TortsProf Blog

Oscar Gray's Memorial Service

The service was held on Tuesday, December 10 at the University of Maryland School of Law.  Speakers included Judge Calabresi and Don Gifford.  Video is here.

Bypassing the Feres Doctrine?

Under a provision inserted into the annual defense authorization bill, Defense Department officials could offer payouts to victims of military medical malpractice.  In what is essentially a compromise, the Feres doctrine, prohibiting victims of military medical malpractice from recovering in court, would not be overturned.  Instead, an administrative compensation program would be created:

In the legislation, lawmakers noted that although the move “does not change or repeal the Feres doctrine, it authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death … that was the result of medical malpractice caused by a Department of Defense health care provider.”

Most claims would be limited to under $100,000, although the secretary could authorize larger payouts in some circumstances.

The House should vote on the bill today, with the Senate following early next week.  The legislation has passed Congress in each of the last 58 years.  Military Times has the story.

CA: PG&E Reaches $13.5B Settlement with Wildfire Victims

On Friday, Pacific Gas & Electric announced a $13.5B settlement with victims of multiple wildfires alleged to have been started by the company's negligence.  Dozens of people died in those fires and tens of thousands of homes were destroyed.  The settlement "will cover claims stemming from some of the deadliest and most destructive fires in the state’s history, including the 2018 Camp Fire and the 2017 Tubbs Fire. A federal bankruptcy judge needs to approve the accord before it becomes final."  Derek Hawkins at WaPo has the story.

NJ: Sisters Abused by Priest File Suit Against Archdioceses

New Jersey's two-year window to sue for victims of child sexual abuse has just opened.  One of the first lawsuits filed is by a few of the five sisters in one Harrisburg, Pennsylvania family who were abused by a priest in both New Jersey and Pennsylvania.  The priest was moved from New Jersey to Harrisburg, where he met the family.  Some of the assaults occurred when the priest took the sisters to a home in New Jersey. 

Pennsylvania just expanded its statute of limitations for child sexual abuse; separately it started a constitutional amendment process to open a two-year window for those victims barred by the old statute of limitations.  For the amendment to pass, the legislature, which has passed a bill on the amendment once, must pass it again next year.  Then the issue will be on the ballot and voters must approve of it.  The process will take at least two years, but was necessary to break a stalemate in the legislature over the issue.

Pennlive has the story.  

PA: Commonwealth Alters Statute of Limitations on Child Sexual Abuse

Last week I reported a breakthrough in a dispute over extending the statute of limitations for child sexual abuse in Pennsylvania.  As expected, bills were passed by the full Senate and signed by Governor Wolf.  Under new law:

Victims would have until they turn 55 to sue, compared to age 30 in current law. Young adults ages 18-23 would have until age 30 to sue, where existing law gives them just two years.

A separate law started a constitutional amendment process to open a two-year window for child sexual abuse victims whose claims are currently time-barred:

The multi-year amendment process has begun, but the bill must again pass both the House and Senate in the 2021-22 legislative session before voters will decide its fate in a statewide referendum.

Pennlive has the story.

Michigan Junior Scholars Conference

The University of Michigan Law School invites junior scholars to attend the 6th Annual Junior Scholars Conference, which will be held on April 17-18, 2020, in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.

Applications are due by January 3, 2020.

Further information can be found at the Conference website: https://www.law.umich.edu/events/junior-scholars-conference/Pages/2020conference.aspx

AALS Torts Section Newsletter

...is here:  Download AALS Tort Section Newsletter November 2019

JOTWELL Torts: Goldberg on Descheemaeker on Compensating Emotional Harm

At JOTWELL, John Goldberg reviews Eric Descheemaker's Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018).

New Torts Books from Hart: Markesinis, Bell & Janssen; Robertson & Goudkamp; Beuermann

Markesinis's German Law of Torts

Basil S Markesinis, John Bell and André Janssen

Since its first appearance in 1986, this magisterial work has won uniform praise from many of the world’s leading comparatists. It has been acclaimed by senior judges and has been cited by the courts of many countries. This new, substantially rewritten and systematically updated fifth edition of the work, contains over 95 leading judgments, most translated in their entirety, along with references to over 2,000 other decisions from Germany and the common law world. While the book remains an ideal tool for teaching comparative torts and comparative methodology, the fact that it has been extensively rewritten makes it an indispensable source of inspiration for those with a professional interest in tort litigation and tort law reform. This edition has paid particular attention to liability for internet activity, medical liability and the protection of personality rights and private life.

