TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, March 24, 2016

Touro Seeks Visitor

From Dean Patty Salkin at Touro:

Visiting Professor
Touro Law Center

The Jacob D. Fuchsberg Law Center of Touro College invites applications for Visiting Professors to teach one or more of the following courses: Civil Procedure and Torts during the fall 2016 semester and Evidence the spring 2017 semester. Teaching experience in one or more of these three courses is required.  The Law Center will entertain expressions of interest for one semester and full-year appointments based on teaching experience and curricular needs.

Touro Law Center is a student-centered school conveniently across the street from the Eastern District of New York courthouse and is located only 45 miles from New York City in Suffolk County, Long Island, New York.  We seek candidates with a demonstrated commitment to excellence in teaching and mentoring students, as well as a willingness to engage in the intellectual academic life of the Law Center.

Touro Law is dedicated to the goal of diversity and strongly encourages applications from women and minorities.  Applications will be reviewed on a rolling basis.  Applications must include a resume and statement of interest and should be mailed to Professor Meredith R. Miller, Chair, Faculty Appointments Committee, at<>

March 24, 2016 in TortsProfs | Permalink | Comments (0)

Wednesday, March 23, 2016

ABA Opposes Features of Federal Med Mal Bill

The ABA has sent a letter to House Judiciary Committee chairman Bob Goodlatte voicing opposition to:  (1) a $250,000 cap on noneconomic damages, (2) several liability,  and (3) a provision allowing judges to reduce contingent fees for plaintiffs' attorneys.  The ABA Journal has the story, including a pdf of the letter.

March 23, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Hulk Hogan, Sex Tapes, and Privacy

At Slate, Amy Gajda has a piece on Hulk Hogan's verdict against Gawker, focusing on public disclosure of embarrassing private facts.  She goes through the Restatement and discusses precedents regarding balancing privacy with freedom of the press.

March 23, 2016 in Current Affairs | Permalink | Comments (0)

OT: Franze's The Advocate's Daughter

For anyone who wants an escape from the drama of the real Supreme Court confirmation battle, Anthony Franze, a counsel in Arnold & Porter’s Appellate & Supreme Court practice, has a new novel, The Advocate’s Daughter (St. Martin’s Press), which comes out today.  It’s already gotten some strong reviews:
It’s in bookstores nationwide, but also on Amazon:

March 23, 2016 in Books | Permalink | Comments (0)

Tuesday, March 22, 2016

Lexology: Justice Scalia's Legacy on Products Liability, Class Actions, and Punitive Damages

At Lexology, Anand Agneshwar and Emily May of Arnold & Porter recap Justice Scalia's legacy from a torts perspective.

March 22, 2016 in Current Affairs | Permalink | Comments (0)

Monday, March 21, 2016

Puppe & Wright on Causation

Ingeborg Puppe & Richard Wright have posted to SSRN Causation in Law:  Philosophy, Doctrine and Practice.  The abstract provides:

Causation plays an essential role in attributions of legal responsibility. However, considerable confusion has been generated by the use of causal language to refer not merely to causation in its basic (actual/factual/natural) sense, which refers to the operation of the laws of nature, but also to the quite different normative issue of appropriate legal responsibility. To reduce such confusion, we argue that causal language should be used in the law to refer solely to causation in its basic sense.

While it is often said that the law need not and should not concern itself with philosophical analyses of causation, we argue that a failure to take into account rigorous philosophical analysis of causation in its basic sense and to distinguish it from the normative issue of legal responsibility has been a source of major confusion in the law. After summarizing the relevant modern philosophical analyses of causation, we criticize the strong necessity (sine qua non, 'but for') criterion in its counterfactual form and as a supposed exclusive (factual or counterfactual) test of causation, as well as primitivist "we know it when we see it" accounts. We argue, instead, for the need to employ the comprehensive, factual, weak-necessity/strong-sufficiency criterion, which is based on the "covering law" account elaborated by John Stuart Mill and which has been developed in the modern legal literature as the "NESS" (necessary element of a sufficient set) criterion.

Drawing again on the covering law account, we explain the importance of understanding the required standards of persuasion for proving causation (or any other fact) as generally requiring the generation of a warranted belief rather than a mere statistical probability, and we note the confusion and paradoxes that result from some courts' employing the statistical probability interpretation in situations in which there is inherent uncertainty regarding causation, rather than acknowledging the inherent uncertainty and explicitly addressing the normative responsibility issue.

