TortsProf Blog

$11 Million Defamation Judgment Against Gossip Blog

Last week, a federal judge ordered a gossip blog to pay a Cincinnati Bengals cheerleader $11 million for libel and defamation:  

U.S. District Court Judge William O. Bertelsman on Wednesday ordered Los Angeles-based Dirty World Entertainment Recordings — which the complaint and judgment said operates TheDirt.com — to pay $1 million in compensatory damages and $10 million in punitive damages for failing to respond to the suit.

Politico, however, reports that the plaintiff may have sued the wrong holding company for the blog. 

More from Legal Blog Watch.

Thanks to Lisa Smith-Butler for the alert.

- SBS

Guest Blogger Tom Baker: "Liability and Insurance: New Developments"

I’d like to use the opportunity to alert torts profs to the new American Law Institute Principles of Liability Insurance project and my forthcoming book with Sean Griffith, Ensuring Corporate Misconduct: How Liability Insurance Undermines Shareholder Litigation (U. Chicago Press 2010).  Both projects grow out of my long term participation in insurance as governance research.

 

    The ALI project is predicated on a jurisprudential and sociological claim.  In jurisprudential terms, liability insurance is an important meeting place between tort and contract, legal fields in which the ALI has a long tradition of involvement.  Within the area of insurance,  liability insurance is uniquely intertwined with the law: the law (mostly, though not only, tort law) defines the underlying liabilities that the insurance is designed to cover, and the existence and nature of liability insurance coverage has had and will continue to have a major impact on the development of those liabilities. 

 

As a sociological reality, the presence or absence of liability insurance can affect whether a particular liability action is brought in the first place, and against whom.  Judges and legislatures develop liability rules with an understanding, whether implicit or explicit, that insurance may be available to cover the resulting liabilities. In light of this close relationship between liability insurance and the real world of liability, particularly tort liability, the law of liability insurance was a natural choice for an ALI law-improvement project.

 

While the ALI project will surely evolve, our current plan is to have three chapters.  The first will address a variety of contract doctrines in the liability insurance context.  The second will address the definition of the range of liabilities covered by various forms of liability insurance.  The third will address the management of the liabilities, including such topics as the duty to defend, the duty to settle, and the duty to cooperate.

 

Ensuring Corporate Misconduct contributes to our understanding of the sociological claim underlying the ALI project.  Beginning with Ross’s magnificent Settled Out of Court, sociolegal researchers have explored the practical connection between liability and insurance almost exclusively in relation to personal injury and almost exclusively in relation to claims brought against individual defendants.  In this project, Sean and I went into the field to explore the relationship between liability and insurance in a very different context: shareholders’ claims against large corporations. 

 

Despite the name, D&O insurance is largely corporate asset protection insurance, not directors’ and officers’ protection insurance.  Corporate indemnification agreements provide the main protection for directors and officers.  D&O insurance indemnifies the corporation for its indemnification obligations to directors and officers and, in the case of securities claims, for the corporation’s own liabilities as well.  D&O insurance protects directors and officers only when the corporation cannot, most significantly in the case of insolvency or derivative actions for which corporate indemnification is prohibited by state corporate law.

 

The narrative of the book follows our efforts to evaluate the impact of Directors and Officers Insurance on the deterrence effect of shareholder litigation.  We explore D&O insurance pricing and underwriting process as part of the deterrence process.  We evaluate D&O insurers’ efforts to control the moral hazard of their insurance products.  We describe the insurers’ role in the litigation and settlement context.  And we explore whether D&O insurance coverage defenses and related coverage litigation preserves the deterrence function of shareholder litigation. 

 

The title gives away our bottom line.  We conclude that D&O insurance undermines the deterrence role of shareholder litigation.  D&O insurers manage the moral hazard of their insurance products by pricing to reflect the moral hazard, with the result that D&O insurance likely facilitates corporate misconduct.  All is not lost, however. Mandatory disclosure of the terms of D&O insurance contracts and of the amount of D&O insurance payments for the defense of settlement of each shareholder claim would allow D&O insurance to further, rather than undermine, the deterrence impact of shareholder litigation, magnifying the deterrence signals of D&O insurance underwriting and coverage decisions by transmitting those signals through the securities markets.

