TortsProf Blog

Crimtorts at Widener

I am pleased to announce that Widener University School of Law will host the first national conference on "crimtorts."  "Crimtorts" refers to the expanding middle ground between criminal and tort law.  The conference will take place on February 25, 2008 in Harrisburg, Pennsylvania.  We have a fantastic lineup of speakers:  Martha Chamallas (Ohio State), Mark Geistfeld (NYU), Keith Hylton (Boston University), Mary Kate Kearney (Widener), Tom Koenig (Northeastern Sociology), Jeffrey O'Connell (Virginia), Mike Rustad (Suffolk), Sheila Scheuerman (Charleston), Tony Sebok (Cardozo), Cathy Sharkey (NYU), Ken Simons (Boston University), and Byron Stier (Southwestern).  I will post the brochure in the next few days.  If  you have any questions, please contact me, Chris Robinette, at (717) 541-3993 or [email protected].  Please make plans to join us.

CJR 

The Prosser Notebook: Restatements

Given Prosser's later role as the Reporter for the Restatement (Second) of Torts (1965), I believe Prosser's thoughts on the general endeavor of the Restatements deserves its own post.  After discussing English and American hornbooks on the first day of class (see post here), Prosser went on to discuss Restatements.  Merrifield recorded the following:

Restatements-American Law Institute-Carnegie money-give rules-cite no cases-beyond first year students-doubtful whether courts will follow it.

That Prosser had a dubious attitude toward Restatements--"doubtful whether courts will follow it"--is fascinating considering it comes from the person who made such use of a Restatement to shape products liability and privacy law.  Furthermore, no less a source than Wikipedia informs me that, as of March 1, 1995, the Restatements had been cited in court opinions 129,533 times.

CJR

Scruggs Roundup

I've been waiting to do much on the Scruggs indictment until I had a chance to read more sources and do a more comprehensive post; lucky for me, Walter Olson has done one at Overlawyered.com.  The indictment is, as he quotes Stephanie Mencimer as saying, pretty damning.

--BC

Kentucky Kingdom Update

The judge overseeing the tort litigation regarding a teenage girl's injuries at Six Flags Kentucky Kingdom has approved the park's request to tear down the ride, reports the Courier Journal.  The parties have still not agreed on an entity or procedure for testing the cable that snapped and severed the girl's feet, and it sounds like the litigation is not going particularly fast.

--BC

Tort Awards

Two interesting recent posts/newsletters related to damage awards in tort litigation:

• The Maryland Injury Lawyer Blog discusses a 2003 study that found interesting -- and not necessarily intuitive -- relations among a plaintiff's race, a plaintiff's income, and damage awards.
• Prof. David Frankel (Iowa State econ) of MedMalReports.com -- a commercial entity assisting in evaluating the value of med mal cases based on a large database of settlements and verdicts -- sent along the first issue of the site's newsletter, which gives some big picture information about what affects award amounts.  You can download it here: Download newsletterV1N1.pdf.  While it's in part an ad for their services, it's interesting reading nonetheless.

--BC

The Prosser Notebook: Hornbooks and Casebook

As I noted in an earlier post (with a follow-up here), one of my former students loaned me his grandfather's Torts notebook.  His grandfather, Leroy S. Merrifield (who went on to be a Torts professor himself), was a first-year law student at the University of Minnesota in 1938-39.  His Torts professor was William Prosser.

In this time period, Prosser was writing Prosser on Torts, which would first appear three years later in 1941.  The notebook makes it clear that Prosser was thinking quite a bit about hornbooks at that point.  Merrifield's notes from the first day of class include an analysis of existing hornbooks--both English and American (with the English listed first!).  Merrifield recorded the following:

Pollock-13th Ed.-English law; Salmond-8th Ed.-English law-best text; Clerk & Lindsell-8th Ed.-English law

Cooley-4th Ed.-not good but best; Chapin (1913)-"hornbook" accurate but incomplete; Harper-1933 disciple of Bohlen (casebook author) theoretical-presents one view-most useful.

Prosser had clearly considered these books very carefully.  He described them on the first day of his Torts class.  He had ranked them--Salmond was the best English text, Cooley was the best American text, Harper was the "most useful."  And, importantly, he had found them lacking.  Even the best American text was "not good."  Prosser saw a need in the market, and he was planning to fill it.

