TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, September 30, 2008

Beck, Herrmann and Zipursky on Preemption

First, Drug and Device Law Blog have posted an excellent primer on preemption.   As Beck and Herrmann succinctly state:

Implied preemption of tort cases is a big deal because how the Supreme Court addresses implied preemption in Levine – the legal principles it recognizes as controlling – will be applicable to analogous regulatory conflict situations involving any other product and any other agency.

Second, Benjamin Zipurksy follows up on last week's Findlaw column with an interview at Pharmalot.  Zipursky explains why he thinks Wyeth v. Levine is a bad vehicle for the Supreme Court to rule on preemption. 


September 30, 2008 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Oregon Health & Science University Settles Six Malpractice Cases

The Oregonian reports that Oregon Health & Science University has agreed to settle six malpractice cases for a combined $38.5 million.   In December, the Oregon Supreme Court invalidated a damages cap shielding OHSU and other Oregon state agencies from awards over $200,000.   As noted earlier, OHSU and the state trial lawyers association have agreed on a new damages cap, which will be considered by the state legislature next year. 


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

Monday, September 29, 2008

Cohen on China's Accountability for Its Products

In Saturday's Wall Street Journal, Marsha Cohen (UC Hastings) had a letter responding to the WSJ's editorial "The Tort Bar's Comeback."  Cohen argues that the epidemic of defective products coming from China is caused by the absence of a tort system:

China has neither well-enforced regulatory mechanisms nor a torts/insurance system to protect consumers, although my understanding is that it is moving to adopt both. Without a civil justice system that enables those harmed to seek recompense from those who caused them harm, why would any product seller bother to invest in quality control or any other product safety measure?


September 29, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Keitner on Ninth Circuit's Alien Tort Statute Decision

Chimène Keitner (UC Hastings) recently wrote a guest post at Opinio Juris analyzing the Ninth Circuit's decision on the Alien Tort Statute (mentioned in Friday's roundup).   Keitner finds three lessons in the decision:  "1. The crime of genocide requires that the perpetrator act with intent to destroy, in whole or in part, a protected group. ...2. Crimes against humanity need not involve state action.... [and] 3. The Rome Statute does not codify customary international law."

- SBS 

September 29, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2008

Personal Injury Roundup No. 9 (9/26/08)

We welcomed the first day of fall this past week, as well as the following news from the world of torts:

Reform, Legislation, Policy

  • The House Energy and Commerce Committee approved seven health-policy related bills.  Life Sciences Legal Update provides a concise summary of each bill. 
  • FDA gets tough on unapproved meds (specifically eye washes and skin ointments).  [Pharmalot, Reuters, US News, Boston Globe]
  • Grace-Leverty study finds tort reform reduces insurance premiums.   [TortsProf]
  • Senate panel hears testimony on food marketing to children.  [WaPo/AP]

Experts & Science

  • Eli Lilly and Merck will start reporting fees paid to outside doctors, beginning in 2009. [NY Times, Indiana Star, Pharmalot]
  • Oregon Supreme Court addresses expert testimony in med-mal cases.  [Day on Torts]

New Lawsuits

  • Failure to warn about caffeine in energy drinks?  Not yet, but it may be next.  [WebMD, WCVB Boston]
  • Philip Morris sues San Francisco over city ban on pharmacies selling tobacco products. Walgreens filed a similar suit earlier this month.  [SF Chronicle]

Trials, Settlements & Other Ends

  • Federal judge dismisses suit alleging casinos had duty to stop plaintiff's compulsive gambling.  [ABA Journal, (AP), Court's opinion]
  • NY judge dismisses invasion of privacy suit against Sean Combs based on photos of nude "mermaid" at his infamous White Party.   [TortsProf, Court Opinion]
  • Federal district judge in Chicago denies class certification in fraud and unjust enrichment suit against gas producers.  [Am Law Daily, Court Opinion]
  • New study finds settling cases is more lucrative for plaintiffs than trial.  [National LJ (via]


  • The New York Appellate Division has ruled that the intentional running down of a pedestrian is an "accident" for insurance purposes.  [No Fault Paradise, Court Opinion]
  • West Virginia Supreme Court agrees to hear $196.2 million punitive damages award against DuPont.  [Cal Punitive Damages]
  • Maryland Supreme Court rejects "duty to world" in products liability case against Eli Lilly. [Mass Tort Defense]
  • The Ninth Circuit concludes that Ivory Coast plantation workers who allege that they were sterilized by a U.S.-made pesticide can't sue the pesticide's manufacturers and distributors under the Alien Tort Statute.  [SF Chronicle, LA Times, Court Opinion]



