TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, January 24, 2017

MO: Collateral Source, Daubert Bills Voted Out of House Committee

In Missouri, tort reform bills to adopt Daubert as the state standard on scientific and technical evidence and restrict the collateral source rule passed 9-3 in the House Special Committee on Litigation Reform.  The bills move on to the full House.  The Missouri Times has details.

January 24, 2017 in Experts & Science, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, January 23, 2017

SCOTUS Cert Grant: Products Liability and Jurisdiction

On Thursday, the Court granted cert in a products case against Bristol-Myers Squibb regarding its blood-thinning drug, Plavix.  The jurisdictional issue is whether, as the California Supreme Court ruled, Bristol-Myers Squibb must defend claims in California by nonresidents who allege the blood-thinning drug Plavix caused bleeding and strokes.  

According to the cert petition (PDF), Plavix is not made, designed or packaged in California. The California Supreme Court nonetheless ruled that both in-state and out-of-state residents could sue in the state because Bristol-Myers conducts research, sales and marketing there.

The ABA Journal has the story.

January 23, 2017 in Products Liability | Permalink | Comments (0)

Friday, January 20, 2017

HLS Posdoctoral Fellowship in Private Law


The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.

Further information available here:  Download PostdoctoralFellowshipinPrivateLawCallforApps2017

January 20, 2017 | Permalink | Comments (0)

Thursday, January 19, 2017

New Study: Malpractice Law Does Not Improve Results

A new study from Northwestern's Feinberg School of Medicine has concluded that stronger med mal laws do not translate to better care.  Fox News Health has the story, quoting both Michelle Mello and William Sage.

January 19, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, January 18, 2017

OH: No Police Liability for Injuries to Innocent Bystander During Chase of Fleeing Felon

Marianna Brown Bettman has commentary at Legally Speaking Ohio.

January 18, 2017 in Current Affairs, Weblogs | Permalink | Comments (0)

Monday, January 16, 2017

CT: Rejection of R(3): Products Liability

In late December, the Connecticut Supreme Court reaffirmed its commitment to 402(A), but also modified existing doctrine.  Jennifer Brooks Crozier and Adam Masin explain at JD Supra Business Advisor.  The gist:

In arguably the most important Connecticut tort-law decision in decades, the Connecticut Supreme Court in Bifolck v. Philip Morris, Inc., --- A.3d ---, 2016 WL 7509118 (Conn. Dec. 29, 2016), declined to adopt the approach of the Restatement (Third) to product liability design-defect claims and  “reaffirm[ed] its allegiance” to a “true strict liability” standard under § 402A of the Restatement (Second).  The Court also made a number of “modest refinements” to the Court’s existing interpretation of § 402A.  Most importantly, the Court held that every product liability design-defect claim must allege that the product was “unreasonably dangerous,” but declined to box plaintiffs into one definition of that term for purposes of stating a claim.  The Court also refused to limit punitive damages under the Connecticut Product Liability Act (“CPLA”) to the “litigation expenses less costs” limit under the common-law rule set forth in Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 477 A.2d 988 (1984).  Given the Court’s cautious approach to remaking the state’s tort law, Bifolck is in practice a reaffirmation of the status quo in Connecticut—at least for now.  The Court did leave open the possibility that it might adopt the Restatement (Third) at some point in the future should its standards under § 402A prove “unworkable.”

January 16, 2017 in Current Affairs, Products Liability | Permalink | Comments (0)

Friday, January 13, 2017

A State-by-State Breakdown of Med Mal Cases

Becker's Hospital Review provides a state-by-state comparison of malpractice suits and costs per 100,000 residents, in order from the largest amount (Louisiana at 44.1  suits per 100,000 residents) to the smallest (Hawaii at 4.9).  The list is here.

January 13, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, January 12, 2017

JOTWELL Torts: Hershovitz on Cornell on the Connection Between Rights and Wrongs

At JOTWELL, Scott Hershovitz reviews Nicolas Cornell's Wrongs, Rights, and Third Parties.

January 12, 2017 in Scholarship, Weblogs | Permalink | Comments (0)

Purposeful Infliction of Bodily Harm

Tentative Draft No. 1 of the Restatement of Intentional Torts includes Section 104 on the Purposeful Infliction of Bodily Harm:

§ 104.     Purposeful Infliction of Bodily Harm

An actor is subject to liability to another for purposeful infliction of bodily harm if:

(a) the actor purposely causes bodily harm to the other, either by the actor’s affirmative conduct or by the actor’s failure to prevent bodily harm when the actor has a duty to prevent such harm … 

Comment b.  … This Section recognizes intentional-tort liability in a small group of cases in which the contact requirement of battery liability is not satisfied but in which the actor’s culpability is especially pronounced.
Last month, Kurt Eichenwald, an author at Newsweek and critic of Donald Trump,  experienced an epileptic seizure when someone deliberately tweeted him a flashing yellow and orange starlike image reading, "you deserve a seizure for your posts."  Eichenwald had just finished a contentious interview on Fox News; it is well-known that Eichenwald suffers from epilepsy.   Story here
Ken Simons, a Reporter on the project, comments:
What is especially interesting about this case is:
(a) It is doubtful that battery liability would be recognized on these facts, given the difficulty of proving that the defendant’s interaction with the plaintiff satisfies battery’s contact requirement;
(b) It is quite possible that liability would be recognized under Sec. 104 of the Restatement Third, Intentional Torts to Persons (Tentative Draft No. 1, April 8, 2015, approved by American Law Institute):

