TortsProf Blog

TortsProf Andrew Klein Named Dean At IU-Indianapolis

From Faculty Lounge comes the news that Andrew Klein has been named Dean at Indiana University at Indianapolis School of Law.  Klein's research focuses on a variety of tort issues, including environmental torts.  

- SBS

James Beck: "Using Reott's Shiny New Strict Liability Defense"

          In Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012), the Pennsylvania Supreme Court once again dodged the existential question of Second versus Third Restatement, because the plaintiff’s manufacturing defect claim was subject to a “strict” liability standard even under the Third Restatement.  See Id. at 1101-02 (Saylor, J. concurring) (discussing how “strict products liability was originally fashioned with manufacturing defects in mind”).  Instead the court addressed, for the first time, the role that plaintiff conduct played in proof of causation in a strict liability case under Restatement (Second) of Torts §402A (1965).

          In Reott the product, a tree stand intended as a hunter’s aerial perch, was manufactured without its proper double stitching.  When the plaintiff attempted to “set” the tree stand (remove slack from the straps) by bouncing on it, the stand collapsed and the plaintiff fell to the ground.  55 A.3d at 1090-91.  At trial, the plaintiff received a directed verdict on the manufacturing defect, which was essentially uncontested.  Id. at 1091. The defendant contested causation, arguing that the plaintiff’s method of setting the tree stand, not the defect, had caused the accident.  Id.  The plaintiff claimed that under strict liability, all evidence of his conduct was inadmissible.  The trial court allowed the jury to consider the plaintiff’s conduct as evidence of causation:

The court . . . permitted that question [causation] to go to the jury.  [Defendant] presented evidence to the jury that [plaintiff’s] self-taught “setting the stand” maneuver constituted highly reckless conduct, which negated . . . the defect in the [product]. . . .  [T]he jury returned a verdict in favor of [defendant].

Id.  The Superior Court reversed, holding that “the evidence introduced at trial was insufficient as a matter of law to support [defendant’s affirmative defense of highly reckless conduct.  Id. at 1093.

          At the Supreme Court, plaintiff argued that in strict liability, it was error to introduce evidence of plaintiff conduct – since comparative negligence was not a defense – even on the question of causation.  The Supreme Court, disagreed and for the first time held that there are circumstances under which plaintiff conduct is admissible in strict liability.

          The defense that the Supreme Court recognized, which had been sporadically permitted in intermediate appellate decisions for decades, was more stringent than mere comparative fault.  First of all, it is an affirmative defense upon which the defendant bears the burden of proof:

[W]e hold that a defendant in a Section 402A action must plead and prove, as an affirmative defense, that the plaintiff acted in a highly reckless manner, if such conduct is asserted.

Reott, 55 A.3d at 1101.  As an affirmative defense, highly reckless plaintiff conduct must also be pleaded.  Id. at 1100.

          Second, the defense is similar to assumption of the risk (although lacking the element of subjective understanding), in that the “highly reckless” conduct must – if believed by the jury – amount to the “sole cause” of the accident:

This accepted definition of highly reckless conduct exemplifies that a defendant can affirmatively plead and prove “sole cause,” i.e., that a curing of any defect would not have prevented the injury because only the plaintiff's conduct caused the injury; or “superseding cause,” i.e., that the plaintiff acted in such an outrageous and unforeseeable fashion that the conduct superseded any “but for” or legal causation the product contributed to the injuries.

Id. at 1100.  “[B]ecause highly reckless conduct, by its very nature, is that which is essentially unforeseeable and outrageous, if it truly exists in a case, it must be the cause of the injuries sustained.”  Id. at 1101 (emphasis added).

          The Court justified its relatively strict version of a causation defense in strict liability as a way to prevent defendants from turning it into the equivalent of the now-prohibited defense of comparative/contributory fault:

[U]nder Pennsylvania's scheme of products liability, evidence of highly reckless conduct has the potential to erroneously and unnecessarily blend concepts of comparative/contributory negligence with affirmative proof that a plaintiff's assumption of the risk, product misuse, or, as styled herein, highly reckless conduct was the cause of the injury. Indeed, without some further criteria, highly reckless conduct allegations by defendants could become vehicles through which to eviscerate [strict liability] by demonstrating a plaintiff’s comparative or contributory negligence.

