TortsProf Blog

Goldberg on Recognizing Wrongs

Harvard Law Today includes an interview with John Goldberg about the book he and Ben Zipursky co-authored, Recognizing Wrongs.

Tobia on Legal Concepts and Legal Expertise

Kevin Tobia has posted to SSRN Legal Concepts and Legal Expertise.  The abstract provides:

A recent wave of empirical legal scholarship reports surprising findings about various concepts of legal significance, including the concept of acting intentionally, causation, consent, knowledge, recklessness, reasonableness, and law itself. These studies typically examine laypeople, but often draw broader conclusions about legal experts or law. Findings about laypeople’s (“ordinary”) concepts have been taken to reflect the concepts of trained legal theorists, reveal biases affecting judges’ decision-making, and clarify subtle doctrinal features.

This Article questions the validity of such inferences, from empirical findings about ordinary concepts to conclusions about the concepts of those with legal expertise. It presents a case study concerning what it means to act intentionally. An experiment examines the judgments of four populations (N = 774): lay people, law students, non-law students, and United States judges. Legal training affected judgments in three ways, all of which suggest the acquisition of a distinctive legal concept. This case study supports the Article’s broader conclusion: empirical evidence about laypeople’s ordinary concepts does not necessarily carry straightforward legal implications. This defuses provocative empirical challenges regarding biased judging, raises new questions about the relationship between judges and juries, and provides a broader proof of principle: The acquisition of legal concepts is an under-studied but central form of legal expertise.

USSC: Cert Granted in FTCA/Bivens Case

Mandy Gillip at Ballotpedia News writes:

The Supreme Court of the United States agreed to hear a case in its October 2020-2021 term concerning the Federal Tort Claims Act (FTCA). The case, Brownback v. King, came on a writ of certiorari to the United States Court of Appeals for the 6th Circuit.

In 2014, James King violently resisted arrest after being stopped by FBI Special Agent Douglas Brownback and Grand Rapids Police Department Detective Todd Allen. King was tried and acquitted of charges of assault with intent to do great bodily harm, aggravated assault of a police officer, and resisting arrest. He then sued the United States under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971). The U.S. District Court for the Western District of Michigan held Brownback and Allen had not violated King’s constitutional rights under Bivens. The district court also decided against King’s FTCA claims. On appeal, the 6th U.S. Circuit Court of Appeals reversed the district court’s ruling.

SCOTUS will consider the following issue:

• • Whether a final judgment in favor of the United States in an action brought under Section 1346(b)(1), on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bars a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that is brought by the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant’s FTCA claim.

Cupp on Animals as Plaintiffs

Richard Cupp has posted to SSRN Considering the Private Animal and Damages.  The abstract provides:

Since 2018, private law damages claims seeking to place animals in the role of plaintiffs have, in dramatic fashion, moved from academic debate to high-profile litigation. Focusing on two recent cases, this short article asserts that lawsuits seeking to make animals plaintiffs in damages actions are much more than flashy news fodder; they raise profound policy issues that courts will struggle with into the foreseeable future. The most recent prominent case, Justice v. Vercher, is ongoing litigation seeking to designate a severely neglected horse as the plaintiff in a tort damages lawsuit against the horse’s owner. The second case, Naruto v. Slater, unsuccessfully sought to designate a monkey as the plaintiff in a copyright infringement lawsuit. Both cases illuminate significant implications in seeking to designate animals as plaintiffs in private law damages lawsuits. Thankfully, societal concern over animal welfare is rapidly increasing, and more needs to be done to protect animals. But efforts like Vercher and Naruto represent a societally harmful approach to animal protection. Such cases will probably continue to fail in the short term, but analogous lawsuits are nevertheless likely to proliferate over time because the stakes are so high – success could be a back door to breaking down legal barriers between humans and animals. Further, as societal views regarding animals quickly evolve, the potential for misguided rulings creating dangerous animal legal personhood through such lawsuits is real.

 

Tort Immunity for COVID-19 Countermeasures

At JD Supra, a team from King & Spalding discusses tort immunity under the PREP Act and COVID-19 Response Declaration.  The basics:

Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), on March 17, 2020, the Secretary of Health and Human Services (“HHS”) published the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19. The COVID-19 Declaration immunizes broadly certain entities from “suit and liability under federal and state law with respect to all claims of loss” related to the manufacture, testing, development, distribution, administration and use of certain countermeasures to COVID-19.