January 12, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, January 11, 2017

11th Cir: Economic Loss Rule Applied in Products Case

In the National Law Review, Walter Latimer has a column about a recent Eleventh Circuit products case upholding the economic loss rule:

The Economic Loss Rule is a doctrine of law that prohibits a product liability claim being brought against a manufacturer for a defective product that only destroys itself, without harm to other property or to a person. In those instances where the product fails but only damages itself and nothing else, the plaintiff’s only remedy is to sue for breach of contract against the manufacturer of the product. The plaintiff cannot seek recovery from the manufacturer under product liability causes of action. The Economic Loss Rule has historically served as the boundary between tort and contract law. Despite the fact it is part of the basic fabric that makes up tort law, it is still challenged by plaintiffs in product liability actions.

In Eiber v. Toshiba Americas Medical Systems, the plaintiff radiologist tried to sue an international electronics manufacturer for failing to maintain an MRI scanner that was out of date. The manufacturer advised the radiologist that the scanner had reached the end of its useful life, and the manufacturer would no longer provide service to it under contract. The aging scanner eventually stopped working, which the plaintiff claimed was due to negligent repairs rather than a failure of the scanner.

The Eleventh Circuit affirmed the district court's dismissal on the basis of the economic loss rule.

January 11, 2017 in Current Affairs, Products Liability | Permalink | Comments (0)

Tuesday, January 10, 2017

AALS Torts Section Chairs 1980-Present

It has been an honor to serve on the AALS Torts & Compensation Systems Section's Executive Committee since January 2012.  I rotated into the Chair position last Friday.  I enjoy history, and began to think about the history of the Section.  The Section was created around 1973; prior to that, AALS organized in "roundtables," which I take to have been less permanent entities.  The AALS has a list of all Section chairs since 1980, which I reproduce below.  The term is now one year, but it appears a two-year term was used during the mid-1990s.  If anyone has further information about the Section's history and would like to share it, please comment on the blog (comments are not immediate) or email me. 

Dominick Vetri University of Oregon School of Law 1/1/1980
Frederick Davis   1/1/1981
Thomas C. Cady West Virginia University College of Law 1/1/1982
Jean C. Love Santa Clara University School of Law 1/1/1983
Harvey S. Perlman University of Nebraska College of Law 1/1/1984
James A. Henderson, Jr. Cornell Law School 1/1/1986
Jean C. Love Santa Clara University School of Law 1/1/1987
David G. Owen University of South Carolina School of Law 1/1/1988
Walter Probert University of Florida Fredric G. Levin College of Law 1/1/1989
Lucinda M. Finley University at Buffalo School of Law, The State University of New York 1/1/1990
Aaron D. Twerski Brooklyn Law School 1/1/1991
Oscar S. Gray University of Maryland Francis King Carey School of Law 1/1/1992
Diane C. Maleson Temple University, James E. Beasley School of Law 1/1/1993
Jennifer H. Arlen New York University School of Law 1/1/1995
Richard W. Wright Chicago-Kent College of Law, Illinois Institute of Technology 1/1/1997
Mark F. Grady University of California, Los Angeles School of Law 1/1/1999
Catharine Wells Boston College Law School 1/1/2000
Stephen G. Gilles Quinnipiac University School of Law 1/1/2001
Keith Norman Hylton Boston University School of Law 1/1/2002
Anita Bernstein Brooklyn Law School 1/1/2003
Kenneth W. Simons University of California, Irvine School of Law 1/1/2004
Peter A. Bell Syracuse University College of Law 1/1/2005
Richard L. Cupp, Jr. Pepperdine University School of Law 1/1/2006
James R. Hackney, Jr. Northeastern University School of Law 1/1/2007
Ellen Michelle Bublick The University of Arizona James E. Rogers College of Law 1/1/2008
John C.P. Goldberg Harvard Law School 1/1/2009
Catherine M. Sharkey New York University School of Law 1/10/2010
Michael L. Rustad Suffolk University Law School 1/8/2011
John Valery White University of Nevada, Las Vegas, William S. Boyd School of Law 1/8/2012
Jennifer Wriggins University of Maine School of Law 2/14/2013
Andrew R. Klein Indiana University Robert H. McKinney School of Law 2/14/2014
Anthony J. Sebok Benjamin N. Cardozo School of Law 2/14/2015
Leslie Kendrick University of Virginia School of Law 2/14/2016


January 10, 2017 in TortsProfs | Permalink | Comments (0)

Monday, January 9, 2017

Goldberg & Zipursky on Hohfeld

John Goldberg & Ben Zipursky have posted to SSRN Hohfeldian Analysis and the Separation of Rights and Powers.  The abstract provides:

At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III.

Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.