 

--Tom Baker

Deputy Dean and William Maul Measey Professor of Law and Health Sciences

University of Pennsylvania Law School

IL Asbestos Duty Case

In Simpkins v. CSX Corp., 929 N.E.2d 1257 (Ill. App. June 10, 2010), the court overturned the dismissal of a case brought by the estate of the wife of a worker who allegedly brought home asbestos on his clothes and body, causing the wife to be exposed.  The wife contracted mesothelioma and her estate sued the worker's employer.  The court discussed general duty principles, stressing foreseeability.  It followed decisions from Tennessee and New Jersey, but did not discuss opposing cases from elsewhere.

Thanks to Mark Weber for the tip.

--CJR

TV Preacher Can Sue ABC For Defamation

In an opinion filed Tuesday, the U.S. Court of Appeals for the Ninth Circuit reversed the trial court's dismissal of a suit by televangelist Rev. Frederick Price against ABC for defamation based on a video of a sermon that aired on "20/20."

A copy of the opinion is available here.

The AP/law.com has more.

Thanks to Lisa Smith-Butler for the alert.

- SBS

Class Actions and Coupons

Miller-McCune, a relatively new policy institute in southern California focused on pragmatic solutions to public policy issues, published a piece earlier this month focusing on the compensation of claimants, and particularly their attorneys, in class actions.  A number of people are quoted in the story, including Mary Davis (Kentucky), Ted Frank (Center for Class Action Fairness, Manhattan Institute, PoL), Robin Effron (Brooklyn), Brian Fitzpatrick (Vanderbilt), and Peter Thompson (Hamline).  The story is here.

--CJR

More on the BP Claims Process

This Pacifica Radio update on the BP claims process includes analysis by TortsProf's Sheila Scheuerman.

--CJR

Southeastern Law Scholars Conference

    The Charleston School of Law is pleased to host a Southeastern Law Scholars Conference to be held on the campus of the Charleston School of Law on October 22-23, 2010.  This regional conference will bring together junior law school faculty to present published papers or works-in-progress across all disciplines within the law.  The conference is open to all junior law faculty (one to seven years teaching experience) at law schools in Georgia, North Carolina, and South Carolina.  To ensure an atmosphere conducive to feedback, space is limited to twenty participants. 

    The conference will begin with dinner for all participants on Friday, October 22, 2010.  On Saturday, October 23, 2010, conference participants will present either a completed paper or work-in-progress, and comment on the papers and ideas presented by others.  As the host school, the Charleston School of Law will provide dinner on Friday, October 22, as well as breakfast and lunch on Saturday, October 23.  There is no registration fee.  Participants, however, are responsible for their own travel expenses. 

    To participate in the conference, please send an email to conference organizer, Associate Professor Sheila B. Scheuerman at [email protected] by Monday, September 20, 2010.  Please note whether you will be attending dinner on Friday, October 22, in your email.  In addition, please include the title of your presentation topic.  A short abstract would also be helpful.  Please direct any questions, comments or suggestions to Sheila B. Scheuerman at the email address above. 

- SBS

BP Spill Fund vs. 9/11 Fund

An article in Saturday's NY Timescompares the work ahead of Ken Feinberg with the BP Oil Fund, with his prior work on the 9/11 Fund.

- SBS

Bublick on Drunk Driving and Crashworthiness

Ellen Bublick (Arizona) has posted to SSRN The Tort-Proof Plaintiff:  The Drunk in the Automobile, Crashworthiness Claims, and the Restatement (Third) of Torts.  The abstract provides:

This article, for the Brooklyn Law School Symposium on the 10th Anniversary of the Restatement (Third) of Torts: Products Liability, looks at the difficult challenge courts face when they review crashworthiness claims that arise in conjunction with drunk driving. These claims highlight the difficulty of preserving structural accountability in tort law after the shift toward apportionment of liability that includes intentional, reckless and strict liability torts as well as negligence. The article suggests that certain court-created causal-apportionment doctrines help to preserve structural accountability. It also urges a more systematic confrontation of structural accountability questions in comparative responsibility systems like those recommended by the Restatement of Torts.

