Tuesday, July 12, 2016
As I wrote last month, I am teaching Products Liability this summer. It has been over 4 years since I last taught it; the last time through, the course was a 2-credit, paper course. I am now teaching a 3-credit, exam course.
Perhaps I wasn't thinking in these terms in 2012, but I am struck this time through by how well Products could serve as a capstone course, roughly understood as a culminating course that integrates multiple subject areas. Obviously, Products is heavily tort-oriented. One of the common causes of action for an injury by product is negligence, and that is covered (again), including duty, breach, causation, damages, and defenses. Of course, the sales concept of warranty is thoroughly covered. But there is more. A lot of evidence concepts are reviewed, such as Daubert, subsequent remedial measures, admissibility for injuries in the same or similar circumstances, and the burden of proof. Administrative law is covered because of the regulations passed by agencies and their effect on private litigation (including preemption, which has a connection to constitutional law). Civil procedure is also touched upon in the form of statutes of limitations, statutes of repose, and the discovery rule.
As a whole, the course requires students to connect areas of practice to one another, which I think is extremely beneficial. That is, of course, how they will function in practice. The course also reviews a number of concepts they will soon face on the bar, including the specific MBE questions about products liability, often given little to no attention in the basic Torts course due to time constraints.
Monday, July 11, 2016
Take-home exposure cases, in which a worker brought home a toxic substance like asbestos on his or her clothes and sickened a spouse, are being expanded in New Jersey. Last week the court unanimously held such cases were not restricted to spouses. The facts involve a woman who later became the spouse of a worker bringing home toxic substances. She was not, however, married to him at the time the exposure began. The court stated the spousal relationship was not necessary; several factors must be weighed, the most important of which is foreseeability. NJ Spotlight has the story.
Sunday, July 10, 2016
Friday, July 8, 2016
Hart Publishing announces a new book by Jason Varuhas, Damages and Human Rights. The blurb provides:
Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as an important and practically significant field of law, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book's focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts.The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current 'mirror' approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law. The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration.
A flyer with more information, and a discount, is here: Download Varuhas
Thursday, July 7, 2016
Cathy Sharkey has posted to SSRN The Administrative State and the Common Law: Regulatory Substitutes or Complements? The abstract provides:
As it turns out, however, the same alarm bell was sounded decades ago — by Roscoe Pound. Pound viewed administrative action as lawless, capricious, and marred by prejudice. He warned that agencies were self-interested, too powerful, and ever grasping for even more power.
After outlining the uncannily similar attitude towards agencies expressed by Pound and our Supreme Court’s conservative core, this Article probes how those views diverge. For Pound, the ideal regulatory alternative to agency action was the common law of torts, which he characterized as the last bastion of a democratic society. This is decidedly not the view of the conservative core. Their antagonism towards the common law of torts, which apparently runs even deeper than their hostility towards agencies, is on full display in their federal preemption decisions. How, then, to fill the regulatory void the conservative core seems to leave agape? This Article proposes one possible path to the answer.
Drawing inspiration from the views of Pound himself, as well as the work of Guido Calabresi, this Article proposes that courts should adopt an altogether new approach, one whereby they effectively incorporate input from federal agencies, while at the same time ensuring that such agencies do not overreach. This need not entail the wholesale rejection of agency interpretive authority espoused by the conservative core in its non-preemption decisions. Instead, and as even Pound recognized, courts can and should exercise oversight to ensure that agency interpretations and conclusions are backed by responsible rulemaking procedures and empirical support. This approach can lead to an effective tort-agency partnership, where the administrative state and common law can operate as regulatory complements.
Wednesday, July 6, 2016
A man driving a Tesla Model S in Florida has become the first self-driving car fatality. Statements by Tesla and NHTSA concur that, while in Autopilot mode, the car failed to distinguish the white side of a turning tractor trailer from the bright May sky; the brakes were not applied. The man's family has retained an attorney. This case will begin sorting out all of the unanswered questions created by the new technology. The ABA Journal has details.
Updated: Analysis from The Guardian here.
Tuesday, July 5, 2016
Monday, July 4, 2016
Friday, July 1, 2016
Thursday, June 30, 2016
Governor Jay Nixon vetoed a bill that would have essentially abrogated the collateral source rule, stating the bill was particularly unfair to those purchasing insurance. He also vetoed an expert witness qualification bill he stated was targeting the injured. The Missouri Times has a discussion of all of Nixon's actions on bills this week.
Wednesday, June 29, 2016
At least 6 children have been crushed to death by IKEA dressers, prompting the company to recall approximately 29 million dressers dating to 2002. Suit filed against IKEA alleges problems with the design and warnings on the products. ABC has the story.
Tuesday, June 28, 2016
State-based tort law does not lead to a lot of USSC cases, so we are often left with cases tangentially related to torts. The Court just affirmed by default (4-4) tribal jurisdiction over an assault (molestation) claim brought by a 13-year old member of the Mississippi Band of Choctaw Indians against a Dollar General store operating on tribal lands. Courthouse News Service has the story.