  • Does Splenda cause obesity?  So says new Duke Study (funded by the Splenda's competitor, the Sugar Association) [NY Times]


September 26, 2008 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2008

Obama and McCain on Health Care Reform

Yesterday's New England Journal of Medicine published essays by both presidential candidates on their plans for reforming health care in the U.S.   McCain's piece: "Access to Quality and Affordable Health Care for Every American."   Obama's piece: "Modern Healthcare for All Americans."

As MedPage Today summarizes,

Obama demonstrated some affinity for an issue that Democrats have often shunned -- tort reform -- by writing that he was committed to addressing medical malpractice, but he stopped short of endorsing reforms that would legislate caps on damage awards.  Instead, he said his central goal would be "preventing medical errors in the first place."

But he added that he would "support legislation dictating that if you practice care in line with your medical societies' recommendations, you cannot be sued," and said he was open to "additional measures to curb malpractice suits and reduce the cost of malpractice insurance."

For his part, McCain took several opportunities to promote preventive care as a model for reform. "One of the challenges we must face in reforming our healthcare system is that of finding ways to keep the American people healthier."

McCain said he wanted to create a "next generation of efforts to prevent chronic disease, early intervention programs, new treatment models, and public health infrastructure."

In addition to the essays, the NEJM and the Harvard School of Public Health cosponsored a roundtable discussion entitled "Health Care in the Next Administration" featuring senior health policy advisors David Cutler for Senator Obama and Gail Wilensky for Senator McCain. 

You can watch a video of the roundtable on-line. 


September 25, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Judge Dismisses Mermaid Suit Against P. Diddy

In an opinion filed last week, a NY state court judge has dismissed the lawsuit filed against Sean Combs based on the "Mermaids Gone Wild" photos that appeared in Vibe magazine in 2006.   In the suit, Maria Dominguez alleged that the photos showed her and two other woman who attended Combs' "White Party"  topless dressed as mermaids.   Plaintiff claimed that the publication of the photos violated her statutory right to privacy under NY law.   The judge, however, rejected this argument because the photographs related to an article on Combs and therefore were a matter of "public interest to many people."     The New York Law Journal (via has more.


September 25, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2008

Sebok & Zipursky on Wyeth v. Levine

In this week's Findlaw column, Tony Sebok and guest Benjamin Zipursky consider Wyeth v. Levine and the "preemption temptation."    Sebok and Zipursky provide a concise summary of the facts and arguments in Levine.   They then focus on why the case is not the best vehicle for the Court to resolve the preemption questions:

Our aim in this column is quite simple: to indicate how poorly-suited Levine is to be the focus for the Court's inquiry into this extraordinarily important question of federalism and tort law.  The problem with Levine is that the jury and the judges in Vermont handed Wyeth a loss it clearly did not deserve, because they stretched tort law to its limit (and perhaps beyond) to respond to the gripping facts before them. For any number of basic reasons, the result in Levine is pathological as a matter of products liability law.

The next part in the series will consider the merits of the preemption questions raised in Levine.


September 24, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Ups and Downs for Drug Stocks

The WSJ Health Blog reports on how more transparency at the FDA could cause volatility in drug stocks.   Under a law passed last year, the FDA is just beginning to post quarterly lists of drugs "that could, possibly, carry previously unreported side effects."    The Health Blog notes the lists are just preliminary, but could cause market swings.


September 24, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 23, 2008

Study Find Tort Reform Lowers Insurance Premiums

A recent study by Martin F. Grace, the James S. Kemper Professor of Risk Management at Georgia State, and Assistant Professor Ty Leverty (University of Iowa Tippie College of Business) has concluded that insurance premiums are related to the likelihood that tort reform will survive judicial review.   As the Iowa Press-Citizen reports, Grace and Leverty conclude that "insurance companies do lower their premiums, depending on the circumstances of the law. The decision ... turns on the likelihood of each law surviving a legal challenge because tort reform laws have a checkered history in the courts."

A copy of the Grace-Leverty study is available here. 


September 23, 2008 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (1)

Defamed on the Wildwood Boardwalk

Ah, the Jersey shore with its seaside boardwalks filled with games, rides, and fun foods.   And apparently tortious behavior.

