TortsProf Blog

Perspectives on Mass Tort Litigation at Widener

Last Tuesday, April 16, 2013, Widener University School of Law, the Widener Law Journal, and the Coalition for Litigation Justice, Inc. sponsored a day-long symposium, Perspectives on Mass Torts Litigation.

The line-up was spectacular!  The first panel on Mass Tort Theory included Professor Michael Green (Wake Forest School of Law); Professor Deborah Hensler (Stanford Law School); Professor Linda Mullenix (University of Texas School of Law); and Professor Aaron Twerski (Brooklyn Law School).  The panel was moderated by TortsProf's own Chris Robinette (Widener).

The second panel addresssed Emerging Issues in Mass Tort Practice.  This panel included the Hon. Thurbert Baker (McKenna Long & Aldridge LLP; Atlanta, GA); John Beisner (Skadden Arps; Washington, DC); Tobias Millrood (Pogust Braslow & Millrood; Philadelphia, PA); and Victor Schwartz (Shook, Hardy & Bacon; Washington, DC). 

One of the symposium's highlights was the luncheon address by the Hon. Eduardo Robreno (E.D. Pa.) on Federal Asbestos Litigation: Black Hole or New Paradigm?   This fascintating talk provided a look at the current state of asbestos litigation and a glimpse of the future as well. 

The third panel was on Keystone State Civil Justice Issues.  The organizers used a neat format - essentialy a point-counterpoint by a plaintiff's lawyer and a defense lawyer.   The fourth panel took us inside Asbestos-Related Bankruptcy Issues, and featured Professor S. Todd Brown (SUNY Buffalo Law School), and two practicing lawyers.  

Bryon Stier (Southwestern) and I rounded out the day with a panel on Mass Tort Ethics.  

My thanks to Chris and everyone at Widener for an outstanding conference.  It was a honor to participate. 

- SBS

Journal of European Tort Law Publishes Latest Issue

Journal of European Tort Law, vol 4 issue 1 (2013) (available here)

Articles:  

Duncan Fairgrieve, Geraint Howells and Marcus Pilgerstorfer ‘The Product Liability Directive: Time to get Soft?’ (2013) 4 JETL 1 

Hugo A Acciarri and Nuno Garoupa ‘On the Judicial Interest Rate: Towards a Law and Economic Theory’ (2013) 4 JETL 34 

Paula Giliker ’Tony Weir and the Law of Tort (2013) 4 JETL 63

Philippe Brun and Christophe Quézel-Ambrunaz ‘French Tort Law Facing Reform’ (2013) 4 JETL 78

Book Reviews:

Ina Ebert ‘Lotte Meurkens/Emily Nordin (eds), The Power of Punitive Damages. Is Europe Missing Out?’ (2013) 4 JETL 95

Daniel Gardner ‘Jacques De Mol, Le dommage psychique – Du traumatisme à l’expertise’ (2013) 4 JETL 98 

Piotr Machnikowski ‘Pekka Aalto, Public Liability in EU Law: Brasserie, Bergaderm and Beyond’ (2013) 4 JETL 101 

Ulrich Magnus ’Marten Breuer, Staatshaftung für judikatives Unrecht. Eine Untersuchung zum deutschen Recht, zum Europa- und Völkerrecht’ (2013) 4 JETL 106

Ugo Mattei ’M Infantino, La causalità nel diritto della responsabilità extracontrattuale. Studio di diritto comparato’ (2013) 4 JETL 110 

Andrew Tettenborn ’B Winiger/H Koziol/B Koch/R Zimmermann (eds), Digest of European Tort Law, Vol 2: Essential Cases on Damage’ (2013) 4 JETL 113

Thanks to Ken Oliphant for the tip.

--CJR

John Hochfelder: "Recovering Millions of Dollars in Damages for Pain and Suffering in New York Traumatic Injury Lawsuits – Too Much? Runaway Justice?"

We often hear in New York complaints that it’s too easy to recover too much money in tort suits. We hear of fraudulent claims, trumped up lawsuits, overly generous juries and the like, all of which can result in a civil justice system that rewards unworthy claimants with pain and suffering awards way out of proportion to their actual injuries. In this article, we take a look at a representative sampling of recent cases that have yielded large recoveries and leave it to you, the reader, to decide whether justice has been done.