In a related matter, it appears that Prosser, in 1938-39, was using as a text Francis Bohlen's Cases on the Law of Torts (3d ed. 1930).  The reference to Bohlen as the "casebook author," combined with the page numbers for specific cases, provided the answer.

CJR

No TB From Andrew Speaker

None of the passengers who traveled with Atlanta lawyer Andrew Speaker caught TB, reports the Atlanta Journal-Constitution, who notes that he remains a defendant in civil suits alleging negligence in exposing others.

Speaker, by the way, has a blog, and he's even linked to us.  Sort of.  He posted, verbatim, an entire round-up by Eric Turkewitz, and that round-up linked here.

--BC

Another Possible Exam Scenario...

OnPoint has this complaint by a wife against her husband for his neligent operation of a hot air balloon:

As the balloon with two passengers aboard took off, the vent ropes caught [the wife] by the ankle and hoisted her into the air.

Strong winds prevented John Long from returning to the take-off site, so he aimed for trees in the hope that his wife, who was dangling upside down, could grab onto something and untangle herself. After hitting one of the trees, she fell through the roof of a barn, landing on rotting floorboards.

And the students think we make these things up...

- SBS

FDA Cites Glaxo For Misleading "Dear Doctor" Letters

The FDA has issued a warning letter to GlaxoSmithKline for misleading "Dear Doctor" letters on the drug Tykerb, a daily pill for patients with advanced breast cancer.   As CNNMoney (via AP) reports, the FDA asserts that the "Dear Doctor" letters omit the drug's risks and further exaggerate the drug's effectiveness. 

- SBS

Texas Med Mal Reform

Yesterday the Boston Globe ran an article presenting both sides of the recent medical malpractice reforms in Texas.  As Bill posted here, the reforms appear to have attracted some physicians to Texas.  However, the article reports that rural areas have not yet benefited.  Furthermore, claimants are having an increasingly difficult time finding representation, even for potential suits that are strong on liability. 

CJR

Amusement Industry Gets Grassrootsy

IAAPA's letter-generating site is here, providing people who oppose expansion of CPSC oversight to fixed-site amusement parks.

--BC

BP Blast Trial Starts Today in Galveston

The March 2005 explosion at a BP refinery in Texas City, Texas, killed 15 workers and resulted in numerous lawsuits.  BP has admitted responsibility and most suits have been settled; the first trial starts today in Galveston.  Famed plaintiffs' lawyer Mark Lanier is trying the case and alleges "breathtaking . . . criminality" in the permitting process, specifically relating to a former regulator working for BP on obtaining permits for the refinery. 

BP has entered into a plea agreement to resolve criminal charges; workers are attempting to derail that deal as insufficient punishment.

The story suggests that BP could have punitive damages exposure of up to $1 billion based on the alleged fraud in permitting, but that number appears untethered to anything other than, perhaps, Lanier's suggestion as to how much he'll ask for.

(Past discussion of the BP case is here.)

--BC

Giants Stadium Settlement to Remain Sealed; Judge Explains Why

Via Overlawyered, the New Jersey Law Journal reports that the trial court judge overseeing the overserving lawsuit against Aramark has refused to unseal the settlement and explained why:

On Friday, the judge made public his June 7 opinion explaining his rationale, and it was all about the girl's father, Ronald Verni.

In 2004, a court appointed a guardian for the girl after learning that Verni had unlawfully used settlement money from other defendants to buy a condominium and had also misappropriated her social security money, Wilson wrote.

A series of domestic violence incidents led to permanent restraining orders that bar Verni from contacting his family or seeing his children without supervision, the judge wrote.

"By sealing the record of any potential settlement, the estranged father is far less likely to return to New Jersey and continuing his unlawful behavior," Wilson wrote.

A lawyer for Public Citizen (which sought to unseal the file) said that he didn't believe publishing the amount of the settlement would increase any risks.

The original lawsuit complained of a "culture of intoxication" at Giants stadium; perhaps of note, last week's story about harassment at Gate D at the same stadium observed that the stupidity there largely only occurred during Jets games (the Verni case involved a Giants game).

