TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, November 15, 2016

The Trump Administration and Preemption

Some thoughts by James Beck at JDSupra Business Advisor.

November 15, 2016 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0)

Friday, November 11, 2016

Institute for Law Teaching and Learning Summer 2017 Conference

The Institute for Law Teaching and Learning announces its Summer 2017 Conference, "Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302," at the University of Arkansas at Little Rock William H. Bowen School of Law on July 7-8, 2017:

The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,”  such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.”  The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills.  The deadline to submit a proposal is February 1, 2017. 

Call for Proposals:   Download CFP Summer 2017 Bowen Conference

November 11, 2016 in Conferences | Permalink | Comments (0)

Thursday, November 10, 2016

Baker, Helland, & Klick on Texas Med Mal Settlements

Tom Baker, Eric Helland, and Jonathan Klick have posted to SSRN Everything's Bigger in Texas:  Except the Medmal Settlements.  The abstract provides:

Recent work using Texas closed claim data finds that physicians are rarely required to use personal assets in medical malpractice settlements even when plaintiffs secure judgments above the physician's insurance limits. In equilibrium, this should lead physicians to purchase less insurance. Qualitative research on the behavior of plaintiffs suggests that there is a norm under which plaintiffs agree not to pursue personal assets as long as defendants are not grossly underinsured. This norm operates as a soft constraint on physicians. All other things equal, while physicians want to lower their coverage, they do not want to violate the norm and trigger an attack on their personal assets. This constraint should be less effective when physicians have other ways to shield their assets, such as through large personal bankruptcy exemptions like those available in Texas. Settlement data from the National Practitioner Data Bank indicate that settlements in Texas are abnormally low, just as they are in other jurisdictions with unlimited homestead exemptions in bankruptcy. Consistent with theory, we find that more generous exemptions are also associated with lower insurance prices and lower levels of insurance coverage. These results suggest that the large "haircuts" and low insurance limits observed in the Texas data may be driven by Texas's generous bankruptcy provisions. At a minimum, Texas is not generally representative of other jurisdictions. This weakens the case for extrapolating conclusions from Texas data to other jurisdictions.

November 10, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, November 9, 2016

Corporate Liability Under the ATS

Plaintiffs in Jesner v. Arab Bank have filed a petition for cert with the USSC, asking for a resolution of the issue whether the Alien Tort Statute permits corporate liability for violations of the law of nations:

The question the Jesner plaintiffs, represented by Stanford Law School and two law firms, now ask the Court to address is the question left unanswered in Kiobel: whether a corporation, as opposed to a natural person, can be found liable under the ATS. The certiorari petition notes that several Courts of Appeal—by a margin of, according to the petition, “four to one”—have decided that the ATS permits corporate liability. Plaintiffs also argue that the Supreme Court’s decision in Kiobel suggests (or appears to suggest) that the ATS contemplates corporate liability. The petition disputes what it describes as the Second Circuit’s outlier position that, following Kiobel’s introduction of the “touch and concern” test, the issue of whether the ATS allows corporate liability will “rarely” matter. In support, and among other arguments, the petition points to another case currently making its way through the Second Circuit, involving terror financing allegations against another financial institution. 

Lexology has details.

November 9, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, November 8, 2016

VA: Rolling Stone Liable for Defamation of UVa Administrator

On Friday, a federal jury in Charlottesville, Virginia determined that Rolling Stone defamed a University of Virginia administrator in its story about the gang rape of "Jackie" at a fraternity party:

The 10-member jury in Charlottesville sided with administrator Nicole Eramo, who claimed the article portrayed her as a villain. Jurors found that journalist Sabrina Rubin Erdely was responsible for libel, with actual malice, and that Rolling Stone and its publisher were also responsible for defaming Eramo.

Eramo claimed the November 2014 article falsely said she discouraged the woman identified only as Jackie from reporting the incident to police. A police investigation found no evidence to back up Jackie's claims.

The Richmond Times-Dispatch has the story.

November 8, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, November 3, 2016

MI: Flint Residents Can Sue State Over Water Contamination

Last week, a Michigan Court of Claims judge ruled that residents of Flint can sue the state for the lead contamination in their water supply.  The Detroit News has the story.

 

November 3, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, November 2, 2016

Sebok on Causation

Tony Sebok has posted to SSRN Actual Causation in the Second and Third Restatements:  Or, the Expulsion of the Substantial Factor Test.  The abstract provides:

This chapter contrasts the Restatement (Third) of Torts: Liability for Physical Harm’s Chapter Five (on Factual Cause) and Chapter Six (on Scope of Liability) with the treatment of causation in the Restatement (Second) of Torts’ Chapter 16 (“Legal Cause”). It was written for a book on causation in both common law and civilian jurisdictions.

