TortsProf Blog

Shapo on Highlights of Torts Scholarship and Cases

Marshall Shapo (Northwestern) has posted to SSRN An Essay on Torts:  States of Argument.  The abstract provides:

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the “states of argument” that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the traditional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism and individualism, and the inherent limits of private law. It offers both comparisons and contrasts from the most wrenchingly generated non-tort compensation system, the September 11th Fund. Finally raising the question of the extent to which courts judging difficult tort cases can truly be dispassionate, it suggests that the state of tort law remains one of argument, constantly requiring judgment.

--CJR

Empathy's Dividends

Letters to the editor are not frequently linked here, but I found this one from the Raleigh News & Observer to merit attention.  It's written by a med mal defense lawyer in praise of empathy.

--CJR

Tort News from Europe

New books

 

Tort Law in the Jurisprudence of the ECtHR (ed A Fenyves et al) [read more] [publisher website]

Digest of European Tort Law, Vol 2 – Essential Cases on Damage (ed B Winiger et al) [read more] [publisher website]

European Tort Law Yearbook 2010 (ed H Koziol/BC Steininger) [read more] [publisher website]

 

Also published 2011

 

Medical Liability in Europe (ed BA Koch) [read more] [publisher website]

European Tort Law: Basic Texts (ed K Oliphant/BC Steininger) [read more] [publisher website]

 

11th Annual Conference on European Tort Law

  

The Annual Conference on European Tort Law provides practitioners and academics with information about the most significant tort law developments in Europe in the preceding year. Next year's conference will take place in Vienna from Thursday, April 12 to Saturday April 14, 2012. [read more] Details of the full conference programme will be provided shortly.

 

Thanks to Ken Oliphant for the tip.

 

--CJR

Happy Thanksgiving! Also, Beware of the Toys!

We wish you all a very happy Thanksgiving!  We are, as ever, grateful for our readers, correspondents, and so on.

In what is a delighfully cheery tradition, US PIRG has released its annual toy safety report ("Trouble in Toyland," which sounds like it could also be a film ripe for riffing by RiffTrax).  Enjoy!

--BC

Recovery of Sentimental Value of Pets

Courthouse News Service reports on an interesting case out of Texas, Medlen v. Strickland (pdf). In Medlen, the Texas Court of Appeals "ruled that the owners of a mistakenly euthanized dog can sue to recover the sentimental value of their lost pet, reversing and remanding the ruling of a trial court."

Animal Law Blog also have coverage

- SBS

"Kill the class action; kill the tort"

From the good people at Drug & Device Law comes word of a federal district court opinion finding that each "plaintiff's individual medical condition/history is relevant" to a medical monitoring claim under Pennsylvania law. As D&D points out, this holding creates an individual issue, which should defeat class certification of a medical monitoring claim.

- SBS

Indiana Law Journal to Publish AALS Torts Panel Pieces

The Indiana Law Journal will publish, in its volume 88, the articles written in conjunction with the AALS Torts & Compensation Section panel ("Twenty-First Century Tort Theories:  A New Audit of Civil Recourse Theory") at the 2012 Annual Meeting in D.C.

--CJR

Fried on the Limits of Nonconsequentialist Tort Theories

Barbara Fried (Stanford) has posted to SSRN The Limits of a Nonconsequentialist Approach to Torts.  The abstract provides:

The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for ‘wrongful’ acts reflect corrective justice rather than welfarist norms. The literature is either silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful acts that pose some risk of harm to others (a category that describes almost all noncriminal conduct). This is no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives.

--CJR

Engstrom on Accident Compensation and Disclosure

Nora Freeman Engstrom (Stanford) has posted to SSRN Sunlight and Settlement Mills.  The abstract provides:

Accident compensation, and particularly auto accident compensation, is typically thought to take one of two dichotomous forms: either no-fault or traditional tort. Further, conventional wisdom holds that while pure no-fault may be an option in theory, it is not one in practice. No pure no-fault auto regime has ever been enacted in the United States, and states these days are repealing, rather than enacting, modified no-fault legislation. Yet something peculiar is happening on the ground. Far out of the light of day, high-volume personal injury firms that I call “settlement mills” are quietly achieving many of no-fault’s objectives — speeding recoveries, lowering systemic costs, and delivering relatively standardized sums to an apparently expanded set of clients — while ostensibly operating within traditional tort. What settlement mills are accomplishing, then, is in some respects astonishing — and certainly commendable. Yet, the fact settlement mills’ distinctive operations are out of the light of day and rarely revealed to clients is problematic, raising profound issues of informed consent and highlighting severe information deficiencies in the market for legal services. A well-designed disclosure regime can preserve settlement mills’ substantial benefits, ameliorate their unique costs, and, more broadly, improve the tort system’s operation and address the vexing problem of attorney choice.

--CJR

Challenges to State Punitive Damages Caps

California Punitive Damages Blog reports that both the Arkansas Supreme Court and the Missouri Supreme Court are considering challenges to the legislative caps on punitive damages in those states.

