TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, April 25, 2016

Defects in Guns

About two weeks ago, Bloomberg BNA had a piece on defects in firearms.  No agency has the authority to force a recall, meaning voluntary recalls by manufacturers and class actions are the only effective methods.  Class actions are rare.  Victor Schwartz is quoted extensively on "regulation by litigation."

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

Friday, April 22, 2016

AR: Tort Reform by Ballot

On Wednesday, Arkansas's attorney general approved the wording of a proposed ballot item to amend the constitution that would instruct the state's legislature to set a cap on punies in med mal cases at no less than $250,000.  It would have to be adjusted for inflation every 2 years.  Lawyers would also be prohibited from charging over one-third as a contingency fee.  With the approval, the sponsor can begin gathering the 84,859 signatures needed to place the proposal on the November ballot.  (Via Arkansas News)  Punies in med mal cases are extremely rare, but, if awarded, tend to be in high amounts.

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

Wednesday, April 20, 2016

UT: Children Under the Age of 5 Cannot Be Liable for Negligence

The Utah Supreme Court recently adopted a bright-line cutoff for liability for negligent children, following R3 by setting the limit at 5 years old.  The case involved a 4 year old who threw a rubber dolphin at his babysitter.  Unfortunately, the dolphin hit the babysitter in the eye.  She had just had a cornea transplant and the accident blinded her.  The Volokh Conspiracy has the story.

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

Tuesday, April 19, 2016

FL: Supreme Court to Decide Constitutionality of "Ex Parte Communications" Med Mal Reform

In 2013, the Florida legislature passed a med mal reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:

In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.

In October of 2014, the Eleventh Circuit held that the reform did not violate HIPAA.  The 1st District Court of Appeal upheld the law's constitutionality last year.  The Florida Supreme Court will now decide the issue.  A date for oral argument has not been set.  Health News Florida has details.

April 19, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, April 18, 2016

Suit Against Gun Maker in Newtown Massacre Allowed to Proceed

Back in February, I reported about a suit brought by families of the children murdered in Newtown against gun manufacturers.  The plaintiffs, attempting to get around the Protection of Lawful Commerce in Arms Act of 2005, advanced a negligent entrustment theory.  The judge has now ruled that the claim may proceed.  The New York Times has details.

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

Friday, April 15, 2016

11th Edition of Epstein & Sharkey's Casebook Available

From the authors: 

We are excited to launch the 11th edition of our casebook, Cases and Materials on Torts, which marks a real sea change in the four short years since we teamed up as co-editors.  We have redesigned our book in response to the new sensibilities of the age.  For the first time, the book contains historical images, cartoons, tables, and charts that are set off from the main text to supply visual background information about the persons, places, and things that hold center stage in the cases and materials of the book.  The design of these materials has been spruced up with red headings to mark transitions and with boxes that contain key provisions of the various Restatements of Torts.

In response to the suggestions of our faithful users, we have judiciously shortened the material by thinning out the notes and eliminating some of the less popular principal cases.  In doing so, we have held fast to the intellectual rigor, historical depth, and careful case selection and notes found in the previous ten editions.  But we have embraced change as well, adding diverse perspectives (such as race and gender-based critiques of damages calculations, which have gained additional judicial attention), incorporating contemporary empirical scholarship (especially on medical malpractice, damages and jury decision-making), addressing the increasing influence of technology (such as privacy and defamation in the Internet age), and keeping pace with modern trends in business tort litigation, including the most recent the Third Restatement project on liability for economic harms (such as fraud and negligent misrepresentation).

To get a feel for the pedagogy in our book, we encourage you to have a look at a sample chapter posted on our Companion Website.  In your review of this chapter, here are a few noteworthy features (which are representative of those that appear throughout the book):

  • Judge portraits.  See pages: 141 for Tindal, 144 for Holmes, 170 for Hand, and 172 for Posner and Calabresi
  • Charts and graphs.  Look to page 236 for one depicting “vanishing trial”
  • Judge vs. jury section, including reference to current empirical study of jury/judge decision-making (245-48)
  • Boxes.  This one depicts significant Restatement provisions and pattern jury instructions (252-3)
  • Cartoons and other images  that engage students.  See page 139 for a cartoon from The New Yorker.

