Tuesday, January 14, 2014
Monday, January 13, 2014
Courtesy of Cary Sklaren, is the Order Estimating Aggregate Liability in the Garlock bankruptcy: Download Garlock_Order_Estimating_Liability_12192013. The judge estimated liability at $125M, about 1/10 of the requested amount. In the course of a 65-page opinion, the judge wrote about multiple misrepresentations by plaintiffs' lawyers.
Shortly, the Widener Law Journal will be publishing papers from the Perspectives on Mass Tort Litigation symposium held here last April. Included will be a detailed article by Judge Eduardo Robreno (E.D. Pa.) explaining his methods for resolving gridlock in MDL-875, as well as articles on asbestos by Victor Schwartz & Mark Behrens and Todd Brown.
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 .
Thursday, January 9, 2014
Michael Frakes (Cornell) & Anumpam Jena (University of Chicago-Economics) have posted to SSRN Does Medical Malpractice Law Improve Health Care Quality?. The abstract provides:
Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms — e.g., damage caps — we estimate that the current liability system plays at most a modest role in inducing higher levels of health care quality. We contend that this limited independent role for medical liability may be a reflection upon the structural nature of the present system of liability rules, which largely hold physicians to standards determined according to industry customs. We find evidence suggesting, however, that physician practices may respond more significantly upon a substantive alteration of this system altogether — i.e., upon a change in the clinical standards to which physicians are held in the first instance. The literature to date has largely failed to appreciate the substantive nature of liability rules and may thus be drawing limited inferences based solely on our experiences to date with damage-caps and related reforms.
Wednesday, January 8, 2014
We are delighted to congratulate Jan Levine, associate professor and director of Duquesne University's Legal Research & Writing program. Jan became the first professor to win, in the same year, the AALS Section on Legal Writing, Reasoning & Research Award and the Thomas F. Blackwell Memorial Award for Outstanding Achievement in the Field of Legal Writing. As former Freedman Fellows at Temple Law, the four of us owe Jan a substantial debt for his training and assistance in entering the academy. Jan modeled for us the demand for excellence to which we aspire. It is gratifying to see his worth recognized by others.
--Sheila, Chris, Meredith Miller (ContractsProf), and Byron Stier (Mass Torts Prof)
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.
Friday, January 3, 2014
I had planned to be at AALS for the Torts Section tomorrow, but the weather has interfered. I've talked to several TortsProfs who are in the same boat. For those of you who can make it, Jenny Wriggins has set up a great program. Sheila (who will be there) posted about it yesterday. Adam Scales will be joining the Executive Committee as a new member. Enjoy!
P.S. I'll still be doing something Torts-related today: grading.
Thursday, January 2, 2014
The Insurance Law and Torts & Compensation Sections will present a joint progam at the AALS annual meeting on Saturday, January 4, 2014, from 10:30 am to 12:15 am. The program is "On the Unavoidable Intersection of Torts and Insurance," and features Nora Engstrom (Stanford), Tom Baker (Penn), and from a call for papers, Juscelino F. Colares (Case Western). The program description provides:
Recent scholarship has shown that tort law and practice are inextricably linked with insurance law. Liability insurance drives tort law in action, influencing what claims are brought, how they are litigated, and how damages are determined. First party insurance such as health and disability insurance are essential parts of the picture in understanding the legal system’s treatment of injury. The program reflects this intersection between torts and insurance, bringing together scholars doing cutting edge research adding to our understanding. Papers will focus on several areas including lawyers’ liability and insurance, the failure of no-fault insurance, and oil spill compensation.
Thursday, December 26, 2013
After 5 successful years of leading the Institute for European Tort Law, Ken Oliphant is stepping down at the end of 2013 to resume his position as Professor of Tort Law at the University of Bristol. Ernst Karner, of the University of Vienna, will act as interim Director. Congratulations and best wishes to both!
Friday, December 20, 2013
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.
Tuesday, December 17, 2013
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.
Friday, December 13, 2013
Rep. Eric Burlison has pre-filed a bill that would reinstate a noneconomic damages cap of $350,000 on med mal cases in Missouri. In 2012, the state supreme court struck down a similar cap. The Missouri House passed a cap last year, but it died in the Senate. KMSU has the story.
