April 30, 2011
Vandall on Guns, Children and Congress
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.
April 29, 2011
Personal Injury Roundup No. 102 (4/29/11)
- 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)
April 28, 2011
The Science of Ignoring Science
While not (primarily) about tort law, this Mother Jones article on the psychology of people disregarding legitimate science is fascinating and quite relevant, especially the autism-vaccine discussion.
Philadelphia's Very Long Arms
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.
April 27, 2011
Green on FELA
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.
Solomon on Civil Justice
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.
April 26, 2011
Sharkey Receives Guggenheim Fellowship
Congratulations to torts professor Cathy Sharkey (NYU), who has been named a Guggenheim Fellow for 2011. Her research will focus on judicially managed federalism: federal preemption of state law.
DePuy Hip Replacement Suits Centralized in New Jersey
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.
April 25, 2011
Guest Blogger Ellen Bublick: "The ALI, Economic Loss Rules, and Convergence"
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
April 24, 2011
Monday's Guest Blogger: Ellen Bublick
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.