Our goal is nothing short of producing a Torts casebook for the next generation of torts professors and students.  With that in mind, the new 11th Edition will now also be available digitally, as a Connected Casebook.  In addition to offering students an enhanced eBook with note taking and highlighting capabilities, the “connected” version of our casebook also includes an outlining tool, a wealth of self-assessment materials – including multiple choice and essay questions, and analytics that enable the student or professor to see which topics may need further clarification or study. 

We are indebted to our torts colleagues across the country and now two generations of torts students (at Chicago, Columbia, and NYU) for their received wisdom on various topics and issues raised in our book.  We would be delighted to hear from anyone interested in exploring our book in either 1L torts courses or advanced torts or business torts courses.

If you’d like to receive a review copy of our book, please click here.

Thank you for your consideration,

Richard Epstein, richard.epstein@nyu.edu

Catherine Sharkey, catherine.sharkey@nyu.edu

April 15, 2016 in Books, Teaching Torts | Permalink | Comments (0)

Thursday, April 14, 2016

CO: Strict Privity Rule Upheld for Legal Malpractice

The Colorado Supreme Court held attorneys owe no duties to non-clients, such as the beneficiaries of a will, absent allegations of fraud, a malicious or tortious act, like negligent misrepresentation.  JD Supra Business Advisor has details.

April 14, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, April 12, 2016

Two by Sharkey

Cathy Sharkey has posted two pieces to SSRN.  First, States v. FDA.  The abstract provides:

In the United States, food and drug safety is regulated in two ways: a stringent ex ante, national regime led by the Food and Drug Administration (“FDA”) and a robust ex post system of state-law enforcement. This federalist structure, operating on dual regulatory levels, sets the stage for synergy and for conflict.

Two recent high-profile preemption lawsuits showcase a novel dimension of the dual regulatory structure: the role of states as competing and/or complementary actors vis-à-vis the FDA in regulating food and drug safety. In Zogenix, Inc. v. Patrick, a federal district court enjoined the Massachusetts government from enacting a statewide ban on Zohydro, an FDA-approved opioid analgesic drug, but upheld the state’s subsequent prescription and dispensation-related restrictions. In Grocery Manufacturers Association v. Sorrell, food industry representatives challenged a recently enacted Vermont law mandating labeling of genetically engineered food—labeling that the FDA had not required.

Both cases explore how states can regulate drug and food safety without treading impermissibly upon the FDA’s turf. In doing so, they raise the issue of who should determine if state regulatory efforts advance or impede the federal regulatory scheme. Are courts or the regulating agencies the better arbiters? If the latter, when are their conclusions entitled to judicial deference, and how much?

This Article advances two primary claims. First, courts, when facing implied obstacle preemption challenges to state regulations, should consider the FDA’s view on the matter—namely whether the agency itself considers the state-level regulation to conflict with its national regulatory agenda. In Zogenix, the court, strikingly, paid no attention to the FDA Commissioner’s overt support of Massachusetts’s proposed restrictions on the prescribing and dispensing of Zohydro. In Sorrell, the court had before it informal policy guidance from the FDA that suggested that the agency was somewhat open to state labeling mandates. Deference to the FDA’s position in each case would have provided clear resolution of the preemption challenge.

Second, these cases reiterate and reinforce the argument at the heart of the ACUS 2010 Recommendation, Agency Procedures for Considering Preemption of State Law: if there is ever to be a coherent body of case law and regulatory policy in the realm of food and drug laws, courts must probe the FDA’s record on its examination and consideration of relevant state interests in the course of the federal regulation enactment process. Rather than blindly deferring to the federal agency’s view, courts should evaluate whether that view was the product of a responsible process that afforded states the chance to articulate how their own proposed state regulation fits with the federal regulatory scheme.

Next, The BP Oil Spill Settlements, Classwide Punitive Damages, and Societal Deterrence.  The abstract provides:

The BP oil spill litigation and subsequent settlements provide an opportunity to explore a novel societal economic deterrence rationale for classwide supra-compensatory damages. Judge Jack Weinstein was a pioneer in the field of punitive damages class certification. In In re Simon II, he certified a nationwide punitive-damages-only class in a multijurisdiction, multidefendant tobacco lawsuit. Using Judge Weinstein’s innovations in In re Simon II as an analytical lens, the Article evaluates the future prospects for classwide punitive damages claims.

