TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Saturday, May 31, 2008

Medical Malpractice Payment Disclosure in NC

The Raleigh News & Observer reports a controversy between the state medical board, which wants to provide limited information about medical malpractice payments online, and many physicians, who oppose the idea.


May 31, 2008 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, May 30, 2008

Kentucky Agriculture Department Issues Report on Tower Ride

Nearly a year after the original incident, the Kentucky Department of Agriculture has released a report [PDF] summarizing its investigation.   Some quick initial reactions:

The overall conclusion is that the agency can't pinpoint a single cause, but they focus on the cable condition (necessarily implicating the park's inspection program and, less clearly in this report, the Department's own inspections) and on the ride operator's failure to hit the emergency stop immediately upon hearing the problem noises.  (The operator's explanation for that decision is below.)  The park will be fined a whopping $1,000 for failure to maintain the ride; the agency is not seeking criminal sanctions.

The ride had been inspected earlier in 2007 (apologies for weird formatting):

For the 2007 inspection, the KDA  inspector spot checked the cables on sections II, III, 
IV, and V. The cables on section I had  been replaced with new cables prior to the 
inspection. Because t he STP was presented to the  inspector in operational condit ion, the 
spot checks on sections II­V were conducted with  a  leather glove, due to the volume of 
grease on the cables. The  inspector determined a rag test would not be useful during this 
particular  inspect ion because the grease on the cables would quickly  fill the rag with 
grease,  making broken wire detection  impossible. The spot checks were performed wit h 
the drums and sieves operating at low speed  in  maintenance  mode. Even with the drums 
and  motors running at low speed, this  inspection  is extremely dangerous for anybody who 
places his  hands on the cable because of the possibility that the person’s  hand  may get 
caught  in the drum.  The  inspector did not find cable  breaks on any section of the ride.

The report later notes that the Department of Agriculture did not have the same inspection directions from Intamin that Six Flags did.

Upon inspection after the incident, the Department of Agriculture inspector concluded that the cable looked different than when the same inspector had examined the cable a couple of months earlier -- it was significantly deteriorated.  (As a potentially incidental aside, ride inspectors in Ohio were criminally charged a couple of years ago when they failed to check electrical grounding but indicated on their report that they did so.)

The report also includes synopses of the interviews with the ride operators.  The main ride operator evidently first called the park emergency phone number rather than hitting the emergency stop button when things looked like they were going wrong.  Why?  Her explanation:

When asked by the KDA why she did not hit the E­stop before being prompted to do so, 
the MainRide Operator stated that she made a deliberate decision not to hit the E­stop. 
She said the cable was swinging, and she thought if she hit the E­stop the cable might cut 
persons on the ride.

(Incidentally, both ride operators were under 18.  Kentucky has now adopted a requirement that operators be 18; perhaps someone with a little more experience would have hit the e-stop first.  That at least seems plausible and may put to rest some of the criticism of that legislation.)

The cable was eventually analyzed by an outside lab; the Agri Department retained an expert to interpret that report.  The bottom line is that the cables failed due to garden-variety fatigue.  Here's the money quote, in response to an inquiry about whether the problems could have been prevented:

The extent of progressive (fatigue) cracking would have  made  it possible  for the 
park personnel to detect the deteriorating condit ion of the rope had they  been 
following the  inspect ion  instructions given  in the  maintenance  manual.

The initial report from the Courier Journal is here.  More to come next week, I'd imagine.


May 30, 2008 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Blackwater's Suit Against Wiley Rein Dismissed

So says the Legal Times in this article.  Bill has posted on this case on numerous occasions, the most recent of which is here (this post itself has further links).


May 30, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Torts in the 100 Most Creative Moments in American Law

Robert F. Blomquist (Valparaiso) has posted Thinking About Law and Creativity:  On the 100 Most Creative Moments in American Law.  For the methodology and the entire list, the paper (pdf) is here.  Some of the moments on the list affect torts along with other areas, but the moments in which torts is the focus are few: 

Section 520 of the Restatement (Second) of Torts (1965) (six factors for "abnormally dangerous activities" for purposes of strict liability) [#56]

Warren & Brandeis article on Privacy in the Harvard Law Review (1890) [#75]

N.Y. Times v. Sullivan (1964) [#95]

(Via ABA Journal).