In Senna v. Florimant (pdf), the owner of a Wildwood boardwalk game of chance sued a competitor for defamation and tortious interference with business.   The defendant's employees told boardwalk customers (over a loudspeaker system) that the plaintiff was a "crook," and "dishonest," and that the plaintiff would not honor prize tickets.  In a decision released yesterday, the New Jersey Supreme Court held that the defendant was not entitled to the heightened actual-malice standard applied to speech involving public figures.   

(Via Legal Profession Blog).


September 23, 2008 in Current Affairs, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Sunday, September 21, 2008

Station Settlements: "I Don't Think There's Any Logic to It At All"

That's the view of the mother of one victim of the Station nightclub fire in a big picture story in today's Globe (which was inexplicably delivered to our house today, despite the fact that we don't subscribe).

(And yes, typing -- even with capital letters -- is slowly getting better.)


September 21, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, September 20, 2008

Feinman on Litigation Incentives and Insurers in Large Tort Cases

Jay Feinman (Rutgers-Camden) has posted on SSRN Incentives for Litigation or Settlement in Large Tort Cases:  Responding to Insurance Company Intransigence.  Here is the abstract:

The purposes of this article are to describe some ways in which the practices of insurance companies in settlement negotiations and the decision to settle or litigate in large tort cases disserve the objectives of tort law and to suggest genuine tort reforms to better align the dynamics with the objectives. Part I of the article describes models of the dynamics of settlement and litigation. Part II reports and explains a substantial gap between the predictions about settlement in the literature and the practice of settlement in large tort cases. In general, this can be described as a failure to appreciate the full consequences of insurance companies' strategic behavior in bargaining. In fact, there are a very significant number of large cases, probably an increasing number in the last few years, in which liability is relatively clear and it is also clear that the victim's damages are substantial, yet the insurance company refuses to make an offer to settle the case, makes a disproportionately low offer that it refuses to raise, or makes an offer only very late in the process. Part III explores existing measures and reforms to respond to this behavior. These include an expanded good faith duty owed by the defendant's insurance company to the insured, application of Unfair Claims Settlement Practices Acts, a common law action for bad faith against the insurance company by the tort victim, prejudgment interest and offer of judgment rules, intentional infliction of emotional distress, and the wrongful litigation torts.


September 20, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 19, 2008

Personal Injury Roundup No. 8 (9/19/08)

Has anyone else noticed that "premier week" for the networks' new TV season falls later and later each year?   Anyway, on to what's happened this week in torts...

Reform, Legislation, Policy

  • FDA warns consumers about Chinese baby formula possibly contaminated with melamine.  Chinese baby formula is not approved for sale in the U.S., but the FDA is investigating reports that Chinese-made formula is being sold in Asian specialty market.  [CBS 2 Chicago, FDA, LA Times, NY Times, Natl Geo Green Guide]
  • Survey finds that Texas doctors more willing to accept high-risk patients in light of med-mal caps.  [El Paso Times]
  • The FDA held a public hearing this week regarding allergen labeling on foods.  [ABC News, US News, WaPo]
  • WSJ Editors opine on tort reform.  [WSJ]
  • Representatives John Dingell and Bart Stupak (D-MI) investigate Wyeth's claims that Centrum Cardio lowers cholesterol.  [Pharmalot]
  • Consumer Product Safety Commission's Office of the General Counsel issued an advisory opinion finding that children's products which do not comply with new lead standards must be off store shelves by Feb. 10, 2009, regardless of manufacturing date.  (Advisory opinions are subject to change by the CPSC).  [CPSC]
  • Senate Special Committee on Aging held a hearing this week regarding direct-to-consumer advertising of medical devices.  [NYT, WSJ Health Blog]

New Lawsuits

  • Families sue Indianapolis hospital and drug manufacturer for heparin overdoses in newborns.  [Chicago Tribune (AP)]
  • Parents of boy who died after being hit by a jet ski seek $5 million from Idaho State University's Cooperative Wilderness Handicapped Outdoor Group.  [KBCI News 2 (AP)]
  • Jockey sues track owner for injuries sustained in horse race.  [TortsProf]
  • Six Flags sues ride manufacturer.  [TortsProf]
  • Gary Coleman sued for allegedly running down fan in bowling alley parking lot.  [Cal Punitive Damages]

