TortsProf Blog

Congratulations to TortsProf Byron Stier!

Congratulations to Byron Stier on his positive tenure vote at Southwestern Law School!  In addition to tenure, Byron was also appointed as a rotating endowed chair for the coming academic year. 

This has been a goal since Byron and I met for our teaching fellowship in August 2003 (over beers at the Draught Horse in north Philly).   It's a well-deserved honor, and I congratulate the faculty and administration at Southwestern for their wisdom in bestowing it.

--CJR

Personal Injury Roundup No. 38 (5/29/08)

On this day in 1953, Edmund Hillary conquered Mt. Everest.   On to this week's news in the world of torts:

Reform, Legislation, Policy

• FDA proposes new direct-to-consumer advertising guidelines.  (Life Sciences Legal Update)
• House bill strengthens FDA's watch over food supply.  (WaPo)
• White House launches "President's Food Safety Working Group" website. 
• Oklahoma Governor signs tort reform bill; changes take effect Nov. 1st. (TortsProf) 
• Louisiana rejects med mal limits on suits against nursing homes.  (TortsProf)
• FDA urges tougher acetaminophen warning.  (ABC News, US News)
• Senate holds hearing on Chinese dry wall. (Mass Tort Defense)

New Lawsuits

• Connecticut law firm sues Google over sale of firm name as ad-word.  (Am Law Daily, CT Law Tribune) 
• Photographer sues Chris Brown over alleged assault.  (TMZ)
• Three more suits concerning the antibiotic Levaquin filed in New Jersey; cases are being considered for mass tort status.  (About Lawsuits)
• Realtors sue CSI writer for defamation.  (Turley)

Trials, Settlements and Other Ends

• Florida librarian voluntarily dismissesnegligence suit against Facebook for its alleged failure to protect users from viruses.  (CNET)
• Lawyer opposes Nigerian settlement with Pfizer.  (Mass Torts Profs)
• NY Appellate Division stays malpractice action against Greenberg Traurig.  (ABA Journal)
• Absent a weekend settlement, jury selection will begin Tuesday in Alien Tort Claims Act case against Royal Dutch/Shell.  (NY Law Journal/law.com)

Damages

• SCOTUS denies review of 5 to 1 punitive damages case against Chrysler for defective design of the car seats.  (Cal Punitive Damages, Life Sciences Legal Update)

Appeals    

• Oklahoma Supreme Court holds that Walgreen worker can sue employer's worker's
  comp insurer for bad faith (Business Ins)
• NY Appellate Division finds expert skier assumed risk.  (Overlawyered)  But same court finds bicycling is leisure activity (not a sport) and therefore  assumption-of-the-risk does not apply.  (NY Law Journal/law.com)

 - SBS 

Sharkey on Preemption and Federalism

Cathy Sharkey (NYU) has just posted Federalism Accountability:  'Agency-Forcing' Measures on SSRN.  Here is the abstract:

This Article takes as its starting point the “agency reference model” for judicial preemption decisions, adopting the foundational premise that courts should take advantage of what federal agencies, which are uniquely positioned to evaluate the impact of state regulation and common law liability upon federal regulatory schemes, have to offer. The Article’s main focus is on the federalism dimension of the debate: Congress’s and federal agencies’ respective ability to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on state regulatory interests. Notwithstanding the dismal track record of federal agencies, which seems to be characterized by total neglect of states’ regulatory interests, the Article sides with agencies over Congress and trains its focus on reform of the agency rulemaking process. Given that the 1999 Federalism Executive Order provides a blueprint for timely and meaningful consultation with the states, issuance of federalism impact statements, and robust interchanges during the notice-and-comment period, what is needed now is an effective enforcement mechanism.

The Article advocates a variety of “agency-forcing” measures designed to enhance the ability of Congress, the executive, and especially the courts, to ensure that agencies abide by executive mandates and other reforms, and to provide a check on overt politicization or inaction on agencies’ part. The Article introduces the concept of “indirect challenges” to agency rulemaking, arising outside of the Administrative Procedure Act’s domain of direct challenges to agency action at a later juncture when a defendant asserts a preemption defense to state common law tort actions.

--CJR

LA House Refuses to Extend Med Mal Protections to Nursing Homes

The nursing home industry's push to receive state med mal protections (damage caps, panel screening prior to trial) was rejected yesterday by the Louisiana House of Representatives.  Nola.com has the details.

--CJR

Grady on Unavoidable Accident

Mark Grady (UCLA) has published Unavoidable Accident in Bepress's Review of Law & Economics.  The abstract provides:

In negligence law, “unavoidable accident” is the risk that remains when an actor has used due care. The counterpart of unavoidable accident is “negligent harm.” Negligence law makes parties immune for unavoidable accident even when they have used less than due care. Courts have developed a number of methods by which they “sort” accidents to unavoidable accident or to negligent harm, holding parties liable only for the latter. These sorting techniques are interesting in their own right and also provide a way of conceptualizing the relationship between specific negligence and res ipsa loquitur, which are two variants of the negligence rule. One judicial sorting technique reveals a paradox of negligence law. New safety technology often reduces the amount of unavoidable accident and simultaneously increases the expected number of “compliance errors,” or routine negligent lapses, that actors will make. Paradoxically, an actor’s use of new safety technology can make it more likely that a court will sort an accident to negligent harm as opposed to unavoidable accident. The article develops these theoretical ideas through a series of graphical illustrations analogous to those of traditional price theory.