Generally, the amount of damages awarded for personal injuries is a question for the jury. In New York, the judgment of a jury is entitled to great deference; however, where the verdict amount is thought to be excessive or inadequate, a party may appeal under CPLR 5501.

Under the statute, the appellate court determines that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation. In doing so, the courts are required to review other cases with the same or similar injuries to determine the amount that is “reasonable compensation” in the State of New York.

The figures one reads about in newspapers are usually verdict amounts. Appellate resolutions usually take a year or two and are mostly under-reported in the press.

So let’s take a look at several appellate court cases in New York to see what amounts are approved for pain and suffering damages for various types of injuries:

Continue reading "John Hochfelder: "Recovering Millions of Dollars in Damages for Pain and Suffering in New York Traumatic Injury Lawsuits – Too Much? Runaway Justice?" "

Tomorrow's Guest Blogger: John Hochfelder

John M. Hochfelder is a traumatic injury trial lawyer in the New York City metropolitan area and Hudson Valley region. His career began as a law clerk to a federal judge in the U.S. District Court  (S.D.N.Y.) after which he was a commercial litigator in a large Manhattan law firm. He's been a local court judge, an EMT and now, in addition to his personal injury law practice he publishes the widely read and acclaimed New York Injury Cases Blog where Mr. Hochfelder reports on and analyzes all New York appellate cases that rule on damages.

AALS Torts Section: Newsletter Information/Prosser Award Nominations

From Tony Sebok:

Dear Colleagues,

Greetings!  In my capacity as secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.

1. Torts and Compensation Section Newsletter

As most of you know, our section publishes a newsletter each fall listing: (1) Symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law.  We are now beginning the process of compiling material for this year's newsletter.  If you know of anything that should be included, please forward relevant citations and other information to me at sebok@yu.edu.  The deadline for inclusion is September 1, 2013.  

2.  Prosser Award

This is the first call for nominations for the 2014 William L. Prosser Award.  The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ... ."   Recent recipients are Jane Stapleton, Robert Rabin, Richard Posner, Guido Calabresi, Oscar Gray, and Dan Dobbs.  Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the award.  Nominators can renew past nominations by resubmitting materials.  Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee.  The announcement of the award will be made at the annual AALS meeting in January, 2014.   

Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 9, 2013.   E-mail submissions to sebok@yu.edu are preferred.   If you would rather mail hard copies of nomination materials, please use the address in the signature line below.  
Our committee will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach.  In the meantime, feel free to contact me if you have any questions.

Thanks.

Tony

JOTWELL Torts: Hylton on Lobbying and Restatements

Keith Hylton (Boston University) reviews Laposata, Barnes, & Glantz's Tobacco Industry Influence on the American Law Institute's Restatements of Torts and Implications for Its Conflicts of Interest Policies over at JOTWELL.

--CJR

FL: Senate Approves Med Mal Reform

By a 27-12 vote, the Florida Senate passed SB 1792, requiring an expert against a defendant doctor to be in the same specialty as the defendant, not just the same field.  The bill now goes to the Florida House.  The Jacksonville Business Journal has the story.

--CJR

FL: Senate to Vote on Med Mal Tort Reforms Today

The Florida Senate is set to vote today on a tort reform package (SB 1792) that would make med mal cases more difficult to pursue.  The major provision requires expert witnesses called against a defendant doctor to practice the exact same kind of medicine as the defendant instead of only being in a similar field.  An AP story is here.

--CJR

Burch on Adequately Representing Groups

Elizabeth Chamblee Burch (Georgia) has posted to SSRN Adequately Representing Groups.  The abstract provides:

Adequate representation and preclusion depend on whether the courts treat a litigant as part of a group experiencing an aggregate harm or as a distinct person suffering individual injuries. And though a vast literature about adequate representation exists in the class-action context, it thins dramatically when contemplating other forms of group litigation, such as parens patriae actions and multidistrict litigation. As class actions have gradually fallen into disfavor and attorneys and commentators seek alternative means for resolving group harms, the relative clarity of Rule 23 wanes. How should courts evaluate adequate representation in parens patriae actions and in multidistrict litigation? The answer to this question matters immensely since adequate representation is critical to precluding relitigation and achieving finality.