May 30, 2008 | Permalink | Comments (1) | TrackBack (0)

How Tort Reform Affects Insurance Markets

Martin Grace (Georgia State-Insurance) & J. Tyler Leverty (Iowa-Business) have conducted a study entitled How Tort Reform Affects Insurance Markets (pdf).  Here is the abstract:

A critique of tort reform is that promised declines in insurance prices do not follow the enactment of significant tort reforms. This study examines whether insurance prices reflect the uncertainty of the reform since they are subject to judicial challenge. We undertake a two stage approach to investigate the effect of tort reform on insurance prices. In the first stage, we investigate the likelihood tort reforms will be found unconstitutional and the expected duration of reforms. We then use the estimated survival probability as an explanatory variable in a regression which estimates the effect of tort reform on state liability insurance markets. Our results indicate that as the estimated survival probability of tort reform increases, the premiums and volatility of losses in the insurance market decrease.

(Via Point of Law/Frank).


May 30, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2008

Blogs (Bill's)

Chris posts below about his regular-stop blogs, something I've been meaning to do for a while.  So here's my list, not separated into torts and other subjects because, well, I'm lazy.  They're roughly in the order I added them to my RSS reader, though site relaunches and such sometimes change that order.

Day on Torts
Leiter Reports
Leiter's Law School Reports
Title IX Blog
WSJ Law Blog
CAFA Law Blog
Blog 702 (long silent but still on the RSS feed)
Legal Underground
Overlawyered (doing this made me realize that the URL I'd used for the RSS feed for years -- -- died a few weeks back, which explains why I didn't have anything from there for a while.  The RSS feed is now, it appears.)
Point of Law
Products Liability Prof Blog
Wandering Bell
HealthLawProf Blog
Becker Posner
Tort Law Journal of Ohio
Science & Law Blog
Mass Tort Litigation Blog
Above the Law
Maryland Injury Lawyer Blog
Consumer Law & Policy (Public Citizen)
Fortune Legal Pad
Drug & Device Blog
Liptak's NYT feed
Perlmutter & Schuelke
Dorf on Law
The Pop Tort
Faculty Lounge
Convictions (Slate)

Heavens, that's kind of a lot.                        

May 29, 2008 | Permalink | Comments (1) | TrackBack (0)


I recently noticed that I have a pattern of checking the same blogs (both torts and general-interest law).  I'm sure most people do the same thing, and I enjoy those I read semi-regularly.  However, I wonder if you can recommend additional blogs for me (and others) to peruse.

Here's my torts list, in no particular order:  Mass Tort Litigation (Stier, Erichson, Lahav, Burch), Day on Torts, and Perlmutter & Schuelke.

Here's my general list, again in no particular order:  Point of Law & Overlawyered (Walter Olson & Ted Frank), Legal Theory Blog (Solum), Concurring Opinions, Prawfsblawg, Above the Law (Lat), and PropertyProf Blog (Barros).


May 29, 2008 | Permalink | Comments (0) | TrackBack (0)

150K: Thanks.

Sometime in the last week or so, we hit our 150,000th visitor (we're over 220,000 page views) since January 2006, when the blog was launched.  Thanks to all of you for visiting and to Sheila and Chris for joining the site last year!

As usual, summer posting may be a bit sporadic or, sometimes, more frequent.  Stick around, though; there will be some good stuff.


May 29, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunshine in Litigation: Heritage Foundation's View

The Heritage Foundation (which has a pretty clunky logo, don't you think?) has posted a position paper on the "Sunshine in Litigation Act," which would make most settlement agreements public along with evidence obtained in discovery.  The paper, not surprisingly, opposes it, noting its value for the plaintiffs' bar (though it also would remove one item used for leverage in settling cases -- the ability to keep bad documents non-public).

My Review of Litigation piece is inching ever nearer publication and addresses related issues, though not, due to timing, the Act itself.


(Via Point of Law.)


May 29, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 28, 2008

No Cert Decision Yet In Philip Morris v. Williams II

No word yet in Philip Morris v. Williams, the Oregon punitive damages case upholding a 100 to 1 ratio despite remand from the U.S. Supreme Court.  The petition for certiorari was distributed for discussion at the Justice's conference on May 22d, but was not mentioned on the orders list [pdf] released yesterday.   

Notably, as former Chief Justice Rehnquist explained in his book (and elsewhere), petitions of interest to any Justice are placed on the "discuss list" for the conference; petitions not listed on the discuss list are denied.   So presumably Philip Morris made the discuss list for the May 22d conference.   It's possible that the Court is holding the Philip Morris petition pending its decision in Exxon v. Baker.  SCOTUS Blog has listed Philip Morris as a "petition to watch," which means that Akim Gump partner Tom Goldstein has deemed it "to have a reasonable chance of being granted."