--CJR

Study: When Doctors Admit Mistakes, Fewer Suits Result

This study out of Michigan is the latest supporting the apology and early offer of compensation approach.  Bloomberg Businessweek has the story.  I've written in support of a version of this plan.  (Northwestern Law Review)

--CJR

SC Adopts Risk-Utility As Sole Test in Design Defect Cases, Also on Post-Distribution Evidence and Punitive Damages

In an opinion filed on Monday, the South Carolina Supreme Court adopted the risk-utility test for design defect cases, rejecting use of a consumer expectations test.   Under the risk-utility test, the court held that the plaintiff was required to present evidence of a reasonable alternative design that would have prevented the product from being unreasonably dangerous. 

The court further held that "the use of post-distribution evidence to evaluate a product's design through the lens of hindsight is improper."

And finally, as to punitive damages, the court considered what financial evidence is proper in assessing punitive damages.  Recognizing that the U.S. Supreme Court has not spoken on this issue, the court adopted a cautious approach, holding that only the defendant's net worth could be introduced.  Applying this standard, the court found that evidence concerning the salaries and compensation of the defendant's officers was improper.

Thanks to William Gaskill for the case alert.

- SBS

Why Civil Recourse Theory Is Incomplete

I have posted to SSRN Why Civil Recourse Theory Is Incomplete.  The abstract provides:

The latest prominent theory of torts is the rich “civil recourse” theory of Professors John C. P. Goldberg and Benjamin C. Zipursky. Pursuant to civil recourse, tort is a law of wrongs. Specifically, tort law’s purpose is “providing victims with an avenue of civil recourse against those who have wrongfully injured them.” As such, Goldberg & Zipursky, with certain de minimis exceptions, deny that tort’s purpose is to serve as an instrument to achieve social and public policy goals.

Although I agree with Goldberg & Zipursky that wrongs are an essential component of tort law, their exclusion of instrumentalist concerns, such as deterrence, loss spreading, and administrative efficiency, is overly broad.

Using tort reform as a perspective by which to examine torts, I chronicle the growth of instrumentalism in tort law. All of the major tort reforms over the last century were based in instrumentalism. Moreover, when the reforms are viewed chronologically, a pattern develops: In each successive reform, instrumentalism made increasing inroads into tort.

Thus, as a positive account of tort law, civil recourse is incomplete. Tort law, as a positive matter, is about wrongs, but not exclusively wrongs. It is pluralist, including elements of instrumentalism as well.

Although I am ultimately critical, the process of writing the article only deepened my respect for John & Ben.

Comments are welcome:  [email protected].

--CJR

Back To School

It's "back to school" week here at Charleston.   As we all gear up for another school year, I thought I'd pose a question:  Are you trying anything different this year? 

A couple of my colleagues are experimenting with lap-top free zones in their 1L classes.   I decided not to join the experiment mainly because we require students to purchase lap tops and it seemed inconsistent for me to then say "but not in my class."   I am, however, giving a graded mid-term for the first time in Professional Responsibility.    (I give my 1Ls an ungraded mid-term).  

So, back to the question, are you trying anything different in your classes this year? 

- SBS

Stapleton on Causation and Asbestos Cancers

Jane Stapleton (Texas/ANU) has posted to SSRN Factual Causation and Asbestos Cancers.  The abstract provides:

This Note addresses recent English and Australian cases in which asbestos-exposed victims suffering from cancers which can be caused by asbestos (e.g. lung cancer, mesothelioma) attempt to prove factual causation to an individual source of asbestos fibre.

--CJR

Second Circuit Affirms Zyprexa Document Sanctions

Here's the opinion.  The Drug & Device Law Blog has some analysis. I posted about the case extensively and wrote an article addressing issues of document leaks for The Review of Litigation as well. 

As readers may recall, David Egilman was a plaintiffs' expert in the Zyprexa litigation and the courts concluded that he worked with Alaska attorney James Gottstein to make public documents designated as confidential under a protective order.  Dr. Egilman settled the potential contempt litigation with a donation to a charity and with an affidavit in which he acknowledged, under oath, violating the protective order, releasing documents selectively, and so on.  (The affidavit is here.)

--BC

Thailand: Doctors' Opposition Stalls Malpractice Reform

Two weeks ago, I posted that Thailand was considering new med mal rules.  Now it appears that the bill has been stalled by opposition from health care providers.  Bloomsberg Businessweek has the story.

