Saturday, April 30, 2011
Frank Vandall (Emory) has posted to SSRN Guns, Children and Congress. The abstract provides:
“Guns, Children and Congress” examines the law, history and politics of gun violence. It considers the huge number of child murders at high schools, colleges and homes over the last 20 years because of over 280 million guns afloat in the United States. Rejecting the Second Amendment to the Constitution, Professor Vandall argues for greatly expanded gun control, including universal registration, armories for automatic weapons and restricting guns to the home. In order to encourage corporate insight, he calls for reversal of the Gun Manufacturers Immunity Bill of 2005.
Over the last 20 years the United States has dutifully followed the mantra of the National Rifle Association (NRA): buy a gun. This flawed advice has produced a nation that is flooded with guns.
The NRA's argument has failed to make us safe. The truth is we are more at risk with a gun in the home. Columbine, Virginia Tech and Tucson make it clear that the NRA’s thesis is horribly wrong. The opposite is more accurate. We must begin to reduce the number of guns that are sold and readily available.
Guns are hugely dangerous in the home, can be used to murder children and shoot presidents and Congresswomen. But of critical importance, they may are far less important for a revolution. Social media and picture cell phones have won the day.
Friday, April 29, 2011
- TX: A products case has been filed against the makers of a cold therapy machine based on alleged tissue damage. (AboutLawsuits.com)
Trials, Settlements and Other Ends
- On the eve of trial, a Major League Baseball umpire reaches settlement in products liability case with Wright Medical over a hip replacement. (AboutLawsuits.com)
- IL: Appellate court okays fraudulent misrepresentation claim on behalf of a woman who was tricked, via the internet, into romance or friendship with people who either did not exist or who were not who they appeared to be. (ABA Journal)
- NY: Multi-million dollar verdict affirmed for plaintiff who, after ingesting methadone (I don't even know what that is) and rum (I do know what that is), was hit by a subway train. (Hochfelder/New York Injury Cases Blog)
Reform, Legislation, Policy
- Barney Frank endorses some form of medical liability reform. (Turkewitz/New York Personal Injury Law Blog)
- Why med mal reform will increase the deficit. (Doroshow/Huff Post via The Pop Tort)
- Turkewitz on iPhone GPS data and accident litigation (New York Personal Injury Law Blog)
- Abnormal Use interviews Ted Frank (Abnormal Use)
Thursday, April 28, 2011
The Drug & Device Law Blog has a good post about how very far Philadelphia courts are willing to reach to permit out-of-state discovery. Given the expense of discovery, the pressure that can be brought to bear is significant, and worth considering.
Wednesday, April 27, 2011
Michael Green (Wake Forest) has posted to SSRN The Federal Employers' Liability Act: Sense and Nonsense About Causation. The abstract provides:
The Federal Employers’ Liability Act was adopted at the eve of workers’ compensation reform and with the same progressive purpose of facilitating compensation for railroad workers. Unlike workers’ compensation, however, the FELA is reform with a tort wrap-around. A fault requirement was retained, while the infamous trilogy of defenses that so often prevented recovery were abolished or modified.
In 1956, the Supreme Court, in Rogers v. Missouri Pacific Railroad Co., addressed the causal requirement adopted by the statute. In words that have reverberated in hundreds of FELA cases since, the Court declared that a defendant was liable if its negligence “played any part, even the slightest, in producing the injury.” To say that subsequent cases reveal confusion about this language is a considerable understatement.
This article attempts to provide some coherence in how causation should be understood in the FELA given its statutory language, its progressive purpose, and the Rogers’s interpretation. It begins with an explanation of modern causation doctrine. That doctrine separates two elements that have for too long been combined under the umbrella term “proximate cause,” or in early Restatement vernacular, “legal cause.” Separate consideration of them, in light of the functions they serve, provides a coherent, straightforward, and comprehensive framework, one adopted in the recently published Third Restatement of Torts. The article proceeds to examine the Rogers opinion, catalog its errors, and canvass the confusion that it has generated for over half a decade.
The Supreme Court currently has pending a case, CSX Transportation., Inc. v. McBride, that addresses a significant aspect of Rogers and FELA: whether FELA retains any proximate cause (scope of liability, in Restatement parlance) requirement for a defendant’s negligence and, if so, what it is. The Court has an important opportunity to sweep away decades of confusion in it decision. The article concludes with several thoughts about how the Court might reconcile the statutory language, Rogers, and progressive intent of Congress in enacting the FELA.
