TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Saturday, January 31, 2009

Tort Reform in South Carolina?

On Thursday, a tort reform bill was introduced in the South Carolina Senate.  Supporters argue that the bill will create a more business-friendly climate in the state.  The contents?

Among other things, the bill would limit the amount of bond that a business has to post when appealing an extremely large verdict; and it would allow for the introduction of the nonuse of seat belts in civil cases.

The Charleston Regional Business Journal has the story.


January 31, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2009

Personal Injury Roundup No. 22 (1/30/09)

We had yet another snow day in Massachusetts, and I'm about ready for spring.  Alas, I still have to wait.

But we've got our roundup to keep us warm...

Reform, Legislation, Policy

New Lawsuits

  • Family of man killed in Wal-Mart stampede files suit (NY Injury Talk)
  • Peanut butter lawsuit filed (MSNBC)
  • Suit against Detroit police for alleged assault also contends that the police offered Target and Wal-Mart gift cards to keep quiet (

Trials, Settlements & Other Ends

  • $76 million -- probably almost completely noncollectable due to defendant's Chapter 7 bankruptcy -- for injuries after diving into a river on a dare (Overlawyered, New York Injury Cases Blog)
  • Molestation lawsuit settled for $750K (Hartford Courant)
  • Suit against homeowner for shooting home invaders settled (it might have been a dispute over a drug deal) (


  • "Palpably unreasonable" right standard for woman injured after being locked in cemetery (NJ Supreme Court [PDF])
  • Cheerleading is a contact sport (Sports Law Blog)
  • Outdated Whois entry leads to possible false light claim (Goldman)



January 30, 2009 in Roundup | Permalink | Comments (1) | TrackBack (0)

Thursday, January 29, 2009

Vandall on Criminalizing Products Liability

Frank Vandall (Emory) has posted on SSRN The Criminalization of Products Liability:  An Invitation to Political Abuse, Preemption, and Non-Enforcement.  Here is the abstract:

Senator Arlen Specter called a hearing in March 2006, on a proposal that urges the criminalization of products liability for the manufacture of intentionally lethal goods. The hearing before the Senate Judiciary Committee provided an opportunity to comment on the numerous issues raised in the far-reaching proposal. Responding to these issues requires revisiting the foundational question of whether the manufacture and sale of a defective product should be addressed by civil litigation or criminal prosecution. Understanding the issues will assist state legislatures and federal agencies in considering such a proposal. To plumb the issues raised by Senator Specter history, economics, and the system of product design and manufacture must be examined. Because Senator Specter argues for a federal act and federal enforcement, his proposal demands consideration of the concepts of preemption, political abuse, and nonenforcement. Fundamental concepts of cause-in-fact and proximate cause must also be considered. After examining these concepts, it should be clear that the criminalization of products liability is neither necessary, nor desirable.


January 29, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (1)

Oregon Tort Reform Debated

Last week, the Oregon Legislature began debating a bill to cap tort liability.  The bill would replace a tort cap struck down over a year ago by the Oregon Supreme Court.  We reported that decision here.  The proposed caps for the state and its agencies, $1.5 million per claim/$3 million per occurrence (growing by $100,000 and $200,000 respectively each year until 2014), are much higher than those ruled unconstitutional in 2007.  The full story is here.

Thanks to EvidenceProf's Colin Miller (John Marshall Law School) for the tip.  For those of you interested in evidence who aren't reading EvidenceProf, I recommend it.


January 29, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (1)

Wednesday, January 28, 2009

FDA Dissidents Allege Criminal Investigation Targeting

The NY Times today reports that nine FDA scientists who allege that they were forced to approve medical devices that they did not believe were save now contend that they have become the targets of a criminal investigation.  The Times notes that "[i]t can be a crime for agency employees to reveal documents or information considered confidential by companies seeking agency approval for medical products."


January 28, 2009 in Current Affairs, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

Peanut Factory Had a History of Problems

Coverage/Commentary: Marler, NYT, Kos.