Id. at 1098.  Practically as an afterthought, the Court affirmed, on grounds that the evidence did not establish the defense (there being no proof that a non-defective stand would have collapsed in a similar manner).  Id. at 1101.

          Thus, after Reott defendants now have an affirmative causation defense, based on the plaintiff’s “highly reckless” conduct, in strict liability cases.  To the extent it can make out a jury submissible case, the defense can introduce such conduct by the plaintiff.  The question thus arises, what kind of conduct can meet that test.  The most immediate answer lies in prior precedent, and not just cases asserting reckless conduct in the lower courts.  Given similarities that the Court noted between reckless conduct, superseding cause, and product misuse, conduct creating any of these defenses probably creates them all.

Continue reading "James Beck: "Using Reott's Shiny New Strict Liability Defense""

Blogger Guest Blogger Series

Starting tomorrow, we begin a series for guest bloggers who already blog on torts at other sites.  We have a nice mix of plaintiff-oriented and defense-oriented bloggers.  The posts will always appear on Fridays, but not necessarily consecutive Fridays.  Enjoy!

The first in the new guest blogger series is authored by James Beck of Drug and Device Law Blog.  Beck is counsel in Reed Smith's Philadelphia office.  He handles complex personal injury and product liability litigation. He has overseen the development of legal defenses, master briefs, appellate briefs, and dispositive motions in numerous high-profile mass torts.  He has also filed more than 60 appellate amicus curiae briefs, mostly on product liability issues.  In 2011, he received the Product Liability Advisory Council's John P. Raleigh Award, the highest honor given to an organization member. He is the lead author of the ALM treatise Drug and Medical Device Product Liability Litigation Deskbook.  Since 2006, Mr. Beck has been the lead blogger and co-host of the "Drug and Device Law Blog," which has been awarded the ABA's "Top 100" legal blog status for each of the last four years.

--SBS & CJR

Kochan on Property, Contract, and Tort

Donald Kochan (Chapman) has posted to SSRN The Property Platform in Anglo-American Law and the Primacy of the Property Concept.  The abstract provides:

This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines — property, tort, and contract — have their own separate and distinct existence.

In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned — including the right to exclude, ownership, dominion, authority, and the sic utere maxim — normally segregated to our discussions of property law but that should be considered equally necessary to contract and tort law.

In examining these property concepts, this Article goes further to contend that ownership in the self has a vital place in the property discussion. Every legal system must decide the level of protection or recognition of property in the self before it can make any decision on what rules to create in relation to real property, tort or contract. The rules in all three develop on their own but each can be measured from their consistency or deviation from a starting base of absolute property ownership in the self. Once we understand that the platform for each of these areas of law is based in the property concept, so too can we then have a metric for discussion to evaluate deviations from pure property principles that develop in each doctrine (or separate discipline) thereby allowing us to also isolate the most unique characteristics attributable only to a discrete subject like contract or tort. But understanding that the property concept is at the base of all three legal species — property, contract and tort — is nonetheless the necessary starting point for an understanding of any of them.

--CJR

Teaching Insurance in 1L Torts Classes

Randy Maniloff of White & Williams writes a free bi-weekly insurance news letter, Coverage Opinions.  In his latest issue (pdf), Maniloff explored whether insurance liabilty coverage should be covered within the first-year Torts class.  He asked a third year student at Penn to analyze how Katko v. Briney (the infamous spring gun case) would have played out if the Brineys had homeowners insurance coverage.  Very interesting and worth a read.

- SBS

Leslie Kendrick: "The Impossibility of Impossibility Preemption"

          When the Supreme Court hears oral argument in Mutual Pharmaceutical Co. v. Bartlett, it will embark on its third elaboration of “impossibility preemption” in the prescription-drugs context.  This line of cases is reshaping preemption doctrine, and it is doing so with little regard for a basic legal idea: the distinction between a property rule and a liability rule.