Jason Solomon (William & Mary) has posted to SSRN What is Civil Justice?. The abstract provides:
This Article first explores the meaning of the term “civil justice” as it is used in both academic and popular discourse. It then examines the idea of civil justice by looking at three key examples: (1) the U.S. tort system (specifically governing auto accidents); (2) the no-fault regimes of New Zealand, U.S. workers’ compensation, and the 9/11 Victim Compensation Fund; and (3) the phenomenon of apologies, instead of compensation, as remedies in medical malpractice cases. The Article concludes that an important component of civil justice is the ability of a person to hold accountable one who has wronged her.
Tuesday, April 26, 2011
Stopping short of declaring the DePuy hip replacement litigation a "mass tort," the New Jersey Supreme Court ordered (pdf) centralized management with all DePuy hip litigation cases assigned to Judge Brian R. Martinotti in the Superior Court of Bergen County. Apart from the New Jersey state claims, a federal MDL is pending in Ohio for DePuy hip litigation.
About Lawsuits has more.
Monday, April 25, 2011
In just a few weeks time the American Law Institute’s annual meeting will consider Chapter 10 of the Restatement Third of Torts: Liability for Physical and Emotional Harms. That chapter, entitled Liability of Those Who Hire Independent Contractors, ably drafted by reporter Ellen Smith Pryor of Southern Methodist University’s Dedman School of Law, is now a tentative draft for approval of the membership. Once approved, the ALI will publish the second volume of the Physical and Emotional Harms Restatement, and torts restatement work will move on to engage issues beyond physical harm. Next up: the Restatement Third of Torts: Economic Harms and Related Wrongs. Notably, this September, meetings will commence on the restarted project under the leadership of new Reporter Ward Farnsworth of Boston University School of Law. Looking forward to that work, I commend to torts professors two recent state supreme court cases written by outstanding jurists actively engaged with the issue of liability for economic loss.
The first case, from my own home state, is Flagstaff Affordable Housing Limited Partnership v. Design Alliance, Inc., 223 P.3d 664 (Ariz. 2010). In Flagstaff Affordable, architects designed eight apartment buildings and a community center for a low income housing project. Eight years after construction was complete, the U.S. Department of Housing and Urban Development filed a complaint that the buildings did not comply with Fair Housing Act accessibility guidelines. The building owner settled with HUD, made revisions to its properties, and filed suit against the architects for economic loss stemming from the misdesign and remediation.
The second opinion, Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010), was issued by the Indiana Supreme Court. In Indianapolis-Marion County Public Library the library hired a general contractor to renovate and expand the library. The general contractor subcontracted with engineers who provided architectural and engineering services for the project. After the construction had progressed significantly, concerns were raised about the structural integrity of the project. The library spent 40 to 50 million dollars to cure these structural defects and in turn filed suit against the engineers for the damages.
Both cases involve factually similar causes of action: professional failures in building design led to significant costs incurred by the parties that had undertaken the construction projects. In both cases the outcome was similar—state supreme courts disallowed recovery in tort for the owners’ purely economic losses that stemmed from professional negligence. And in both cases, economic loss rules took center stage in the reasoning. However, the analysis in the two cases proceeds along quite different lines.
The Arizona Supreme Court criticized an “overly broad” formulation of the doctrine and noted the availability of recovery for solely pecuniary loss in a number of contexts. It differentiated between economic loss in contractual settings and non-contractual cases, and resolved to attend to the need for limitation on recovery for pure economic loss “based on context-specific policy considerations,” in that case the context of construction contracts. The Indiana Supreme Court, on the other hand, adopted a very broad formulation of the economic loss rule—viewing the economic loss rule as a general no-duty rule, subject to context-specific exception. As the Indiana Supreme Court stated, “[O]ur default position in Indiana is that in general, there is no liability in tort for pure economic loss caused unintentionally.” However, the court then noted that this general rule is subject to appropriate exceptions “such as (for purposes of illustration only) lawyer malpractice, breach of duty of care owed to a plaintiff by a fiduciary, breach of a duty to settle owed by a liability insurer to the insured, and negligent misstatement.” Negligent misstatement of an engineer who was party to a web of contracts in which the plaintiff was also a party was not an exception (though in a related case, negligent misrepresentation was actionable to a nonparty to the contract).