Monday, June 27, 2016
Christopher French has posted to SSRN Sex, Videos, and Insurance: How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict. The abstract provides:
On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most people for: 1) the shockingly high verdict amount of $140 million awarded to a celebrity adulterer who was filmed having sex with his best friend’s wife, and 2) the battle between what constitutes the outer boundaries of what is considered “news” under the First Amendment and a celebrity’s right to privacy. The case also should be remembered, however, for the lesson it provides business owners: instead of facing a damage award that forced Gawker to file for bankruptcy and to now seek relief on appeal, Gawker actually could have avoided paying any portion of the damage award. How could Gawker have obtained that result? Insurance. This article debunks the conventional wisdom that insurance does not cover intentional torts such as invasion of privacy or punitive damage awards and that it is against public policy to allow insurance to cover intentional torts and punitive damages. Consequently, if Gawker had purchased appropriate insurance, then it may have been able to avoid paying any portion of the ultimate damage award.
Wednesday, June 22, 2016
Back in March, I posted about a grand jury report detailing the sexual molestation of children in the Altoona-Johnstown Diocese. Now two women have filed lawsuits alleging that a priest from the parish abused them in the 1970s. The grand jury report led to a debate in the legislature about extending the statute of limitations and possibly including a window in which expired cases could be filed. The state House passed a bill that would retroactively extend the civil statute of limitations (from age 30 to age 50). The state Senate Judiciary Committee held a meeting last week and heard from five experts on the constitutionality of retroactively altering the statute of limitations. The Pennsylvania Constitution has arguably been interpreted as more restrictive than the United States Constitution on the issue. Four of the five experts opined that the bill was unconstitutional. The women's lawsuits appear to make a case for extending the statute based on the alleged concealment of the cover-up by the diocese extending through last year.
Tuesday, June 21, 2016
Fredrick Vars (Alabama) has posted his poem to SSRN. The link contains footnotes.
Tort law asks juries to ignore what they know
And give plaintiffs relief only if they show
That the defendant should have foreseen the harm
As likely enough to raise an alarm.
At that we do poorly, especially so
When the chance of the harm is markedly low.
For here people err in a damaging way:
“Those small odds are bigger,” they typically say.
These defects in reason, if left unchecked,
Could mean an award for every sore neck.
But tort law gives judges an unnoticed trump
To counter the bias as would a good ump.
No recovery lies for events too rare.
It’s as if the injury just isn’t there.
With caution this doctrine should judges apply,
Though after this rhyme at least they’ll know why.
Monday, June 20, 2016
Last month, I reported on a bill to adopt the discovery rule for med mal cases in New York. The bill would toll the (2 1/2 year) statute of limitations until the plaintiff discovered the alleged malpractice. New York is one of only six states that does not follow the discovery rule in this context. The bill died over the weekend. New York Daily News has the story.
Wednesday, June 15, 2016
I'm teaching Products Liability this summer. It's a fun course to teach, and I have a sense of relief about many of the products defects we no longer have to deal with on a regular basis. For example, last night in class we covered a case in which a wheel flew off a car and injured a child. That seemed to me an antiquated problem. Yet today one of my students sent me this article about a 2013 Tesla Model S electric car having the same issue. Moreover, the company sometimes proffers consumers waivers and nondisclosure agreements as part of the repair process. Nondisclosure agreements are common in lawsuit settlements, but this seems unusual.
Tuesday, June 14, 2016
Aaron Twerski & Nina Farber have posted to SSRN Extending Comparative Fault. The abstract provides:
This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative fault principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This article focuses on well-known cases and situations where both parties likely contributed to a misunderstanding as to whether the plaintiff consented to the defendant’s conduct and suggests that, in such cases, comparative fault provides a modality for assessing damages. In many cases, the binary approach to consent is justified. When a court finds that both parties contributed to the misunderstanding, however, they should apply comparative fault to reflect that reality.
Monday, June 13, 2016
National and international marketing of defective, toxic or otherwise hazardous products has engendered large-scale mass tort litigations. Unified administration of mass torts in centralized venues serves numerous functional, fairness, efficiency and consistency objectives. Requisite is the forum court’s exercise of personal jurisdiction over the parties. Recently, the Supreme Court has undertaken to reformulate the constitutional parameters of general and specific jurisdiction, in opinions authored by Justice Ruth Bader Ginsburg. Those opinions, culminating in Daimler, self-consciously apply Arthur von Mehren and Donald Trautman’s scholarship set forth in their 1966 Harvard Law Review article “Jurisdiction to Adjudicate.” Neither Daimler nor Justice Ginsburg’s other jurisdictional opinions address mass torts, and Daimler is vulnerable to misinterpretation if applied in the mass tort context without reference to Jurisdiction to Adjudicate and related scholarship. Von Mehren and Trautman endorsed the turn to a functional and fairness approach responsive to the “practical necessities” of the modern litigation scene, and thereby promoted the “unified administration” of multistate actions capable of responding to “the situation as a whole.” Daimler’s theoretical underpinnings demonstrate that the ruling accommodates personal jurisdiction over multistate entities in mass tort litigations.
Friday, June 10, 2016
Over at JOTWELL, Keith Hylton reviews James Hackney's Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History.