While, pending further discussion, we disagree on some issues, such disagreement should not detract from our agreement on the most fundamental issues, including the NESS (weak necessity/strong sufficiency) covering law account of causation, the rejection of counterfactual possible worlds analysis, the inclusion of omissions and other absences as causes, the importance of focusing the causal analysis on the properties of events and states of affairs rather than events and states of affairs as a whole, and, relatedly, the importance of focusing the causal analysis for purposes of legal responsibility on the causal connection between the wrongful aspects of the defendant's conduct and the relevant legal injury. Whatever disagreements we may have now or in the future pale in comparison to the defects of any alternative analysis of causation, especially the strong necessity (sine qua non, "but for") analysis as an exclusive and/or counterfactual analysis or any account that purports not to rely on causal laws.

March 21, 2016 in Scholarship | Permalink | Comments (0)

Friday, March 18, 2016

PA: $4.2M Jury Award for Nuisance in Gas Drilling

Last week, 2 Pennsylvania families won a $4.2M jury award against fracking operators for contaminating their wells.  Plaintiffs' fracking verdicts have been rare, with the 2014 Parr case in Texas ($2.9M) leading the way.  BNA Bloomberg has the story, with an emphasis on whether this verdict will embolden potential plaintiffs.

March 18, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, March 17, 2016

Steinitz on the Public Adjudication of Corporate Atrocities Torts

Maya Steinitz has posted to SSRN Back to Basics:  Public Adjudication of Corporate Atrocities Torts.  The abstract provides:

The editors of this symposium invited me to contribute on the subject of an argument I have recently advanced that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.

March 17, 2016 in Conferences, Scholarship | Permalink | Comments (0)

Wednesday, March 16, 2016

NFL Admits Link Between Football and CTE

In a Congressional round table on Monday, Jeff Miller, the NFL's senior vice president of health and safety, admitted there is a link between football and CTE.  The liability ramifications are significant.  USA Today has the story.

March 16, 2016 in Sports | Permalink | Comments (0)

Tuesday, March 15, 2016

Winkler on No-Fault Auto Insurance, Risk-Rating, and Safety Incentives

Kay Winkler (Victoria University of Wellington) has posted to SSRN Effects of No-Fault Auto Insurance on Safety Incentives.  The abstract provides:

In order to examine how no-fault motor vehicle insurance affects accident rates, insurance regimes in various countries are compared. A random effects model on IRTAD fatality data of 29 countries for the years 2005 to 2010 reveals that some motor vehicle insurance systems increase moral hazard. The incentive to take care seems not to be negatively affected by no-fault rules, but by moral hazard due to limited experience rating. Restrictions on experience rating lower the level of care taken by motorists. A combination of no-fault insurance and flat-rate premiums, as found in New Zealand or the Northern Territory in Australia, has a detrimental effect on the safety of roads. As a result, the distinction of no-fault versus tort-based third-party liability regimes is not very meaningful for analysing the effects of insurance rules on accident rates. Rather, the specific mechanisms of insurance premiums are decisive for road safety.

March 15, 2016 in Scholarship | Permalink | Comments (0)

Monday, March 14, 2016

An Empirical Study of Pain and Suffering

Yun-chien Chang, Ted Eisenberg, Tsung Hsien Li, and Martin Wells have posted to SSRN Pain and Suffering Damages in Personal Injury Cases:  An Empirical Study.  The abstract provides:

Many jurisdictions award pain and suffering damages, yet it is difficult for judges or juries to quantify pain. Several jurisdictions, such as California, cap pain and suffering damages or other noneconomic damages, and legal scholars have proposed ways to control such damages. Reforms and proposals, however, have been based on limited empirical evidence. It remains an open question whether components of economic damages explain pain and suffering damages. This study employs a unique data set of Taiwan district court cases and uses detailed information on the components of pecuniary damages. Pain and suffering damages highly correlate with the plaintiff’s medical expenses, level of injury, and the amount requested by the plaintiff. The association with the amount requested by the plaintiff persists when one accounts for the likely quantifiable influences on pain and suffering damages, evidence of a possible anchoring effect. The strong correlation between economic damages and noneconomic damages persists in a large U.S. dataset of judge and jury trials, in which the noneconomic fraction of total damages is no greater than the pain and suffering fraction of total damages in Taiwan. Judges and juries consistently produce coherent patterns of noneconomic damages.

March 14, 2016 in Scholarship | Permalink | Comments (0)

Thursday, March 10, 2016

IN: Senate Also Passes Med Mal Cap Increase

With a vote of 49-0, the Indiana Senate passed an increase in the med mal cap approved earlier by the House.  It now goes to the governor for his consideration.  The Indianapolis Star has details.

March 10, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, March 9, 2016

NPL: Most-Cited Torts Articles of the Past 25 Years

At New Private Law, Ted Sichelman has compiled a list of the most-cited torts articles of the past 25 years.

March 9, 2016 in Scholarship, TortsProfs, Weblogs | Permalink | Comments (0)

Tuesday, March 8, 2016

PA: Doctor, Hospital Settle Med Mal Case

Representatives of the young doctor who died of complications from a blood clot and the hospital that treated her have settled their med mal case for an undisclosed amount.  The Scranton Times-Tribune has details.