This dispute about starting points—the economic loss rule as an overarching no-duty default limitation from which courts can recognize exceptions or economic loss rules as prudential limits embedded in the duty or scope of liability questions in particular contexts—hearkens back to a dispute in the first round of Economic Torts Restatement discussions and will no doubt need to be addressed anew this fall. But as significant as the mode of analysis of these issues is the substantive outcome of the analysis in particular cases. One might have thought that Restatement Second Section 552 which governs “information negligently supplied for the guidance of others” would have afforded tort recovery in both the Arizona and Indiana cases, and indeed in some similar cases from other jurisdictions, such as Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa 2005), section 552 was invoked to support recovery for architect misrepresentations that resulted in economic loss to a builder. The discordant analysis of these questions among state courts hints at the importance of restatement work. A fascinating empirical paper by Anthony Niblett, Richard A. Posner, and Andrei Schleifer, The Evolution of a Legal Rule 39 J. Legal Stud. 325 (2010), examines the question of whether the law in the area of economic loss in construction contexts is converging to an efficient result, and then stops at the more basic question of whether the law is converging at all. The conclusion to date is that perhaps it is not. Although few forces unify state tort law, the American Law Institute’s Restatement of Torts is one of the most important, particularly in the area of economic torts. As judges, practitioners and scholars converge to discuss liability for economic loss under the project, one hope is that some convergence of state legal rules will be nearer at hand as well.
--Ellen Bublick, Dan B. Dobbs Professor of Law, University of Arizona College of Law
Sunday, April 24, 2011
Ellen Bublick is the Dan B. Dobbs Professor of Law at the University of Arizona, James E. Rogers College of Law. She served as the 2008-2009 Chair of the Torts and Compensation Section of the Association of American Law Schools, and currently serves as an Advisor to the American Law Institute’s Restatement Third of Torts. She is a coauthor of the leading tort law treatise The Law of Torts (2d ed. forthcoming 2011), with Dan Dobbs and Paul Hayden, and is a coauthor of the sixth edition of the popular casebook Torts and Compensation: Personal Accountability and Social Responsibility for Injury. Her other books include Cases and Materials on Advanced Torts: Economic and Dignitary Torts—Business, Commercial and Intangible Harms (with Dan B. Dobbs), and A Concise Restatement of Torts (2d edition) on behalf of the American Law Institute. She has participated in national and international symposia on U.S. Tort Law, Foreign Tort Law, the Restatement of Products Liability, and the Restatement of Liability for Physical Injury among other topics. On the basis of her research, Bublick has been invited to speak to audiences which include the National Institute of Justice, the Pennsylvania House of Representatives, the Research Center for Civil and Commercial Jurisprudence of the People’s Republic of China, and the European Group on Tort Law. One of her innovative legal theories was expressly adopted by the Washington Supreme Court in Christensen v. Royal School Dist. No, 160, 124 P.2d 283 (2005). An honors graduate of Duke University and Harvard Law School, Bublick clerked for Judge Walter Cummings on the Seventh Circuit Court of Appeals and practiced law at Mayer, Brown & Platt in Chicago before entering academia.
Friday, April 22, 2011
It's the last day of classes here at the Charleston School of Law, and I am looking forward to summer as much as the students!
- McDonald's tries to dismiss "Happy Meal" lawsuit. (Reuters)
- One year after the Deepwater Horizon Spill, plaintiffs rush to beat the statute of limitations. (WSJ Law Blog)
- Even BP joins in, filing suit against Halliburton. (WSJ Law Blog).
- Florida, however, chooses not to file suit. (Sacramento Bee)
Trials, Settlements and Other Ends
- Medtronic preemption win in Minnesota. (Drug & Device)
- Plaintiffs voluntarily dismiss "beef suit" against Taco Bell. (WSJ Law Blog, ABA Journal)
- The Supreme Court heard oral argument in AEP v. Connecticut (the global warming case). Point of Law collects links. WSJ Law Blog recaps the oral argument.