          The question at issue is whether it is “impossible” for prescription drug manufacturers to comply with both Food & Drug Administration requirements and state tort law.  State tort liability for design defect or failure-to-warn is predicated on a judgment that a drug or drug label was not designed safely.  But manufacturers generally cannot alter drugs or labels without FDA approval.  Thus, manufacturers argue, it is impossible for them to comply with both tort law and FDA requirements.

          The Supreme Court implicitly accepted this view in 2009’s Wyeth v. Levine, when it found no impossibility preemption of a failure-to-warn claim against Wyeth.  The Court rested this conclusion on the view that, under FDA regulations, Wyeth could have changed its drug’s warning label without prior FDA approval.  Wyeth thus could have avoided tort liability while complying with FDA rules. 

          This analysis was always dubious: labeling changes ultimately require FDA approval, and thus a manufacturer’s power to make unilateral changes is short-lived and mostly hypothetical.  But there soon arose a side effect which the majority in Wyeth, led by Justice Stevens, surely neither foresaw nor intended.  To the extent that the power to make unilateral changes exists at all, it is enjoyed only by brand-name manufacturers and not by makers of generic drugs.

          Thus when, in PLIVA, Inc. v. Mensing, the manufacturer of a generic drug made an impossibility preemption claim, the Court sprang the trap it had set in Wyeth.  If impossibility was avoided only to the extent that manufacturers could change their labels, then impossibility must exist with respect to generic drugs.

          In Mutual Pharmaceutical Co. v. Bartlett, the Court is being asked to extend this analysis to preempt some suits against generic manufacturers for design defects.  And the United States, for its part, appears to ask the Court to feel free to endorse this rule for all design-defect claims, for both generic and brand-name drugs, on the theory that no manufacturer can alter the substance of its drug without FDA approval.  What started as a ground for rejecting preemption in Wyeth is now poised to eliminate virtually all tort liability for prescription drug manufacturers, all in the name of “impossibility.” 

          But if we know one thing about tort law, we know that it is not impossible to comply with it and FDA requirements simultaneously.  We know this because drug manufacturers have been complying with both since the passage of the Federal Food, Drug, and Cosmetic Act in 1938.   

         Moreover, anyone briefed in the most basic attributes of tort liability and FDA regulation can explain why.  Tort liability requires manufacturers to pay damages, not to alter their products.  A manufacturer may market a drug as approved while paying tort damages.  The manufacturer has other options, such as seeking to modify a drug or label, or developing improved products.  But it is entirely possible to change nothing and comply with both sets of laws.

Continue reading "Leslie Kendrick: "The Impossibility of Impossibility Preemption""

Guest Blogger Leslie Kendrick

Today's Guest Blogger is Leslie Kendrick, an Associate Professor at the University of Virginia School of Law.  Kendrick received a B.A. in classics and English as a Morehead Scholar at the University of North Carolina at Chapel Hill. She received her master's and doctorate in English literature at the University of Oxford, where she studied as a Rhodes Scholar. In law school she served as essays development editor for the Virginia Law Review and received numerous awards, including the Margaret G. Hyde Award, the Hardy Cross Dillard Scholarship, the Law School Alumni Association Best Note Award, the Brown Award for Excellence in Legal Writing, the Food & Drug Law Institute H. Thomas Austern Short Paper Award, and the Virginia State Bar Family Law Book Award. Before joining the Virginia's faculty, Kendrick clerked for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit and for U.S. Supreme Court Justice David Hackett Souter.  She is currently visiting at UCLA.

An Injury Law Constitution

I intended to blog this conference session-by-session starting yesterday, but a computer malfunction based on user error prevented it. 

Session One (Introduction and Chapter One)

Marshall began the conference by summarizing the thesis of his book, drawn from his study of injury law that has led him to believe that it has some of the qualities of a constitution.  He includes within injury law not only tort law, but also compensation systems like workers' comp and the 9/11 Victim Compensation Fund, and statutory safety regulation.  Shapo said the injury law constitution "embodies the tensions" within the field.  He pointed specifically to the tensions among efficiency and social and individual justice.  He also focused on the themes of choice, responsibility, and safety.