Specifically, the Article considers how private litigants might adopt a societal damages approach in negotiating and achieving class action settlements. Class action settlements readily accommodate the “public law” dimension of societal damages, as demonstrated by the classwide punitive damages settlement with BP’s co-defendant Halliburton. Indeed, on closer inspection, even the BP compensatory damages class settlement has a surrounding aura of societal damages. For even that ostensibly purely compensatory arrangement included an unusual (and mostly overlooked) feature: a provision for supra-compensatory multipliers applicable to certain claimants. This Article advances the new idea that these supra-compensatory multipliers are a form of classwide societal damages embedded within the settlement, and, in turn, a potential blueprint for nascent punitive damages classes of the future.

April 12, 2016 in Scholarship | Permalink | Comments (0)

Monday, April 11, 2016

PA: Bill to Extend Sexual Abuse Statutes of Limitation Approved by House Judiciary Committee

In the wake of the grand jury report on sexual abuse of minors in the Altoona-Johnstown Diocese, the House Judiciary Committee approved the removal of statutes of limitation in sex crimes and extending the statute of limitations until the victim turns 50 years old for civil cases.  There was, however, no provision for a 2-year retroactive window to allow past victims to sue.  Pennlive has details.

April 11, 2016 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Friday, April 8, 2016

Ripstein: Private Wrongs

Arthur Ripstein's Private Wrongs is now available from Harvard University Press:

A waiter spills hot coffee on a customer. A person walks on another person’s land. A moored boat damages a dock during a storm. A frustrated neighbor bangs on the wall. A reputation is ruined by a mistaken news report. Although the details vary, the law recognizes all of these as torts, different ways in which one person wrongs another. Tort law can seem puzzling: sometimes people are made to pay damages when they are barely or not at fault, while at other times serious losses go uncompensated. In this pioneering book, Arthur Ripstein brings coherence and unity to the baffling diversity of tort law in an original theory that is philosophically grounded and analytically powerful.

Ripstein shows that all torts violate the basic moral idea that each individual is in charge of his or her own person and property, and never in charge of another individual’s person or property. Battery and trespass involve one person wrongly using another’s body or things, while negligence injures others by imposing risks to them in ways that are inconsistent with their independence. Tort remedies aim to provide a substitute for the right that was violated.

As Private Wrongs makes clear, tort law not only protects our bodies and property but constitutes our entitlement to use them as we see fit, consistent with the entitlement of others to do the same.

April 8, 2016 in Books, Scholarship | Permalink | Comments (0)

Thursday, April 7, 2016

Lens on Product Recalls

Jill Lens has posted to SSRN Product Recalls:  Why is Tort Law Deferring to Agency Inaction?.  The abstract provides:

Tort law currently recognizes liability related to a product recall in only narrow circumstances. Liability is possible if the manufacturer acts unreasonably in an agency-ordered recall or in a voluntary recall, which is likely the result of agency encouragement. What this narrow standard leaves out is possible liability for a manufacturer’s choice to simply not recall. But courts agree that only government agencies are equipped to evaluate the reasonableness of a recall and to determine if one is justified. Thus, if an agency never effects a product recall, tort liability is not possible.

A few commentators have applauded or criticized the narrow standard for liability. But this Article is the first to thoroughly question the standard in light of its real basis—deference to administrative agencies. The Article contrasts this complete deference on recall orders to the very limited deference courts give to agency determinations in traditional defect claims, modern post-sale warning claims, and within decisions to punish the manufacturer by imposing punitive damages. The Article also questions the wisdom of complete deference to an agency’s inaction in not ordering a recall and the legal validity of such deference based on its inconsistency with negligence per se principles. Last, the Article argues that there is nothing special about product recalls deserving of such special deference.

April 7, 2016 in Products Liability, Scholarship | Permalink | Comments (0)

Wednesday, April 6, 2016

Agriculture-Related Torts

For a couple years, I have posted torts items from Roger McEowen at Iowa State's Center for Agricultural Law & Taxation.  Roger is now with Washburn's law school and produces the Washburn Agricultural Law & Tax Report.  Check it out.