The chapter examines in some detail the arguments that led the Reporters of the Third Restatement to reject the expression “substantial factor” and how the work done by this phrase in the domain of cause-in-fact was handled by and expanded conception but-for causation to which was added the idea of the “causal set model”, or NESS Test. The work done by the phrase “substantial factor” in the domain of proximate cause is now done by the concept of “scope of the risk” and variants of the risk rule.

The chapter emphasizes the seriousness with which the Third Restatement sought to remove from the question of cause-in-fact any subjective judgment it deemed a matter of proximate cause. The chapter points argues that this focus on rendering cause-in-fact judgments purely objective, when combined with the causal set model, produces a final product where much of the normative work that was once done in causation is now pushed off into questions of apportionment.

November 2, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, November 1, 2016

JOTWELL Torts: Scheuerman on Janssen on a Duty to Sell Life-Saving Medicine

Over at JOTWELL, Sheila Scheuerman has a review of William Janssen's A "Duty" to Continue Selling Medicines.

November 1, 2016 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, October 31, 2016

Gifford Named Jacob A. France Professor of Torts at Maryland

DGifford

Don Gifford was named the Jacob A. France Professor of Torts at the University of Maryland Carey School of Law on October 27, 2016. The title had been held by Oscar Gray until his retirement, and Oscar remains the Jacob A. France Professor of Torts Emeritus. Don delivered a lecture entitled "The Stubborn Survival of the Steam-Locomotive Compensation System in the Century of Driverless Cars." He argued that changes in technology and the impact of technological changes on the economy were the most important determinants of change in tort law. He then explored why there was so little change in the fundamental substantive principles of tort law during the twentieth century and why the tort system had generally prevailed over attempts to enact alternative compensation systems. 

October 31, 2016 in TortsProfs | Permalink | Comments (1)

Friday, October 28, 2016

The Use of Race and Gender to Calculate Damages

The Washington Post ran a story this week about using race and gender to calculate damages.  (See prior coverage here.)  Among others, the story quotes Martha Chamallas and Jenny Wriggins.  Here's a sample:

The practice of using race and gender to determine personal injury damages, which dates back at least a century, has produced some striking results.

The case of the male fetus and 6-year-old girl came in 1996, after a collision between a postal truck and a car left the car’s passengers – the girl and her godmother, a pregnant 33-year-old ­– dead.

In the case, which took place in a federal court in the Southern District of Georgia, both sides agreed the male fetus’s award to be higher than the girl’s, largely because of the difference in how much they were expected to earn over their lifetime, commonly known as “future lost income.” That’s despite testimony that the girl “exhibited a level of intellectual ability and behavior that surpassed that of most other students” and had a college fund in the works. The fetus’s mother had not completed college and the father was unknown, according to court records.

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

Thursday, October 27, 2016

2016 AALS Torts Section Newsletter

Stacey Tovino has done a great job putting together the Section's newsletter:   Download Newsletter (Oct. 2016) (1)

October 27, 2016 in Books, Conferences, Scholarship | Permalink | Comments (0)

Wednesday, October 26, 2016

Farber on Trespass, Nuisance, and Privacy Torts as Applied to Drones

Hillary Farber has posted to SSRN Keep Out!  The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones.  The abstract provides:

The drone industry is burgeoning and there is boundless excitement over the potential civil and commercial applications of these aerial observers. Drones are also fun recreational toys that have more capabilities than their predecessor - the remote controlled helicopter. But along with the benefits comes the potential for misuse. More and more frequently concerned spectators are reporting drones flying around the windows of homes, backyards, and at beaches and sporting events. In some places people are even shooting them down.

We have entered a new frontier of aerial observation with the unmanned aircraft. As is often the case with new technology, drones (or unmanned aircraft systems as they are commonly referred) are outpacing the law. Controversies over whether a drone can hover above one’s property, capture images of those on the ground without consent, destroy a drone that is invading one's privacy are ripe legal issues. The question being asked by lawmakers, practitioners, journalists, and the general public is whether existing laws provide adequate remedies or whether this technology falls through a legal gap? This article sets out to answer that question at a time when lawmakers are feverishly proposing drone specific legislation, possibly duplicating laws already in place.

At present, 45 states have considered legislation seeking to regulate drones. Twenty-five states have passed laws that limit the use of drones. The majority of these laws include civil causes of action for capturing images and recordings of individuals by a drone without consent. Before more incidents ripen in to lawsuits, we need to evaluate whether our long-standing common law torts - trespass, nuisance, intrusion upon seclusion, and publication of private facts, offer remedies of equal or greater value than the drone specific legislation being considered. To the extent that common law torts fall short of providing adequate remedies at law, understanding their shortcomings will strengthen future drone legislation.