Reform, Legislation, Policy
- Tennessee lawmakers debate tort reform bill capping punitive damages. (NPR)
- Mass torts lawyer James Ferraro settles five year dispute with the widow of his former law partner. (ABA Journal).
- Curtis Milhaupt (my former Corporation's professor at Was U, now at Columbia) on Tokyo Electric's liability. (Mass Torts Prof)
Thursday, April 21, 2011
A few weeks ago, a three-year-old boy fell from a roller coaster at the Go Bananas family entertainment center in suburban Chicago. His parents have, as expected, filed a wrongful death suit. In addition, Marion Grant was a witness who says she tried to help the boy, and is now suing for emotional distress, contending that she was in the zone of danger. Reports indicated that he fell from the coaster in a restricted area of the facility.
For those few full-year Torts courses out there, the facts could present an interesting (and tragic) hypothetical for a pure-emotional-distress question.
Tuesday, April 19, 2011
Andy Popper (American) has posted two pieces to SSRN. First, Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability :
Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.
This paper Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in the Gulf of Mexico. More broadly, it argues that caps on damages undermine the deterrent effect of tort liability and fail to achieve economically efficient and socially just results.
Whatever happened to H.R. 4678, The Foreign Manufacturers Legal Accountability Act? While at first the bill looked like it would sail through, vocal and well-funded opposition from foreign manufacturers and their U.S. representatives placed its future in doubt – and ultimately killed the bill. 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 (e.g., 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 have required 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.
This was a simple, elegant, and appropriate step forward. It would have leveled the civil liability landscape, stripping foreign manufacturers of an unfair advantage over domestic manufacturers and addressing 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 would have triggered 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.
All too many foreign manufacturers selling products in the United States have secured the rich financial benefits of the U.S. marketplace without being subject to U.S tort law. A simple and wise legislative initiative could have changed that, leveled the playing field for U.S. businesses subject to tort law, and in so doing, protected U.S. consumers. Unfortunately, politics and self-interest stood in the way.
Terrebonne Parrish, located on the Gulf Coast in Louisiana, is filing suit against BP and other companies for damages related to the Deepwater Horizon spill. The suit is being financed on a contingency fee basis.
The Tri-Parish Times has more.
Sunday, April 17, 2011
In honor of opening day in Major League Baseball two weeks ago, I wanted to dedicate my post to the liability of stadiums for batted balls.
Across the land, courts deny recovery to baseball spectators hit by batted balls. Like most torts professors, I teach this rule in my 1L class. My casebook covers the rule in connection with the Jones v. Three Rivers Management Corp. case (which, interestingly enough, allowed recovery where a fan was injured due to the unusual architectural features of a brand-new stadium).
A baseball exhibitor’s only legal duties are to screen the most dangerous areas of the park and to avoid distracting fans from the dangers of batted balls through overly aggressive mascots and other stimuli (sometimes). Batted balls are an “expected” part of the game, and not a proper basis for a negligence claim absent unusual circumstances. Even in some tragic and bizarre circumstances, such as when a young girl had her hand speared by a fragment of a broken bat, courts have denied recovery under some form of assumption-of-risk theory or limited-duty rule.
Why should this well established rule be viewed as the correct one? Who really loses if baseball operators were forced to pay judgments to injured fans? Consider what would happen if the rule were abandoned. Baseball operators would have two choices.
First, they could add more netting, Plexiglas barriers, and the like, to protect fans, or perhaps make baseballs more spongy and less likely to cause injury. This would be a tragic result, no doubt, because fans like to watch the game as it has been played since the days of Abner Doubleday. The chance to catch a batted ball is part of the “fun” associated with attending a baseball game, and can even be profitable for fans if the ball has historic value. Similarly, more prominent and regular reminders of the dangers of flying objects, designed to alert fans, would be viewed by most fans as annoying.
So instead, stadium operators would likely choose not to screen more seating or spongify baseballs. What they would do is purchase broader liability insurance coverage, and pass the cost of such coverage on to fans in the form of higher ticket prices. But isn’t that in fact the just result? If fans want the game to be played the way it always has been, with its attendant risk of injury, should they not also be the ones forced to bear the cost of injury instead of visiting an “overwhelming misfortune” on a single injured spectator? This loss-spreading rationale was the basis for the move to strict liability in products injury cases spurred by Justice Traynor’s concurring opinion in Escola v. Coca Cola Bottling Plant of Fresno California, and I can identify no reason why the principle should not also be applied in the stands.