Bob Rabin was a commentator.  He praised Shapo for the use of a "wide-angle lens" on the subject.  He said it was an ambitious undertaking and stated he was in basic agreement with Shapo.  He noted, however, that he had a different focus.  Rabin said that while Shapo looks at injury law and sees a coherent constitution-like structure, he sees a patchwork design.  He noted the pragmatic and public policy constraints in each of the 3 areas of tort, compensation systems, and safety regulations.

Responding to comments, Shapo stated his work was more descriptive than normative and described the injury law constitution as a "series of battles with ebbs and flows."  As Shapo acknowledges, the injury law constitution does not provide a direct measuring rod for statutes and judicial decisions as does the traditional American conception of a constitution.  Based on that acknowledgement, comments and questions focused on the work done by his analogy to a constitution.  To me, it seems the most likely use of the analogy is to present injury law in a broader context than tort alone.  Additionally, Shapo's concept of the injury law constitution "embodying the tensions" is similar to the way the U.S. Constitution is viewed by many as providing a never-ending argument over government.  Shapo offers an alternative phrasing, "a constitutive injury law," for those who might prefer it.

Session Two (Chapters Two and Seven on Power)

Shapo began the session by stating that behind many tort cases is a concern over checking power.  In tort, he pointed to products liability, with its concern for the power of manufacturers, medical malpractice, IIED (with its focus on employment relationships and sexual harassment), and constitutional torts (a phrase he coined in a 1965 article), illustrating safety regulation, he pointed to OSHA, and for compensation systems, he pointed to workers' comp.

Cathy Sharkey began by stating that perhaps acting as a check on power was a further analogy to a constitution.  She stated a theme of the book was a preference for decisions at the "trench level," jurors in many cases.  She also questioned whether a concern with power would mean that tort should dominate contract in many instances.  Finally, she discussed preemption and pushed Shapo to focus more on it.

Comments and questions focused on power relationships in settlement, between federal and state law, and between plaintiffs and plaintiffs' attorneys.

The evening concluded with glowing tributes to Shapo from his colleagues and included statements from Judge Calabresi and Justice Scalia.

Session Three (Chapter Nine on Rationales)

Shapo was unfortunately late this morning because of a terrible car crash on Lake Shore Drive last night.  Anita Bernstein had to start speaking before his arrival.  She indicated that Shapo approved of a number of tort rationales:  safety, efficiency, freedom, corrective justice, apology, vindication, punishment, social justice, uniformity, and rationality.  She discerned a normative streak hidden in Shapo's descriptive project.  She stated that one needed to consult his prior writings to see what he disapproves of.  The list includes:  "dangerous products," an "obsession with comparative institutional analysis," and "failure to give sufficient weight to competing points of view."

Comments and questions focused on whether Shapo had a clear hierarchy for his list of rationales.  Shapo was able to join the session at this point and acknowledged he considered himself a pluralist and was not attempting to present a unifying theory or hierarchy.  Instead, his goal was to identify a catalog of rationales, goals, and purposes.

Session Four (Conclusion)

Shapo began the final session by revisiting the tension between the individual and society.  He then discussed Judge Hand's tribute to Judge Cardozo, in which he said the wise man was the detached man.  He referred to examples pro and con on judging as ideological, on the one hand, and nonpartisan, on the other.  Referring to a phrase used by a foreign correspondent he found in research before he went to law school, Shapo concluded by saying he hoped his work captured the "smell of the streets."

Jacqueline Zins, the former Deputy Special Master for the 9/11 Fund, was the commentator for this session, focusing on the role of compensation systems in Shapo's injury law constitution.  She detailed the statute creating the 9/11 Fund and all of its gaps.  She further detailed how Ken Feinberg, as Special Master, filled in those gaps.  Much of his focus was on equality and compassion. 

Comments and questions focused on the differences between the Fund and tort law, as well as Zins's declaration (mirroring Feinberg) that the Fund was unique and would not be repeated.

