TortsProf Blog

Berman on Tobacco Litigation and E-Cigarettes

Micah Berman has posted to SSRN Tobacco Litigation, E-Cigarettes, and the Cigarette Endgame.  The abstract provides:

Among his many contributions to the field of public health law, Professor Richard Daynard is perhaps best known for (a) advancing the idea that affirmative litigation, particularly against the tobacco industry, can serve as an effective public health tool, (b) introducing the discussion of an “endgame,” in which the commercial sale of cigarettes—the most deadly form of tobacco use—is phased out. This article unites these two topics and analyzes the potential for affirmative litigation to hasten the end of commercial cigarette sales.

In recent years, the major tobacco companies have suggested that they support moving towards a “smoke-free world,” with non-combustible nicotine products such as e-cigarettes gradually replacing more harmful cigarette smoking. Though this rhetoric is deeply cynical—these same companies continue to spend heavily to promote their cigarette brands—it may nonetheless create a window of opportunity for litigants. Past litigation against tobacco companies has foundered on the absence of a “reasonable alternative design” for cigarettes. Today, the tobacco companies’ own statements can be used to show the availability of such alternatives. More importantly, now-public documents from the tobacco industry’s archives help establish the case for treating e-cigarettes as a “reasonable alternative design” for cigarettes. These documents show that the major tobacco companies developed the essential components of e-cigarette technology decades ago, but they chose not to commercialize these products because they feared they would prove to be viable alternatives to cigarettes.

This article reviews how the introduction of e-cigarettes may reinvigorate products liability litigation against the manufacturers of conventional cigarettes. Building on the work of Professor Daynard, it also considers how these lawsuits, even if ultimately unsuccessful in court, might nonetheless benefit public health by pressuring the tobacco industry to live up to its public statements and by catalyzing legislative efforts to phase out the sale of cigarettes.

Geistfeld: Principles of Products Liability, Third Edition

Mark Geistfeld has posted to SSRN two chapters from Principles of Products Liability (3rd ed.).  The abstract provides:

Two chapters from the third edition of Principles of Products Liability (Foundation Press 2020), a state-of-the-art study of products liability. The book shows how ancient laws have evolved into liability rules capable of solving the safety questions raised by new or emerging technologies, ranging from autonomous vehicles to the Amazon online marketplace. Identifying a development that has been largely ignored by scholars, the book shows how the rule of strict products liability from the last century has been transformed into a more comprehensive liability regime — “strict products liability 2.0” — that incorporates the risk-utility test into the consumer-expectations framework of strict products liability. Across the important issues, this more comprehensive formulation of the implied warranty sharpens the inquiry about what’s at stake, supplying strong rationales for a host of otherwise contentious doctrines — from federal preemption to the relevance of scientific evidence in toxic-tort cases. The analysis throughout relies on extended discussion of the black-letter rules and associated controversies in the case law, providing a solid foundation for understanding and incisively analyzing this vitally important area of the law.

Borghetti, Fairgrieve & Rott on a Comparative Review of Vaccine Remedies

Jean-Sébastien Borghetti, Duncan Fairgrieve & Peter Rott have posted to SSRN Remedies for Damage Caused by Vaccines:  A Comparative Study of Four European Legal Systems.  The abstract provides:

Compensation for damage caused to patients by vaccination is an increasingly prominent issue given the important public health consideration of ensuring the highest possible take-up of vaccination. This study explores the approach to vaccine damage cases in four different European countries (France, Germany, Italy and the UK), examining the variety of different mechanisms for providing redress, including specific compensation funds, social security systems, the operation of orthodox regimes of tort law and product liability, as well as in certain jurisdictions bespoke legislation for healthcare products or pharmaceuticals. The authors then go on to examine the recent case law on this topic at a Member State and European level, focusing particularly on issues relating to the notion of defect and that of causation in vaccine damage cases.

COVID-19 Cruise Ship Cases Dismissed for Problems with Causation, Injury

At Law.com, Amanda Bronstad has a piece covering the dismissal, without prejudice, of cases filed by passengers alleging they caught COVID-19 on a cruise ship.  Two different federal judges in the Central District of California dismissed cases without prejudice from passengers alleging they actually caught COVID-19.  An earlier ruling dismissed filings alleging only fear of catching COVID-19.  Both judges focused on causation and injury, though the judges differed a bit on what would count as an injury, at least at the 12(b)(6) stage.  Causation seemed to be the biggest problem for most of the cases, and it is unclear if the plaintiffs will be able to plead sufficient new facts to survive dismissal.  If causation is difficult to establish when on a cruise ship for weeks, it will generally be much harder if allegations are brought against owners of grocery stores, gyms, etc.  It will be interesting to watch as different factual variations appear.