--CJR

WI: Medical Fund Not a "Piggy Bank"

In 1975 a fund was created in Wisconsin to help stabilize increases in med mal insurance premiums.  The Wisconsin Supreme Court has ruled that using that fund as general revenue is an unconstitutional taking of property.  Health Care News has the story.

--CJR

Indiana-Indianapolis Advertises a Torts Position

Andy Klein passes on that Indiana-Indianapolis is hiring.  The AALS ad follows:

 

INDIANA UNIVERSITY SCHOOL OF LAW-INDIANAPOLIS invites applications from entry-level and experienced candidates for tenure-track and tenured appointments beginning in the 2011-2012 academic year.  The law school seeks colleagues with distinguished academic records who are committed to excellence in teaching, scholarship, and service.  Our curricular needs include Torts, Criminal Law and Procedure, Evidence, Commercial Law, Conflict of Laws, Trusts and Estates and Tax.

Indiana University School of Law - Indianapolis also anticipates making a long-term contract clinical appointment for 2011-2012. Candidates with clinical teaching experience in the civil area and with at least five years of practice experience are encouraged to apply.  The appointment requires an Indiana law license or the ability to be licensed to practice law in Indiana upon appointment. It is possible that this appointment might include administrative duties with respect to experiential learning. 

We are strongly committed to achieving excellence through intellectual diversity and strongly encourage applications from persons of color, women, persons with disabilities, the LGBT community, and members of other groups that are under-represented on university faculties.  The law school is an Equal Opportunity/Affirmative Action Institution and offers domestic partner benefits. For more information about the school, visit http://indylaw.indiana.edu/.  To apply, contact Professor María Pabón López, Chair, Faculty Recruitment Committee, Indiana University School of Law-Indianapolis, 530 West New York Street, Indianapolis, IN 46202-3225; (317) 278-8440; [email protected].  Individuals who require a reasonable accommodation in order to participate in the application process must notify Professor López a reasonable time in advance.

--CJR

Reminder: Disability and Tort Law Proposals Due By August 31

Call for Papers
AALS Section on Disability Law

Disability and Tort Law

The Section on  Disability Law will hold a program during the January,
2011 AALS Annual Meeting in San Francisco, California, on Disability and
Tort Law.  Disability Law embraces many crucial Tort Law issues, such as
the measure of damages for incapacity and disfigurement, the
reasonable-person standard as applied to people with physical and mental
disabilities, duties of care relative to emotional and physical
injuries, the validity of wrongful life claims, and liability standards
for intentional infliction of emotional distress on people with
disabilities.  Disability Law scholars have made important contributions
to the development of the law on these questions, starting with Jacobus
tenBroek, whose path-breaking article, The Right to Live in the World:
The Disabled in the Law of Torts, 54 Cal. L. Rev. 841 (1966), was
published 45 years ago this year.  Due in no small part to the
intellectual groundwork of tenBroek and others, in the years since his
writing a worldwide disability rights movement has emerged, challenging
conventional assumptions about disability and the role of legal
institutions as they relate to disability.  As tenBroek realized,
disability rights ideas may entail reexamining the goals and operation
of tort law in general and in specific application.  This session asks
scholars chosen through a call for papers to discuss issues of
disability and tort law in an era of disability rights.

The Section on Disability Law seeks proposals for presentations on
disability and tort law for the AALS meeting in San Francisco January,
2011.  Proposals should include an abstract of 500 words or fewer, and
may be accompanied by a working draft if the proposer chooses.  The
section does not plan to publish the papers in a symposium, so
presenters are free to seek publication where they wish, though work
that will not be published before January 2011 will be strongly
preferred..

Deadline for submission is August 31, 2010.  Please email proposals to
Mark Weber at [email protected].  Selections will be made by late
September by the Executive Committee of the Section.  Pursuant to AALS
policy, presenters will have to cover their own travel expenses and
registration fee for the annual meeting, and the Section is prohibited
from reimbursing such expenses.  Under AALS rules, only faculty members
of AALS member and fee-paid law schools are eligible to submit
proposals.  Foreign, visiting and adjunct faculty members, graduate
students, fellows and non-law school faculty are not eligible to submit.

Questions should be directed to Mark Weber, 312-362-8808,
[email protected].

--CJR

Mandatory ADR In Connecticut Med-Mal Cases

Alberto Bernabe (John Marshall - Chicago) has more.

- SBS