can – and Should – Law Schools Strive to Graduate Happy Students?”

Students often enter law school with goals of helping others, improving peoples’ lives, and making the world a better place.  By the time they graduate, however, other considerations have supplanted students’ pro-social inclinations.  Their aspirations succumb to more extrinsic values, such as prestige and money, and are often faced with the realities of time pressure and the dehumanizing effects of legal education.  Despite the prestige associated with being an attorney, the profession is not ranked in the top ten for job satisfaction or happiness.  In fact, one recent study revealed that a majority of practitioners would not recommend law to a young person.

Three AALS Sections, Balance in Legal Education, Academic Support, and Student Services will be hosting a program in which we explore the causes of lawyer distress, the role legal education plays in producing unhappy law students and lawyers, and the concrete steps law schools are currently taking or could take to combat those causes.  The Program Committees invite proposals that provide concrete demonstrations of ways doctrinal, clinical, legal writing, and academic support professors and student services professionals are addressing these concerns.

Continue reading

March 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, March 1, 2010

Simons on "What can tort law (and tort law scholars) learn from criminal law (and criminal law scholars)?"

As someone who has regularly taught, and written extensively, in both the fields of tort law and substantive criminal law, I thought I might suggest a few ways that criminal law doctrine and scholarship could helpfully inform tort law doctrine and scholarship.



The doctrines and plausible justifications of tort and criminal law differ significantly, to be sure.  But I want to focus on some opportunities for cross-fertilization.  So here goes.



1.     The distinction between justification and excuse

Modern criminal law doctrine distinguishes defenses of justification from defenses of excuse.  Tort law doctrine does not explicitly do so, but perhaps it should.



Suppose D1 intentionally strike V1, in order to prevent V1’s use of unlawful force against D1.  The privilege of self-defense will justify D1’s otherwise criminal behavior.  Now suppose D2 intentionally punches V2 and V3 in order to comply with coercer C’s demand that he do so (or else C will intentionally strike D2).  The privilege of duress might excuse D2’s otherwise criminal behavior, but arguably would not justify it (insofar as D2 has caused a greater harm or evil than he avoided by submitting to the threat).  Justified actors act permissibly, or even laudably.  Excused actors act impermissibly, but we cannot fairly blame them, in light of the difficult circumstances they confront or their unusual personal qualities.


Interestingly enough, tort law pays little heed to this distinction.  This is in part because tort law is less tolerant of excuses than is criminal law: insane defendants (who would be excused in criminal law) are still responsible for their torts, and those with below-average mental capacities are held to the higher standard of a person with normal capacities.  But what does tort law say about excuses based on extraordinary difficult external pressures and circumstances (such as duress) rather than on unusual personal incapacities?



The “emergency doctrine” does permit some consideration of the difficulty circumstances that a defendant encounters.  Suppose motorist D3, suddenly faced with a child immediately ahead in the path of his car, must decide whether to swerve to the left, towards motorist V4, or to the right, towards a concrete barrier; he swerves to the left, harming V4.  In V4’s lawsuit, the court may instruct that the jury should consider the emergency circumstances in deciding whether D3 was negligent.  But is the ultimate test whether D3 made the right decision in light of the facts available to him and the brief time for making a decision?  (This amounts to a form of ex ante justification.)  Or is the test instead whether, even if he made the wrong decision from an ex ante perspective, it is unjust to fault him in light of his understandable feeling of panic or an understandable instinct for self-preservation?  (This amounts to an excuse.)

If it is proper for tort doctrine to reject excuses of mental incapacity, shouldn’t tort doctrine also reject excuses of external circumstances?  But the issue is almost never directly addressed in tort doctrine or commentary.  (With respect to intentional torts and the earlier examples of D1 and D2, the Second Restatement recognizes the justifications of self-defense and necessity, but it does not recognize an independent excuse of duress.)

Continue reading

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