January 28, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (0)

In Wisconsin, Cheerleading Is A Contact Sport

Back in December, we reported on the Wisconsin Court of Appeals decision allowing a freshmen cheerleader to bring a negligence claim against her fellow cheerleader because cheerleading was not a contact sport.   As the WSJ Law Blog reports, yesterday the Wisconsin Supreme Court reversed, finding that cheerleading is a contact sport.  A copy of the opinion is available here.   

More on the decision from Legal Profession Blog.    Tim Epstein also has a very thorough analysis over at Sports Law Blog


January 28, 2009 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 27, 2009


As noted by our colleagues over at Mass Torts, Pfizer is buying Wyeth for $68 billion creating, in the words of the New York Times, a "pharmaceutical behemoth."


January 27, 2009 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

GAO Issues Report Critical of FDA

Last week, the Government Accountability Office issued a report (large pdf) identifying the FDA as a "high-risk area[]needing broad-based transformation to address major economy, efficiency, or effectiveness challenges."  The summary notes:

The second new area is protecting public health through enhanced oversight of medical products. Concerns have been expressed about FDA's ongoing ability to fulfill its mission of ensuring the safety and efficacy of drugs, biologics, and medical devices. GAO's work examining a variety of issues at FDA echoes the conclusions reached by others that the agency is facing significant challenges that compromise its ability to protect Americans from unsafe and ineffective products. FDA needs to, among other things, improve the data it uses to manage the foreign drug inspection program, conduct more inspections of foreign establishments, systematically prioritize and track promotional materials for review, and adopt management tools to ensure that drug sponsors comply with regulations on the presentation of clinical trial results.      

(Via Mass Tort Defense)


January 27, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (1)

Monday, January 26, 2009

Choices Facing Cass Sunstein

The Pump Handle has a post summarizing the Center for Progressive Reform's White Paper discussing the regulatory choices facing President Obama's regulatory czar Cass Sunstein.


January 26, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Lileks on Peanut Butter

James Lileks, whom I like when he's funny and get annoyed by other times, has one of the former type columns today, discussing the peanut butter salmonella situation.


January 26, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (1)

Emissions Order a Precursor to Preemption Policy?

The folks at Pharmalittle think so, arguing that President Obama's rejection of the Bush administration's bar on state emissions rules may also suggest a similar resistance to preemption arguments.


January 26, 2009 in Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

Saturday, January 24, 2009

"Air Glory" Suit Settled

In mid-2007, I posted about the investigative report into the death of a teenage girl on an "Air Glory" ride, which is somewhat similar in concept to the popular "SkyCoaster" swing ride, but quite different in implementation.

The lawsuit that followed has settled, reportedly for the insurance limits of $1 million.  Perhaps of note, the parents have emphasized that the settlement is solely from the insurer -- i.e., that the Christian festival is not paying directly.


January 24, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Hylton on the Economics of Nuisance Law

Keith Hylton (Boston) has posted The Economics of Nuisance Law on SSRN.  Here is the abstract:

Economic analysis of nuisance law can be divided into two branches: the transaction cost model and the externality model. The two models provide a relatively complete positive theory of nuisance law. Under the externality model, nuisance law 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 not reciprocal to other background external costs. Proximate cause doctrine plays an important role in inducing optimal activity levels.


January 24, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2009

Historian Excluded from Vinyl Chloride Case

As is common, Gerald Markowitz, a historian, was named as an expert for the plaintiffs in a vinyl chloride case; I've written an article that related to discovery in the peer review process related to his book, and I've also done some early work towards an article about historians in litigation more generally. 

Well, Markowitz (as well as some other experts) was recently excluded in an Ohio case; the short opinion describes some of the challenges in using historians in litigation and is worth a read: Download markowitz_opinion.pdf


January 23, 2009 in Experts & Science | Permalink | Comments (0) | TrackBack (2)


The weekly round-up will return next week.