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

Monday, March 7, 2016

IN: Med Mal Cap Increase Passes House

The Indiana House passed, 90-5, an increase in the med mal cap from $1.25M to $1.8M by 2019.  Unlike the Judiciary Committee's proposal, there are no further increases.  Indiana's is one of the few caps that is total (not solely on noneconomic damages).

March 7, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, March 4, 2016

PA: Grand Jury Report on Sexual Abuse of Children in the Altoona-Johnstown Diocese; Statute of Limitations Debate

On Tuesday, a grand jury report was issued regarding the sexual molestation of hundreds of children over a 40-year period in the Altoona-Johnstown Diocese.  The allegations are disturbing to read.  The report recommended abolishing the criminal statute of limitations for sex crimes against minors and opening a window to allow sexual abuse victims to bring civil claims.  Several bills have been introduced in the legislature.  Parallel bills by Rep. Mark Rozzi, himself a sex abuse survivor, and Sen. Rob Teplitz would give victims until the age of 50 to file suit (up from the current age of 30) and would open a brief window for those whose claims would be time-barred by the 50-year limit.  Sam Marshall, the President and CEO of the Insurance Federation of Pennsylvania opposes the bills:

"We are allowed to reserve only for claims that are possible. Once a statute of limitations has passed, we can't hold or reserve money for that because claims are no longer possible," Marshall said. He questioned whether the grand jury in making its recommendations gave any consideration of the insurance regulation aspect of it.

"I realize that's not the driving concern in any of this but it is from an insurance perspective," he said. "It's a question of how can you be liable for something they claim for which by law you weren't allowed to reserve money for. That's the challenge here."

The debate reminds me of one of Jeffrey O'Connell's favorite statements about the difficulty of mixing morality and mathematics, something that happens constantly with tort law and insurance.  Still the moral aspect of tort is very strong in this instance, not muted as it is in so many contexts.  PennLive has the story.  The Patriot News, in an editorial, supports the report's statute of limitations recommendations.

March 4, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, March 3, 2016

PA: Jury Seated in Med Mal Trial of Doctor Against Hospital

In 2013, a 26-year-old doctor who was a member of The Commonwealth Medical College's charter class, died of complications from a blood clot at the hospital in which she was about to start her pediatric residency.  Suit filed on the doctor's behalf alleges negligent treatment.  Jury selection took 2 days as a pool of 70 was reduced to 16.  The trial is expected to be long and involve numerous witnesses.  The Wilkes-Barre Times Leader has details.

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

Wednesday, March 2, 2016

Stapleton Elected as Master of Christ's College Cambridge

Jane Stapleton, currently at ANU and Texas, has been elected the next Master of Christ's College Cambridge.  She begins in September.  The announcement is here.

(Via Jason Neyers on the Obligations list-serve)

March 2, 2016 in TortsProfs Moves | Permalink | Comments (0)

Tuesday, March 1, 2016

IN: House Panel Approves Med Mal Cap Increase

The House Judiciary Committee, 11-1, approved a $400,000 increase in the med mal cap, to a total of $1.65M.  It would gradually increase every 4 years until 2031, with a final cap of $2.25M.  The bill now goes to the full House, but may have trouble in the Senate. has the story.

March 1, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, February 29, 2016

Feldman on Compensating the Victims of Japan's Fukushima Disaster

Eric Feldman has posted to SSRN Compensating the Victims of Japan's 3-11 Fukushima Disaster.  The abstract provides:

Japan’s March 2011 triple disaster — first a large earthquake, followed by a massive tsunami and a nuclear meltdown — caused a devastating loss of life, damaged and destroyed property, and left hundreds of thousands of people homeless, hurt, and in need. This article looks at the effort to address the financial needs of the victims of the 3/11 disaster by examining the role of public and private actors in providing compensation, describing the types of groups and individuals for whom compensation is available, and analyzing the range of institutions through which compensation has been allocated. The story is in some ways cause for optimism — billions of dollars have been spent compensating millions of individuals and businesses, in most cases through extra-judicial channels that have minimized the need for protracted, expensive litigation. But this article also reveals a compensation structure that excludes large numbers of potential claims by privileging the losses of nuclear accident victims over those of earthquake and tsunami victims; describes a system in which those potentially eligible for compensation must navigate an overly complex institutional matrix for pursuing their claims; and discusses an increasing amount of litigation by individuals and groups within and beyond Japan that has clouded the compensation landscape. In short, post-Fukushima compensation is both laudable and lamentable, relying upon arbitrary distinctions between deserving and undeserving victims and leaving many victims unpaid and discontent, but also succeeding in managing a large number of claims.

February 29, 2016 in Scholarship | Permalink | Comments (0)