This Article suggests that courts should differentiate between inadequate representation claims based on the underlying right at stake. When the underlying right arises from an aggregate harm — a harm that affects a group of people equally and collectively — and demands an indivisible remedy, courts should tolerate greater conflicts among group members when evaluating a subsequent claim of inadequate representation. Because the harm is aggregate and the remedy is indivisible (typically declaratory or injunctive relief), if one group member receives the remedy, then they all receive the remedy. The litigation operates to group members’ benefit or detriment equally, so if one group member is inadequately represented, they are all inadequately represented. Consequently, a subsequent litigant can successfully avoid preclusion only where the lawyers or the named representatives acted contrary to the group’s best interests or attempted to represent an overinclusive, noncohesive group where some members required unique relief that the representative had no selfish reason to pursue.

Conversely, when plaintiffs suffer individual injuries at the same defendant’s hands and unite their claims for economic or efficiency reasons, that aggregation does not convert their individual injuries into an aggregate harm. When counsel fails to fairly represent her client in vindicating that harm, inadequate representation is an individual injury. In multidistrict litigation and Rule 23(b)(3) class actions, which typically include individuals litigating their individual harms together for systematic and litigant efficiency, courts should look for “structural conflicts” between the claimants themselves as well as between the representatives and the claimants. This means that both initially and on a collateral attack, courts should accept fewer conflicts than in cases involving aggregate rights. Accordingly, judges should assess whether there are reasons the lawyers “might skew systematically the conduct of the litigation so as to favor some claimants over others on grounds aside from reasoned evaluation of their respective claims or to disfavor claimants generally vis-à-vis the lawyers themselves.”

--CJR

Schwartz, Goldberg & Silverman on Brand Name Drug Manufacturers Liability for Generics

Victor Schwartz, Phil Goldberg and Cary Silverman (Shook Hardy & Bacon) recently published Warning: Shifting Liability to Manufacturers of Brand-Name Medicines When the Harm Was Allegedly Caused by Generic Drug Has Severe Side Effects in Fordham Law Review.  The abstract provides:

Can a product manufacturer be subject to liability for a competitor’s product? American tort law has always said, “No.” It does not matter if the products are identical. Companies are not to be their competitors’ keepers.

Nevertheless, over the past few years, three courts have overturned this fundamental of tort law, holding that a manufacturer of a brand-name prescription drug can be subject to liability even when a plaintiff alleges that he or she was harmed by a generic drug made by the brand-name manufacturer’s competitor. Most courts, including four federal courts of appeal and dozens of federal district and state trial courts, have rejected this expansion of tort law.

This debate has intensified since 2011, when the Supreme Court of the United States held that all duty to warn claims against manufacturers of generic drugs are preempted by federal drug. The personal injury bar is hoping that courts will give competitor liability theories a new look, particularly when courts find that there is no other path for users of generic drugs to sue.

This Article explains the reasons courts should continue resisting any temptation to change state tort law to allow for competitor liability: (1) it is driven by a search for pockets for paying claims in violation of fundamental tort law principles; (2) the overwhelming majority of courts have continued rejecting competitor liability, even since the Supreme Court ruling; and (3) shifting liability to manufacturers of brand-name drugs could have significant adverse legal and health care consequences. 

- SBS

Sudden Unintended Acceleration Claims Filed Against Ford

The National Law Journal reports that consumers have filed economic loss claims against Ford based on the risk of sudden unintended acceleration.  The national class action has been filed in federal court in West Virginia.  Unsurprisingly, the claims exclude potential personal injury or wrongful death claims. Rather, the claims sound in contract and include Magnuson-Moss, state warranty, consumer protection and unfair trade practices claims.  The full article is behind a free registration wall.

I have written about these risk-based claims in Against Liability for Private Risk-Exposure.

- SBS

Daniel Cummins: "A Maze of Uncertainty: PA Products Liability Law Remains in a Confusing State of Flux"

          As of the writing of this article in January of 2013, confusion is reigning in the Commonwealth of Pennsylvania on the uncertain issue of whether the Restatement (Second) of Torts or the different analysis set forth in the Restatement (Third) of Torts should be utilized in Pennsylvania products liability cases.  This uncertainty is the result of an ever-growing split of authority not only between the Pennsylvania state and federal courts, but also among, and even within, the different federal district courts across the Commonwealth.