May 28, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Frank Analyzes Obama's Tort Reform Record

In yesterday's Examiner, Ted Frank discussed Barack Obama's record on tort reform issues.   Frank catalogs Obama's specific votes on tort reform legislation including CAFA, a medical malpractice reform bill, and an asbestos reform bill. 

(Via Overlawyered).


May 28, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 27, 2008

Sebok on Rhode Island Lead Paint Case

In his latest Findlaw column, Tony Sebok discusses the lead paint nuisance suits filed by the State of Rhode Island against the lead paint industry.  Sebok explains how the theory of public nuisance has been applied to lead paint contamination in Rhode Island homes:

The theory is that by creating and selling lead pigment, the paint industry interfered with the public right to a healthy residential environment. Accordingly, whether or not the industry was negligent, it -- like the owner of the fallen tree in the example drawn from Blackstone -- should be required to remove the paint, so that the public can enjoy its right to live without being exposed to a toxin.

A negligence suit would have asked for damages. But as noted above, a public nuisance claim, by its nature, asks not for money damages but a court injunction. Here, the desired type of injunction would have directed the industry to pay the cost of removing ("abating") the lead paint from any home where it may be. This would be a massive endeavor whose real cost, if done nationwide, no one really knows. Yet it is clear that, even in a small state like Rhode Island, having to pay abatement costs could bankrupt the entire paint industry.

Sebok's next column will address how the Rhode Island Supreme Court should rule on the defendants' appeal. 


May 27, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Proposed Tainted Pet Food Settlement

About a year ago, the largest pet-food recall in history was prompted by the illness and death of thousands of cats and dogs.   The illness was traced to tainted wheat gluten in the pet food.   The Philadelphia Inquirer now reports that a proposed $32 million settlement has been reached in the tainted-pet food cases.   The settlement would "resolve more than 100 lawsuits filed last year by anguished pet owners in the United States and Canada against companies that made or distributed the poisonous food."

Pet owners could receive $900 for "reasonable economic damages submitted without documentation." The document filed last night said such damages could include travel expenses, property damage (to carpets, for example), lost wages, "or any other expense related to the pet's illness or death."

One lawyer in the case said the undocumented expenses also were meant to help compensate people for their emotional distress without referring to them in those explicit terms.  "They're not called emotional damages," said the lawyer, who spoke on condition of anonymity. "Getting the defendants to agree to give more than just compensatory damages, which was essential to us, was not an easy thing."

U.S. District Judge Noel L. Hillman has scheduled a hearing on the settlement for this Friday May 30th.



May 27, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, May 24, 2008

NYT on Medical Apologies

On Thursday, the New York Times published this laudatory editorial about the effects of apologies for medical errors.


May 24, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, May 23, 2008

The Privacy Torts

Local elected official is accused of rape.  Local elected official resigns his office.  Local elected official claims he can exonerate himself.  Local elected official produces a videotape, surreptitiously taken, of the encounter in question.  The videotape allegedly reveals a consensual sexual encounter.  The accuser is then accused of filing a false claim.

However, to exonerate himself, local elected official had to reveal that he had set up a multi-camera recording system in his house.  He further had to reveal that he had been using this system to record his encounters with, among others, multiple prostitutes he had been hiring.   

There has been an investigation into whether the recording violated any criminal statutes.  Because my crimprof colleague, Wes Oliver, was asked to talk to a local news channel about the case, he questioned me about the torts angle.  I've been researching William Prosser lately, and the privacy torts come to mind.

In his article, Privacy, 48 Cal. L. Rev. 383 (1960), Prosser argued that invasion of privacy was not one tort, but four:  1. Intrusion upon the plaintiff's seclusion or solitude; 2. Public disclosure of embarrassing private facts; 3. Publicity which places the plaintiff in a false light in the public eye; and 4. Appropriation, for the defendant's advantage, of the plaintiff's name and likeness.  This division has been widely accepted in the jurisdictions (some of which have codified the privacy torts). 

Would any of the privacy torts be available to those taped by the local elected official?  It seems to me that three and four aren't even colorable.  There's no false impression created by the fact that these people were having sex with the local elected official.  Furthermore, appropriation cases tend to deal with a financial advantage (such as using the plaintiff's name or likeness to advertise a product).  There are no allegations that the local elected official tried to sell or otherwise make money from the videos. 

As for the second tort, public disclosure of embarrassing private facts, I'm not aware that there was a public disclosure of any of the encounters other than the encounter with the accuser.  Of course, the accuser put that particular encounter at issue.

