TortsProf Blog

AALS Torts and Compensation Section's "Foreign Tort Law: Beyond Europe"

Ellen Bublick (Arizona) has announced the Torts and Compensation Section's panel presentation for the 2009 AALS Annual Meeting in San Diego.  The panel will be held on Friday, January 9th at 10:30 a.m.  A list of presenters is here.  A description of the program:

Injury is a universal problem. In recent years, U.S. Tort law scholars have learned much about European Tort law. This panel, which includes Tort scholars from Canada, Ghana, Israel, Japan, Singapore, and the United States, explores foreign Tort law outside Europe. Papers, which will be published in the ARIZONA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, address situations in which tort law not only reflects shared cultural norms but also plays an important role in mediating cultural tensions. Several papers also focus on the importance of redressing dignitary and emotional harms in foreign jurisdictions.

--CJR

Goldberg on Solomon's "Judging Plaintiffs"

John Goldberg (Harvard) has responded to Judging Plaintiffs by Jason Solomon (Georgia) in Vanderbilt Law Review En Banc.  Here is the abstract:

Jason Solomon’s very interesting Article Judging Plaintiffs argues that neither efficient-deterrence theories nor corrective justice theories adequately explain the existence of rules that bar or limit recovery by a tort victim on the ground that she failed to take certain pre-tort steps to protect herself from harm, or failed to take certain post-tort steps in response to the harm. The vitality of these “judging plaintiffs” doctrines, he maintains, attests to the superiority of an alternative theory of tort known as civil recourse theory. According to Solomon, recourse theory treats tort law as one component of a liberal political order and thus explains these doctrines in terms of a liberal principle calling for state nonintervention where it was or is unnecessary.  In this Response, I situate Judging Plaintiffs within current tort theory debates, describe briefly its major claims, and discuss some of the doctrinal and theoretical strengths and weaknesses of the position it stakes out.

Via Co-Op.

--CJR

Happy Thanksgiving from TortsProf

Enjoy the holiday!

--CJR

Jury Begins Deliberations On ATCA Claims Against Chevron

A San Francisco jury heard closing arguments yesterday in an Alien Tort Claims Act case against Chevron.   The suit alleges that Chevron aided and abbetted the deaths of two Nigerians who were protesting Chevron's oil production in Nigeria. 

One World UK has more.

- SBS 

Lloyd's of London's "Litigation and Business: Transatlantic Trends"

Lloyd's of London has issued its latest report "Litigation and Business:  Transatlantic Trends" (pdf).   In this report, Lloyd's predicts that class action litigation will grow in Europe, and notes that Portugal, the Netherlands, Spain and Sweden already have mass litigation mechanisms in place.  Lloyd's further warns of increased forum shopping within the EU, as well as third-party funding of litigation.   

Business Insurance News has more coverage of the Lloyd's report. 

(Via Securities Docket)

- SBS

Sebok on Obama's Effect on Tort Law

In his latest Findlaw column, Tony Sebok examines President-elect Obama's impact on tort law and the civil litigation system generally.   Sebok predicts "very few changes" and "few rollbacks" of tort reforms accomplished during the Bush Administration.  In support of this conclusion, Sebok notes that Obama voted in favor of caps on non-economic damages in med mal cases when he was in the Illinois legislature, and also points to Obama's support of an ADR method for med mal claims that he tried to enact in 2006.  In short, Sebok believes that "President Obama would sign a federal 'anti'-preemption bill or a federal ban on the waiver of a consumer's right to participate in class actions" if presented to him by Congress, but that Obama will not "take the lead on these issues."

- SBS

A Final (?) Note on the Kentucky Kingdom Settlement

As I noted last week, Six Flags settled with the Lasitter family regarding their daughter's injuries.  As of the initial reports, it was not clear whether the park chain had settled its suit against Intamin, the ride's manufacturer; InsuranceJournal.com reports that it did settle that suit as well.

Still pending, I believe, are the suits by other riders who allege less severe injuries than the horrific ones suffered by Ms. Lasitter.