More coverage at ABA Journal.

Feinman on the Restatement of the Law, Liability Insurance

Jay Feinman has posted to SSRN A User's Guide to the Restatement of the Law, Liability Insurance.  The abstract provides:

At its 2018 Annual Meeting, The American Law Institute completed nearly a decade’s worth of work on the Restatement of the Law, Liability Insurance. The Restatement’s approval was deferred for a year from the 2017 Annual Meeting, largely because of opposition from insurance industry interests. The Restatement attracted unusual attention from interests outside the normal ALI process, in a way that can be fairly characterized as political, in the non-pejorative sense that it involves the authoritative allocation of values.

Lawyers and judges routinely look to the ALI’s Restatements of the Law as reference works for the state of the law and for arguments and analysis about the direction the law should go. Yet the controversy reflected in the complex intellectual and political history of the RLLI is likely to continue following its final adoption, and the issues raised by the controversy about the RLLI frames its use by lawyers and judges in interesting ways. This article takes account of the issues raised in the drafting process to inform the use of the Restatement going forward. The criticisms of particular sections of the RLLI will be discussed as those sections are raised, argued, and applied in litigation.

But the criticism suggests that two general points need to be taken into account in using the RLLI:
• What is a Restatement?
• Whose Restatement is this?

Vines & Akkermans on the Unexpected Consequences of Compensation Law

Prue Vines and Arno Akkermans have published The Unexpected Consequences of Compensation Law with Hart Publishing.  From the blurb:

This book explores the performance of compensation law in addressing the needs of the injured. Compensation procedure can be dangerous to your health and may fail to compensate without aggravation/creating other problems. This book takes a refreshing and insightful approach to the law of compensation considering, from an interdisciplinary perspective, the actual effect of compensation law on people seeking compensation. Tort law, workers’ compensation, medical law, industrial injury law and other schemes are examined and unintended consequences for injured people are considered. These include ongoing physical and mental illness, failure to rehabilitate, the impact on social security entitlements, medical care as well as the impact on those who serve – the lawyers, administrators, medical practitioners etc.  All are explored in this timely and fascinating book. The contributors include lawyers, psychologists, and medical practitioners from multiple jurisdictions including Australia, the Netherlands, Canada, Italy and the UK.

Discount Price: £56

Order online at www.hartpublishing.co.uk – use the code UG6 at the checkout to get 20% off your order!

Keating on Beuermann on Strict Liability

At JOTWELL Torts, Greg Keating reviews Christine Beuermann's Reconceptualising Strict Liability for the Tort of Another.

Legally Speaking Ohio: Invasion of Privacy and Drug Testing

At Legally Speaking Ohio, Marianna Brown Bettman provides a thorough analysis of Lunsford v. Sterilite of Ohio, L.L.C., in which the Supreme Court of Ohio held that at-will employees have no cause of action for invasion of privacy when consenting to an employer-required direct observation method of submitting a urine sample for drug testing.

Long on IIED in the Workplace

Alex Long has posted to SSRN Retaliation, Humiliation, and Extreme and Outrageous Conduct:  IIED in the Workplace.  The abstract provides:

Citing the need to preserve managerial discretion, courts frequently espouse the need to adopt an “especially strict approach” in cases of intentional infliction of emotional distress (IIED) in the workplace. As a result, it is notoriously difficult for employees to prevail upon IIED claims against their employers. At the same time, a few courts have recognized that one form of employer conduct may merit special treatment when assessing an IIED claim against an employer. According to some courts, the fact that an employer has engaged in retaliatory conduct may be “a critical and prominent” factor in assessing an employer’s behavior. This Article argues that other courts should also recognize retaliatory conduct as a weighty factor when considering whether such conduct meets the threshold of “extreme and outrageous” conduct for purposes of an IIED claim. Drawing upon social science research into the areas of humiliation and retaliation, this Article generally agrees with courts that have concluded that workplace retaliation often has a greater detrimental impact upon the victim than other forms of non-actionable employer conduct and, therefore, should be given special weight in the analysis of the extreme and outrageous nature of employer conduct.

IL: TikTok Sued for Intrusion Upon Seclusion

The app TikTok has been sued in the Northern District of Illinois for intrusion upon seclusion:

One of the specific allegations against the company’s application is that it collects user’s private draft videos that were never intended for publication…without consent. The videos according to the plaintiff class are then mined by Chinese engineers for biometric identifiers and information. The expectation of privacy in these instances may indeed meet the elements of the Intrusion Upon Seclusion cause of action. As previous case law notes, consent is a defense to Intrusion Upon Seclusion, but only as far as the consent given.