April 6, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, April 5, 2016

Fox on Reproductive Negligence

Dov Fox has posted to SSRN Reproductive Negligence.  The abstract provides:

Should a fertility clinic have to compensate for negligently losing a person’s frozen eggs? Or for implanting more embryos than a couple had asked for, leading them to have an extra kid? Should a doctor be liable for misadvising a woman that keeping a pregnancy would endanger her health, leading her not to have the child she wanted? Or for botching a vasectomy that foists on a couple the one they had sought to avoid? Should a sperm bank owe damages for using genetic material from a stranger instead of a spouse, or from a donor who looks nothing like the one that a couple had chosen, or from a pre-sorted sample that would create girls instead of one for boys? For the thousands today who turn to health care specialists to help avoid or pursue parenthood, the most serious external threat to their reproductive lives comes not from any government policy, but from professional errors that destroy embryos, switch donors, and leave tubes untied. These wrongful frustrations of control over procreation inflict distinct and profound injuries even when unaccompanied by physical harm or property loss. It is not as if those who would tolerate such setbacks can defend them by reference to their ostensible promotion of socially valuable purposes. Yet public law does not regulate reproductive negligence any more than private law remedies it.

This Article makes three contributions. First, it introduces a right that entitles individuals to recover for procreative misconduct, independent of tangible harms to other protected interests. This right protects individual interests in those expectations of control over pregnancy, parenting, and pre-selection that professional assistance make reasonable and public policy leave legitimate. Second, it develops a framework to understand and apply the right in terms of whether negligence (1) imposes procreation on individuals who enlisted support from specialists precisely to avoid it; (2) deprives those who pursued procreation of opportunities for pregnancy or for parenthood; or (3) confounds more particular procreative goals for a child with or without certain genetic traits. Third, it concretizes such intangible injury as a function of (a) the severity in setbacks to specified interests, and (b) the probability that professional misconduct is responsible for having caused it. Damages for the frustration of reproductive interests would accordingly be reduced, for example: where procreation is imposed, in proportion to the role of user error over and above birth control malfunction; where it is deprived, based on the role of patient infertility beyond embryo loss, and; where it is confounded, to uncertainty in genetic testing, independent of its substandard execution.

 

April 5, 2016 in Scholarship | Permalink | Comments (0)

Sunday, April 3, 2016

Prosser Letters: 1917-1948, Revised Version Available

The final version of my first piece on Prosser's letters is now available here.  The updated version contains material from an unpublished dissertation on Prosser's father, who played a crucial role in the development of vocational education, and materials from the Harvard archives.  I am delighted by the editing work at the Iowa Law Review.  

April 3, 2016 in Scholarship | Permalink | Comments (0)

Friday, April 1, 2016

Black et al. on Empirical Data on Med Mal Insurance Premiums

Bernard Black et al. have posted to SSRN Medical Liability Insurance Premia 1990-2015:  Dataset, Literature Review, and Summary Information.  The abstract provides:

This document and the accompanying datasets provide six things: (i) a dataset covering 26 years (1990-2015) of medical malpractice (“med mal”) insurance premia, compiled with extensive data cleaning from the only available source for these rates, annual surveys conducted by Medical Liability Monitor (MLM); (ii) an accompanying codebook; (iii) the Stata code we use to clean the raw data; (iv) merger of the MLM data with related datasets from the National Association of Insurance Commissioners and the American Medical Association; (v) a survey of prior uses of the MLM data; and (vi) a summary analysis of the data. We hope that the availability of this cleaned dataset will prompt further research on the effects of med mal premiums on provider behavior. We provide separate raw and cleaned datasets. We plan, but do not promise, to update the dataset as additional annual releases become available.

April 1, 2016 in Scholarship | Permalink | Comments (0)

Thursday, March 31, 2016

Fourth Edition of Goldberg, Sebok, & Zipursky's Casebook Available

For a review copy, click here.