Billauer on Using the Law as a Public Health Response

Barbara Pfeffer Billauer has posted to SSRN The 2018-2019 Measles Epidemic:  Using the Law as a Public Health Response.  The abstract provides:

Measles rates increased dramatically during the 2018-2019 season, both in the US and globally. This phenomenon is reflective of a general decline in world-wide vaccination. In the US, the outbreaks targeted the Ultra-Orthodox Jewish communities, as it did in Israel. This article explores various reasons for this sudden surge and evaluates various legal responses, demonstrating the power of the law in quashing epidemics and reaffirming the constitutionality of mandating vaccination, even in the face of objections such as violation of religious freedom, autonomy and liberty.

Robinette & Wachtel on Raising Compulsory Auto Insurance Minimum Amounts in PA

Dani Wachtel (Widener Commonwealth Class of 2020) and I have posted to SSRN Raising Compulsory Automobile Insurance Minimum Amounts:  A Case Study from the United States.  Published in Insurance Review (Poland) as a contribution to a symposium, the abstract provides:

This article discusses a decision both European Union Member States and states in the United States must make: whether to raise their compulsory automobile insurance minimum amounts. The authors review a case study from the United States, the Commonwealth of Pennsylvania, and conclude a proposed increase in the compulsory minimum amounts should pass the legislator. The purpose of compulsory automobile insurance is to compensate victims of automobile accidents. Due to inflation, the minimum amounts in Pennsylvania no longer compensate adequately. Moreover, the data do not support the contention that an increase in the minimum amounts will cause large increases in premiums and uninsured rates. The authors conclude that compulsory minimum amounts should be periodically reviewed, as they are in the European Union, and that arguments about large increases in premiums and uninsured rates should be subjected to a careful review based on data.

Lens on Medical Paternalism & Stillbirth

Jill Lens has posted to SSRN Medical Paternalism, Stillbirth, & Blindsided Mothers.  The abstract provides:

Pregnant women know that some things that can go wrong in their pregnancies. They know of the chance of miscarriage, the reason most women do not even publicly share their happy news until after twelve weeks. They also know of the chance of certain chromosomal abnormalities, including fatal ones, as doctors’ disclosure of and screening for these abnormalities has become routine in prenatal care. But empirical studies confirm that pregnant women are ignorant of the chance of stillbirth, the death of the unborn child in the woman’s womb after twenty weeks of pregnancy but before birth. Women are ignorant that stillbirth means the woman will have to give birth to her dead baby. Women remain ignorant of the chance and reality of stillbirth because of medical paternalism—doctors think pregnant women do not need to and should not know of the chance of stillbirth.

This Article argues that a woman has a right to know of the chance of stillbirth before it happens to her child, a right enforceable through an informed consent medical malpractice tort claim. The application of modern informed consent law to define this right is novel, but not difficult. The risk of stillbirth is easily material and no evidence supports the myth that disclosure will cause pregnant women anxiety. Doctors are not protecting anyone, except maybe themselves, by failing to disclose stillbirth. To the contrary, numerous countries other than the United States have reduced their stillbirth rates through initiatives that include requiring doctors to disclose the risk of stillbirth to women and to educate women on the known, simple preventative measures. A tort claim enforcing a woman’s right to disclosure of stillbirth could have a similar effect in the United States.

PA: Workers Compensation and Coronavirus

Rebecca Moss of Spotlight PA has a story about obtaining workers compensation benefits for coronavirus in Pennsylvania.  The gist is that it will be extremely difficult for workers to prove they developed the sickness on the job:

The state Department of Labor and Industry assured workers on March 16 by saying those who contract the coronavirus on the job might be eligible for workers’ compensation benefits. But legal and public health experts say that help may be very hard to obtain.

To be eligible for workers’ compensation, a claimant must prove they were injured or made sick at their workplace. For a disease that's scope is both constantly changing and unprecedented, proving it was contracted while on the job will be challenging, if not impossible.