January 23, 2009 in Roundup | Permalink | Comments (0) | TrackBack (0)

Symeonides on Choice of Law in Cross-Border Torts

Symeon Symeonides (Willamette) has posted Choice of Law in Cross-Border Torts on SSRN.  From the abstract:

This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (1) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system.

One of the article's findings is that, over the last forty years, American cases involving cross-border torts have applied the law favoring the tort victim 86 percent of the time.


January 23, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (1)

Thursday, January 22, 2009

Egilman on Zyprexa Settlement

Dr. David Egilman has a post at the Pump Handle blog regarding the settlement of civil and criminal matters by Lilly in the Zyprexa off-label marketing case.  Egilman, who acknowledged in a sworn affidavit to violating a protective order in the litigation, argues against the use of protective orders in pharmaceutical tort litigation and for delivering any sealed discovery to the FDA and DOJ.

He also contends that the criminal charges might not have proceeded if not for his leak of documents, though the criminal investigation began in 2004 (well before the protective order violation) and federal prosecutors do not lack for subpoena power.  Of course, the leak may have highlighted documents that the prosecutors had not focused on, I suppose.


January 22, 2009 in Experts & Science, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (3) | TrackBack (0)

The Prosser Notebook: Classroom as Biography and Intellectual History

A draft of my latest article, The Prosser Notebook:  Classroom as Biography and Intellectual History, is available on SSRN.

Some of you may recall my series of posts--Post 1, Post 2, Post 3, Post 4, Post 5, Post 6--on the notebook which ran in November and December of 2007.  I hope to make the contents of the notebook itself available; William Benemann, the archivist at Berkeley Law, is working to set up a web page that connects my article to the contents of the notebook.

In the article, I use the notebook to present new details regarding several of Prosser's seminal accomplishments, such as his contribution to strict products liability.  I also use the notebook to demonstrate Prosser's realism in the classroom and connection to the compensation and deterrence rationales.

I appreciate the comments I have received from many of you on this project, and also the input I received at a colloquium at Rutgers-Camden last fall.  I welcome any further comments on the piece.

Here is the abstract:

When a former student offered to let me see his grandfather's Torts notebook, I was intrigued. The 70-year-old black notebook has developed a patina, but is in remarkably good condition. The sides have a lightly textured surface. The spine, not damaged by cracks, has several small gold stripes running across it. The notebook belonged to a first-year law student named Leroy S. Merrifield during the 1938-39 academic year at the University of Minnesota Law School. Merrifield used it to record notes during his Torts class. His professor was William Prosser.

Because Prosser's papers likely have been destroyed, Merrifield's notebook offers a unique "behind the scenes" look at Prosser during a very significant period in his professional development. During 1938-39, Prosser was finishing a draft of the first edition of Prosser on Torts, the most influential treatise ever published on tort law. Furthermore, Prosser's article legitimizing intentional infliction of emotional distress as an independent tort appeared in the spring of 1939. In addition to insights into these particular projects, the notebook allows a better understanding of Prosser's place in the intellectual history of twentieth century legal theory. Prosser's 1938-39 Torts class took place at the height of the realist influence in the academy. The notebook demonstrates Prosser's realism in the classroom, as well as his connection to the two major consequentialist torts rationales of the twentieth century: compensation and deterrence. In short, the notebook sheds light on both the origins and the content of one of the law's most influential thinkers.

This Article accomplishes three things. First, with no biography available on Prosser, the Article provides an account of his life, drawn heavily from archival research. Second, the Article presents new details of several of Prosser's seminal accomplishments. Third, the Article helps situate Prosser in the jurisprudential development of law in the twentieth century.


January 22, 2009 in Scholarship | Permalink | Comments (1) | TrackBack (3)

Lawyer Advertising on teh Interwebs

Eric Turkewitz has a careful analysis of the various potential ways that lawyers in New York might be able to get around the current ethical restrictions on advertising, as well as some suggestions about how to better control advertising.


January 22, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)