Sir Basil S Markesinis QC FBA LLD DR. H.C. (MULT.) is a Fellow of the British Academy, a Foreign Fellow of the Accademia dei Lincei of Rome, the Royal Belgian Academy of Arts and Sciences in Brussels, the Royal Netherlands Academy of Arts and Sciences in Amsterdam, and a Corresponding Fellow of the Academy of Athens and the Académie des Sciences Morales et Politques in France. He is a Bencher of Gray’s Inn.

John Bell QC FBA is Professor of Law at the University of Cambridge.

André Janssen is Professor of Private Law at Radboud University, Nijmegen.

Oct 2019   |   9781509933198   |   728pp   |   Hardback   |    RSP: £150  

Discount Price: £120

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

 

Form and Substance in the Law of Obligations

Edited by Andrew Robertson and James Goudkamp

This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes it clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law.

Andrew Robertson is Professor of Law at the University of Melbourne.

James Goudkamp is Professor of the Law of Obligations at the University of Oxford.

Nov 2019   |   9781509929450   |   504pp   |   Hbk   |    RSP: £95  

Discount Price: £76

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

 

Reconceptualising Strict Liability for the Tort of Another

Christine Beuermann

This book adopts a novel approach to resolving the present difficulties experienced by the courts in imposing strict liability for the tort of another. It looks beyond the traditional classifications of ‘vicarious liability’ and ‘liability for breach of a non-delegable duty of care’ and, for the first time, seeks to explain all instances of strict liability for the tort of another in terms of the various relationships in which the courts impose such liability. The book shows that, despite appearances, there is a unifying feature to the various relationships in which the courts currently impose strict liability for the tort of another. That feature is authority. Whenever the courts impose strict liability for the tort of another, the defendant is either vested with authority over the person who committed a tort against the claimant or has vested or conferred a form of authority upon that person in respect of the claimant. This book uses this feature of authority to construct a new expositive framework within which strict liability for the tort of another can be understood.

Christine Beuermann is Lecturer in Law at the University of Newcastle.

Nov 2019   |   9781509917532   |   240pp   |   Hbk   |    RSP: £60  

Discount Price: £48

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

PA: Breakthrough on the Stalemate Over Statute of Limitations for Child Sexual Abuse

For three years, the Pennsylvania legislature has been at odds over extending the statute of limitations for child sexual abuse.  The House has repeatedly passed reform bills; the Senate has not.  Currently victims of child sexual abuse have until age 30 to file civil suits and age 50 for the filing of criminal charges.  There has been widespread agreement about extending those time periods, but there has been conflict over a retroactive window to allow victims to bring claims that are time-barred under current law. 

This year, the House has again passed bills, and Governor Wolf has indicated he would sign them.  Yesterday, the Senate Judiciary Committee unanimously passed the bills, clearing the way for a floor vote this week.  The bills, now expected to pass in the full Senate, would:

• Leave a person who commits serious sexual abuse against a child forever exposed to potential criminal prosecution, giving that crime the lifetime tail that now applies to only the most serious of crimes like criminal homicide. It also expands the window for childhood victims to file civil suits against their abusers to their 55th birthday.
• Amend the state constitution in a way that would allow victims of past childhood sexual abuse a two-year window to file civil suits against those that they say abused them, as well as any employers or institutions that might have attempted to sweep those abuses under the rug.

Pennlive has the story.