- SBS

Implied Warranty, Products Liability and Medical Device Cases

Interesting analysis of whether a learned intermediary (i.e., the prescribing/treating physician) voids a claim for breach of implied warranty in a medical device products case from the good people at Drug and Device Blog: 

In a relatively recent case, Currier v. Stryker Corp., 2011 WL 4898501 (E.D. Cal. Oct. 13, 2011), the court stated, with respect to a claim for implied warranty

Because this is a medical implant case, and the [complaint] alleges that the product was surgically inserted in a hospital, the Court cannot plausibly infer from the [complaint] that Plaintiff relied on anything other than his physician's skill and judgment in selecting the . . . product, nor that any purchase of the product was based on a warranty from the manufacturer to Plaintiff. The Court cannot plausibly infer that there is a relationship between the Defendants and Plaintiff that would allow Plaintiff to state a breach of warranty claim.

Id. at *4. The court seems to be saying that, in a prescription medical product liability case, there can’t be an implied warranty claim unless the plaintiff, as opposed to the prescribing physician, relied on the alleged warranty.

 

D&D does its usually thorough job of canvassing other states' law to see how widespread this approach may be.   Worth a read.

- SBS

 

Penn State

Here in central Pennsylvania it's all Penn State, all the time.  Donald Gilliland of the (Harrisburg) Patriot-News wrote a column about the school's potential legal troubles.  I'm quoted mostly for an evidentiary point, but the civil angle is covered by others.

Other coverage is here:  Turkewitz, Max Kennerly from The Beasley Firm offers a PA-specific analysis.

Updated:  Alberto Bernabe has links and analysis here.

--CJR

Products Liability Prof Blog

Products Liability Prof has been dormant for over two years.  Isn't anyone interested in editing it?  If so, please contact Paul Caron and Joe Hodnicki via e-mail: 

paul.caron@uc.edu;joe.hodnicki@gmail.com

--CJR

Top 10 Recent SSRN Torts & Products Liability Downloads

RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of Torts & Products Liability Law eJournal
September 4, 2011 to November 3, 2011

Rank	Downloads	Paper Title
1	308	The Reasonable Person Alan D. Miller, Ronen Perry, University of Haifa - Faculty of Law, University of Haifa - Faculty of Law, Date posted to database: July 16, 2011 Last Revised: September 28, 2011
2	305	Excluding Expert Valuation Testimony Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: September 26, 2011 Last Revised: September 26, 2011
3	158	Codification and Flexibility in Private International Law Symeon C. Symeonides, Willamette University - College of Law, Date posted to database: October 19, 2011 Last Revised: October 25, 2011
4	140	Optimal Cartel Deterrence: An Empirical Comparison of Sanctions to Overcharges Robert H. Lande, John M. Connor, University of Baltimore - School of Law, Purdue University, Date posted to database: August 28, 2011 Last Revised: September 20, 2011
5	99	Immunity Shopping: Exploiting Variation in Liability Rules Robert Flannigan, University of Saskatchewan, Date posted to database: August 23, 2011 Last Revised: August 23, 2011
6	97	The Priority of Respect Over Repair Gregory C. Keating, University of Southern California Law School, Date posted to database: September 10, 2011 Last Revised: September 10, 2011
7	90	A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye Sarah Lynnda Swan, Columbia University - Law School, Date posted to database: August 29, 2011 Last Revised: August 30, 2011
8	86	Recovering Rylands: An Essay for Bob Rabin Gregory C. Keating, University of Southern California Law School, Date posted to database: September 10, 2011 Last Revised: September 10, 2011
9	86	Retributive Justice and the Demands of Democratic Citizenship Dan Markel, Florida State University College of Law, Date posted to database: September 19, 2011 Last Revised: October 29, 2011
10	83	Nuisance as a Strict Liability Wrong Gregory C. Keating, University of Southern California Law School, Date posted to database: September 10, 2011 Last Revised: September 10, 2011

--CJR

WV Nursing Home Verdict: $91.5M

An 87-year-old woman died shortly after entering a Charleston, WV nursing home.  The nursing home has been hit with a $91.5 million jury verdict.  At least 2 issues may be taken up on appeal.  First, WV has a med mal cap that limits recovery of non-economic damages to $500,000.  The jury found that only a small part of the negligence was "medical."  Instead, the largest part of the negligence was the failure to provide basic necessities such as food and water.  Second, in an attempt to earn punies, the plaintiff's lawyer informed the jury that the nursing home's parent corporation earned $4 billion last year.  However, that figure was gross earnings; the parent corporation's taxable income last year was $75 million.  WVGazette.com has the details.

--CJR

Reforming No-Fault Auto Laws

Neil Alldredge (National Association of Mutual Insurance Companies) has an interesting article on reforming no-fault automobile laws, including specific recommendations for individual states.  Here's a sample:

Early on, many states experienced cost savings, and no-fault seemed full of promise. Over time, however, some states’ laws produced unintended negative consequences. While the system intended to clear the court dockets of minor lawsuits, court dockets have become more cluttered because of weak litigation thresholds.

--CJR

WSJ Profile of Ted Frank

Ted Frank of the Center for Class Action Fairness is profiled in the WSJ here and on the WSJ Blog. 
(Via Stier/Mass Tort Profs)

--CJR