          The situation has now spiraled downward to the point that litigants with cases pending in the Pennsylvania federal court system have to research whether the particular federal district court judge presiding over the case has previously issued a decision on the issue in order to determine which Restatement standard will be applied in that case.   While one Pennsylvania federal court judge has politely noted that this area of the law in Pennsylvania is in a “state of flux,”[1]   See Sikkelee v. Precision Automotive, Inc., 876 F. Supp. 2d 479, 489 (M.D. Pa. 2012 Jones, J.). another has more aptly described Pennsylvania products liability law as being “a maze of uncertainty.”[2]  See Samson v. Crown Equipment, 2:10-CV-0958, 2012 WL 3027989 (W.D. Pa. 2012 Hornak, J.). 

          Which standard is applied could make or break a case.  Although the Restatement (Second) favors strict liability concepts over negligence principles in the products liability context, the Restatement (Third) decreases the impact of concepts such as "intended use" and "intended user" and places a greater emphasis on the negligence principle of "reasonable foreseeability."   All of these changes in the Restatement (Third) arguably shift the balance in favor of manufacturer defendants in personal injury cases based upon allegations that a defective product was the cause of the injury.

          As noted below, under the current status of Pennsylvania products liability law, whether the case will be governed by the Restatement (Second) of Torts or the Restatement (Third) of Torts depends upon whether the case is in state or federal court, and if the case is in federal court, the answer may further depend upon which particular federal district court judge is presiding over the case.

Continue reading "Daniel Cummins: "A Maze of Uncertainty: PA Products Liability Law Remains in a Confusing State of Flux""

Tomorrow's Guest Blogger: Daniel Cummins

Daniel E. Cummins, Esquire is a partner in Foley, Comerford & Cummins in Scranton, PA with over 15 years of insurance defense experience.  Cummins has focused his practice on defending motor vehicle accident liability cases and UIM/UM arbitration matters along with premises liability and products liability cases.  Heis also routinely summoned by his clients to handle matters involving insurance coverage questions and insurance subrogation claims.

Cummins is a cum laude graduate of Villanova University (’90, B.A., English) after which he attended the Dickinson School of Law (’93, J.D.) and completed his law school studies at the University of London Faculty of Laws in London, England (Spring, ’93).

Cummins is an award-winning columnist for, among other publications, Pennsylvania Law Weekly.  He blogs regularly at Tort Talk and has been named a "Lawyer on the Fast Track" and a "Super Lawyer-Rising Star."

The Concise Restatement of Torts, Third Edition

Ellen Bublick (Arizona) has compiled The Concise Restatement of Torts (3d ed.) for the ALI.  The book draws on 5 projects from the Restatement (Third) of Torts and is organized like many first-year casebooks.  The Concise Restatement of Torts is under 400 pages, was published on earlier this week, and is available through ALI here.

I have never used a supplement in my Torts course.  I have recommended several secondary sources (and will continue to do so).  However, I taught Contracts for the first time last year and found a supplement useful in that course.  Based on that experience, I decided a supplement would help my Torts students as well.  I have been looking around for the right Torts supplement, and this is it.  Virtually every topic I cover in my two-semester course is in The Concise Restatement of Torts.

--CJR

Defamation Claim by Boston Rocker Dismissed

The National Law Journal reports that a Massachusetts trial court has granted summary judgment in a defamation suit brought by Boston rock band founder Donald Scholz against the Boston Herald and two journalists.  According to the article, the Herald articles "insinuated that [lead singer Brad] Delp's rocky relationship with Scholz drove [Delp] to take his own life."  The trial court found that Scholz could not prove defamation because the statements constituted "non-actionable opinion."

The full article is behind a free registration wall. 

- SBS

Alberto Bernabe: "Play Ball!...and Change the Approach to Baseball Torts"

          As the spring approaches, the attention of many sports fans turns to baseball.  Fans are looking forward to the beginning of the major league season.  Parents (including myself) are starting to take their kids to little league practice.  Baseball.  It is the great American pastime.  It is also the source of a lot of interesting litigation that brings into question some basic principles of tort law.