Teitelbaum on Computational Complexity and Deterrence

Joshua Teitelbaum has posted to SSRN Computational Complexity and Tort Deterrence.  The abstract provides:

Standard economic models of tort deterrence assume that a tortfeasor's precaution set is convex — usually the non-negative real numbers, interpreted as the set of feasible levels of spending on safety. In reality, however, the precaution set is often discrete. A good example is the problem of complex product design (e.g., the Boeing 737 MAX airplane), where the problem is less about how much one spends on safety and more about which combination of safety measures one selects from a large but discrete set of alternatives. I show that in cases where the precaution set is discrete, the problem faced by a tortfeasor under strict liability and negligence is computationally intractable, frustrating their static deterrence effects. I then argue that negligence has a dynamic advantage over strict liability in that negligence can move a tortfeasor's behavior in the direction of socially optimal care over time more rapidly than strict liability.

Engstrom on Lone Pine Orders

Nora Engstrom has posted to SSRN The Lessons of Lone Pine.  The abstract provides:

Over the past three decades, Lone Pine orders have become a fixture of the mass- tort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with prima facie injury, exposure, and causation evidence by a date certain — or else face an early and unceremonious dismissal. So far, the orders have been mostly heralded as an inventive and efficient way to streamline and expedite the resolution of complex cases. They are, many believe, an antidote to the assertion of dubious filings. Yet it’s not so simple. This Article identifies and analyzes various drawbacks associated with Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and insistence on using a binary screen to address a question that is, at bottom, insusceptible to a binary resolution. Given these problems, it ultimately concludes that courts ought to scale back their use of this potent procedural device.

But that’s just the half of it. Lone Pine orders are not just important because of what they do. They are also important because of where they sit: squarely at the intersection of broader currents that are quietly transforming contemporary civil litigation. These currents include the rapid and seemingly insatiable growth of multidistrict litigation, the durable embrace of managerial judging, the counterrevolution against federal litigation, the ever-more-preliminary disposition of claims, and both the formal and informal customization of procedural mechanisms. Weaving these seemingly disparate currents together, this study offers fresh insights to deepen — and, in places, complicate — our understanding of these profoundly influential phenomena.

Institute for Law Teaching and Learning—Summer 2020 Conference

Effective Instruction in Online and Hybrid Legal Education

June 11—13, 2020

University of Arkansas at Little Rock William H. Bowen School of Law

Little Rock, Arkansas

 

Conference Theme:  The future of legal education has arrived, with more and more law schools moving toward teaching part or all of their J.D. program online.  During this conference, we will explore how law professors can design and implement methods for teaching effectively in online environments, including both synchronous and asynchronous formats.  After an opening plenary examining data regarding the effectiveness of online education, the subsequent plenaries and concurrent workshops will address the following topics in the context of online and hybrid courses and programs:  course and program design, assessment of student learning, active learning and student engagement, teaching methods, providing feedback, and collaborative learning.

 

Conference Structure:  The conference will consist of three plenary sessions and a series of concurrent workshops that will take place on Thursday, June 11; Friday, June 12; and the morning of Saturday, June 13.  The conference will open with an informal reception on the evening of Wednesday, June 10.  Details about the conference will be available on the website of the Institute for Law Teaching and Learning, www.lawteaching.org. 

 

Registration Information:  The conference fee for participants is $285, which includes materials, meals during the conference (three breakfasts and three lunches), and the welcome reception on Wednesday, June 10.  The conference fee for presenters is $185.  Details regarding the registration process will be provided in future announcements.

Lytton on the Sandy Hook Case

Tim Lytton has responded to the USSC denying cert. in the case filed by plaintiff families of the Sandy Hook shooting victims against Remington, the manufacturer of the gun used by Adam Lanza in the attack.  Here is a sample:

The U.S. Supreme Court on Nov. 12 refused to block a lawsuit filed by the families of the Sandy Hook Elementary mass shooting victims, clearing the way for the litigation to proceed. Remington Arms, which manufactured and sold the semiautomatic rifle used in the attack, had hoped the broad immunity the industry has enjoyed for years would shield it from any liability.

The prospect of more claims from victims of mass shootings puts new pressure on the gun industry to reconsider the way it does business.

My research over the past 20 years on lawsuits against the gun industry examines how the threat of civil liability has the potential to promote safer gun designs, encourage more responsible marketing practice and reduce the risk of illegal retail sales.