--BC

Vaccine Program: A Failure?

An activist and founder of the National Vaccine Information Center, Barbara Loe Fisher, thinks so, as she said in a recent speech to the Advisory Commission on Childhood Vaccines.  She contends that the no-fault approach has still precluded recovery for too many parents and children, and suggests that, perhaps, a return to regular tort suits would be better.

--BC

Barker Files Suit in Airplane Crash

Rocker Travis Barker is blaming pilot error and faulty equipment for the September crash in which he was severely injured and four others were killed.  The suit focuses on the pilots' decision to abort the takeoff and the condition of the plane's tires, among other equipment.  People has the story (and if you scroll to the bottom, you can find out "Who Looked Hot This Week").

--CJR

Updated: Six Flags Kentucky Kingdom Settles Case

Six Flags has reached a settlement with the Lassiter family, whose daughter Kaitlyn had her feet severed when riding the Superman: Tower of Power ride in 2007.  Kentucky.com has the almost non-existent details; Biz Journals says that, unsurprisingly, the terms are not being released. 

The length of time it took to settle the case is remarkable, and a number of bad facts came out in the interim -- it may well be that those facts, in context, were not as bad as they seemed, but in the amusement industry, it would seem that this was a case that should have been settled a lot earlier.

Update: The local press has some more details; see the Courier-Journal,which notes that the plaintiffs' lawyer claims he didn't want to take the offer.

--BC

Personal Injury Roundup No. 16 (11/21/08)

One scheduling note: there will be no Roundup next Friday; happy Thanksgiving! 

Reform, Legislation, Policy

• Massachusetts doctors say they're practicing defensive medicine out of fear of lawsuits [MassLive.com]
• Allegations of misconduct against FDA scientists [NYT]

New Lawsuits

• Wrestlers sue college for contracting herpes [York Dispatch, Deadspin]

Trials, Settlements & Other Ends

• A look back, ten years after the tobacco settlement [NPR, Point of Law]
• Arkansas prof's defamation suit against his students dropped [TaxProf]

Appeals

• $14.9 million award affirmed in unfenced gas well explosion; punitives 10x compensatories [LegalNewsline.com]
• Epstein on Levine [Forbes, via Overlawyered]
• Levine on Levine [FireDogLake]
• Part of Oklahoma tort reform statute struck down [Journal Record]
• Murtha defamation case heard [TortsProf]

Damages

• $12.9 million Accutane verdict [Press release]
• $2.5 million against Imperial Klans of America [Tort Deform]
• Someone who apparently stars in an MTV show liable for $5,000 in compensatory damages and $15,000 in punitive damages for an incident with a tow truck driver [E! Online]

Miscellaneous

• Scalia's going hunting with, among others, a partner from a big plaintiffs-side firm in Texas [WSJ Law Blog]
• Not in civil litigation presently (though the defendant expects it), but the MySpace case is proceeding criminally [WSJ Law Blog, 2,000 other stories]

Thanks for reading, and again, happy Thanksgiving!

--BC

Simons on Consequentialism

As expected, Ken Simons (Boston) has brought a lively discussion to Prawfsblawg.  His posts on "Creeping Consequentialism and Insidious Economics" are here and here.  Make sure to read the comments too.  TortsProf John Oberdiek (Rutgers-Camden) and others have posted their thoughts.

--CJR

Solomon on Tort Theory

Jason Solomon (Georgia) has posted on SSRN Equal Accountability Through Tort Law.  Here's the abstract:

The traditional conception of tort law as individual justice has been revived in recent years, particularly through the idea of "corrective justice." But as corrective justice has had problems gaining traction among scholars and judges, a promising challenger in the individual-justice camp has emerged: civil recourse theory, which sees tort law as a means for empowering individuals to seek redress against those who have wronged them. Civil recourse theory has an advantage over corrective justice in its fit with the structure, concepts and doctrine of American tort law. But it seems to lack a morally appealing norm at its core. Indeed, critics such as John Finnis have charged that it seems to smack of vengeance, and treat such an impulse as morally worthy. Though the civil recourse theorists have pointed to reasons justifying a law of civil recourse, they have thus far stopped short of providing a robust normative justification. This paper seeks to provide such a normative justification. I do so by breaking down the normative case for civil recourse into three parts: first, in cases of accidental harm, why is the victim entitled to feel resentful towards the defendant such that second, she is morally justified in "acting against" the defendant in some fashion; and third, the victim is given access to a state-sponsored mechanism (tort law) for doing so. Though my focus is on civil-recourse theory, I think this discussion can illuminate the normative appeal of a broader set of individual-justice theories of tort law. I also aim to provide a response to those who would eliminate tort law through preemption, or significantly curtail it through "reform" efforts. In response to the question "What is tort law for?," my answer is: helping constitute a community of equals who are answerable to one another, and expected to treat one another with equal respect. Whether or not such an institution is worth having, in light of its costs and effect on other social goals, is for Congress, state legislatures, and citizens to decide. But that is what is at stake.

Larry Solum has more from the text and a recommendation at Legal Theory Blog.

--CJR

The Levine Chat

You can see a chat with Diana Levine, the plaintiff whose case frames the preemption issue in Wyeth v. Levine, here.

--BC

DC Circuit Hears Defamation Case Against Congressman Murtha

Yesterday, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in the defamation case against Representative John Murtha (D-Pa) for statements he made concerning Staff Sgt. Frank Wuterich's role in the deaths of Iraqi civilians.  Wuterich sued Murtha for defamation and sought to depose Murtha regarding the statements.  Although Murtha asserted congressional immunity, the district court rejected his argument and ordered Murtha's deposition.  Murtha, however, sought interlocutory review by the DC Circuit.  The three-judge panel included Judges Judith Rogers, Karen LeCraft Henderson and Harry Edwards. 

Mike Scarcella at The BLT reports that Judge Edwards appeared leery of the court's jurisdiction in the case:

Edwards said the court does not generally take interlocutory review on discovery matters “especially when they are in a preliminary posture like this.” The government, Edwards said, has a “real problem” in trying to block discovery.

According to Susan Crabtree at the Hill, Judge Henderson questioned how congressional immunity would apply in this case:

“Who is his master?” Henderson asked. “Do you ever serve the interests of your constituents by making a derogatory comment to the media?”

- SBS

Congress Investigating FDA Medical Device Review Process

Ed Silverman reports that the House Energy and Commerce Committee is investigating allegations that managers at the FDA Center for Devices and Radiological Health have "corrupted and interfered with the scientific review of medical devices."

In a statement, John Dingell, who chairs the committee, and Bart Stupak, who chairs the Subcommittee on Oversight and Investigations, say they are probing allegations that the FDA “approved or cleared medical device applications in gross violation of laws and regulations….such activity could allow potentially unsafe and ineffective medical devices into the US market.”

More on the story at Pharmalot. 

- SBS

A Flurry of iPhone Class Actions

The Complex Litigator reports on a new class action regarding the iPhone.  This new suit alleges that the casing of the iPhone 3G is "defective and prone to cracking."  This latest class action joins ones filed back in September regarding the performance of the iPhone 3G on AT&T's network.

- SBS

Chat with Levine of Wyeth v. Levine

FireDogLake will be hosting a chat with Diane Levine and the Alliance for Justice regarding the pending case Wyeth v. Levine.  The chat will be tomorrow (Tuesday) at 3:00 eastern, and I am told that you have to be a registered user to submit comments or questions.

--BC

Restatement Anniversary Observed

What does one get a Restatement for its tenth birthday?  A symposium, evidently.  Read about it at our neighbors the Products Liability Prof Blog.

--BC

Paxil Test Case Dismissed on Statute of Limitations Grounds

A judge in Philadelphia has dismissed, on statute of limitations grounds, a case against Paxil for failure to warn against an increased risk of suicide.  The case was seen as a test case, but, based on the very narrow holding, should have little or no effect on subsequent cases.  The story is here.

Thanks to Alberto Bernabe for the tip.

--CJR