          Many baseball related cases have been decided using a confused analysis based on the argument that people (both participants and spectators) assume the “inherent risks involved in the game,” often referred to by the poorly chosen term “primary assumption of the risk.”  Unfortunately, the analysis in most of those cases is not particularly coherent and I continue to be amazed at the fact that after so many years of common law so many courts are still unclear about the concept of assumption of the risk as it relates to sports and recreational activities.

          Take the cases involving claims against bat manufacturers for injuries caused by aluminum bats, for example.

          In the past few years there have been a number of cases imposing liability on aluminum bat manufacturers because the ball travels off them at a much higher rate of speed putting fielders are at a higher risk of injury.  In response, you often hear criticism from defendants and others that are quick to quote the notion that players assume the inherent risks of the game.  Using the same argument, some take the rhetoric even further and use it to attack the tort law system itself claiming that the lawsuits are just another example of plaintiffs’ lawyers bringing frivolous claims.  

          I think those arguments miss the point.  Granted; risk, danger and injuries are a part of life, and of baseball.  However, tort law is one of the mechanisms we can use to regulate the level of risk we are willing to live with.  You can’t play baseball unless the hitters use a bat. But it does not have to be an aluminum bat. Why expose the players to more danger if there is a safer alternative? The alternative is not perfect and it won’t eliminate all the risk, but it is safer.   

          The point is that litigation often helps society define the limits of the acceptable level of risk we are willing to take for any given activity.  We have accepted the risks of baseball when played with hardballs and solid wood bats.  But as we start our kids playing the game earlier and earlier we want them to be as safe as possible while still playing the game.  That is why we now require better helmets and protection.  That is why Little League Baseball has banned the use of dangerous aluminum bats and regulates those that are permitted for competition.

          Now, some argue the resulting injuries would be the same even if the bats are made of wood. I have no expertise on that question, but I can concede that it may be true in some cases.  On the other hand, I am sure it is not true in all cases, and it is those cases that matter.

          The risks inherent to baseball have changed over the years and it is perfectly reasonable to find that our tolerance for more risks has a limit.

          The cases involving spectators are even more problematic.  

Continue reading "Alberto Bernabe: "Play Ball!...and Change the Approach to Baseball Torts""

Tomorrow's Guest Blogger: Alberto Bernabe

Tomorrow's Guest Blogger is Alberto Bernabe, Professor at The John Marshall Law School in Chicago.  After graduating from law school, Alberto Bernabe clerked for Justice Federico Hernandez-Denton of the Supreme Court of Puerto Rico. He later entered private practice, specializing in personal injury, mass disaster litigation, and general media law practice.

Before joining the faculty at The John Marshall Law School in 1992, Professor Bernabe was a teaching fellow at Temple University, where he taught Mass Media Law and collaborated in teaching Torts, Products Liability, and Legal Ethics. He also teaches frequently as a visiting professor at the University of Puerto Rico Law School.

Professor Bernabe teaches Torts and Professional Responsibility and has published articles on many different topics, including the rules of professional conduct, journalism ethics, the Socratic method of teaching, the concept of the marketplace of ideas, tort reform, Puerto Rican tort law, and the relationship between the media and the judicial system.

--CJR

Rapp on NFL Concussions

Geoff Rapp (Toledo) has posted to SSRN his contribution to Howard Wasserman's symposium, Suicide, Concussions, and the NFL.  The abstract provides:

This contribution to a FIU Law Review symposium on concussions in the NFL explores the state of the science and the possibility that the family of a former NFL player could recover from the NFL in the event that the former player committed suicide. While the link between brain injury, depression and suicide is both logical and supported by some emerging science, the paper suggests that significant legal obstacles would confront any such claim.

--CJR

JOTWELL Torts: Sebok on Oberdiek--"Are Risks Wrong?"

Over at JOTWELL, Tony Sebok (Cardozo) reviews The Moral Significance of Risking by John Oberdiek (Rutgers-Camden).

--CJR

Breaking: PA to Decide Between 2nd and 3rd Restatements on Products Liability

The order is here.

--CJR