Yet baseball is so much a part of popular consciousness that courts prefer to have an injured spectator bear the risk of loss. To be sure, baseball fans struck by balls while talking on their cell phones, like this Yankees fan unceremoniously caught on video, should, like drivers who decline to make their cars no-phone-zones, be assigned a fairly large share of the fault under comparative negligence. But it seems to me that juries should be given the chance to weigh the impact of a fan’s inattention against the dangers to which stadium operates expose their audiences.
For more on this topic, see
Adam Epstein, Teaching Torts with Sports
David Horton, Rethinking Assumption of Risk and Sports Spectators
Geoffrey Rapp, Take Me Out to the Ball Game, to be Injured, in New Mexico
Geoffrey Rapp, When Animals Attack…Are Baseball Stadiums Liable?
--Geoffrey Rapp, Professor of Law, University of Toledo College of Law
Friday, April 15, 2011
Rapp graduated Phi Beta Kappa in Economics from Harvard, where he was a Research Assistant at the National Bureau of Economic Research and earned a public school teaching certificate in Social Studies. At Yale Law School, he was a Teaching Fellow and Head Teaching Fellow in the Department of Economics and a Teaching Fellow in the Computer Science Department. He served as a Notes Editor on the Yale Law Journal.
Rapp then clerked for The Honorable Cornelia G. Kennedy, U.S. Court of Appeals for the 6th Circuit, in Detroit, Michigan. Rapp was a Visiting Professor at the University of Utah S.J. Quinney College of Law and has also taught at Wayne State University School of Law and Michigan State University College of Law, and worked in private practice.
Rapp’s research interests include substantive tort law, regulation of business entities and financial markets, the economic aspects of sports law, and the statistical analysis of legal and policy problems. Rapp is a contributor to the Sports Law Blog and has published pieces in The Washington Post, The Hartford Courant, and CNN.com. He has been frequently interviewed by local and national media, including National Public Radio’s Morning Edition, The New York Times, Toronto’s National Post, BBC Radio, The Christian Science Monitor, The Toledo Blade and The Washington Times. Professor Rapp is the author of a monthly column, Diary of a Dad, for the Toledo Area Parent News (circulation 40,000).
It's tax day, hooray hooray! Plus our hundredth personal injury law roundup!
New Cases, Resolutions
- Match.com sued by client after alleged sexual assault by date met on site. (NBC LA)
- Valet parker sues LeBron James's mom after alleged battery. (Miami Herald)
- Rhode Island not liable in fall from "Cliff Walk." (WSJ.com)
- French Supreme Court says the enforcement of a U.S. punitive damages award is not always precluded under public policy (though it rejected the particular award). (International Law Office)
Reform, Legislation, Policy
- Legislation would eliminate some of the more problematic parts of CPSIA. (Overlawyered and links therein)
- Bill would increase oversight of imported pharmaceuticals. (Pharmalot)
- Ford "greatly" expanding recall of F-150 pickups due to problem that might result in unexpected deployment of airbags. No lawsuits are mentioned (and a Google search reveals no lawyers seeking clients through AdSense yet), but one assumes they're coming. (Reuters)
Thursday, April 14, 2011
Arizona already has a constitutional amendment precluding illegal immigrants from receiving punitive damages, but the legislature has now attempted to make that retroactive to 2004. The bill is evidently an effort to prevent the payment of damages found in a particular suit against two Arizona ranchers found liable for false imprisonment.
Tuesday, April 12, 2011
Anne Bloom (Pacific-McGeorge) has posted to SSRN Zen and the Art of Tort Litigation. The abstract provides:
Legal analysis in tort litigation should encourage deeper engagement with the plaintiff’s pain and suffering. Focusing more on understanding the causes and experience of human suffering – the Zen approach – will advance traditional tort goals of compensation and deterrence, as well as provide the plaintiff with a more positive litigation experience. This Article argues that current practices in tort litigation place too much emphasis on bodily harm and expert testimony, and unnecessarily position the plaintiff as a victim. Alternatively, a Zen approach recognizes that the body and mind are linked, places greater weight on direct, experiential testimony, and acknowledges the complexity and fluidity of the plaintiff’s identity.