Abraham on Long-tail Civil Liability

Ken Abraham has posted to SSRN The Long-tail Liability Revolution:  Creating the New World of Tort and Insurance Law.  The abstract provides:

Very few developments have ever transformed either tort or insurance law. One development -- as important in our time as the adoption of liability for negligence was in the 19th century or the rise of strict products liability was in the 20th century -- transformed both. That is the rise of long-tail civil liability. A long-tail claim involves tortious or other liability-creating conduct that causes latent bodily injury or property damage that then manifests itself only many years after the harm-causing conduct occurred. Exposure to asbestos, and the storage of hazardous waste that slowly leaches into an aquifer, are paradigm examples. Beginning about fifty years ago, long-tail liability, and claims against liability insurers for insurance coverage of long-tail liability, have generated the vast majority of cutting-edge issues facing these two related fields. It is precisely the length of the tail on certain tort claims that is responsible for most of the fundamental developments in these fields over the past fifty years. Without long-tail liability, tort and insurance law, and many of the fundamental structural features of these fields, would look today much like they looked fifty years ago, and indeed, fifty years before that. But because of long-tail liability, features of both fields that simply did not exist fifty years ago are now central to these fields.

Almost all of this involved common law change. In an era dominated legally by federal legislation and the administrative state, the long-tail liability revolution was the exceptional instance in which judge-made, state-law rules governing tort law and insurance were central. The long-tail liability revolution took decades to occur, largely because it occurred through the common law process. It is also an example of what the legal system may face in the 21st century, if and when common law litigation over injury and loss caused by many new technologies that are coming onto the current scene begins to occur. This Article is an effort to understand how the long-tail liability revolution occurred, by analyzing the influence of this new form of liability on tort and insurance law, as well as the consequences that these changes in the law have produced.

Abraham & White on Conceptualizing Tort Law

Ken Abraham & Ted White have posted to SSRN Conceptualizing Tort Law:  The Continuous (and Continuing) Struggle.  Their contribution to a special issue of the Maryland Law Review honoring Oscar Gray, the abstract provides:

Today all tort lawyers, scholars, and teachers understand that there are three bases of liability in tort: intent, negligence, and strict liability. That is ordinarily how we think about tort liability, and how we organize tort law in our thinking. But that way of thinking actually does not capture, and has never captured, all of tort law. A quick look at any of the Restatements of torts, or at the leading treatises and casebooks, reveals that this tripartite division is only partly reflected in their organizational structure. Many torts typically are treated in piecemeal, atomistic fashion, as if they fall outside of this tripartite structure of organization altogether. In addition, very different matters are addressed under the three divisions. Something else, or something additional, is going on in tort law, but exactly what is not clear, and never becomes clear.

In fact, the untidy, fragmented organizational structure of contemporary tort law is the legacy of a lost history that not only helps to explain tort law’s puzzling organization, but also to reveal the underlying disordered character of tort law itself. This Article uncovers the ways in which the history and the very nature of tort liability have combined to defeat repeated efforts at coherent conceptualization of this body of law. We first examine the challenge that the treatise and casebook writers faced late in the 19th and early 20th centuries, as they attempted to organize and classify the different features of the new subject of tort law after the ancient, procedure-based “forms of action” and the writ system they accompanied were abolished along with the prohibition against party testimony. We then venture into the archives of the American Law Institute, in which the now-obscure evolution of the first Restatement of Torts in the 1920s is recorded, as that project first attempted, but then largely abandoned, an effort to develop a new, coherent organization of tort law in the first draft of the Restatement. That first draft revealed an incipient vision of tort law’s structure which appeared to be developing, but this vision sputtered and then disappeared, both from future drafts and from conventional histories of tort law. What ultimately took the place of that vision was the puzzling and fragmented organization of tort law that has come down to us today, all the way from that first Restatement. We then turn to the modern period, showing the ways in which the fragmented organization adopted by the first Restatement has persisted and been replicated, with treatises, casebooks, and both the second and third Restatements of torts largely accepting and adopting the organization of tort law that found its way into the first Restatement.

First Coronavirus Lawsuit

At Maryland Injury Lawyer Blog, Ron Miller covers the first coronavirus lawsuit.  It stems from the Grand Princess cruise ship.

