Tuesday, February 25, 2014
I am sorry to report the passing of one of the great empirical legal scholars of our day: Professor Ted Eisenberg (Cornell). Professor Eisenberg, age 66, died on Sunday from a heart attack. From the Cornell statement:
Known as the “grandfather of empirical legal studies,” Eisenberg was a passionate teacher, beloved colleague, and prolific scholar during his 33 years at the Law School.
A legendary figure in the areas of bankruptcy, civil rights, and the death penalty, Eisenberg has used innovative statistical methodology to shed light on such diverse subjects as punitive damages, victim impact evidence, capital juries, bias for and against litigants, and chances of success on appeal. He is the founder of the Journal of Empirical Legal Studies and a Fellow of the American Academy of Arts and Sciences. Eisenberg taught courses on bankruptcy and debtor-creditor law, constitutional law, civil rights, contracts, federal income taxation, and empirical studies of the legal system.
Photo atttribution: Cornell Law School
Tuesday, February 11, 2014
A new article in Albany Law Review addresses a growing issue of personal responsibility: the use of cell phones as a causal factor in accidents. In Don't Text, Talk and Walk: The Emerging Smartphone Defense in Personal Injury Litigation, Robert Lang explores recent case law where the plaintiff and/or defendant was distracted on a cell phone at the time of an accident.
Some possible exam material in this one!
Monday, February 3, 2014
Wednesday, January 29, 2014
Recently the New York Court of Appeals rejected medical monitoring. Behrens and Appel approve:
The New York Court of Appeals reached the right conclusion. For over 200 years, one of the fundamental principles of tort law has been that a plaintiff cannot recover without proof of a physical injury. This bright-line rule may seem harsh in some cases, but it is the best filter courts have developed to prevent a flood of claims, provide faster access to courts for those with reliable and serious claims, and ensure that the sick will not have to compete with the nonsick for compensation.
The full op-ed (behind a pay wall) is here.
Tuesday, January 28, 2014
Monday, January 27, 2014
On January 21, 2014, the Pennsylvania Sureme Court finally* decided Lance v. Wyeth. The court held that drug manufacturers could be liable for negligent design of an FDA approved drug. I believe this is the first jurisdiction to accept this theory. Drug & Device Blog has a thorough analysis of the opinion.
*finally because the case was argued in 2011 and has been pending before the state supreme court for nearly three years.
Sunday, January 26, 2014
This is slightly off-topic, but I know a significant number of torts professors also teach insurance courses. My hometown newspaper, The Patriot-News, does an excellent job of independent reporting. Today's paper has a great series on flood insurance (highly relevant to a river town like Harrisburg) and the effects of the Biggert-Waters Flood Insurance Act of 2012. The online version at PennLive is here.
Monday, January 20, 2014
Ruthann Robson at Con Law Profs reports on a Washington state case, where the court held that a statute of limitations for medical malpractice claims violated the state constitution's equal protection clause. Robson has a full dicussion of the decision at Con Law Profs.
Tuesday, January 14, 2014
Saturday, January 11, 2014
My Widener colleague, John Culhane, often writes for Slate. He is thinking through a piece about potential torts in the George Washington Bridge closure and asked me to post the following:
Does anyone want to weigh in on whether the BridgeGate scandal currently engulfing the Christie Administration is likely to result in successful tort litigation against state officials by those who suffered economic loss because of the traffic nightmares? The first hurdle would be the extent of sovereign immunity for intentional bad acts in New Jersey (which I'm hoping someone just knows!), but the more interesting questions have to do with whether the economic loss rule, which applies to accidental harm cases, would prevent suits for this kind of intentional misconduct. I'm thinking that New Jersey would be one state where the claim might have some traction, because of the People Express case, 495 A.2d 107 (N.J. 1985) (not much followed, but not overruled as far as I can tell), which expresses a broadly progressive view of tort liability. I'm also thinking that there's some traction in the interference with economic relations cases, even though these usually require specific intent to interfere with an economic relationship rather than an intent to do some other kind of harm (such as a battery, or, in this case, to make life miserable for the Ft. Lee mayor (as if he didn't have enough problems already!).