Engstrom & Rabin on CA Barring the Use of Race, Gender, and Ethnicity in Calculating Tort Damages

Recently, I reported that California has banned the use of race, gender, and ethnicity in the calculation of tort damages.  Now Nora Engstrom and Bob Rabin have written this piece for Law.com.

USSC Denies Cert In Sandy Hook Shooting Case Against Remington

     In March, the Connecticut Supreme Court ruled, 4-3, that plaintiff families from the 2012 Sandy Hook school shooting could proceed to trial against Remington, the manufacturer of the Bushmaster AR-15 used in the attack.  The cause of action was based on the Connecticut Unfair Trade Practices Act for "personal injuries that result directly from wrongful advertising practices."  Significantly, the Connecticut high court rejected Remington's defense based on the Protection of Lawful Commerce in Arms Act.  The court ruled the suit fell into a “predicate exception  [that] permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or market of the [firearm], and the violation was a proximate cause of the harm for which relief is sought …’ 15 U.S.C. § 7903 (5) (A) (iii) (2012).

     Yesterday the United State Supreme Court declined to hear Remington's appeal.  Coverage from The Litchfield County Times at the time of the Connecticut Supreme Court opinion noted the case:

puts the victims’ families in a position where they may be able to try to prove a connection between Remington’s marketing for its Bushmaster AR-15 rifle and the horrific act of violence by a disturbed 20-year-old. The state Supreme Court said they can try; making the connection, lawyers and experts say, is a steep challenge.

“It is a Herculean task,” said Victor E. Schwartz, co-chairman of the public policy practice in the Washington, D.C. office of the law firm Shook, Hardy & Bacon.

Memorial Service for Oscar Gray

A memorial event for the late Oscar S. Gray, the Jacob A. France Professor of Torts Emeritus, will be hosted by the University of Maryland Carey School of Law on Tuesday, December 10, at 2 p.m.  If you are able to attend, please RSVP at the following link by December 3^rd  https://oscargraymemorial.eventbrite.com

Amtrak Removes Right to Sue

In the wake of a $265M settlement for 8 deaths and hundreds of injuries in Philadelphia in 2015, Amtrak added a clause to its ticket purchases requiring arbitration.  Though the change, made in January, has not received a lot of attention, that may change shortly.  Connecticut Senator Richard Blumenthal is looking into the issue, and the House Transportation Committee holds a hearing on Amtrak on Wednesday.  Politico broke the story last week. 

Can an Abortion Clinic (or Other Business) Be a Nuisance Because it Attracts Protesters?

Eugene Volokh writes:

     Yes, a Georgia trial court held, and the jury awarded the neighbors $1.5 million, see https://www.mdjonline.com/news/cobb-jury-tells-abortion-doctor-to-pay-million-for-creating/article_f2719f5a-de46-11e9-b3de-8fab09664f5b.html .  As best I can tell from the article and from some of the court papers, the plaintiff neighbors’ claim was chiefly that the clinic attracted a constant stream of protesters, some of whom displayed graphic images of aborted fetuses, some of whom trespassed and accosted visitors to other businesses in the office park, some of whom tried to organize a boycott of the whole office park, and some of them (people suspect) had set a fire and might do it again.  (Part of the claim seems also to be that the clinic’s operation violated parts of the office park owners association’s rules, in which all the owners promised not to create nuisances, but let’s set that aside here.)

     I’m quite skeptical of this result, as I would be if plaintiffs could sue a bookstore that drew protesters or even attackers because it sold controversial literature, a fur store that drew anti-fur protesters, or a business that drew labor protesters.  But I want to make sure I understand the proper nuisance law analysis here; any thoughts from people who have studied nuisance law more closely than I have? 

 

     Please respond in the comments. 

IL: $101M Med Mal Verdict for Baby Born with Brain Damage

Jurors deliberated for 6 hours before awarding $101M in damages to the family of a baby born with brain damage in Oak Park.  Attorneys alleged health care providers ignored the baby's external fetal monitoring strips for 6 hours before and during delivery, and experts testified the baby would have had normal functioning  if a doctor had been alerted and a C-section performed.  The Clifford Law Office represented the family.  The Chicago Sun-Times has the story.