Perry on the Law and Economics of Online Republication

Ronen Perry has posted to SSRN The Law and Economics of Online Republication.  The abstract provides:

Jerry publishes unlawful content about Newman on Facebook, Elaine shares Jerry’s post, the share automatically turns into a tweet because her Facebook and Twitter accounts are linked, and George immediately retweets it. Should Elaine and George be liable for these republications? The question is neither theoretical nor idiosyncratic. On occasion, it reaches the headlines, as when Jennifer Lawrence’s representatives announced she would sue every person involved in the dissemination, through various online platforms, of her illegally obtained nude pictures. Yet this is only the tip of the iceberg. Numerous potentially offensive items are reposted daily, their exposure expands in widening circles, and they sometimes “go viral.”

This Article is the first to provide a law and economics analysis of the question of liability for online republication. Its main thesis is that liability for republication generates a specter of multiple defendants which might dilute the originator’s liability and undermine its deterrent effect. The Article concludes that, subject to several exceptions and methodological caveats, only the originator should be liable. This seems to be the American rule, as enunciated in Batzel v. Smith and Barrett v. Rosenthal. It stands in stark contrast to the prevalent rules in other Western jurisdictions and has been challenged by scholars on various grounds since its very inception.

The Article unfolds in three Parts. Part I presents the legal framework. It first discusses the rules applicable to republication of self-created content, focusing on the emergence of the single publication rule and its natural extension to online republication. It then turns to republication of third-party content. American law makes a clear-cut distinction between offline republication which gives rise to a new cause of action against the republisher (subject to a few limited exceptions), and online republication which enjoys an almost absolute immunity under § 230 of the Communications Decency Act. Other Western jurisdictions employ more generous republisher liability regimes, which usually require endorsement, a knowing expansion of exposure or repetition.

Part II offers an economic justification for the American model. Law and economics literature has showed that attributing liability for constant indivisible harm to multiple injurers, where each could have single-handedly prevented that harm (“alternative care” settings), leads to dilution of liability. Online republication scenarios often involve multiple tortfeasors. However, they differ from previously analyzed phenomena because they are not alternative care situations, and because the harm—increased by the conduct of each tortfeasor—is not constant and indivisible. Part II argues that neither feature precludes the dilution argument. It explains that the impact of the multiplicity of injurers in the online republication context on liability and deterrence provides a general justification for the American rule. This rule’s relatively low administrative costs afford additional support.

Part III considers the possible limits of the theoretical argument. It maintains that exceptions to the exclusive originator liability rule should be recognized when the originator is unidentifiable or judgment-proof, and when either the republisher’s identity or the republication’s audience was unforeseeable. It also explains that the rule does not preclude liability for positive endorsement with a substantial addition, which constitutes a new original publication, or for the dissemination of illegally obtained content, which is an independent wrong. Lastly, Part III addresses possible challenges to the main argument’s underlying assumptions, namely that liability dilution is a real risk and that it is undesirable.

Experts: Suing Successfully for Quarantines is Difficult

Governments are given wide latitude in responding to public health emergencies is the bottom line from this piece in Claims Journal.

Weisbord on Postmortem Defamation

Reid Weisbord has posted to SSRN Postmortem Defamation in a Society Without Truth for the Living.  The abstract provides:

Defamation law limits the private action for reputational injury to plaintiffs who are alive at the time of disparagement. In a novel reform proposal, Professor Don Herzog argues that we should extend defamation liability to disparaging statements about dead people. This Essay evaluates Herzog’s theory of postmortem reputational harm by focusing mainly on two counterarguments not addressed in his proposal: The first is that, since the election of President Trump, the modern political discourse has become so detached from the truth and callous about death that it is difficult to envision a moral obligation to protect postmortem reputational interests. The second distinguishes the consequentialist doctrine of testamentary intent from Herzog’s moral theory of postmortem defamation. This Review Essay concludes that, while society should indeed strive to recognize a moral obligation to protect decedents against reputational harm, we cannot do so without first restoring our commitments to truth-telling and respecting the solemnity of death.

GA: Extensive Tort Reform Bill Withdrawn in Senate

A sweeping tort reform bill was withdrawn in the Georgia Senate after bipartisan opposition:

The sprawling Senate Bill 415 would alter many areas of Georgia’s civil judicial system from landlord protections and large medical damages to key tweaks on what evidence can be presented in court like seatbelt use.