October 26, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, October 25, 2016

PA: Why Are Tort Filings Rising in Lackawanna County?

According to data from the Administrative Office of Pennsylvania Courts covering 2012-2014, Lackawanna County has 3.2 filings for every 1,000 residents, second in the state only to Philadelphia.  Why so high?  Lawyers and commentators discuss advertising, the number of lawyers, the presence of multiple courthouses, the presence of governmental organizations with in-house staff, the proximity of major highways, and the lack of tort reform.  The Times-Tribune has the story.

October 25, 2016 in Current Affairs | Permalink | Comments (0)

Friday, October 21, 2016

FAA Preemption

In April, the Third Circuit ruled that the FAA does not preempt state law standards in aviation products liability; FAA standards do not eliminate the possibility of a design defect:

The Appeals Court turned to a federal case, Abdullah v. American Airlines, in which the FAA was found to have jurisdiction in the “field of aviation safety.” But the Appeals Court determined that applied to in-air operational safety issues and “does not include product manufacture and design, which continues to be governed by state tort law.” The court further noted that courts “have consistently applied state law to tort claims arising from airplane crashes.”

The case is being appealed to the Supreme Court.  AIN Online has details.

October 21, 2016 in Products Liability | Permalink | Comments (0)

Thursday, October 20, 2016

Rickard & Behrens on the Need for Transparency in 3rd-Party Litigation Funding

Lisa Rickard & Mark Behrens have a piece in Law360 arguing for disclosure regarding 3rd-party litigation funding.  The conclusion:

The U.S. Chamber Institute for Legal Reform and others have urged the Advisory Committee on Civil Rules to adopt an amendment to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure that would require disclosure of third-party litigation funding at the outset of a lawsuit. So far, the committee has taken a “wait and see” approach. The Catch-22 is that, because third-party funding of lawsuits occurs in secrecy, the proof needed to support reform is elusive.

Federal judges in individual cases, particularly those managing multidistrict litigations, have the power to bring about transparency regarding the presence of third-party litigation funders in their courts. They should make all case management orders provide for the disclosure of third-party litigation funding. This would improve justice in those courts and give the Advisory Committee the data it needs to determine how best to bring third-party litigation funding into the sunlight.

October 20, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, October 19, 2016

October 18, 1926

...is the day Oscar Gray was born.  He celebrated his 90th birthday in Baltimore yesterday at a reception put on by his colleagues at the University of Maryland and the publishers of his treatise, Wolters Kluwer.  Happy birthday!

OGray

October 19, 2016 in TortsProfs | Permalink | Comments (1)

Tuesday, October 18, 2016

Dorfman on the Asymmetric Standard of Care in Negligence

Avi Dorfman has posted to SSRN Negligence and Accommodation.  The abstract provides:

Whereas the Restatement of Torts as well as leading economic and justice-based approaches to the explanation of the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms of the interaction between them. This way of proceeding resonates well with a powerful egalitarian idea of accommodating, rather than overlooking, relevant differences—that is, treating the plaintiff and the defendant differently is necessary for the duty of reasonable care to give effect to the qualitative difference between the life and limb of the former, on the one hand, and the autonomy of the latter, on the other. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, which is to say to relate as substantively equals.

October 18, 2016 in Scholarship | Permalink | Comments (0)

Monday, October 17, 2016

Bloomberg Series on Amusement Park Injuries

Sunday, October 16, 2016

Sandy Hook Lawsuit Against Gun Manufacturers Dismissed

A Connecticut judge dismissed the case filed by parents of children killed at Sandy Hook Elementary School against gun manufacturers.  The parents alleged negligent entrustment in an attempt to get around the Protection of Lawful Commerce in Arms Act.  The judge ruled the plaintiffs did not meet the exception.  WaPo has the story.

October 16, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, October 14, 2016

Galasso & Luo on Tort Reform and Innovation

Alberto Galasso (Toronto-Strategic Management) & Hong Luo (Harvard Business School) have published Tort Reform and Innovation.  The abstract provides:

Current academic and policy debates focus on the impact of tort reforms on physicians’ behavior and medical costs. This paper examines whether these reforms also affect incentives to develop new technologies. We find that, on average, laws that limit the liability exposure of healthcare providers are associated with a significant reduction in medical device patenting and that the effect is predominantly driven by innovators located in the states passing the reforms. Tort laws have the strongest impact in medical fields in which the probability of facing a malpractice claim is the largest, and they do not seem to affect the amount of new technologies of the highest and lowest quality. Our results underscore the importance of considering dynamic effects in the economic analysis of tort laws.

Download here:   Download GalassoHong_27Sept16 (1)

October 14, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)