(Via Solum/LTB, where it is the Download of the Week)

January 9, 2017 in Scholarship | Permalink | Comments (0)

Friday, January 6, 2017

Nader on Tort Reform

Plaintiffs' lawyer Mike Papantonio interviews Ralph Nader on tort reform here.

January 6, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, January 4, 2017

AALS Torts Section in SF

The AALS Section on Torts and Compensation Systems panel information:

"Gun Regulation and Private Law"
Friday, Jan 6, 1:30-3:15 pm
Hilton San Francisco Union Square, Ballroom Level, Continental Parlor 3.
Adam Scales, Rutgers Law School
Stephen Sugarman, UC-Berkeley School of Law
Christine Van Aken, San Francisco City Attorney's Office
Leslie Kendrick, Chair of the Section/Moderator, UVa Law
The Section is also co-sponsoring the Litigation panel on MDL Problems; it is from 10:30-12:15 on Friday in Golden Gate 7 on the lower level.

January 4, 2017 in Conferences, Current Affairs | Permalink | Comments (0)

Tuesday, January 3, 2017

Porat on Calabresi's "Future of Law and Economics"

Ariel Porat has posted to SSRN The Future of Law and Economics and the Calabresian External Moral Costs.  The abstract provides:

This short essay is a contribution to a symposium held at the Hebrew University of Jerusalem on Professor Calabresi's "The Future of Law and Economics." It focuses on Calabresi's arguments that tort law facilitates a modified market for merit goods, and that external moral costs should be seriously taken into account by the state and the law in making and implementing difficult social choices. The essay points out two categories of situations where tort law fails to facilitate modified markets for merit goods, and highlights the hurdles in considering external moral costs at least in some cases.

January 3, 2017 in Books, Conferences, Scholarship | Permalink | Comments (0)

Friday, December 30, 2016

NM: "Ban the Box" Meets Negligent Hiring and Retention

The New Mexico legislature is considering a law that would extend the prohibition on asking job applicants whether they have criminal convictions to the private sector.  Currently, governmental units are prohibited from asking the question at the screening phase.  The goal is to allow people with convictions to more easily reintegrate into society.  The rub, however, is that New Mexico recognizes the torts of negligent hiring and retention.  An employer who hires or retains an employee who commits a tort when the employer knew or should have known of the risk posed by the employee could be liable.  In his column, Joel Jacobsen calls for protections for employers as part of the new law.  Of course, employers can still ask the question in subsequent phases of the hiring process.

December 30, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, December 28, 2016

NJ: Federal Law Does Not Preempt Claims of Failure by a Generic Drug Manufacturer to Update Warnings in a Timely Manner

The National Law Review analyzes New Jersey's ruling that "federal law does not pre-empt state law claims alleging that a generic drug manufacturer failed to timely update the warnings for its product to match those of the brand-name counterpart."

December 28, 2016 in Current Affairs | Permalink | Comments (0)

Monday, December 26, 2016

Indiana vs. Kentucky on Med Mal Tort Reforms, Insurance Premiums, and Medical Costs

The Courier-Journal compares Indiana and Kentucky on medical malpractice tort reforms, insurance premiums, and medical costs.  The gist:

Indiana is only one of six states that cap damages of all kinds – including lost wages and the cost of medical treatment – to victims of medical malpractice.

Though the figures are scheduled to rise over the next three years, for now, individual doctors and hospitals are only on the hook for $250,000, and the total award to plaintiffs is limited to $1.25 million.

Patients also must submit their claims to medical malpractice review panels, before they can sue and go to court.  And punitive damages are limited to three times the actual damages to the plaintiff.

The result is cheaper medical malpractice insurance premiums for doctors in Indiana, which Michael Rinebold, director of government relations for the Indiana State Medical Association, said encourages doctors to locate there.

Figures collected from malpractice insurance brokers show that doctors pay about 25 percent less for insurance in Indiana than Kentucky.

But doctors in Kentucky pay out only slightly more in average claims per year than their counterparts in Indiana, according to the National Practitioner Data Bank. And consumers in the two states pay virtually the same amount per person on doctors and hospitals, according to the most recent data available.

Read the full article here, and a related piece here.

December 26, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, December 22, 2016

Ikea Will Pay $50M for 3 Deaths Caused by Tipping Dressers

The families of three toddlers killed by Ikea dressers tipping over on top of them have settled with Ikea for $50 million.  It is believed to be one of the highest payouts for the death of children in U.S. history.  The money will be split equally among the three families, with an undisclosed amount paid in attorneys' fees. has the story.

Thanks to David Raeker-Jordan for the tip.

December 22, 2016 | Permalink | Comments (0)

MI: Bill Passes to Restrict Med Mal Damages to Amount Paid, Not Charged

In July, the Michigan Supreme Court ruled that state law in med mal cases allowed plaintiffs to recover the gross amount of medical bills charged by providers.  Because insurers, Medicare, and Medicaid have provider rates substantially less than the charged rates, plaintiffs were able to recover more than the amount paid.  The Michigan Senate has passed a bill restricting the amount of compensation in med mal cases to the amount paid, regardless of the amount charged.  The bill is on its way to the governor for his signature.  The Daily Reporter has the story.

December 22, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)