ClearanceJobs has the story.

French on Forum Shopping in COVID-19 Business Interruption Claims

Christopher French has posted to SSRN Forum Shopping COVID-19 Business Interruption Insurance Claims.  The abstract provides:

Insurance disputes are typically governed by state law, and state insurance laws vary considerably, with some states being favorable to policyholders and others being unfavorable. With forum shopping, a plaintiff often has many choices regarding where it can bring a lawsuit, including multiple states in which to bring the case and whether to bring the case in federal or state court. Of the over 900 COVID-19 business interruption insurance lawsuits filed thus far, more than 600 of them have been filed in federal court, with more than 100 filed as class actions. Many of them were also filed in states with insurance laws that are not favorable to policyholders.

Conventional wisdom provides that a plaintiff’s chances of winning are generally much higher in state court than in federal court and that historically federal class actions against insurers have been successful only approximately twenty-five percent of the time. So, why were so many of the COVID-19 business interruption insurance cases filed in federal court in unfavorable states and as class actions when the historical chances of winning are so low in such forums, particularly as class actions?

This Essay provides some possible answers to that question. In doing so, it explores forum shopping considerations in general, the conventional wisdom regarding litigating in federal versus state court, and the empirical data regarding the odds of winning in state versus federal court.

Zettler, Berman & Parasidis on Drug and Vaccine Development and Access

Patricia Zettler, Micah Berman & Efthimios Parasidis have posted to SSRN Drug and Vaccine Development and Access.  The abstract provides:

This Chapter explains how drugs and vaccines for COVID-19 can reach the market in the United States. As is always true, drug and vaccine manufacturers may seek U.S. Food and Drug Administration (FDA) approval of their products via traditional approval mechanisms and drug manufacturers may offer pre-approval access under the expanded access or right to try pathways. In a public health emergency like COVID-19, an additional mechanism is also available: the Emergency Use Authorization (EUA) pathway. This Chapter (1) assesses how FDA has used its EUA authorities for COVID-19 drugs thus far, (2) considers how FDA has balanced the need for robust evidence of safety and effectiveness for COVID-19 pharmaceuticals against the urgent need to speed patients’ access amid the clinical and political realities of the pandemic, and (3) highlights considerations specific to vaccines should FDA be faced with a request to issue an EUA for a COVID-19 vaccine. The Chapter concludes with recommendations for policymakers and regulators at the federal and state levels. The recommendations aim to improve public understanding of the regulatory process for COVID-19 drugs and vaccines, protect scientific decision making from undue political pressure, and ensure that manufacturers develop robust evidence of safety and effectiveness—and ultimately safe and effective COVID-19 countermeasures.

This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.

PA: COVID-19, Fall Sports, and Liability Insurance

On Friday, the Pennsylvania Interscholastic Athletic Association (PIAA) voted, via Zoom, to hold the fall sports season in Pennsylvania.  The next step is that each school district will vote regarding whether to participate.  PIAA has an insurance policy covering all schools, paid out of the schools' dues to PIAA.  One problem is that the insurance does not cover communicable and viral diseases.  Adding that coverage is cost prohibitive.  This may weigh on schools boards as they wrestle with the decision.  PennLive has the story.  

Burch & Williams on Judicial Adjuncts in MDLs

Elizabeth Chamblee Burch & Margaret Williams have posted to SSRN Judicial Adjuncts in Multidistrict Litigation.   The abstract provides:

Peeking under the tent of our nation’s largest and often most impactful cases — like opioids and pelvic mesh — reveals that judges often act like ringmasters: they delegate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some see this as a plus. In 2019, the American Bar Association joined a chorus of proponents urging courts to outsource even more or risk undermining Rule 1’s goal of achieving a “just, speedy, and inexpensive determination.” Critics, however, contend that delegating judicial power, especially to private citizens, removes adjudication from public scrutiny, injects thorny ethical questions about ex parte communications, and risks cronyism and high costs.

We wade into the controversy to offer both quantitative and qualitative evidence. By constructing an original dataset of 92 multidistrict products-liability proceedings centralized over 14 years, we introduce the first taxonomy of the diverse array of adjuncts working within them. Testing their effects with a multivariate analysis, we found that proceedings with special masters lasted 66% longer than those without, and appointing any kind of adjunct meant that the proceeding was 47% less likely to end. Not only did justice take longer, it cost more: 74% of the adjuncts were not magistrate judges, meaning that the parties paid them. And plaintiffs alone bore all costs in 54% of those appointments.