--CJR

Petrin on Directors' and Officers' Tort Liability

Martin Petrin (S.J.D. cand. UCLA) has posted a draft of his recent article "The Curious Case of Directors’ and Officers’ Liability for Supervision and Management: Exploring the Intersection of Corporate and Tort Law" on SSRN.   The abstract provides:

Directors’ and officers’ liability under corporate and securities laws continues to be a hotly debated subject. Yet, their liability toward non-shareholder third parties under common tort law and statutory provisions has generated relatively modest scholarly interest. Thus, it has gone mostly unnoticed that corporate directors and officers can be held personally liable in tort to non-shareholder third parties based on failures in exercising their core corporate duties - supervision and management.

However, as this article explains, the current liability regime in this area is in need of repair. It fails to distinguish between the corporation’s duties and the duties of directors and officers, neglects the separate corporate personality of the corporation, unduly shifts the risk of doing business to directors and officers, and undermines the heightened liability protections provided to directors and officers by corporate laws. Consequently, a new approach is required.

This article proposes a novel model for corporate liability that is centered around the nature of directors’ and officers’ duties and focuses on the individual’s state of mind. At its core, the proposed model is based on the belief that in order to preserve the corporate shield, liability standards in tort law should not conflate the standards imposed on individuals with those imposed on directors and officers.

- SBS

The Fight Against Libel Tourism in Britain

Sunday's NY Times had an interesting article on libel tourism - plaintiffs with little connection to Britain who bring libel lawsuits against American authors in London courts using Britain's friendlier libel laws.   From the article:

London has gained a reputation as the libel capital of the world. Saudi businessmen have sued there to complain about American reports that they engaged in terrorist financing; Russian and Ukrainian oligarchs have sued in Britain over accusations of unsavory business activities; and Hollywood celebrities have gone to London to seek redress over reports of wayward kisses.

To try to insulate American authors and publishers, groups like the A.C.L.U. and the Center for Democracy have persuaded lawmakers in New York and Illinois to pass state laws that block enforcement of British libel decisions in the United States. Similar bills are advancing in other state legislatures, and stronger measures, allowing American defendants to fight back against adverse foreign libel rulings, have been proposed in the United States Congress.

- SBS

Tort Lawyer Websites

Eric Turkewitz has an interesting post about the various priorities he attempts to advance in working on his website.  While not academic, it's a useful overview of all of the moving parts a practicing tort lawyer has to deal with.

--BC

Memorial Day 2009

We at TortsProf express our deep gratitude for those who gave their lives so that we could live ours.

OK Gov. Henry Signs Tort Reform Compromise

You may recall that, a little over a week ago, I posted on a compromise tort reform bill hammered out in the Oklahoma legislature.  There were six main features of the bill:

1. A redefinition of what constitutes a frivolous lawsuit, combined with a strengthening of summary judgment rules;
2. A certificate of merit requirement that covers all types of cases (not just med mal) and includes a pauper exception;
3. A cap on non-economic damages of $400,000, but an exception that a judge or jury may waive the cap in cases of gross negligence or catastrophic injury;
4. A requirement that the state explore purchasing a $20M insurance policy to create an indemnity fund for non-economic damages in excess of $400,000;
5. Changes to joint-and-several liability rules; and
6. Various class action changes

On Thursday, Gov. Brad Henry signed the bill.  It will take effect on November 1st.  LegalNewsline has more.

--CJR

Personal Injury Roundup No. 37 (5/22/09)

A quick announcement before we get to the Roundup: You'll be seeing some schedule shifts over the next weeks and months.  I (Bill) am becoming Western New England's Associate Dean for External Affairs and will be dialing down my posting here a bit.  I'll still do the Roundup and post fairly regularly, but not on as specific a schedule.  Thanks to Sheila and Chris for picking up my slack!

And now, on with the show, er, roundup:

Reform, Legislation, Policy

• President Obama reverses much of preemption-by-preamble legacy of Bush administration (Huffington Post, Point of Law, Drug & Device Law) (for what it's worth, I think the last link has it right - unsurprising and probably, post-Levine, not as big a deal as it could be)
• ALI's principles of aggregate litigation getting finalized (summarized at Drug & Device Law Blog)
• Should foreign corporations have the same tort exposure as US corporations? (TortsProf) 
• NEJM on physician conflicts of interest (NEJM) 
• Robinette on early offers & apologies (Northwestern.edu) 
• Feres doctrine debated (UPI) 
• Deductibility of punitive damages (Insurance Journal, also at Point of Law) 
• New York's second largest medical malpractice insurer is insolvent (New York Personal Injury Attorney Blog)

New Lawsuits

• Weird set of facts results in lawsuit, when caregiver watching a bounce house gets smacked by a bouncer, later dies (On Point News) 
• First lawsuit may be imminent in swine flu outbreak (Examiner.com)

Damages

• $1 awarded in policy shooting (Washington Post)
• $10,000 damages in taser suit (Rutland Herald) 
• Punitive damages possible in Florida defamation suit (Orlando Sentinel)

Appeals    

• Collection of links about the implications (many torts-related) of the Supreme Court's Iqbal decision, limiting notice pleading in the context of a Bivens action (Point of Law)

Miscellaneous

• If you show up in the "Damages" section of the roundup with a $1 million verdict, maybe you can join the "Million Dollar Advocates Special People's Club" (okay, I added the last part).  Eric Turkewitz digs some.  Note that I will make you a pretty badge for your website for substantially less than $1,200.