--CJR

Searle Center Book Conference on "An Injury Law Constitution" by Marshall S. Shapo

Today and tomorrow the Searle Center at Northwestern is hosting a conference on Marshall Shapo's An Injury Law Constitution.  The format is interesting; there is a group of about 35 having a roundtable discussion instead of panelists.  There are 4 sessions and each has a commentator to begin the discussion. 

Session One:  Introduction and Chapter One (Bob Rabin)

Session Two:  Chapters Two and Seven (on Power) (Cathy Sharkey)

Session Three:  Chapter Nine (on Rationales) (Anita Bernstein)

Session Four:  Conclusion (Jacqueline Zins, Former Deputy Special Master of the 9/11 Fund)

I plan to blog the sessions (though probably not as they occur), so stay tuned.

--CJR

Chamallas: Introduction to Feminist Legal Theory, 3rd Edition

TortsProf Martha Chamallas has published the Third Edition of Introduction to Feminist Legal Theory.  The description:

The leading text in the field, Introduction to Feminist Legal Theory was the first book that served as an introductory survey of feminist jurisprudence. Its historical view of feminist legal theory places issues in social context and thoroughly reviews the evolving paradigms of contemporary feminism from the 1970s through the present. The full range of legal issues affecting women are covered, including gender discrimination, rape, sexual harassment, motherhood, reproductive issues, and much more. Clear, energetic presentation keeps students engaged and involved with succinct overviews, intellectually stimulating material, and jargon-free prose.

--CJR

WSJ on Asbestos Claims and Fraud

A front page article in yesterday's Wall Street Journal reported on a WSJ investigation into the state of asbestos litigation.  The article, "Asbestos Claims Rise, So Do Worries About Fraud,"  is behind a pay wall. In part, the article reports:

The Wall Street Journal reviewed trust claims and court cases of roughly 850,000 people filed since the late 1980s until as recently as 2012.

The analysis found numerous apparent anomalies: More than 2,000 applicants to the Manville trust said they were exposed to asbestos working in industrial jobs before they were 12 years old.

Hundreds of others claimed to have the most-severe form of asbestos-related cancer in paperwork filed to Manville but said they had lesser cancers to other trusts or in court cases.

The Manville trust declined to comment on individual cases, citing privacy concerns. The trust's general counsel, David Austern, said the trust tightened its oversight after a 2005 claims scandal, adding: "We audit periodically and haven't found any fraud." 

Accompanying the article is a neat graphic showing the connections between various law firms and the asbestos bankruptcy trusts. 

- SBS

Court Denies Summary Judgment in Jackson Wrongful Death Case

The National Law Journal reports that a California trial judge has denied summary judgment in the Michael Jackson wrongful death case.   Jackson's mother and children have sued the concert promoter, AEG Live LLC, for negligence in hiring and supervising Dr. Conrad Murray, Jackson's physician. Trial is scheduled to being April 2nd.  The full story is behind a free registration wall.

Thanks to Lisa Smith-Butler for the alert. 

- SBS

 

The Food Court

The Recorder has an interesting article about the "food litigation" docket in the Nothern District of California.

Thanks to Lisa Smith-Butler for the alert.

- SBS

McGarity & Shapiro on Scientific Evidence in Courts and Agencies

Thomas McGarity (Texas) & Sidney Shapiro (Wake Forest) have posted to SSRN Regulatory Science in Rulemaking and Tort:  Unifying the Weight of the Evidence Approach.  The abstract provides:

This article explores how a regulatory agency decides whether scientific evidence is sufficient to meet a risk trigger – the evidentiary burden that is a prerequisite to regulating a toxic substance, and how a court decides whether there is sufficient evidence to allow a jury to consider the issue of general causation in a toxic tort case. We argue both agencies and courts should apply a weight of the evidence approach because there is no meaningful distinction between the regulatory and tort contexts concerning these issues. The courts, however, have tended to use a corpuscular approach in which scientific evidence is evaluated study by study, rather than evaluating the totality of the evidence, which is the methodology of regulatory agencies. Given the nature of available scientific evidence, a corpuscular approach turns Daubert into a policy decision against compensating people who become ill from exposure to toxic chemicals.