Thursday, December 12, 2013
Imgard Griss‘How Judges Think: Judicial Reasoning in Tort Cases from a Comparative Perspective’(2013) 3 JETL 247
Donal Nolan‘Damage in the English Law of Negligence’(2013) 3 JETL259
Patrick O’Callaghan‘False Privacy and Information Games’ (2013) 3 JETL282
Paula Giliker‘Vicarious Liability “On the Move”: The English Supreme Court andEnterprise Liability’ (2013) 3 JETL 306
Quinten De Raedt‘Loss of a Chance in Medical Malpractice: A Double Application’ (2013) 3 JETL 314
Joseph A Page‘D Dobbs/ P Hayden/E Bublick, The Law of Torts, Practitioner Treatise Series’(2013) 3 JETL 328
Peter Stockenhuber‘G Messen,Der Anspruch auf Schadenersatz bei Verstössen gegen EU-Kartellrecht (2013) 2 JETL339
Olivier Moréteau‘François Terré (ed), Pour une réform du droit de la responsabilité civile, Collection: Thémes’(2013) 3 JETL 342
Jane Wright 'A Fenyes/ E Karner/ E Steiner (eds), Tort Law in the Jurisprudence of the European Court of Human Rights’ (2013) 3 JETL 347
Christophe Quézel-Ambrunaz‘R Goldberg (ed), Perspectives on Causation’ (2013) 3 JETL 351
Christina Eberl-Borges‘Peter North, Civil Liability for Animals’ (2013) 3 JETL 356
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.
Monday, December 9, 2013
Ken Oliphant and Barbara C. Steininger have edited European Tort Law Yearbook 2012. It contains reports on tort law developments in 28 European countries and in the law of the EU. As a bonus, there is an additional report from Israel.
Thursday, December 5, 2013
Wednesday, December 4, 2013
Elizabeth Chamblee Burch (Georgia) has posted to SSRN Revisiting the Government as Plaintiff. The abstract provides:
This is a symposium essay dedicated to the late Richard Nagareda and written in response to Adam S. Zimmerman's piece, The Corrective Justice State.
As Professor Zimmerman recognizes, the debate over governments acting as plaintiffs and “regulating by deal” has shifted from initial questions over whether litigation produces the best public policy and whether executive officials are acting within the scope of their authority to how government actors should pursue and allocate settlements. Yet, as this first wave of controversy suggests, the slate upon which executive officials currently write is neither clean nor uncontroversial. Instead, this new debate is playing out in an unsettled landscape where those first-order questions about legitimacy remain unresolved.
When layered atop the existing controversy over the intermingling of government functions, executive officials’ relatively new allocative role may put their actions even further at odds with their traditional regulatory and proprietary functions, particularly when the action yielding the compensation is a public substitute for a private right of action. What principles should guide officials in this new role: traditional tort law, social welfare, or political equality principles such as one person one vote? More specifically, should executive officials look to tort law precepts to govern the allocation and retain concepts such as economic loss and the collateral source rule, or employ a governmental aid aspect, which would suggest a principal of equality that would not vary based on one’s income but would consider collateral sources of compensation?
Zimmerman suggests that officials have attempted to justify both their regulatory and allocative decisions with ill-suited corrective justice principles that translate poorly from the private to the public sphere. Despite reservations about whether regulation through litigation results in the best policies or offers democratic checks, he seems more willing to accept executive officials’ increased litigation role in the wake of Congressional failings and the difficulty of certifying a private class action. He thus tailors his reform proposals to target the government’s allocative function, suggesting ways to improve legitimacy and transparency in distributing recoveries, whatever the guiding principle might be.
Still, certain concerns and questions linger. First, Zimmerman narrows his focus to the second generation question of allocation, even though he raises and dismisses first-generation concerns over whether executive officials are properly acting within the scope of their authority and whether the regulatory solutions they generate through litigation are legitimate and optimal. Shoring up back-end allocation procedures, however, does not alleviate first-generation legitimacy questions or regulatory concerns. Second, Zimmerman opts not to iron out overarching systemic problems like legislative stalemates or mounting difficulty in certifying class actions, preferring instead (or perhaps more realistically) to work within the circumstances that prompt executive action. Yet, truly legitimizing process and adhering to corrective justice principles would require resolving systemic concerns about who should litigate and who should regulate. Finally, given concerns that judges already “rubber stamp” class-action settlements and that parties tend to find innovative ways to gerrymander votes and stakeholder input in areas like bankruptcy, one might question the effectiveness of Zimmerman’s proposals for enhancing due process when allocating state recovery to affected citizens.