That leaves intrusion upon seclusion.  In these cases, the intrusion must be offensive or objectionable to a reasonable person and the thing into which there is prying must be private.  Surreptitiously videotaping sex strikes me as fitting both of these criteria.  Indeed, Prosser cites cases in which the intrusion was accomplished by wire tapping and microphones.  For a modern case on-point, see Lewis v. LeGrow, 670 N.W.2d 675 (2003).


May 23, 2008 in Current Affairs | Permalink | Comments (3) | TrackBack (0)

Hylton on the Economics of Public Nuisance Law

Professor Keith Hylton (Boston) has posted The Economics of Public Nuisance Law and the New Enforcement Actions on SSRN.  Here's the abstract:

In contrast to the traditional legal commentary, I find nuisance law to be a coherent body of rules that serves an explainable function. Nuisance optimally regulates activity levels. Nuisance law induces actors to choose socially optimal activity levels by imposing liability when externalized costs are far in excess of externalized benefits or far in excess of background external costs. The new enforcement actions for lead paint abatement or gun control purposes have an arguable theoretical basis in nuisance law. However, as currently framed, the lawsuits are inconsistent with significant parts of the doctrine and the theory.


May 23, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, May 22, 2008

Oregon Amusement Park Cites Liability Insurance in Closing

Thrill-Ville USA, a small amusement park in Oregon, announced recently that it would not be opening this year, or likely ever at all. The park sits next to the owners' KOA campground, and the owners say in an AP story that increasing liability insurance costs, along with the slowing economy, contributed to the park's closing.


May 22, 2008 | Permalink | Comments (1) | TrackBack (0)

Good Samaritan Laws

I took a CPR course yesterday and was surprised to learn of the scope of many "Good Samaritan" laws (statutes passed to give some form of legal protection to emergency rescuers).  I have always considered them solely in the context of rescuers who are professionals in the medical field (physicians, nurses, paramedics, EMT's, etc.).  Apparently, many jurisdictions have laws that apply to laypeople, so long as they are "certified."  The Red Cross booklet we used (First Aid/CPR/AED for the Workplace) provides:

All 50 states have enacted Good Samaritan laws that give legal protection to people who willingly give emergency care to an ill or injured person without accepting anything in return.  These laws, which differ from state to state, usually protect citizens who act the same way that a "reasonable and prudent person" would if that person were in the same situation.

Developed to encourage people to help, these laws require the "Good Samaritan" to 1. Act in good faith, 2. Not be deliberately negligent or reckless, 3. Act within the scope of his or her training, 4. Not abandon the person after starting to give care.

In addition to the coverage issue, the phrasing is interesting.  In theory, tort law without a "Good Samaritan" statute should protect people who act as "a reasonable and prudent person."   


May 22, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2008

Rodwin & Frank Debate Malpractice Insurance Premiums Research

On Saturday, Chris posted Professor Marc Rodwin's new article "Malpractice Premiums in Massachusetts, A High-Risk State:  1975 to 2005."   As Chris predicted, the article has prompted a hot debate.

At Point of Law, Ted Frank criticized Rodwin's article, arguing that "the authors have cherry-picked comparison points," and further arguing that the "study has several fundamental methodological errors."

In a comprehensive post at Point of Law, Professor Rodwin has now responded.  His response, in part, states:

Ted Frank accuses the authors of cherry picking. However, our study provides more reliable and comprehensive data than has ever been published before. It reveals rates by specialty of practice, dollar level of coverage and policy type. It reveals the distribution of discounts and surcharges to insurance rates, and the distribution of physicians purchasing different types of policies. It reveals trends over time, showing premium cycles. Ted Frank, in his own cherry picking points out premium rises, ignores their declines, and does not indicate long term trends.

Frank promises a rebuttal over the weekend.   Stay tuned!


May 21, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (1)

Sebok on Using Comparative Materials in a 1L Torts Class

Tony Sebok recently posted "Using Comparative Torts Materials To Teach First-Year Torts" on SSRN.  The abstract provides:

This article is based on a presentation at the Workshop on Integrating Transnational Legal Perspectives into the First Year Curriculum at the AALS Annual Meeting in 2006. I argue that comparative torts materials can be used to teach tort concepts central to a first year torts class. To be sure, while I an advocate of comparative tort law as a subject of intrinsic interest and importance, this article is about using comparative tort materials to help students learn the law of their own jurisdiction. After offering a theoretical defense of this position, I offer two examples based on German cases involving non-economic damages.



May 21, 2008 in Scholarship, Teaching Torts | Permalink | Comments (0) | TrackBack (0)