Any thoughts, torts colleagues?
You can respond in the comments or e-mail John directly at email@example.com .
Tuesday, January 7, 2014
Monday, January 6, 2014
Really interesting case from Indiana at the intersection of torts and professional responsibility -
A lawyer was a partner in a firm. Firm client wanted to buy land that the partner owned. Partner refused but entered into a land use agreement with the firm client. There were disagreements over the land use contract. Firm client met with firm partners and threatened to take its business elsewhere unless the dispute was resolved with the partner. The firm removed the partner from the firm....
The partner subsequently filed a tortious interference agasint the firm client, and the Indiana Court of Appeals has just held that the partner can proceed. BNA has a full report on the case.
Wednesday, December 18, 2013
A North Carolina man has filed a suit alleging alienation of affections not only against the man who had an affair with his wife, but also against Ashley Madison, an online dating site that markets to people interested in affairs. The North Carolina legislature restricted heart balm actions to natural persons in 2009, but the plaintiff's lawyer argues that the actions leading to the breakup of the marriage occurred in 2007 and the old law applies. The Charlotte Observer has the details.
Monday, December 16, 2013
Ken Bensinger at the LA Times reports that Toyota is engaged in settlement talks over the sudden unintended acceleration (SUA) cases that resulted in death or injury. (Toyota previously settled the economic loss cases, and the court approved that settlement last July). Our friend Byron Stier, over at Mass Torts Profs, is quoted in the article.
Wednesday, December 11, 2013
A New Jersey Superior Court reaffirmed that only the golfer taking the shot is legally responsibile for yelling "fore" for an errant shot. In Corino v. Duffy, the court held that two bystanders - friends of the golfer hitting the ball and part of the threesome - were not liable for the golfer's shot striking the plaintiff in the right eye. A copy of the decision is available here. The Legal Blitz has more on the decision.
Saturday, November 30, 2013
Here's a good story for the holidays. John Hochfelder shares news of his former client, recovering from injuries suffered from electrocution. Chef Eduardo Garcia is in this week's People Magazine and will be on Good Morning America soon.
Friday, November 22, 2013
Monday, November 18, 2013
As I mentioned, last week, the U.S. House was taking up the Lawsuit Abuse Reduction Act. The ABA Journal reports that the bill passed the House on Thursday. The bill reinstates mandatory sanctions and eliminates the 21-day safe harbor for frivolous claims under Rule 11 of the Federal Rules of Civil Procedure.
Thanks to Lisa Smith-Butler for the alert.
From John Day comes "Tort Reform the Song". As Day explains,
"Tort Reform - The Song" was authored as part of the American College of Trial Lawyers Sixth Circuit Conference held in April 2013 in Nashville. The Conference brought together Michigan, Ohio, Kentucky and Tennessee Fellows and their spouses.
It was appropriate to draw upon Nashville's incredible music history and talent as part of this program, and thus three professional songwriters, led by Ryder Lee, a law student at the Belmont University School of Law and founder and former member of The Lost Trailers helped us write a song. Ryder came into the program with the music and a strong start on the lyrics. The attendees, now co-authors of this work, contributed during the program. Ryder and I finished the work in a writer's room at Universal in Nashville and - no kidding - while sitting on the tailgate of Ryder's truck in the parking lot below Taylor Swift's condominium.
Thursday, November 14, 2013
The Dayton Daily News has a story on malpractice at the Department of Veterans Affairs. Payment for VA med mal claims (paid from a federal treasury fund set aside for federal claims, not the VA budget) totaled $845M over 10 years (on a total of 4,426 claims). The peak year was 2012 with $93.3M in payouts. The article notes that VA health care providers are immune from lawsuits and details instances of bonuses given to providers who had made medical errors or administrators despite poor records at their facilities. The article also quotes attorneys arguing the early disclosure program and limits on attorneys' fees (20% on settlements and 25% on awards) reduce the amount of claims brought against the VA. On the other hand, when asked whether VA doctors were worse than other doctors, Dr. Anupam Jena, assistant professor at Harvard, said simply, "no." The article includes poignant stories by individual victims of malpractice.