But the bill ran up against opposition from Senate lawmakers on both sides of the aisle, wary that too many changes were crammed into a single bill. They narrowly voted 27-26 to table the bill upon request from its sponsor, Senate Majority Whip Steve Gooch.

It appears unlikely a tort reform bill will pass in this session.  The Augusta Chronicle has the story.

LA: Tort Reform on the Agenda

One of the places to watch regarding tort reform right now is Louisiana.  A new legislative session started Monday, and several reforms almost, but not quite, passed at the end of the last session.  Many of the proposals are aimed at automobile accidents; Louisiana has the second-highest automobile insurance rates in the nation.  Whether those high rates are attributable to tort law or other factors is a subject of dispute.  Insurance Journal has the story.

Lindenfeld on Clear Evidence

Eric Lindenfeld has posted to SSRN Clear Evidence Clarified.  The abstract provides:

In 2009, the Supreme Court in Wyeth v. Levine articulated a standard of federal preemption for failure-to-warn claims in the brand name drug context. Specifically, the Court ruled that a defendant could only be afforded the benefit of federal preemption if it could present “clear evidence” that the warning which plaintiffs argued should have been included on the label would have been rejected by FDA. Over the next decade, courts took wildly divergent approaches to Levine’s clear evidence standard, creating uncertainty amongst plaintiffs and defendants alike. Courts disagreed, for example, on whether FDA denial of the warning must be actual or hypothetical. Moreover, courts applying the clear evidence standard disagreed on the relevance and import of similar drug label rejections, years-old label rejections for the same drug, scientific literature, independent FDA studies, emails, correspondence, or materials buried in thousand-page submissions. The confusion spawned a labyrinth of conflicting rulings and decade worth of confusing and inconsistent precedent. It has also generated a significant amount of scholarship, including scholarship by this author, calling on the high court to revisit and rearticulate the standard.

Recognizing, perhaps, that clarification of the clear evidence standard was long overdue, in May 2019, the Supreme Court issued a ruling in Merck Sharp & Dohme Corp. v. Albrecht, with major impact on the product liability landscape. Most significantly, the Court rejected the use of hypothetical preemption, clarifying that clear evidence requires that defendants show that FDA actually and expressly rejected the warning which plaintiffs argued was necessary under state tort law standards. The Court’s newly articulated five-part test also establishes that in order to receive the benefit of federal preemption, defendants must demonstrate that they provided FDA all material and relevant information. While certain nuances were left unaddressed by the Court, and certain interpretive issues have been hotly debated amongst the first wave of commentators, the newly stated rule provides much needed clarification on the clear evidence inquiry. This clarification is especially important given that the standard’s application is most common in high stakes, consolidated litigation involving thousands of lawsuits and some of the most innovative and complex drugs and devices ever sold.

This paper proceeds in five Parts. Part I provides a background on the federal regulatory regime governing prescription drugs, including the mechanisms available to manufactures and FDA to supplement a brand name drug’s label. Part II briefly lays the groundwork of the evolution of federal preemption principles in the brand name preemption context, including the foundation of the clear evidence standard. Part III explains the conflicting applications of the traditional clear evidence standard, and then progresses into the genesis and holding of the Supreme Court decision in Albrecht. Part IV then analyzes the Supreme Court’s holding, carefully detangling and examining the language of the newly stated rule, as well as forecasting its prospective interpretation and application. Having concluded that the newly stated rule, at the minimum, dramatically limits defendants’ ability to assert the clear evidence standard. Part V analyzes its potential policy implications. The paper concludes that Albrecht’s new rule is a positive step for consumer safety, offers consistency, will not overburden FDA, and is not overly-draconian.

Priel on Structure and Function in Tort Law

Dan Priel has posted to SSRN Structure, Function, and Tort Law.  The abstract provides:

A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.

Forthcoming in the Journal of Tort Law.

Bernstein at the Faculty Lounge

Anita Bernstein is blogging at the Faculty Lounge.  Her most-recent post is about June Medical Services, LLC v. Russo, argued yesterday at SCOTUS.