--BC

Schwartz Testifies in Favor of Liability for Foreign Corporations

Victor Schwartz (Shook, Hardy, & Bacon) testified on Capitol Hill on Tuesday in an effort to close a liability loophole for foreign corporations. 

"American companies are paying a tort tax," said Schwartz. "[Foreign companies] should have the same liability exposure if they're doing any meaningful business in the United States."

Andrew Longstreth of The AmLaw Litigation Daily has the story.  Schwartz's testimony is here.

--CJR

Bill to Partially Overrule Feres Doctrine Approved by House Judiciary Subcommittee

On Tuesday, the House Judiciary Subcommittee on Commercial and Administrative Law approved a bill to allow armed services members and their families to sue for negligent medical care.  The full House Judiciary Committee is expected to consider the bill by the end of July.  The Mid-Hudson News has a brief story.  The Kansas City infoZine has the back story.

--CJR

Famous Tort Cases Poll

Larry Cunningham (GW) is seeking your input over at Concurring Opinion on famous tort opinions penned by Cardozo and Posner.

- SBS

California Supreme Court Decides Important UCL Case

The California Supreme Court issued its opinion in In re Tobacco Cases yesterday. As Maura Dolan for the LA Times reports,

The case against the tobacco industry, which lower courts had dismissed, charges the industry with luring people to smoke with deceptive ads about cigarette safety.  Brought on behalf of every Californian who saw the ads and purchased cigarettes from 1993 to 2001, the suit could produce a jury award in the billions of dollars, lawyers said.

Proposition 64 amended the state's unfair competition law to require people who sue to show they lost money or property as a result of an illegal act.  ...  Monday's ruling was unanimous in requiring representatives of the class -- the named individuals who filed the lawsuit -- to prove they relied on tobacco ads when they purchased cigarettes. Trial lawyers had conceded that point.

The court also agreed with trial lawyers that the named representatives should not have to prove "an unrealistic degree of specificity" about which ads they saw.

Business groups had argued that every member of the class -- all those who purchased cigarettes during the eight-year period--should also have to prove they bought cigarettes as a result of the advertisements, a huge legal hurdle.  The court majority said such a requirement would "effectively eliminate the class action lawsuit as a vehicle for the vindication" of consumer rights.

The court's three most conservative justices dissented, arguing that the majority ruling invited "mischief" and frivolous lawsuits that Proposition 64 was designed to halt.

Here's a copy of the opinion (pdf).   Kimberly Kralowec (UCL Practitioner) has a thorough analysis of the case.

- SBS

Delaware Deaths Not Caused By Heparin

As previously noted, the FDA and Baxter International were investigating whether the drug heparin was to blame for two deaths at Beebe Medical Center in Lewes, Del.   The Wall Street Journal reports that Baxter has concluded that the deaths were unrelated to the patients' use of heparin, and that the heparin involved was not tainted.

- SBS

Robinette on Early Offers and Apologies

Our own Chris Robinette has just published "The Synergy of Early Offers and Medical Explanations/Apologies" in Northwestern Law Review's Colloquy.  As the Introduction explains,

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators. It has been challenged as inefficient, inaccurate, and even counterproductive.  Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other.  Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial to plaintiffs, defendants, and society as a whole. Although some attention has been paid to combining early offers with explanations of the incident or with apologies, the idea has never received a focused analysis.  Recent scholarship on explanations and apologies allows greater insight into the role they play in conflict resolution, and their importance to an early offers proposal in the field of medical malpractice.  This Essay considers such scholarship and explores the advantages of combining early offers with explanations of the incident and/or apologies.

- SBS

Comparative Fault Bill Passes NC House

As the Rocky Mountain Telegram (AP)reports, a bill that would change North Carolina to a comparative fault jurisdiction passed the NC House last week.   North Carolina is currently a contributory negligence jurisdiction.  Under the bill, North Carolina would become a modified comparative fault jurisdiction, where the plaintiff would recover only if she is less than 50% at fault.   (If found 50% at fault, the plaintiff would still recover nothing).  

- SBS

Learned Intermediary in NY

Beck & Herrmann describe and oppose the bill.

Alberto Bernabe (John Marshall) responds and supports it.

--BC

Fraudulent Asbestos Removal

Via Point of Law, a stunning Boston Globe story about an diploma mill for asbestos abatement and the resultant risks.

--BC