--BC

Dennis Rodman Sued For -- Say It Ain't So! -- Acting Inappropriately

Details here (on a site, OMG Yahoo, that frankly confuses and scares me, meaning, I think, that I'm officially old).

A former beverage manager at the Hard Rock Hotel has sued Dennis Rodman, claiming the ex-NBA star assaulted her last year by rubbing against her body and slapping her on the buttocks.

She also alleges retaliation by her employer when she complained of his conduct.

--BC

"Dr. Drug Rep"

The NYT magazine has an interesting piece written by Daniel Carlat, the author of the Carlat Psychiatry Blog and the Carlat Psychiatry Report.  Carlat worked as a paid consultant to Wyeth in marketing Effexor, an SSRI, and his NYT piece reports his experiences.  A representative excerpt:

The first talk I gave brought me back to earth rather quickly. I distinctly remember the awkwardness of walking into my first waiting room. The receptionist slid the glass partition open and asked if I had an appointment.

“Actually, I’m here to meet with the doctor.”

“Oh, O.K. And is that a scheduled appointment?”

“I’m here to give a talk.”

A light went on. “Oh, are you part of the drug lunch?”

Regardless of how I preferred to think of myself (an educator, a psychiatrist, a consultant), I was now classified as one facet of a lunch helping to pitch a drug, a convincing sidekick to help the sales rep. Eventually, with an internal wince, I began to introduce myself as “Dr. Carlat, here for the Wyeth lunch.”

The drug rep who arranged the lunch was always there, usually an attractive, vivacious woman with platters of gourmet sandwiches in tow. Hungry doctors and their staff of nurses and receptionists would filter into the lunch room, grateful for free food.

--BC

Romney Endorses Med Mal Reforms

Speaking at an Iowa medical school on Tuesday, Republican presidential candidate Mitt Romney endorsed a federal cap on non-economic damages for medical malpractice.  This is consistent with, although more specific than, Romney's view on limiting non-economic damages as reported by Bill in an August post here.  What is new, and has received less attention in the media, is that Romney also said he would encourage states to create special "health courts" with judges experienced in handling malpractice cases.  Local coverage of Romney's speech is available here. 

CJR

Medical Malpractice Premiums Decrease in Michigan

Medical malpractice premiums in Michigan will decrease an average of 6.5% next year according to this article in Crain's Detroit Business.  The decrease in Wayne County will average 13%.  The Michigan State Medical Society credits Michigan's 1993 tort reforms for the improvement.

CJR

Black Friday Exam Question

This morning, shortly after 4:00 a.m, I made my way to Kohl's for my first, and last, foray into Black Friday shopping.  I wanted a particular item for my daughter, and Kohl's advertised a fantastic price on it.  As an amateur, I had no idea what I was doing.  But I was optimistic.  How many people could possibly be at a Kohl's in suburban Harrisburg at 4:20 a.m.?  Apparently, a lot. 

The item I was seeking was no longer in stock.  However, my instinct to avoid this carnival all of these years has been vindicated.  On the bright side, it was a target-rich environment for a Torts exam, especially for those of us with a two-semester course emphasizing intentional torts in the fall.  There are a lot of people in a crowded space, some of whom are desperate to get a particular item.  The assault and battery/self defense opportunities are obvious.  And it wouldn't take much of a stretch to see the animus from the original encounter create the desire for some intentional infliction of emotional distress.  Finally, it's a department store, so it is easy to envision a shoplifting/detention scenario that can be used to test false imprisonment.  The setting is perfect to analyze the common statutory "shopkeeper's privilege."  Enjoy your day off--and avoid malls.

CJR

Happy Thanksgiving

Have a tort-free holiday!

CJR

Sebok & Zipursky on Vioxx Settlement

In this week's Findlaw Writ column, Tony Sebok joined by Benjamin Zipursky address the recent Vioxx settlement.  Sebok and Zipursky do not comment on the end result (a $4.85 billion settlement), but rather analyze various structural issues such as "the process by which the agreement was reached, the process by which the payment-and-release program will come into effect (if it does), and the process by which the settlement agreement and the program will be "enforced.""   

- SBS