From the authors:

This edition offers additional benefits to students. First, it features a new design that incorporates illustrations and sidebars to aid students’ comprehension. Second, students have the option of purchasing a “connected” version of the casebook. Information on the Casebook Connect platform is here:https://www.casebookconnect.com/faculty. (The connected e-book allows students to gain access to a wealth of self-assessment materials, including multiple-choice and essay questions. Moreover, faculty can access data on students’ handling of these materials, which in turn can help them gauge which topics may require additional attention or clarification.)

We realize, of course, that the adoption of a new casebook requires time and effort. To help minimize these costs, we have prepared a 500+ page, everything-you-need-to-know Teacher’s Manual. It not only provides details and context for each principal case, it also offers a steady stream of pedagogic suggestions based on our combined six decades of experience teaching Torts. In addition, adopters gain access to 200+ media-rich PowerPoint slides that can be adapted for use in your class, or can simply be used to help you prepare to teach.

To give you a sense of what the book has to offer, please click here to access: 

  • Chapter 9 (Battery, Assault and False Imprisonment); the Teacher’s Manual for Chapter 9, and a sampling of PowerPoint slides for Chapter 9; and 
  • a detailed Table of Contents (click on the “Table of Contents” tab on the left, then on “Complete Table of Contents” at the bottom of the page) 

As you can see, Chapter 9 itself contains several representative features, including:

  • Sidebars on pages 612 and 645 that enable students to engage in self-assessment
  • Extensive and informative expository notes, such as those on pages 632-638
  • Illustrations and photographs (such as the cartoon on page 604) that aim to inform students and to provide them with occasional breaks from the rigors of class prep

Meanwhile, the sample from the Teacher’s Manual and the slides will give you a sense of the support we provide to adopters.

Should you have questions about the book, please feel free to reach out to one of us. We’d be delighted to hear from you at: jgoldberg@law.harvard.edu, sebok@yu.edu, and bzipursky@law.fordham.edu.

March 31, 2016 in Books, Teaching Torts | Permalink | Comments (0)

Wednesday, March 30, 2016

UVa Swim Team Hazing Lawsuit Settled

A former member of the UVa swim team and five team members have settled a federal hazing lawsuit.  The five team members issued an apology but continued to deny the more egregious allegations, which included locking the former team member in a bathroom and subjecting him to sexual assault.  They acknowledged their actions caused plaintiff hardship.  Virginia Lawyers Weekly has the story.

March 30, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, March 29, 2016

AALS Torts Section: Call for 2017 Newsletter Items and Prosser Award Nominations

Dear Colleagues,
 
I hope this email finds you well. In my capacity as Secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
 
1. Torts and Compensation Section Newsletter
 
As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at stacey.tovino@unlv.edu. The deadline for inclusion in this fall's newsletter is Friday, August 12, 2016. 
 
2.  2017 William L. Prosser Award
 
This is the first call for nominations for the 2017 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Aaron Twerski, Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.
 
Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in San Francisco in January 2017.   
 
Nominations must be accompanied by a brief supporting statement and should be submitted no later than Friday, July 15, 2016. Email submissions to stacey.tovino@unlv.edu are preferred. If you would rather mail hard copies of nomination materials, please mail them to Prof. Stacey Tovino, William S. Boyd School of Law, University of Nevada, Las Vegas, 4505 S. Maryland Parkway, Box 1003, Las Vegas, Nevada 89154.  
 
I will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach.  In the meantime, feel free to contact me if you have any questions.
 
Thank you and all the best,
~Stacey Tovino 

Stacey A. Tovino, JD, PhD
Lehman Professor of Law
Director, Health Law Program
William S. Boyd School of Law
University of Nevada, Las Vegas

Stacey.Tovino@UNLV.edu

(832) 289-6313

March 29, 2016 in Scholarship, TortsProfs | Permalink | Comments (0)

Monday, March 28, 2016

JOTWELL Torts: Zipursky on Dorfman on Assumption of Risk and Junk Food

At JOTWELL, Ben Zipursky reviews Avi Dorfman's Assumption of Risk, After All.

March 28, 2016 in Scholarship, Weblogs | Permalink | Comments (0)

TN: Office-Sharing Lawyers Potentially Vicariously Liable for Malpractice

A federal judge in Tennessee has ruled an unincorporated association of attorneys sharing office space is not entitled to summary judgment for a claim of vicarious liability for legal malpractice.  Bloomberg BNA has the story.

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