Trials, Settlements & Other Ends

  • Family of boy scout settles totem pole lawsuit.  [TortsProf]
  • Federal judge dismisses libel suit against "Innocent Man" author John Grisham.  [AP/]


  • $54 million pants case set for appeal on Oct. 22d before D.C. Court of Appeals.  [BLT]
  • The Eleventh Circuit heard arguments in the gun-defamation case against NYC Mayor Michael Bloomberg.  [Fulton County Daily/, AP]
  • NY Appellate Division rejects breach of fiduciary claim against Wilson Elser, but allows legal malpractice claim to proceed.  [NY Law Journal/]
  • Ohio Supreme Court uses "market value" test to decide issue of damages that may be recovered by a spouse who took off time from work to care for a spouse injured by the negligence of another. [Day on Torts]
  • Adam Liptak reports on the upcoming preemption cases before the Supreme Court. [NY Times]



  • Libel tourism on the rise in U.K.  [NYT Opinion]
  • Judge rejects NYC's objections to "severity chart," which provides a "snapshot" of most serious injuries in the 9/11 respiratory illness cases.   [TortsProf]


September 19, 2008 in Roundup | Permalink | Comments (0) | TrackBack (0)

Talk Like a Tort Pirate

Still can't really type well, but I can at least urge you all to celebrate Talk Like a Pirate Day.  From last year's post on the subject:

  • Some suggested terms:
  • Res ipsa loquitARRRR!
  • Matey, ye caused a batt'ry when ye sliced off me hand!
  • Avast!  Belay that sayin' I assaulted ye!  Ye know ye didn't be apprehendin' a touchin'!  In all my years, I never seen such an addled fool!

That's just a start, of course.  Please add more in the comments.


September 19, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2008

Family of Scout Killed by Totem Pole Settles Lawsuit

In a tragic local incident last summer, a nine-year-old boy was killed at the Hidden Valley Boy Scout Camp in Perry County, PA by a falling totem pole.  The boy and other children were playing near the base of the pole, which was rotted and cracked when it was pushed.  The family reached a $1.38 million dollar settlement with two scouting organizations and an insurance company.  PennLive has the details.


September 18, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Man Down!

Here's wishing Bill a speedy recovery.  In solidarity, I typed this post without my right pinky (It's a pain!)


September 18, 2008 | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 17, 2008

Judge Overrules NYC's Objections to Use of "Severity Chart" in 9/11 Respiratory Cases

At a status conference yesterday, U.S. District Judge Alvin Hellerstein rejected objections by NYC to the use of a "severity chart" in the 9/11 respiratory illness cases.   As reported by the New York Law Journal (via, Special Masters James A. Henderson (Cornell) and Aaron D. Twerski (Brooklyn) prepared the chart to provide "what they term a 'snapshot' of the most serious injuries and diseases."   

Hellerstein said he hoped the severity chart would help him establish priorities and find a way forward in litigation that threatens to extend for years. The chart would be the first step toward unearthing "bellwether" cases that could be tried or used as the basis for settlement talks.


The judge defended his method of measuring the severity of claimed illness while conceding the chart does not measure causation, including whether the dust at the World Trade Center site was responsible or whether other factors, such as smoking, played a role.

Causation and other issues, he said, would be the subject of the next phase of the massive litigation -- the building of a database that could bring some clarity and allow the court to group the cases into logical categories. 



September 17, 2008 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

NJ Judge Finds Exxon Mobil Refinery Pollution Created A Public Nuisance

The New Jersey Law Journal (via reports on a ruling by a New Jersey judge finding Exxon Mobil liable for causing a public nuisance by polluting the waterways, land, and wetlands at two former refinery sites.   "The damage to the contaminated sites resulted from both the active disposing and accidental spilling of hazardous substances," [Judge] Anzaldi ruled. "The resulting harm was great."  The New Jersey Attorney General's Office issued this press release.   The case is far from over, however.  For one thing, Exxon still has a pending motion to dismiss the nuisance claim on statute of limitations grounds.  A copy of Judge Anzaldi's opinion is available here (pdf). 


September 17, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wyeth Reply Brief Filed

Drug & Device Law has a copy of the Reply Brief filed by Wyeth in Wyeth v. Levine, which is scheduled for oral argument before the Supreme Court on Monday, November 3rd.  In addition to the brief itself, Beck & Herrmann provide a concise summary of the brief's preemption "highlights."


September 17, 2008 in Products Liability | Permalink | Comments (0) | TrackBack (0)