Digging deeper, we then interviewed some of the lawyers, judges, and adjuncts who participated in these proceedings. Attorneys’ experiences moved scholars’ longstanding concerns from law-review pages to real life: rather than improving justice, some adjuncts cajole parties through off-the-record discussions; repeat players on all sides thrive through symbiotic sponsorship; and plaintiffs are left playing the lawyer lottery, for their outcomes may depend more on whether they picked an attorney with the inside track than their suit’s merits. Collectively, our findings support existing reservations about allocating judicial power to those in the private sector.

Avraham, Baker & Sebok on the Anatomy of Consumer Legal Funding

Ronen Avraham, Lynn Baker & Tony Sebok have posted to SSRN The Anatomy of Consumer Legal Funding.  The abstract provides:

Litigant Third-Party Funding (LTPF), where financial companies advance money on a non-recourse basis to individual plaintiffs, is a growing and increasingly controversial industry in the U.S. This funding made headlines during the NFL concussion litigation with more than 1,000 players reported to have received such advances and with class counsel raising concerns of “predatory lending” with the Court. Policymakers and scholars echo these concerns as they call for regulation of the industry to protect vulnerable consumers. Any regulations, however, should be based on systematic data rather than good intentions or isolated anecdotes. But to date there has been almost no empirical research on the actual practices of the industry. This Article begins to fill that void.

Using a unique data set from one of the largest consumer litigation financing firms in the U.S. (“Funder”), we are the first to explore the anatomy of pre-settlement litigant finance in mass tort cases, such as the NFL class action. We are also the first to examine general post-settlement litigant finance in the U.S., which is the type of funding many NFL players were reported to have obtained. Our comprehensive data set includes approximately 225,593 requests for funding from 2001 throughout 2016.

With respect to pre-settlement funding, we find that the Funder makes an annual median gross profit of 55% from Mass Tort claims (compared with 60% from Motor Vehicle claims, our control group). We also find that the Funder includes complicated terms in their contracts that make it extremely difficult for clients to understand the actual interest rate they will be eventually be charged. We believe lawmakers should regulate these contracts, banning any unnecessarily complicated provisions and requiring that the effective annual interest rate and total amount due be straightforwardly disclosed.

With respect to post-settlement funding, we find that the effective annual interest rate charged and the profit to the Funder are even greater than for post-settlement fundings – 68% compared to 60% for Motor Vehicle claims. This is striking given that post-settlement fundings present virtually no risk to the Funder. Indeed we find that the rate of default in post-settlement cases is close to zero, which means that this category of advance is “non-recourse” on paper but not on the ground. We therefore recommend that funding in post-settlement cases should be subject to consumer protections similar to those usury laws provide for ordinary loans.

Op-Ed: Capers, Goldberg & Zipursky on Reforming Police Liability at the State Level

At The Washington Post, Bennett Capers, John Goldberg & Ben Zipursky explain that reforming police liability does not necessarily take an act of Congress.

Bohrer on Steering Away from Self-Interest

Bob Bohrer has posted to SSRN Crisis and Cultural Evolution:  Steering the Next Normal from Self-Interest to Concern and Fairness.  The abstract provides:

This essay examines the current time of crisis and offers a vision of the way in which our society and our law can evolve in response. Crises of this scale are evolution-forcing events and I argue that the current moment can move us towards a fundamentally different vision of law and justice. It is the first essay or article to show that the autonomous pursuit of self-interest was a common assumption or value in the major intellectual forces of the twentieth century: classical free market economics, behavioral economics, and sociobiology, as well as in the competing visions of a just society of John Rawls and Robert Nozick. After introducing the alternative normative frameworks of caring developed by Carol Gilligan and of concern developed by Leslie Bender, I show how the common law of torts and contracts embraced self-interest as a value and then how tort and contract law could embrace the values of concern and fairness. I conclude that the danger of a culture that values the autonomous pursuit of self-interest above all else has been exposed by our current crisis and that an evolution towards a cultural regard for concern and fairness is a must.

JOTWELL Torts: Simons on Abraham & White on Conceptualizing Tort Law

At JOTWELL, Ken Simons reviews Ken Abraham and Ted White's Conceptualizing Tort Law:  The Continuous (and Continuing) Struggle.

JOTWELL Torts: Bublick on Twerski on Consumer Expectations Versus Risk-Utility

At JOTWELL, Ellie Bublick reviews Aaron Twerski's An Essay on the Quieting of Products Liability Law.

Lytton: Against COVID-19 Lawsuit Immunity

Tim Lytton has an editorial in USA Today:  "Blanket COVID-19 liability shield for businesses is not the immunity we need in this crisis".