--CJR 

Culhane on the NASCAR Debris Cloud

John Culhane (Widener) has a piece in Slate about spectators injured by by flying objects, with a focus on last month's NASCAR crash.

--CJR

Idaho Declines to Adopt Baseball Rule

In an interlocutory appeal, the Idaho Supreme Court declined to adopt the "baseball rule," limiting a stadium operator's liability for foul balls.  The case, Rountree v. Boise Ball (pdf), involved a Boise Hawks minor league game.  Bud Rountree was hit in the eye by a foul ball, and sued the stadium owners and the Boise Hawks for negligence.   On interlocutory appeal, the Idaho Supreme Court held that "[w]hether watching baseball is inherently dangerous, and the degrees of fault to be apportioned to Rountree and Boise Baseball, are questions for the jury."   A Retuers report has more.

- SBS

Does Duty to Warn Extend to Bystander of a Bystander?

An amicus brief by Pacific Legal Foundation alerted me to an interesting case in the Maryland appellate courts.  In Georgia Pacific LLC v. Farrar, the family member of an employee who worked near other workers using asbestos sued an asbestos manufacturer for failure to warn of the risks of asbestos.  The worker, the plaintiff's grandfather, did not himself work with asbestos.   Thus, the case raises the question of whether the duty to warn extends to a bystander of a bystander.   The Court of Special Appeals held that the manufacturer did have a duty to warn, and the case is now before the Maryland Court of Appeals. 

- SBS

Allen on the Right to Privacy Tort & Natural Law

Anita Allen (Penn) has posted to SSRN Natural Law, Slavery, and the Right to Privacy Tort.  The abstract provides:

In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in a city newspaper is like a slave in bondage?

I argue that the jurisprudence of Pavesich need not be troubling. Pavesich’s natural law argument was supplemented by several positive law arguments. The positive law arguments were a strong enough basis for finding a right to privacy in the common law, as indeed Samuel Warren and Louis Brandeis had previously argued. The observation that the Pavesich court’s natural law argument ran alongside positivistic arguments suggests that the arresting, high-toned natural law and slavery appeals in Pavesich are inessential rhetorical throwaways. But I maintain that the natural law argument and slavery analogy features of Judge Andrew Jackson Cobb’s opinion extolling the “liberty of privacy” are (1) of critical importance to a full contextual understanding of the decision and (2) illuminate the contemporary case for recognizing invasions of privacy as civil injuries to freedom and self-determination. One can poke holes in the logic of Thomas Aquinas and John Locke as scholars have done for centuries. But one can as easily choose to celebrate the spirit of the natural law tradition. The natural law tradition represents efforts rhetorically, rationally, and intuitively to derive principles of justice and goodness from basic facts about human characteristics, needs, and desires, where otherwise binding sovereign law may fall short.

(Via Solum/LTB)

--CJR

Grady on Causation and Foreseeability

Mark Grady (UCLA) has posted to SSRN Causation and Foreseeability.  The abstract provides:

This paper critiques the theory of causation offered by Steven Shavell and proposes a new theory that more successfully predicts the results of proximate cause cases. Two doctrines of proximate cause exist: “direct consequences” and “reasonable foresight.” We can explain case law best if we assume that both doctrines must be satisfied in order for negligence liability to exist. Thus, the two doctrines do not represent alternative conceptions of proximate cause as some analysts have proposed. Proximate cause limitations are prominent when a party has inadvertently, as opposed to deliberately, omitted a reasonable precaution. Actors cannot efficiently reduce their inadvertent lapses to zero. In situations in which the defendant’s conduct has been “possibly efficient,” causation doctrines truncate liability. This truncation has the effect of preserving efficient activity levels and preventing actors from substituting inefficiently durable precaution for nondurable precaution.

--CJR

The Effect of Work Ethic on Workers' Comp and SS Disability Cases

For those of you who subscribe to The Legal Intelligencer, Allison Eberle-Lindemuth (Pond Lehocky Stern Giordano; Widener Law '11) has an article exploring the effect of work ethic on workers' comp and SS disability cases here.

--CJR